DeMouy v. Jepson

• Decision Date: 22 March 1951
• Docket Number: 1 Div. 423
• Citation: 51 So.2d 506,255 Ala. 337
• Parties: DEMOUY v. JEPSON.
• Court: Alabama Supreme Court

Page 506

51 So.2d 506

255 Ala. 337

DEMOUY v. JEPSON.

1 Div. 423.

Supreme Court of Alabama.

March 22, 1951.

Marshall J. DeMouy and Inge, Twitty, Armbrecht & Jackson, all of Mobile, for appellant.

Rickarby & Rickarby and J. Jefferson Bennett, all of Fairhope, for appellee.

SIMPSON, Justice.

This suit was brought in the circuit court, in equity, on a bill by appellee, Emily Jepson, as legatee under the will of Mary E. Rupf, deceased, against Sophie G. DeMouy, individually, and as executrix under the will of said decedent. By agreement of the parties, there was consolidated with said cause a case on appeal to the circuit court in a detinue suit instituted in the justice of the peace court between the parties, involving certain personal property, to be mentioned later, owned by decedent in her lifetime.

This suit was instituted under the provisions of § 159, Title 7, Code 1940, and the general authority of equity, to have the court construe Paragraph A of the will and the first clause of the codicil.

Paragraph A of the will reads: 'I give, devise and bequeath to my beloved friend, Emily Jepson, wheresoever situated, now of 510 Wilmott Avenue, Bridgeport, Conn., my home wherever situated, now of 301 White Avenue, Fairhope, Alabama, including all furniture and equipment.'

The codicil reads: 'First I wish my home that is left to Mrs. Emily Jepson of Bridgeport, Connecticut, to have the lease, adjoining my home, on the West thirty-three feet to go to her with the home.'

There are two issues in dispute between the parties, one involving personal property consisting of one dining room set, one china cabinet, one buffet, and one red carpet, which were situated in the property devised to Mrs. Jepson, which Mrs. DeMouy is claiming under a memorandum hereafter to be considered; and a strip of land approximately nine feet in width between the Jepson house (the 'home' mentioned above) and Mrs. DeMouy's house on the east, which Mrs. DeMouy received by the terms of the will as residuary legatee. The personalty is the subject property of the detinue suit mentioned above.

The memorandum under which Mrs. DeMouy claims the aforesaid articles of personal property, though they were, at the time of testator's death, in the 'home' which Mrs. Rupf devised to Mrs. Jepson, was dated after the execution of the will and is as follows: (Sophie is Mrs. DeMouy) 'Chair for Dr. Dahlgren. Antique desk for Marshall. Dining room set for Sophie. 4 dinner plates for Allison. Antique drop leaf table for Sophie. Vase for Mrs. Damrell. Silver pitcher and dishes for Mrs. Ernest. Little house on 75 foot lot & furnishings for Sophie. Clothes basket for Sophie. Chair for Mrs. Moore. Book case or mahogany victrola for Mrs. Cheeseman. Red carpets and pink drapes for Sophie. Large chest and pink camellia for Mary Rose. Double cot, mattress & covering for Sophie.'

Appellant, Mrs. DeMouy, contends that by this memorandum the articles of personal property mentioned were gifts inter vivos from Mrs. Rupf to her, in consequence of which they were lifted from the terms of Paragraph A of the will above quoted, entitling her to receive them rather than Mrs. Jepson. Appellee, however, advances the contrary contention, which was sustained by the trial court, that if given any effect at all, the memorandum was testamentary in character, and not having been mentioned in and having no relation to the will, was void as not having been executed in the form as required by law. We are in accord with that ruling. We think the evidence is too uncertain and unsatisfactory to show a completed gift to Mrs. DeMouy.

It is an essential prerequisite of a gift inter vivos that there must be a clear intention of the donor to make the gift with the donor's relinquishment of all present and future dominion thereover and a delivery to and acceptance thereof by the donee. Collins v. Baxter, 231 Ala. 247, 164 So. 61.

The burden is on the donee, the appellant here, to establish the fact of gift by clear and convincing proof and if the impartial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee has failed to discharge the burden imposed and the claim of gift will fail. Collins v. Baxter, supra; Hudgens v. Tillman, 227 Ala. 672, 151 So. 863; Miller v. Tubb, 202 Ala. 631, 81 So. 573; Wheeler v. Glasgow, 97 Ala. 700, 11 So. 758; Thomas v. Tilley, 147 Ala. 189, 41 So. 854; Barnes v. Barnes, 174 Ala. 166, 56 So. 958.

We think the evidence is entirely too uncertain as to just what result the memorandum did have upon the clear terms of the will and the contested articles of personal property described in Paragraph A of the will. All the evidence shows to sustain the gift inter vivos to Mrs. DeMouy is that Mrs. DeMouy was residing in the home of Mrs. Rupf and looking after her business for her when the memorandum was purportedly executed and when Mrs. Rupf died. The only proof as to the execution and delivery of the memorandum was that it bore Mrs. Rupf's signature and that within two or three months of her death, according to the deposition of Morgan, a tenant of hers, she told Morgan that she had directed Mrs. Sophie G. DeMouy to make up a list of certain personal property which she desired to give (not had given) to various people, that Mrs. DeMouy did make up such list and that she, Mrs. Rupf, had signed it and had had it witnessed by Mrs. DeMouy and that she had delivered it to Mrs. DeMouy. It was in Mrs. DeMouy's possession when it was presented in court. The articles described in the memorandum 'for' Mrs. DeMouy which are in litigation here remained in the home of Mrs. Rupf until after her death and thus, as we view it, there was never any completed delivery with relinquishment of control to make an executed gift.

It is to be conceded, as argued by able counsel for appellant, that where the personal property is not susceptible of manual delivery, symbolic or constructive delivery is sufficient to constitute an enforceable gift and under circumstances where a gift is evidenced by writing executed by the donor, the delivery of the writing is held to be sufficient delivery to support the gift. Collins v. Baxter, supra, and cases cited; First National Bank v. Hammel, 252 Ala. 624, 626, 42 So.2d 459; Goodson v. Liles, 209 Ala. 335, 338, 96 So. 262; 38 C.J.S., Gifts, § 22, pp. 801, 802.

But conceding the execution and delivery of the memorandum, whatever may have been its dubious import, the circumstances disclosed by the present record fail to satisfactorily convince the impartial mind of a completed gift inter vivos. True, the other items listed in the memorandum are not contested here as being completed gifts to the respective persons named therein, but these articles were delivered presumably before Mrs. Rupf's death and we will assume with her authorization or approval. The circumstances with reference to them are not shown and the articles are not in contest. The situation is different as regards the articles claimed by Mrs. DeMouy. There is no evidence that Mrs. Rupf ever parted with the dominion and control over them or that they were ever delivered over to Mrs. DeMouy, and without a release of dominion and control over them and a delivery by the donor to the donee, regardless of the status of the other articles mentioned in the memorandum, the gift was not completed. Out view of ...