Combs v. Roark's Administrator

• Decision Date: 04 November 1927
• Citation: 221 Ky. 679
• Parties: Combs v. Roark's Administrator.
• Court: United States State Supreme Court — District of Kentucky

Page 679

221 Ky. 679

Combs v. Roark's Administrator.

Court of Appeals of Kentucky.

Decided November 4, 1927.

1. Executors and Administrators. — Steps required by Civil Code of Practice, section 180 et seq., as to claim and delivery of personal property, are not necessary in order that administrator may sue to recover possession of decedent's specific property.

2. Gifts. — The burden of establishing a gift either causa mortis or inter vivos rests on party claiming it.

3. Witnesses. — On issue whether deceased mother gave daughter certificates of time deposit, evidence of disinterested persons present at time mother wrote her name on certificates and said she wanted to sign them over to daughter was properly admitted.

4. Witnesses. — Daughter claiming certificates of time deposit as gift from deceased mother was not competent witness to testify that she received certificates from mother, had possessed them ever since, and kept them in mining company's safe, such testimony, in connection with other evidence, being of a "transaction" with deceased, within Civil Code of Practice, sec. 606, subsec. 2, and inadmissible.

5. Gifts. — To establish a "gift," which is a parting by owner with his property without pecuniary consideration, donor must be competent, and intend to make it, donee capable of taking, gift must be complete, be accepted, must be immediately effective, gratuitous, and, if gift inter vivos, must be irrevocable.

6. Gifts. — Law scrutinizes transaction claimed to constitute gift very closely.

7. Gifts. — Testimony of witness, witnessing transaction, that mother, when she indorsed certificates of time deposit, said she wanted to sign certificates over to daughter, held not evidence of gift of them to her daughter.

8. Gifts. — To establish a gift inter vivos, it is essential that delivery be shown.

9. Gifts. — In suit by administrator to recover possession of certificates of time deposit claimed by defendant as gift from her mother, directing verdict against defendant was proper, where there was no competent evidence that certificates were ever delivered to her.

Appeal from Perry Circuit Court.

F.J. EVERSOLE, JESSE MORGAN and J.T. BOWLING for appellant.

J.W. CRAFT, W.H. MILLER, H.C. FAULKNER and W.E. FAULKNER for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

This is an appeal from a directed verdict in favor of the appellee. This is the second appeal of this case. See 206 Ky. 454, 267 S.W. 210. Mrs. Roark suffered a paralytic stroke on March 6, 1921, from which she partially recovered, but on June 1st she suffered a second stroke, from which she died on June 10th. Her husband, Dr. F.C. Roark, qualified as her administrator, and he and her eight children were the distributees of her estate. Dr. Roark sued Mae Roark Combs to recover of her possession of five certificates of time deposit, the face value of which aggregated $5,480. Mrs. Combs demurred to this petition. Her demurrer was overruled. That action was approved on the former appeal, but, as she is raising the question again we will say that this petition was a good petition to recover the possession of specific personal property. The plaintiff did not take the steps required by section 180 et seq. of the Civil Code, to secure an immediate delivery of the property, but such steps are not necessary in order to maintain the action. See Adams v. Craycroft, 10 Ky. Op. 910. By her pleadings, Mrs. Combs merely denied the allegations of the petition, and averred that she was the owner of these certificates. There is nothing in her pleading to show how she became the owner of these certificates, but we gather from the record that she claimed these certificates were given her by her mother on April 29, 1921. Whether this gift was a gift causa mortis or a gift inter vivos is not pleaded, and cannot be determined from the meager evidence in the case, but it will not be necessary for us to do so, for, in either event, the burden of establishing this gift rested on Mrs. Combs. See 28 C.J. pp. 669, 703; Buckel et al. v. Smith's Adm'r, 82 S.W. 235, 26 Ky. Law Rep. 494; Endicott v. Stump (Ky.) 128 S.W. 76.

She offered as a witness in her behalf one J.C. White, who testified he was present at the office of the Columbus Mining Company in Christopher in April, 1921, when Mrs. Combs wrote the name of Polly Ann Roark on these certificates, and that he saw Polly Ann Roark sign them by making her mark, and he said this in his testimony:

"Mrs. Roark asked me to witness it, said she wanted to sign them over to Mae, wanted me to come in and witness it, and I went in and witnessed her mark."

Mrs. Combs showed by another witness, J.C. Mooney, that he saw Mrs. Roark and Mrs. Combs and White at the Columbus Mining Company, and saw them signing some papers. Practically the same thing was testified to by Jeff Bryant and William Russell. Dr. Roark objected to this evidence. These people had no interest in the matter, and their evidence was properly admitted. Mrs. Combs then offered herself as a witness, and testified that she received these certificates at the Columbus Mining Company's plant on April 29, 1921, and had had possession of them all the time since then, and kept them in the safe at the Columbus Mining Company. Dr. Roark's motion to exclude this evidence about getting and having possession of these certificates from the jury was overruled. He then moved the court to instruct the jury to find for him, and that motion was sustained; proper exceptions being reserved in each instance. Upon these two rulings this case depends. We will consider first the action of the court in refusing to exclude this evidence of Mrs. Combs. The basis of Dr. Roark's objection to this evidence about getting and having possession of these certificates is that, when it is taken in connection with the evidence of other witnesses, it is testimony concerning a transaction with Mrs. Roark, who is now dead. In our opinion upon the former appeal, we went into this question of evidence very extensively, but there are now some questions presented that seem not to have been specifically covered even by that extensive opinion.

As a gift is a parting by the owner with his property without pecuniary consideration, the law scrutinizes such transactions very closely, and to establish such a gift there must be a donor competent to make it, and an intention on his part to make it; a donee capable of taking a gift; the gift must be complete with nothing left undone; the property must be delivered by the donor, must be accepted by the donee, must go into immediate and absolute effect, must be gratuitous, and, in case of gifts inter vivos, must be irrevocable. If we look again at what the witness White said, we will see that his evidence covers none of these things. His statement that Mrs. Roark said she wanted to sign them over to Mae does not necessarily mean that she wanted to give them to Mae. There are many reasons for which she may have wanted to sign them over to Mae. She may have wanted Mae to get them converted into cash for her; she may have wanted the deposit changed from time deposit to a general checking account; she may have intended to establish some sort of an agency or trust. There are many purposes which she may have had to sign them to Mae, without having in mind the purpose of giving them to Mae. Therefore the attorneys for Mrs. Combs regarded it as important to show that Mae has had possession of these certificates since April, 1921, and, if that could be shown by some witness other than Mrs. Combs herself, it would be right important evidence for her, but Mrs. Combs is an interested witness, and, when she testifies for herself to having had possession of these...