Boudreau v. Boudreau , 45 Ill. 480 ( 1867 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

The only ground of claim to the mares in dispute, is a supposed gift of them by the plaintiff in error to his son, who, being dead, is represented by the defendant in error, his widow and administratrix. The proof of the gift rests entirely upon the testimony of Flora Beterneau, who says the defendant said he had given his son, the deceased, a team of horses, that was all he could give him then. The defendant was then driving a brown mare and a grey horse, and that team took the deceased and defendant home from the witness’ house where they were visiting. She knew nothing of the mares in question.

The testimony of other witnesses, the sons of the defendant, and who are shown to have had the best opportunities of knowing all the facts, repels all idea of a gift of these mares. The testimony of Louis Boudreau is conclusive. He says, seven days before Emilien died he was at his house, and, starting to go home, Emilien called him back, and asked him to plow the rest of his corn, which would take about two days, and then take the mares home to his father’s, which he did, and were afterward replevied by the administratrix.

This is a case where the jury have decided so palpably against the weight of evidence, we have no hesitation in setting aside their verdict. A son claiming property as a gift from his father, or any other person claiming as a gift, ought to be held to make reasonably strict proof of the gift, which has not been done in this case.

The motion for a new trial should have been granted. ¡Refusing it was error, for which the judgment must be reversed and the cause remanded.

Judgment reversed.