Collinson's Estate, In re, 17912

• Citation: 93 N.E.2d 207
• Decision Date: 28 June 1950
• Docket Number: No. 17912,17912
• Parties: In re COLLINSON'S ESTATE. OSTHEIMER v. McNUTT et al.
• Court: Court of Appeals of Indiana

Page 207

93 N.E.2d 207

In re COLLINSON'S ESTATE OSTHEIMER v. McNUTT et al.

No. 17912.

Appellate Court of Indiana, in Banc.

June 28, 1950.

Albert Stump, Indianapolis, Leo X. Smith, Indianapolis, for appellant.

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

WILTROUT, Judge.

This action involves an alleged gift causa mortis.

Appellant filed her verified pleading in two paragraphs, entitled 'Complaint for Possession of Property,' and it was docketed as a matter in the estate of Emily Collinsion, deceased. It names John G. McNutt as defendant, and the same pleading is filed as a petition against John G. McNutt, executor of the last will and testament of said decedent, as respondent.

Very briefly summarized, it alleges that decedent made a gift causa mortis to appellant of a box; that following decedent's death she and McNutt opened the box and found it to contain $11,577.00 in cash; that she is inexperienced in matters of law; that she asked the appellee, John G. McNutt, who is a lawyer, for advice as an attorney, and that McNutt, whose interests were adverse to hers, advised her that the money belonged to decedent's estate and should be delivered to him as executor; that as a result of the erroneous and mistaken advice the money was so delivered. There is an allegation of a demand for the return of the money, and a refusal. The prayer is for a judgment as against John G. McNutt for $11,577.00 with interest and costs, and that the court enter an order against the executor to show cause why appellant should not be adjudged the owner of said money as against said executor or McNutt individually.

An order to show cause was issued against the executor, and three paragraphs of response were filed. McNutt, individually, filed affirmative answers.

At the close of appellant's evidence, the court, upon motion, entered a finding and judgment for John G. McNutt as an individual.

There was testimony, some of which was admitted as to the individual defendant only, as to the following facts: Appellant, a registered nurse, worked for a charities bureau. Her duties included visiting old and sick people who needed some one to check on their medical attention. She called on decedent for over two and a half years prior to decedent's death. While she was normally supposed to make such calls once a month, she called on decedent once or twice a week, both during and outside her regular work hours.

Decedent, who was approximately 69 years old, became ill. She had a cold which at first did not seem serious. Appellant persuaded her to stay at a neighbor's home a night or two, and then insisted she was too ill for the neighbors to take care of her. Appellant made arrangements to take decedent to a hospital in appellant's car. They first went to decedent's home and when they left for the hospital decedent had with her a box which she held in her lap.

Following decedent's death at the hospital approximately two weeks later, the director of the charities bureau and also appellant called Mr. McNutt on the telephone and told him of the box. Appellant had been informed that he had written decedent's will and was the executor thereof, and knew that he was an attorney, although she had not personally known him before this. Appellant told McNutt that decedent had given her a box, but that she did not know its contents. They thereupon made arrangements to go to the office of the charities bureau where the box was located. Mr. McNutt took appellant in his car. She told him that when she was taking decedent to the hospital decedent had turned the box over to her and said: 'It is yours. I don't want my relatives to have it. Don't give it to anyone. Put it in a safe place. If I die it is yours.' Appellant asked McNutt if due to the fact that there were no witnesses to the gift and that there was a will, if it would be legal as a gift, and he answered, 'I don't know that it is a legal gift.' Appellant said, 'I want to do whatever is right.'

Upon arrival at the office of the charities bureau the box was removed from the safe. In addition to appellant and McNutt, the director of the bureau and his secretary were present. Appellant again stated how she happened to obtain the box. She told Mr. McNutt that decedent said: 'I do not want anybody else to have it, put it in a safe place. Do you have a safety deposit box?' That when appellant answered that she did not, decedent said, 'Well put it in a safe place. Don't open it until I die. If I die it is yours, don't give it to anybody.' Mr. McNutt said that it might be a legal gift and it might belong to the estate. After the money was counted he said he was of the opinion that it belonged to the estate.

Thereupon the director of the charities bureau said, 'Well, Helen said all along if it did not belong to her she did not want it,' and asked McNutt if he wanted to take the money along. McNutt said he did not as it was after banking hours. Arrangements were then made with the director and his secretary to meet McNutt at a bank with the money, and it was turned over to him. It was inventoried as an asset of the estate.

In her motion for a new trial appellant questions the sufficiency of the evidence and says the decision was contrary to law; that the undisputed facts bring the gift within the definition of a gift causa mortis declared and followed by the reviewing courts of this state.

'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 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.

If a gift causa mortis is established, it must rest principally on the testimony of appellant and the surrounding circumstances, as there were no other witnesses present at the time of the alleged gift to corroborate her story as to decedent's words of gift, or to dispute it. There were circumstances from which the trial court could have drawn inferences in favor of a gift. There were other circumstances which might lead to a different conclusion.

As was said by the Supreme Court in Gilley v. State, 1949, Ind.Sup., 88 N.E.2d 759, 761: 'The court saw the witness and could have disbelieved her, even though her evidence was not contradicted by any other witness. (Citing authorities.) It was for the court to determine her credibility, in the light of all the other circumstances, not for us, and it was for the court to weigh her evidence and the other circumstances against the possession of the property and reach a conclusion. We will not consider the weight of these other circumstances or the weight of the other evidence, which would be necessary if we were to reverse the case upon this ground.'

It is stated in Haynes v. Brown, 1949, Ind.App., 88 N.E.2d 795, 797 (Transfer denied): 'The trier of the facts is not required to believe the testimony of every witness. Soucie v. State, 1941, 218 Ind. 215, 31 N.E.2d 1018. On the other hand the trial court may not refuse to consider and weigh competent, uncontradicted evidence. Egbert v. Egbert, 1948, 226 Ind. 346, 80 N.E.2d 104. Among the factors entitled to consideration in determining the credibility of witnesses and the weight to be given their testimony, are the interest of the witness, if any, in the outcome of the trial; his bias and prejudice, if any are shown; his opportunity for knowing and recollecting the facts about which he testifies; the probability or improbability of his testimony; and his demeanor while on the witness stand. McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 21 N.E.2d 474. And even though an item of evidence is not expressly or directly denied or refuted, it does not necessarily stand as uncontradicted evidence, for the trier may disregard or disbelieve oral evidence if it is considered unreasonable or inconsistent with facts and circumstances shown by the other credible evidence in the case. Wright v. Peabody Coal Co., 1948, 225 Ind. 679, 77 N.E.2d 116.'

Other cases to the same general effect are: Limp v. State, 1950, Ind.Sup, 92 N.E.2d 549; Cole v. Sheehan Construction Company, 1944, 222 Ind. 274, 53 N.E.2d 172; Talge Mahogany Company v. Burrows, 1921, 191 Ind. 167, 130 N.E. 865; Cotner v. State, 1909, 173 Ind. 168, 89 N.E. 847; Scoopmire v. Taflinger, 1944, 114 Ind.App. 419, 52 N.E.2d 728; Nat. City Bank v. Kirk, 1926, 85 Ind.App. 120, 134 N.E. 772.

Appellant insists there was error in the entering of a separate judgment as to the individual defendant before the close of the entire case. We must therefore consider whether appellant introduced some evidence as to each material fact which would reasonably sustain a finding in favor of appellant against the individual defendant. 2 Gavit, Indiana Pleading and Practice 2163, § 365.

The gist of the action...