Collinson, In Matter of

• Decision Date: 21 November 1952
• Docket Number: No. 28844,28844
• Parties: In the Matter of the Estate of Emily COLLINSON, Deceased. Helen OSTHEIMER, Appellant, v. John G. McNUTT, John G. McNutt, Executor of the Last Will and Testament of Emily Collinson, Deceased, Appellees.
• Court: Indiana Supreme Court

Page 700

108 N.E.2d 700

231 Ind. 605

In the Matter of the Estate of Emily COLLINSON, Deceased.

Helen OSTHEIMER, Appellant, v. John G. McNUTT, John G. McNutt, Executor of the Last Will and Testament of Emily Collinson, Deceased, Appellees.

No. 28844.

Supreme Court of Indiana.

Nov. 21, 1952.

Appeal from Probate Court, Marion County; Harvey B. Hartsock, Special Judge.

Supplementing 106 N.E.2d 225.

Leo X. Smith and Albert Stump, both of Indianapolis, for appellant.

Victor R. Jose, Jr., Indianapolis, for appellees.

BOBBITT, Judge.

This action grows out of an alleged gift causa mortis.

The deceased Emily Collinson was a lady of some seventy years of age who lived with an elder sister. She depended upon the Catholic Charities Bureau for nursing care. Appellant, who was a registered nurse and working under the direction of said bureau, was assigned to visit Miss Collinson at regular intervals. However, because of the condition of the deceased and her elder sister, appellant stopped frequently at their home where she cared for and performed nursing and other services for the deceased.

In January, 1943, decedent became seriously ill and appellant made necessary arrangements and took decedent to St. Vincent's Hospital, driving her there in her (appellant's) own car. At the time decedent had with her a small package and on the way to the hospital Miss Collinson said to appellant: 'Here is a box, I am giving it to you and if I die it is yours. I don't want anyone else to have it.' After Miss Collinson was settled in the hospital appellant took the box to the office of the bureau and gave it to the director who put it in the safe in the back of his office.

Miss Collinson died February 9, 1943, without having recovered from the illness which sent her to the hospital. On the day of her funeral appellant called appellee by telephone and told him that Miss Collinson had given her a box and that she did not know the contents thereof. He then asked the whereabouts of the box and where he could meet appellant for the purpose of getting it. Appellee later called for appellant at the Y.W.C.A. and drove her in his car to the office of the bureau where the box was delivered to them by the director. Appellant testified that on the way to the office she asked appellee whether, because there were no witnesses to the gift and there was a will, it could be a legal gift, and he answered: 'I don't know that it is a legal gift.' The box was opened by appellee and found to contain $11,577 in cash. Appellee then said he thought the money was a part of the estate. Thereupon the director of the bureau said: 'Well, Helen said all along if it did not belong to her she did not want it,' and asked appellee if he wanted to take the money with him. Appellee replied that he did not because it was after banking hours and arrangements were then made with the director and his secretary to meet appellee at the bank the next morning where the money was delivered and inventoried as an asset of the estate.

Appellant contends that the undisputed evidence brings the alleged gift within the definition of a gift causa mortis.

First: Gifts causa mortis are not especially favored in law because of the opportunity they afford for the perpetration of frauds. Yet, when the facts essential to consummate any such gift are clearly and satisfactorily shown, they are upheld and they are not contrary to public policy. Bulen v. Pendleton Banking Co., 1948, 118 Ind.App. 217, 78 N.E.2d 449, 456; Hinton, Admr. v. Bryant, 1934, 99 Ind.App. 38, 190 N.E. 554; Caylor v. Caylor's Estate, 1899, 22 Ind.App. 666, 52 N.E. 465, 72 Am.St.Rep. 331.

While this court has not refused to enforce the above rules, the doctrine announced therein should not be extended beyond its present limits and the evidence in support of a gift causa mortis must be not only clear and convincing, but it will be scrutinized with care. Page on Wills, vol. 4, § 1662, p. 749, and § 1701, p. 819.

There is no statutory law in Indiana defining or regulating gifts causa mortis and it, therefore, comes to us as a part of the common law. At common law no specific number of witnesses is required to establish a gift causa mortis but in order to establish such gift there must be clear and convincing evidence and the alleged gift must be accompanied by a delivery of the subject matter. 24 Am.Jur., Gifts, § 129, p. 797.

In considering any rule concerning the evidence required to establish a gift causa mortis, we should examine the public policy of our state on testamentary grants, as evidenced by our statutes, in order to secure a safe foundation on which to proceed. The Indiana statutes provide that a will shall be in writing, signed by the testator, and attested and subscribed in his presence by two or more competent witnesses. Section 7-201, Burns' 1933 Replacement, 2 R.S. 1852, ch. 11, § 18, p. 308.

An unwritten will (nuncupative) is recognized by statute in Indiana only when the value of the property bequeathed is less than $100, and such will must be made in the last sickness of the testator and the subject thereof must be reduced to writing within fifteen days after it shall have been declared and proved by two competent witnesses who shall have heard the testator, in effect, request some of those present to bear witness thereto; and no such nuncupative will shall be proved after six months from the death of the testator, nor until his widow and heirs shall have reasonable notice of the time and place of proving the same. Section 7-202, Burns' 1933 Replacement, 2 R.S. 1852, ch. 11, § 20, p. 308.

While I would not attempt to invoke the statutory provisions for proving nuncupative wills in proving a gift causa mortis, it nevertheless seems to me, in view of the policy adopted by the legislature in connection with the making of testamentary dispositions that it would be contrary to the general policy of the state to permit the establishment of a gift causa mortis where property of unlimited value might be claimed, on the sole uncorroborated testimony of the donee.

This court, in Devol v. Dye, 1890, 123 Ind. 321, 324, 24 N.E. 246, 247, 7 L.R.A. 439, laid down a rule prescribing the things essential to the consummation of a gift causa mortis. They are: '(1) The thing given must have been of the personal goods of the donor. (2) It must have been given while the latter was in peril of death, or while he was under the apprehension of impending dissolution from an existing malady; and, (3) the possession of the thing given must have been actually, or constructively, delivered to the donee, or to some one for his use, with the intention that the title should then vest conditionally upon the death of the donor, leaving sufficient assets in addition to pay his debts.' This rule has been consistently followed in Indiana. See also: Bulen v. Pendleton Banking Co., 1948, 118 Ind.App. 217, 231, 78 N.E.2d 449, supra.

'One who claims to hold property by gift causa mortis has the burden of proving the fact of the gift and that it had all the material characteristics of such a donation; and the burden of proof to establish the gift is heavier than in the case of a simple gift inter vivos.' 38 C.J.S., Gifts, § 116b, p. 919; 99 Am.St.Rep. 916, par. b.

If a gift causa mortis is established in the case at bar it must rest on the testimony of appellant (donee) and the circumstances surrounding the alleged gift, for there were no other witnesses present at the time to corroborate or dispute the donee's testimony as to decedent's words of gift and the delivery of the property. There were certain circumstances from which the trial court might have drawn inferences in favor of a gift, while there were other circumstances which might logically have led to a different conclusion. It was for the trial court to weigh the evidence and to consider the circumstances in favor of and against the establishment of a gift causa mortis.

A gift causa mortis has been sustained upon the sole testimony of one competent, credible witness: Thomas v. Lewis (Page v. Lewis), 1892, 89 Va. 1, 15 S.E. 389, 18 L.R.A. 170, 37 Am.St.Rep. 848; Apache State Bank v. Daniels, 1911, 32 Okl. 121, 121 P. 237, 40 L.R.A.,N.S., 901, Ann.Cas.1914A, 520, but I have been able to find only one authority where a gift has been established by the sole uncorroborated testimony of the donee. The Court of Appeals of New York in In re Sherman, 1919, 227 N.Y. 350, 125 N.E. 546, in deciding whether an alleged gift (certain bonds) by the deceased Deyoe to Sherman made shortly before Deyoe's death could be established by the uncorroborated testimony of the donee Sherman, at page 547 of 125 N.E., said:

'While the testimony of the appellant was not required as a matter of law to be corroborated by other evidence in order to make out a gift, yet it did call for a very careful scrutiny and examination in accordance with the suggestions made in Ward v. N. Y. Life Ins. Co., 225 N.Y. 314, 322, 122 N.E. 207, 209.

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'While it was not necessary as a matter of law that Sherman's testimony should be corroborated to establish a gift, it surely needed careful scrutiny and analysis to ascertain whether it had that reasonableness and probability, in view of all the circumstances, as would naturally lead to the belief that a gift had been made and intended.'

However, in that case it was not contended that the alleged gift was a gift causa mortis. The decision of the trial court, which held that the evidence was insufficient to establish a gift, was reversed for retrial of the issue on the question of gift. Cf: In re Downey's Estate, Sur., 1947, 68 N.Y.S.2d 407; In re Buoninfante's Estate, 1925, 125 Misc. 907, 212 N.Y.S. 265; In re Housman's Estate, 1918, 182 App.Div. 37, 169 N.Y.S. 277, aff. 224 N.Y. 525, 121 N.E. 357.

The preponderant rule is that a gift causa mortis cannot be established by the sole uncorroborated testimony of the donee. Gambill v. Hogan, 1947, 30...