Bond v. Bean

• Decision Date: 02 February 1904
• Parties: BOND v. BEAN et al.
• Court: New Hampshire Supreme Court

57 A. 340

72 N.H. 444

BOND

v. BEAN et al.

Supreme Court of New Hampshire. Hillsborough.

Feb. 2, 1904.

Transferred from Superior Court; Stone, Judge.

Judicial proceedings on the settlement of the estate of John D. Bean, deceased. From a judgment in favor of deceased's daughter on an issue whether deceased had given her certain stock, Emma R. Bond brings exceptions. Exceptions overruled.

The issue tried was whether John D. Bean in his lifetime gave the plaintiff, who is his daughter, 67 shares of the capital stock of the West End Street Railway Company, standing in his name and unassigned at the time of his decease. Mrs. Bean, a witness for the plaintiff, testified that two or three years before Mr. Bean's death he handed to the plaintiff a certificate of stock in the West End Street Railway, accompanying it with the remark, "I have got something for you—good paying stock—and I want you to keep it for your own;" that she did not know the number of shares the certificate represented; that she afterward at different times saw the certificate in the plaintiff's room; and that Mr. Bean paid the plaintiff the money received from dividends on the stock while he lived, and at one time, when doing so, said, "This is your West End Railway dividend." Miss Gilman, who was present at the time of the delivery of the stock, testified that she saw Mr. Bean pass the certificate to the plaintiff, and heard him say, "Here is a certificate of the West End Street Railway stock that I am going to give you for your own, to offset your mother's Concord Railroad stock;" that the plaintiff took it, and that the witness afterward saw it in her possession, and that she saw Mr. Bean hand money to the plaintiff, describing it as her "West End dividends." Mrs. Bean was the widow of John D., Miss Gilman was their housekeeper, and the evidence tended to show that the delivery took place two or three years before Bean's death, while they were at the dining table at their home. Other witnesses testified to matters in corroboration of the facts above narrated. The defendants' motions for a nonsuit and a verdict in their favor were denied, subject to exception.

At the close of the argument for the plaintiff, the defendants' counsel handed to the court the following writing: "Remarks of counsel excepted to: 'I do not believe this good lady is false to you or to anybody else.' 'I believe that the money was intended for the wife and daughter.'" This objection was not called to the attention of the plaintiff's counsel at the time the remarks were made, or at the time the writing was submitted to the court, and counsel had no knowledge that any objection had boon made to the argument until after the case had been submitted to the jury and they had retired from the courtroom. He then requested that the jury might be recalled in order that the statements might be withdrawn, if incompetent, which the court declined to do. The exception to the charge is sufficiently stated in the opinion.

Joseph W. Fellows and Burnham, Brown & Warren, for plaintiff. Mitchell & Foster and Taggart, Tuttle & Burroughs, for defendants.

BINGHAM, J. The defendants contend that the verdict cannot be sustained, for the following reasons: (1) That the evidence was insufficient to warrant the jury in finding a completed gift, (2) that there was error in the charge to the jury, and (3) that the plaintiff's counsel made improper statements in his closing argument. We will consider the objections raised in the order named.

1. The court held in Bean v. Bean, 71 N. H. 538, 541, 53 Atl. 907. 908, that "in the case of a gift inter vivos the evidence should be sufficient to render a finding of the fact of delivery reasonable, and should disclose the circumstances under which the delivery occurred; that it may appear that the gift was...