Casey v. Topliffe

• Decision Date: 18 November 1935
• Docket Number: No. 6399.,6399.
• Citation: 65 App. DC 100,80 F.2d 543
• Parties: CASEY v. TOPLIFFE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 100, 80 F.2d 543 (1935)

CASEY v. TOPLIFFE et al.

No. 6399.

United States Court of Appeals for the District of Columbia.

Argued October 9, 1935.

Decided November 18, 1935.

Ralph A. Ricketts and Rossa F. Downing, both of Washington, D. C., for appellant.

Dion S. Birney and Paul E. Lesh, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

GRONER, Associate Justice.

Appellant is the widow of Frank Casey, who died in Washington City September 7, 1932. His last will, admitted to probate December 16, 1932, appointed her executrix of his estate. She qualified the 20th of December, 1932. In her petition for probate, appellant reported the value of the estate as around $30,000, and stated that she had in her possession and claimed as her own bearer securities approximating $200,000 in value which her husband had given to her in his lifetime.

Mr. Casey's will, dated September 9, 1927, provided:

"Item I. In the event that my wife, Nettie C. Casey, and my sister, Theodore Casey Topliffe, or either of them, shall survive me, then and in such event only, my entire estate, real, personal, and mixed, of which I may die seized or in anywise entitled, I give, devise, and bequeath unto the National Metropolitan Bank, of Washington, D. C., as trustee nevertheless upon the following trusts and for the following purposes and none other, to wit:

"(a) To collect, receive, hold and (except as to shares of the capital stock of The Stone Straw Company, a corporation of New Jersey, and shares of the common capital stock of Stoneheart Company, a Delaware corporation, as to which provision is hereinafter made) to invest, reinvest, and change the investments of my said estate or any part thereof in the absolute discretion of my said trustee, the purchaser of any such part thereof being not required to see to the application of the purchase money; as to all shares of the capital stock of said The Stone Straw Company and the common capital stock of said Stoneheart Company which may come into the hands of my said trustee, I direct that my said trustee shall have full power to vote the same at any and all meetings of the stockholders of said company or companies, either in person or by proxy, but that neither the whole nor any part thereof shall be sold, pledged or converted except upon the unanimous consent and approval of my said wife, Nettie C. Casey, Carl Casey, James B. Platt, and Landra B. Platt, or of so many of them as may be then living and competent, the proceeds of any such sale, pledge or conversion to become part of the corpus of the trust estate above created;

"(b) To collect and receive all rents, profits and income as the same shall accrue upon and to my said estate and to pay over the net amount thereof quarterly or oftener to my said wife, Nettie C. Casey, if and as long as she shall continue to survive me, and upon the death of my said wife or if she shall have predeceased me, to pay over said net income to my said sister, Theodore Casey Topliffe, if and as long as she shall survive my said wife, and upon the death of the last survivor as between my said wife and my said sister, I direct that my said trustee shall pay over and distribute the entire balance of said trust estate then in its hands, in fee simple, to the children then living of the said Landra B. Platt, now of Washington, D. C., and the said James B. Platt, now of Baltimore, Maryland, in equal portions, share and share alike.

"Item II. In the event that both my said wife, Nettie C. Casey, and my said sister, Theodore Casey Topliffe, shall predecease me, then I give, devise and bequeath my entire estate, real, personal and mixed, of which I may die seized or in anywise entitled, to the children of the said Landra B. Platt and James B. Platt, who survive me, in equal portions, share and share alike.

"And I do hereby nominate and appoint my said wife, Nettie C. Casey, to be the executrix of this my last will and testament."

Casey left no children or descendants of children. Mrs. Topliffe, one of the appellees, is his sister, and the Platts, whose children were made residuary legatees under the will, are his first cousins and were his business associates. The sister and cousins were his nearest blood kin. In June, 1933, they filed a petition in the probate court having jurisdiction of the administration, praying that appellant be required to disclose on oath all the securities or personal property of every kind which she claimed had been given her by her husband, and that she be required to return an additional inventory of all such property. The National Metropolitan Bank likewise filed a petition denying appellant's right to the securities, and charged that the same were a part of Casey's estate and should have been inventoried as such.

Appellant answered, insisting on her right to the securities as a gift from her husband on December 31, 1928, expressly ratified and confirmed in June, 1931.

In due time the controversy came on to be heard by the Supreme Court of the District, sitting as a probate court, and by a jury. The issues were the following:

"1. Did Frank Casey, on or about the 31st day of December, 1928, make gift to Nettie C. Casey of moneys and securities belonging to him, and if so, of what?

"2. Did Frank Casey, in or about June, 1931, or at any time between December 31, 1928, and the time of his death, make gift to Nettie C. Casey of moneys and securities then belonging to him, and if so, of what?"

In order to align the parties properly, the court placed the burden of proof on appellant, and at the conclusion of the evidence offered in her behalf, and on the motion of petitioners, granted binding instructions.

There are numerous assignments of error, but in the view we take of the case they reduce themselves into two queries: First, did the trial court err in placing the burden of proof on appellant? Second, is the case as made out by appellant sufficient in law to establish a prima facie gift inter vivos of any of the items in question?

We think the first query is answered by our decision in Myers v. Tschiffely, 64 App.D.C. 17, 73 F.(2d) 657. There we said, in effect, that the burden is upon one who, after the death of the alleged donor, claims money as a gift to show an executed gift by clear and convincing evidence, and also that this rule is especially applicable where a confidential relation existed between the parties.

The answer to the second query involves examination of the evidence. To prevail, appellant must show a clear and unmistakable intention on the part of her husband to make an absolute and irrevocable transfer of the property in question from himself to her, and there must be delivery of the subject-matter of the gift; in other words, the evidence must show that her husband parted not only with possession, but with dominion over and control of the property so delivered. Chambers v. McCreery (C.C.A.4th) 106 F. 364, 368; Rosenwald v. Commissioner (C.C.A.7th) 33 F.(2d) 423, 426. Or, as put by the Supreme Court of Illinois in People v. Csontos, 275 Ill. 402, 406, 114 N.E. 123, 124: "It is essential to such a gift that it be absolute and irrevocable; that the giver part with all present and future dominion over the property given; that the gift go into effect at once and not at some future time; that there be a delivery of the thing given to the donee; and that there be such a change of possession as to put it out of the power of the giver to repossess himself of the thing given."

Keeping in mind this rule, we proceed to examine the evidence.

Mr. and Mrs. Casey were married November 1, 1908. They had no children. Mrs. Casey (appellant) had a son by a previous marriage. He in turn had a son, Robert Engle, who during the last illness of Mr. Casey became his chauffeur and assisted in looking after him.

On the 9th of September, 1927, Mr. Casey executed a will disposing of his entire estate in trust for his wife for her life, and at her death to his sister, Mrs. Topliffe, for her life, and upon the death of the last survivor as between them to the children of his cousins and business associates, Landra B. Platt and James B. Platt. Mr. Casey suffered a stroke of apoplexy in his home in Washington on the 16th of December, 1928, and was taken to Emergency Hospital two days later. He remained in the hospital until the 8th of July, 1929, when he returned to his home. When he first went to the hospital he was helpless and part of the time delirious, and he remained so for several weeks. Thirteen days after his admission, and while he was still extremely ill, his brother, Carl Casey, who afterwards predeceased him, secured from him a special power of attorney in favor of appellant. The purpose was to enable appellant to pay the household and hospital bills, and it authorized her "to sign my name to checks for the withdrawal of any funds now or hereafter on deposit to my credit with the National Metropolitan Bank of Washington, D. C., and to endorse my name on all checks, drafts, or other negotiable paper, belonging to me or made payable to my order."

Mr. Casey had a second stroke the 25th of May, 1931, and again was taken to the hospital, where he remained until the 8th of June, 1931. He returned home; but two days later again entered the hospital, where he remained until his death on the 7th of September, 1932. During the period from July, 1929, to May, 1931, Mr. Casey took no part in the management of his business or personal affairs. He was regarded and treated by his wife as an invalid, and every effort was made to shield him from all kinds of excitement or exertion. Appellant under the power of attorney to check on his bank balances secured the funds for the personal expenses of the family and paid them out as needed. At the commencement of his illness, Mr. Casey maintained a safe-deposit box in the Park Savings Bank of...