Bruce v. Squires

• Decision Date: 09 January 1904
• Docket Number: 13,318
• Citation: 68 Kan. 199,74 P. 1102
• Parties: NANNIE L. BRUCE v. SMITH B. SQUIRES et al
• Court: Kansas Supreme Court

74 P. 1102

68 Kan. 199

NANNIE L. BRUCE v. SMITH B. SQUIRES et al

No. 13,318

Supreme Court of Kansas

January 9, 1904

Decided January, 1904.

Error from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgement affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GIFT -- Execution and Effect. To constitute a valid gift either causa mortis or inter vivos, it must be completely executed and go into immediate effect.

2. GIFT -- Oral Promise, Effectual at Death, Held Invalid. A verbal promise or proposition by one to give to another a stock of goods, to be effectual in the future at the death of the intended donor, passed no title and conferred no rights on the intended donee.

3. REPLEVIN -- Showing of Officer in Possession Held Sufficient. In an action of replevin by a claimant to recover from an officer property taken on attachment against such claimant, a showing that the attachment was issued at the suit of a bona fide creditor, and that the attachment process was valid on its face, will be deemed sufficient to entitle the officer to the possession of the property and to hold the same until some one has shown a better right to it.

T. H. Stanford, and J. B. Ziegler, for plaintiff in error.

Albert L. Wilson, and J. F. Bellamy, for defendants in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

The controversy in this case is as to the ownership and possession of a stock of goods in Cherryvale, known as the "Variety Store." It was attached by the sheriff at the instance of creditors of J. F. Bruce and as his property. Nannie L. Bruce, his wife, replevied the stock from the sheriff, claiming it as her own and that she had acquired it by gift from J. M. Bruce, the father of her husband. On her part, it is claimed that in 1898 J. M. Bruce obtained a half-interest in the stock; that, as he was very old and feeble, he employed plaintiff, who was then Nannie L. Butler, to take care of his interest in the store, and that in 1898 he purchased the remaining interest, when she was given entire charge of the business and became sole manager for J. M. Bruce. She testified that for this service she received five dollars per week and such goods from the store as she needed for herself and family. In 1899 she married J. F. Bruce, and thereafter she and her husband lived in the family of J. M. Bruce, and she continued to manage the store. J. M. Bruce died about four months after the marriage, but for a number of months thereafter the business was conducted in the name of J. M. Bruce, and afterward it was carried on in the name of Nannie L. Bruce, until August, 1901, when the stock was attached. She says that after her marriage and prior to the death of J. M. Bruce the latter told her on several occasions that she had taken good care of the stock of goods and he wanted her to continue to take care of it, and also to care for his wife, Jane Bruce, and that she should receive the stock of goods when he died. The last talk of this kind was about three weeks before his death. At the time these statements were made there was no formal transfer of the goods, nor any delivery of possession. She stated that there never was any transfer before his death and that he did not make a gift of the store to her at the time the talks were had; that the store was to remain his until he died and that she was not to receive it, and did not acquire a title to it, until after his death. She further stated that she continued to manage the store for him until he died, when, as she says, the property became hers.

On the other hand, it is claimed that J. M. Bruce never owned the store nor had any interest in it to give to any one; that he had no money with which to purchase a stock of goods, and being about eighty years of age and very feeble, had no interest in business and was unable to give any attention to such an investment. It was further claimed that J. F. Bruce furnished the money with which the store was purchased, and, as he was financially involved in another business which he was carrying on, he used the name of his father in the purchase and management of the store, and arranged that Nannie L. Butler, who was soon to become his wife, should be placed in charge of it; that he conducted the negotiations in the purchase of the stock, and had a general oversight of the business, while his father rarely visited the store and showed no special interest in the business; that after the marriage of J. F. Bruce and after the death of his father he spent most of his time in the...