PROCEEDINGS FOR. RECOVERY OF CONCEALED PROPERTY OF AN ESTATE.

Court of Appeals for Clinton County.

#### Mary J. Leonard v. State of Ohio, ex rel B. D. Scott, Executor

Decided, May, 1914.

*Estates of Decedents*— Character *of Proceeding for Recovery of Com cealed Property*— Defendant *Competent to Testify*— Burden *of Proof —In Whose Favor Judgment Should be Rendered.*

1. Tlie purpose of Section 10673, making provision for proceedings when property belonging to the estate of a decedent has been concealed or. embezzled, is not to furnish a substitute either for criminal proceedings for embezzlement or for a civil action to recover judgment for money owing to the executor, but rather to provide a speedy and effective method for discovery of assets belonging to the estate and secure possession of them for the purpose of administration.

2. In such an inquiry it is error to treat the defendant as a party to a civil action and therefore incompetent as a witness.

3. The burden of proof is upon the plaintiff to show by a preponderance of the evidence that the deféndant received the money or other thing of value claimed to have come into his hands and that he concealed, embezzled or conveyed it away.

4. In cases where such a proceeding is instituted by an executor the judgment, if any is rendered against the defendant, should be in favor of the executor and not in favor of the state.

*II. S. Pulse*and *W.*IF. *Hester,*for plaintiff in error.

*Hayes & Hayes,*contra.

Jones, O. B., J.; Swing, P. J., and Jones, E. H., J., concur.

This was a special proceeding originating in the probate court under Section 10673 and succeeding sections of the General Code, in which plaintiff in error here was charged with having concealed, embezzled or conveyed away money in the sum of $700 belonging to the estate of Lucinda C. Baldwin, deceased.

An application was made to the probate court asking that a writ of citation issue against plaintiff in error, Mary J. Leonard, *341requiring her to appear before said court and be examined under oath touching the matter'of the complaint, and that such proceedings might be had in the premises as were authorized by law. She appeared before the probate court and proceedings Avere had there resulting in the finding by the probate judge against her.

The matter was then taken to the court of common pleas and there, a jury being demanded, a- hearing was had before the court and a jury, resulting in a verdict finding that Mary J. Leonard Avas guilty as charged in the complaint-filed therein, and that said jury had assessed the value of the property so concealed and embezzled at $767.26. On this verdict a judgment Avas entered adjudging that the State of Ohio, for -the use of B. D. Scott as executor of the estate of Lucinda BaldAvin, .deceased, recover against the said Mary J. Leonard the sum of $767.26 with ten percent, penalty thereon, amounting to $843.98, and the costs of the proceeding.

The purpose of the statute under which this proceeding was taken was not to furnish a substitute either for criminal proceedings for embezzlement, or for a civil suit to recover judgment for money owing to -an executor of an estate, but rather to provide a speedy and effective method for the probate court to discover assets belonging to the estate of a decedent and to promptly secure same for the purpose of administration.

In this case it appears that decedent was an old lady, suffering from an incurable disease, and living alone in Blanchester, but under the care and observation of a niece who lived in an adjoining house, that she had on deposit in a bank $600, and also on deposit in a building association $100; that she had heard intimations that her niece or some one else was about to apply for letters of guardianship to take charge of her property, and with the fears and suspicions that often come to the aged she had thereupon Avithdrawn both sums of money in order to prevent their coming into the -custody of others without her will. After her death, which occurred several months later, this money could not be found, and this proceeding was instituted for the purpose of tracing and locating it. Mrs. Leonard was a friend *342of the deceased. She also lived alone, in a house immediately behind that of decedent, the two lots running back towards each other and being separated by an alley. The houses fronted upon parallel streets and had ready access to each other from a side street upon which they both abutted, and the testimony showed that the decedent visited Mrs. Leonard frequently.

Mrs. Leonard was called upon to say whether she had received this money, and if so, what she had done with it. She testified that she had received it from' the hands of Mrs. Baldwin who gave it to her for safe-keeping; that she kept it for some time, locking it in a bureau drawer, and that she later returned it to Mrs. Baldwin in the identical bills enclosed in the same box in which it had been given to her. There was testimony from Mr. Scott, the executor, and Mr. Hayes, his attorney, and from Mr. Jack, who was one of the appraisers of the estate of Mrs. Baldwin, to the effect that in certain interviews they had had with Mrs. Leonard before these proceedings were instituted she had admitted the receipt of the money, that she claimed that she had paid it back, but that when told that it was proposed to bring proceedings to compel its repayment, she had promised to repay it again rather than -be brought into court and stand the ordeal of a trial. There was no evidence whatever that she ever had the money, except the testimony of Mrs. Leonard, and of the admissions made by her. The rulings on the evidence seem to have permitted the statements that she had received the money, to stand, and practically to have excluded from the jury any statement that she had paid it back.

"We are of the opinion that there were numerous errors in the admission and rejection of evidence. It is not necessary to point out the questions and answers specifically objected to, because the court below seems to have ruled on the evidence under a misapprehension as to the character of the proceeding. As has been stated, this was hot a civil action for money, nor was Mrs. Leonard a party defendant in such capacity. She was cited before the court as a person suspected of having concealed money belonging to the decedent, and under the terms of Section .10673 she was required to be examined under oath, and "it *343was certainly her privilege to testify fully in relation to all matters covered by the complaint. Yet the court, evidently treating her as a party to a civil action to^ whom the terms of Section 11495 would apply, held that she was not a competent witness and ruled out testimony that had been given by her, and re-' fused to permit her to testify on other matters as to which questions were propounded by her counsel. Even if Section 11495 might be held to apply to this case, under its terms, especially the exceptions under clauses 3 and 4 thereof, she would be entitled to testify fully as to the transactions, conversations or admissions of the opposite party. *Rankin*v. *Hannan,*38 O. S., 438; *4 Jones on Evidence,*Sections 772, 773.

We are of the opinion that she was a competent witness as to all matters covered by the complaint, and it was error to exclude her testimony.

The admissions of Mrs. Leonard testified to by Messrs. Scott, Hayes and Jack were embraced in conversations where attempted settlements were considered and discussed. It was error to admit testimony of conversations relating to any attempted compromise before the bringing of. the proceeding. *2 Jones on Evidence,*Section 291; *Sheriff*v. *Piper & Yenney,*26 O. S., 476.

The court also erred in its charge to the jury in defining what constituted embezzlement, and also in placing the burden of proof upon the defendant below to show a return of the money. The burden was upon the plaintiff to prove the complaint by a preponderance of the evidence. This required proof not only that she received the money, but that she concealed, embezzled or conveyed it away.

Section 10678, General Code, provides that the jury shall determine the amount of damages to be recovered, if the party accused is guilty of having concealed, embezzled or conveyed away money of the deceased, and that the court shall render judgment in favor of the executor, or if there be no executor in favor of the state, against the person so found guilty for the amount of money so concealed together with ten percent, penalty and all costs. In this case there was no evidence of any sum beyond $700 which had been had by the defendant, yet the jury *344assessed the value of the property so concealed at $767.26. This probably was upon a basis of adding interest upon the money from the time it had been placed in the hands of the defendant, although there is nothing whatever in evidence showing that it was to bear interest or that it was to be used or had been used by the defendant, and although .the testimony given by defendant was that it had remained in the original package during all the time it was in her hands and until its return by her. The judgment of the court on the verdict was for $843.98 with costs, being the entire amount of the verdict with ten per cent, penalty added. This amount would undoubtedly be excessive and contrary to law.

Under Section 10678, General Code, any judgment entered should be in favor of the executor and not, as it was, in favor of the state, as the statute provides that it should be entered in favor of the state only when there is no executor or administrator, or when it is against the executor or administrator.

For the reasons above given, the judgment is reversed and the cause remanded for further proceedings.