BECKMAN, Administrator of GEDDES, Deceased, v. McKAY, 14 Cal. 250

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring. This action is in the nature of an action of trovor and conversion, and is brought under the 116th

Section of the statute “to regulate the settlement of the estates of deceased persons.” The

section is as follows: “If any person, before the granting of letters testamentary or of administration, shall embezzle or alienate any of the moneys, goods, chattels, or effects, of any deceased person, he shall be liable to the action of the executor or administrator for double the value of the property so embezzled or alienated.” The facts are not set out in the record. The ¡Headings show averments on the part of the plaintiff of the facts necessary under the statute to maintain the action, and a denial of those facts by the defendant.

Upon this issue it is agreed by the counsel there was conflicting proof—that of the plaintiff tending to maintain, and that of the defendant tending to disprove, the issue tendered by the plaintiff. Upon this state of proofs, the Court gave several instructions, the propriety of which the defendant, who is the Appellant here, questions by this appeal. 1.

The first instruction is that if the 'jury believe, from the evidence, that the defendant did receive the property mentioned in the complaint belonging to the estate of William Gcddos, deceased, and converted and appropriated to his own use, and refused to deliver the same when demanded, etc. that they will find for the plaintiff. It is argued that this instruction was wrong, because it ignores all reference to the time of the alienation, whether before or after the issuing of letters of administration upon the estate of the deceased.

But we cannot tell, from a want of the statement of facts, whether there was any discrepancy in the proofs as to the time of the alienation, assuming it to have been made. The instruction does not assume that there was such alienation. It leaves that matter to the jury. But the proof of plaintiff may leave no doubt or question as to the time, if the jury believed it.

In favor of the judgment, it is to be presumed, unless there be direct evidence to the contrary, that the Court did not err in giving the charge in this form, for there may have been no controvorsy as to the timo of alienation, if any was made, though there might have boon a conflict in the proof as to the fact. 2. We think the second point not well taken. The third instruction is hypothetical; the concluding portion refers, by fair construction, to the context, and means no more than to direct the jury to find a verdict for the plaintiff on the hypothesis of fact, of which they are made the judges. 3.

It is not very easy to understand the fourth instruction, or the exact proposition of law it was designed to announce, or whether the charge was right or not in its relation to the facts.

The charge is: “That in actions of the nature and kind as the present one, after demand made for the property, and a refusal of the defendant to surrender the property or its value, the law presumes a conversion, and the burden of proof is on defendant to show that there is no conversion by him.” From the meager material of facts presented to us by the statement, or the substitute for it, we gather that there was some conflict of proof as to the manner in which the defendant came into possession of this property; and, probably, if the defendant came into possession innocently, and for a lawful purpose, or under a bona fide claim or color of right, or in ignorance of the title, the statute—which is penal in its character—would not lie so construed as, by mere force of a demand, and refusal or inability of compliance, to bring the defendant within the penalty.

The patent error of the instruction, however, is in assuming that mere demand and refusal constitute a conversion in such casos as this; omitting the material ingredients of the right or title, or oven possession by the plaintiff of the article, or the taking or interference by defendant. It is agreed that the evidence was conflicting as to the title, and as to the taking by the defendant; of course, a mere demand on him would not be sufficient in such a caso to charge him for a conversion, and yet the charge would seem so to declare. We cannot say that the jury may not have boon misled by this instruction.

Judgment reversed and new trial granted.