Opinion
No. 3877.
Decided December 6, 1949.
In determining whether a motion to dismiss a bill in equity should or should not be granted, the evidence of the plaintiff must be taken as true and construed most favorably to the plaintiff. Certain evidence justified a finding that the sums of money and other personal property which the defendant found hidden in the homestead formerly occupied by his deceased wife belonged to her estate.
BILL IN EQUITY, brought by the administrator of the estate of Lena H. Stabrow, to discover and recover certain assets claimed by him to have been the property of said Lena at the time of her decease. Trial by the Court (Goodnow, C. J.), with a verdict for the plaintiff.
The defendant excepted to the denial of his motions for a nonsuit and that the verdict be set aside.
Lena H. Stabrow died at Portsmouth August 31, 1946. She was the wife of the defendant and they were the mother and father of the plaintiff. By these proceedings, the administrator sought to recover from the defendant certain sums of money, gold pieces, and other personal property of the deceased, which, he alleged, were hidden in the family homestead, residence of the deceased at the time of her death (although for some time prior to her decease she was staying with the plaintiff in his home) and which were removed from said homestead and taken into possession by the defendant after the death of said Lena. Other facts appear in the opinion.
Charles J. Griffin and Thomas J. Morris, for the plaintiff.
Waldron, Boynton Waldron, for the defendant.
The defendant's motion for a nonsuit (correctly a motion to dismiss, and so treated) was properly denied and his exception thereto must be overruled. In passing upon this motion, the Court was obliged to consider the evidence for the plaintiff as true and to construe it most favorably to the plaintiff. Shimkus v. Caesar, 95 N.H. 286, 287.
The plaintiff testified that, shortly after the burial of his mother, the defendant came and rapped on the door of plaintiff's home one morning, woke him up, and came upstairs to his bedroom. The defendant was excited over money he had found, stating that plaintiff had a good mother for having so much money in the house. At defendant's request, plaintiff accompanied him to the homestead. There, in plaintiff's presence, the defendant dug around the house, among the furniture, around the rugs, in short all through the house, and found several large sums of money amounting in all to over $10,000 of which he took possession. This money was found in all the rooms of the house and in such containers as a coffee can, a milk can, bank money bags, lady's handkerchief and several purses and handbags. The defendant was surprised at his find.
The above was sufficient evidence on which a verdict could be found for the plaintiff and justified the denial of defendant's motion. Lamkin v. Johnson, 72 N.H. 344, 345.
No other question of law was saved by the defendant during the trial. Consequently those parts of his motion to set the verdict aside as being "against the law" and as being "against the evidence" raise no questions of law not already disposed of. Bennett v. Larose, 82 N.H. 443; Condiles v. Waumbec Mills, 95 N.H. 127, 128.
As to that part of his motion to set the verdict aside as being against "the weight of the evidence" it does not appear as a matter of law that the evidence in favor of the defendant was of such a preponderance that everyone must find in his favor (Bennett v. Larose, supra, 448), and there is "no clear or definite indication in the record that the Court acted improperly or unintelligently in considering the evidence, or was in any way misled." Condiles v. Waumbec Mills, supra, 129; Leavitt v. Bacon, 89 N.H. 383, 389. Defendant's motion to set the verdict aside was therefore properly denied and his exception thereto is overruled.
Judgment on the verdict.
All concurred.