Begovich v. Kruljac

• Decision Date: 15 May 1928
• Docket Number: 1444
• Citation: 38 Wyo. 365,267 P. 426
• Parties: BEGOVICH v. KRULJAC, ET AL. [*]
• Court: Wyoming Supreme Court

267 P. 426

38 Wyo. 365

BEGOVICH v. KRULJAC, ET AL. ^[*]

No. 1444

Supreme Court of Wyoming

May 15, 1928

ERROR to District Court, Sweetwater County; VOLNEY J. TIDBALL Judge.

Proceeding between Marko Begovich, as administrator of the estate of Mike Begovich, alias Matt Begovich, deceased, and J. F Kruljac and Carrie Chockie, guardian ad litem of Mary Chockie and another, minors. From the judgment, Marko Begovich brings error.

Affirmed.

Fred W Johnson, for plaintiff in error; Lewis H. Brown, of counsel.

The evidence did not establish a gift "causa mortis". 28 C. J. 684, 687. The policy of the law is opposed to gifts of this kind, 12 R. C. L. p. 931; Basket v. Hassell, 107 U.S. 602; Hecht v. Shaffer, 15 Wyo. 34; an executed transfer must occur before death, 28 C. J. 695; Taylor v. Harmison, 197 Ill. 137; Dunn v. Bank, 109 Mo. 90; Partridge v. Kearns, 53 N.Y.S. 154; delivery to a third person is insufficient. 3 A. L. R. 916; the alleged gift was to Kruljac in trust; it is void for indefiniteness and uncertainty, 3 Pomeroy Eq. Jur. (4th Ed.) Sec. 1009; Bliss v. Bliss, (Ida.) 119 P. 451; In re Barnum & Reed, (Ill.) 26 N.E. 572. Upon failure of a gift in trust, for indefiniteness, it goes to heirs, Sheedy v. Roach, 124 Mass. 472; the witness Carrie Chockie was disqualified as a witness, 5807 C. S.; Cooper v. Cooper, (Va.) 64 S.E. 927; Halloway v. Wilkerson, 43 So. 731; Linneman v. Kirchner, (Ia.) 178 N.W. 899; Mason v. McCormick, 75 N.C. 263. Section 5807 applies to suits to establish gifts "causa mortis", Hecht v. Shaffer, supra; to constitute a valid gift "causa mortis" they must be made in expectation of imminent death.

W. A. Muir, for defendants in error.

The judgment is not supported by evidence and under a well established rule, it will not be disturbed on appeal, Gray v. Elliott, (Wyo.) 255 P. 593; Farmers Lum. Co. v. Luikart, (Wyo.) 256 P. 84; Mather v. Musselman, (Mont.) 257 P. 427; Hunter v. Murphy, (Okla.) 255 P. 561. The testimony of Carrie Chockie was admissible; she was not a party within the provisions of Section 5807 C. S.; the statute makes a distinction between a next friend and a guardian ad litem, the latter being selected by the court; the real party in interest is the adverse party, 12 Enc. Evidence, 740, 819, 820; Van Alstine Estate, (Utah) 72 P. 942; R. R. Co. v. Becker, 119 Ill.App. 221; Buck v. Maddock, (Ill.) 47 N.E. 208; Taylor v. Ins. Co., (Tex.) 39 S.W. 185; 15 Am. & Eng. Enc. Law, p. 2; a gift causa mortis is not revoked by subsequent will, 28 C. J. 698; Brunson v. Henry, (Ind.) 39 N.E. 256; Moore v. Shifflett, (Ky.) 206 S.W. 614; 12 R. C. L. 969; Ranken v. Donovan, 61 N.Y.S. 542. Delivery of a gift causa mortis to an agent or trustee of donee is a valid delivery, 28 C. J. 694; 3 Pomeroy's Eq. Jur. (4th Ed.) 2661; Hamlin v. Hamlin, (Wash.) 109 P. 362; Stewart v. Collins, (Wyo.) 254 P. 137; Sheedy v. Roach, 124 Mass. 472; Clough v. Clough, 117 Mass. 83. Where the intention is clear there can be no uncertainty as to the desire of the donor, Hecht v. Shaffer, supra; Martin v. Funk, (N. Y.) 31 Am. Rep. 446; Boykin v. Pace's Exr., 64 Ala. 68; 28 C. J. 687; Gaylor v. Gaylor, (Ind.) 72 A. S. R. 331; Johnson v. Colley, (Va.) 44 S.E. 721; Sourwine v. Claypool, (Pa.) 20 A. 840.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

It appears that the decedent, Mike Begovich, was engaged as an equal partner in the butcher business at Rock Springs, Wyoming, with one Kruljac, the partnership having $ 16,000 in accounts outstanding on the books at the time hereinafter mentioned. Decedent was a bachelor and apparently left surviving him, as his only relatives, two brothers, Marko, who is the administrator of his estate, and Migo, who is a resident of Dalmatia. For the period of about nine years prior to his death decedent had lived and boarded with Mrs. Carrie Chockie, who had two children, Mary and Lizzie, nine and five years old respectively, these children being the respondents in this case, Carrie Chockie, the mother of the children, appearing for the minors here and in the court below as guardian ad litem pursuant to an appointment made by the trial court. About a month before decedent's death he had a conversation with his partner Kruljac, in which he intimated to the latter that he would put some additional capital into the business "for the benefit of these children," meaning the minors above mentioned. On June 11, 1922, and for some time prior thereto, decedent was a sick man, suffering with cancer or ulcers of the stomach, and on the date last mentioned prepared to go to Soda Springs, Idaho, for an operation, so he called Kruljac to the house, who, on that point, testified on January 9, 1924, as follows:

"A. On the 11th day of July, 1922, I had a call from Mike Begovich to come in the house where he was living.

Q. You had a call for you to come to the house?

A. Yes, and when I come in the house he gave me two thousand dollars and said 'Keep this money in the safe.' And I took it down with me in shop and in same day we was prepared to go to Soda Springs and he told me in afternoon, like this, he said, 'Joe, this two thousand dollars you could put in the business and you could use the benefit from this money for those two children,' and then we went down this same night to Soda Springs.

Q. For what purpose did you go to Soda Springs? What was this trip in connection with?

A. Well, he had to take operation on the stomach, and he say 'If anything happen to me use those money for the benefit of those children,' but he told me, 'Don't put this money in bank, 'cause then I come back and I take it back because all this money is gold certificates and I want those money back.'

Q. Prior to the time you left for Soda Springs he gave you this two thousand dollars?

A. Yes, sir.

Q. And told you to put it in the business and if anything happened to him to use that for two certain children?

A. Yes."

The same witness again testified on this matter on July 11, 1925, again stating that decedent had told him "to use the money for benefit of children," and "put this money in the business and the interest or dividend from this money to use for the benefit of these children," meaning the minors above mentioned. He added considerable to his former testimony, however, testifying that the decedent asked him on July 11, 1922, to make a will for the decedent; that he drew it, whereby the decedent gave $ 200 to a child of the witness, $ 500 to Lizzie Chockie, and the remainder of his property to his two brothers; that the will, however, was not signed by the decedent but only by two witnesses. He did not explain when the latter signed the instrument. He further testified that the decedent later, at Soda Springs, told him not to put the money in the bank because "I want this money when I come home" and "he say 'If I die you take the will I make in Wyoming Market and go according to that.'" He admitted, however, that a few days after decedent's death, which occurred on June 15, 1922, as a result of the operation contemplated a few days prior to that time, as above stated, he told Mr. Muir that he received the two thousand dollars for the benefit of the two minors. The only other witness in the case was Carrie Chockie, mother of the minors. She testified that she was present at the time when the decedent gave $ 2000 to Kruljac. The substantial part of her testimony is as follows:

"A. Mike Begovich open trunk and take money and give to Kruljac to count it. When he count it he says he count two thousand dollars and Mike told him, and he says, 'Joe, take this two thousand dollars and keep it for Mrs. John Chockie's two children, Mary and Lizzie, and if make it some money you can use it for business,' and Kruljac don't put money in business because he know it belongs to children. He won't touch that money for business.

Q. You heard Mike Begovich say this?

A. Yes, I did.

Q. Did Mike Begovich tell you anything about giving your children any money before Kruljac came to the house?

A. No, I never heard it before.

Q. That same day?

A. Yes, he told me he was going to give me money for my children.

Q. Before Kruljac came?

A. Yes.

Q. Did he tell you what children?

A. He meant my Mary and Lizzie."

The court, under the foregoing testimony, held that the decedent made a gift causa mortis on July 11, 1922, of $ 2000 for the benefit of the children hereinbefore mentioned, Mary and Lizzie Chockie. From the judgment so entered, the administrator of the estate of Mike Begovich has appealed.

1. The administrator objected to the admission of the testimony of Carrie Chockie on the ground that she was a party to the action and therefore was forbidden to testify under the provisions of Section 5807, Wyo. Comp. Stat. 1920. The court, however, admitted the testimony and this is assigned as a ground of error herein. We think that the court was right. While there is some difference of opinion on the question, the weight of authority clearly is that a guardian ad litem is not a party to the action but is simply the representative of the court and is more in the nature of an attorney than a party to the action, and that such person is not prohibited from giving testimony in a case by reason of being a party to the action. Had Mrs. Chockie resigned as guardian ad litem prior to the time she gave her testimony, she would have been clearly competent as a witness. The fact that she did not do so but carried out the order of the court in representing these minors should not disqualify her as a witness. Note, 4 A. & E. Ann. Cas. 1068; Bryant v. Livermore, 20 Minn. 313, 342; Trahern v. Colburn, 63 Md. 99, 103; In re Hebb's Estate, (Wash.) 134 Wash. 424, 235 P. 974.

2. It is contended that...