Brooks v. Worthington

• Decision Date: 10 September 1965
• Citation: 143 S.E.2d 841,206 Va. 352
• Parties: H. M. BROOKS, Administrator, etc. v. Marguerite WORTHINGTON.
• Court: Virginia Supreme Court

Page 841

143 S.E.2d 841

206 Va. 352

H. M. BROOKS, Administrator, etc. v. Marguerite WORTHINGTON.

Supreme Court of Appeals of Virginia.

Sept. 10, 1965.

S. W. Tucker, Richmond (Henry L. March, III, Richmond, on brief), for plaintiff in error.

Frederick T. Gray, Richmond (Ernest P. Gates, Chesterfield, Williams, Mullen & Christian, Richmond, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

I'ANSON, Justice.

Plaintiff herein, H. M. Brooks, administrator of the estate of Anna Laura Lindsay deceased, instituted this action to recover the amount of an alleged loan, with interest, made by his decedent to the defendant, Marguerite Worthington. In her grounds of defense, defendant denied the alleged indebtedness and asserted that the money turned over to her by plaintiff's decedent was a gift based on an agreement and not a loan.

A jury trial resulted in a verdict for the defendant and judgment was entered thereon. We granted plaintiff a writ of error.

Plaintiff contends that the court erred in (1) refusing to strike certain hearsay evidence; (2) overruling his motion to strike defendant's evidence for lack of corroboration; and (3) granting certain instructions.

Plaintiff's decedent, Miss Anna Laura Lindsay, who died on November 11, 1961, at the age of 82, was a retired teacher from Virginia State College. The defendant has been a member of the college faculty since 1925, and a close friendship had developed between her and the decedent. On several occasions, when the defendant was unable to obtain living quarters on the college campus, she lived in decedent's home.

Defendant testified that decedent was concerned over the plan of the college to acquire her home as a part of its expansion program; that decedent suggested to her on several occasions that since they were both alone they should acquire a home where they could live together and she would not be worried about a place to live should the college take over her property; that decedent offered to furnish the money to acquire a home if she (defendant) would take care of the expense required to make it into a suitable place for both of them to live, and at decedent's death it would be her (defendant's) property, since the title would be taken in her name; that she rejected the proposal each time it was made, but after decedent found a home which could be purchased for $7,500 she agreed to go along; that on July 22, 1959, decedent cashed some bonds, withdrew $894.15 from her savings account, and deposited the proceeds, $8,486.15, to her (defendant's) bank account; that she employed William Earle White, a prominent member of the Petersburg bar and a past president of the Virginia State Bar, was had represented the decedent over a period of years, to examine the title and represent her in closing the transaction; that decedent accompanied her to Mr. White's office when the transaction was closed; that, pursuant to the agreement, she had the home repaired and remodeled at a cost to her of $7,000, which was secured by a deed of trust on the property; and that neither the plaintiff's decedent nor anyone acting for her during her lifetime had requested her to pay back the money that was turned over to her as a gift to purchase the home.

Mr. White testified that he had represented the plaintiff's decedent over a long period of time; that he was employed by the defendant to examine the title to the property and to close the transaction; that defendant paid for the property and the expenses incident to acquiring the title; that decedent accompanied the defendant to his office on the day the transaction was closed; that defendant borrowed $4,000 from the Petersburg Savings and Loan Corporation, which was secured by a deed of trust on the property, but this loan was subsequently cancelled and a new deed of trust in the amount of $7,000 was placed against it; that on a later day the defendant asked him if she had to report as income the money she had received as a gift from the decedent, and he told her 'there would be no income tax involvement' in the case of a gift.

Dr. Robert P. Daniel, president of Virginia State College, testified that decedent had expressed concern to him about the plan of the college to take over her property as a part of its expansion program; and that she was a very careful business woman.

Mr. James B. Cephas, treasurer-comptroller of the college, testified that decedent was quite disturbed over the plan of the college to take over her property and talked to him concerning it on several occasions; that a very close relationship existed between decedent and the defendant; that when the defendant lived in decedent's home it was more in the nature of a 'family unit' than one of landlord and tenant; and that decedent was very meticulous in all of her business affairs.

Julius C Lienhard, a contractor, testified that he performed for the defendant the work of 'practically making the house over.'

Plaintiff introduced in evidence several exhibits, among which was an adding machine tape listing the amounts of the savings bonds cashed and the amount withdrawn from his decedent's savings account, which showed a total of $8,486.15. At the foot of the tape plaintiff's decedent had written: 'Paid to M. Worthington July 22, 1959. Anna L. Lindsay,' and Mrs. Worthington wrote thereon: 'Received payment July 22, 1959/ Marguerite L. Worthington.' At some subsequent time plaintiff's decedent made on the margin of the tape a calculation of interest on the $8,486.15.

In decedent's cancelled savings account book she made a notation that Mrs. Worthington had 'borrowed' the sum of $8,486.15 and a calculation of interest was also noted thereon. However, the evidence does not show when the notations were made.

Decedent's last will and testament, which was written in her own handwriting and dated October 9, 1961, read in part as follows:

'The amount due from Mrs. Marguerite Worthington borrowed. Add to Esttate. [sic] 'On--July 22 1959 8486.15 Princ. Marguerite Ann Chew is to receive the full amount due from Mrs. Worthington * * *.'

Marguerite Ann Chew was a third cousin and godchild of decedent and had lived in the Lindsay home since she was 14 years old. She was 18 at the time the will was written.

Plaintiff testified that he had been authorized by the decedent, approximately a year and a half before her death, to collect several loans she had made, which were all evidenced by secured or unsecured notes save one, in the amount of $800; that in April, 1961, she told him that defendant had borrowed some money from her but she did not authorize him to collect it until after July 22, 1961; that he attempted to see the defendant on two occasions to collect the alleged loan but was unable to find her at home; and that he did not make demand of the defendant to pay the loan until after his qualification on decedent's estate.

F. R. Wood, an assistant professor at Virginia State, who was named executor in decedent's will but did not qualify, testified that the decedent, in July 1960, told him that she had loaned the defendant 'a certain amount of money' and that she had not paid it when it became due.

Plaintiff first says that the court erred in not striking the testimony of Mr. White concerning the defendant's inquiry as to whether she would have to report the gift from the decedent as income on her tax returns, when it developed on cross-examination that decedent was not present when the inquiry was made of him. We do not agree with plaintiff's contention.

It has been generally held that evidence of declarations of ownership by a donee, while in possession of personal property, and before donor's death, are admissible even though they operate in donee's favor. However, such declarations are admissible to show that the donee claimed the property as a gift, but not as proof that a gift was made. Thomas' Adm'r v. Lewis, 89 Va. 1, 57, 15 S.E. 389, 396, 18 L.R.A. 170, 37 Am.St.Rep. 848; Martin v. Martin, 174 Ill. 371, 51 N.E. 691, 693, 694, 66 Am.St.Rep. 290; Stevens v. Peoples Savings Bank, 185 Iowa 619, 171 N.W. 130, 133; Guenther v. Guenther, 244 Wis. 386, 12 N.W.2d 727, 729; 24 Am.Jur., Gifts, § 128, p. 797; 31A C.J.S. Evidence § 250, pp. 665, 666. See also Depue v. Steber, 89 W.Va. 78, 108 S.E. 590, 592, where the Supreme Court of Appeals of West Virginia commented on the case of Thomas' Adm'r v. Lewis, supra, with which we are in full accord.

The defendant was in possession of the funds deposited to her bank account by the decedent, which she claimed as a gift, and it was not disputed that decedent was alive when the conversation took place with Mr. White. The evidence complained of is not obnoxious to the hearsay rule nor excluded by it even though it was favorable to her. Defendant's...