Dickson v. Dickson

• Decision Date: 01 February 1937
• Parties: CARL DICKSON, APPELLANT, v. EMMA DICKSON, RESPONDENT
• Court: Kansas Court of Appeals

101 S.W.2d 774

231 Mo.App. 515

CARL DICKSON, APPELLANT, v. EMMA DICKSON, RESPONDENT

Court of Appeals of Missouri, Kansas City

February 1, 1937

Appeal from the Circuit Court of Randolph County.--Hon. A. R Hammett, Judge.

AFFIRMED.

Judgment affirmed.

Hunter & Chamier and Roy Hamlin for appellant.

John D Taylor for respondent.

OPINION

SHAIN, P. J.--

The question involved in this cause arises out of a proceeding in the probate court to discover assets.

Willis G. Dickson, now deceased, in 1923 loaned $ 1500 to Roy Dickson and wife, which loan was evidenced by a note. At the time the note was executed and delivered the following indorsement was made thereon: "At my death, this note is to become the property of Alice Dickson, my wife. Signed Willis G. Dickson."

The above note was paid in part and on March 10, 1926, the above note was cancelled and a new loan made for the sum of $ 3000 and note therefor was duly signed by Roy Dickson and wife.

On the reverse side of this note is indorsed as follows:

"Assigned to Emma A. Dickson without recourse.

W. G. Dickson."

"Paid $ 180.00 interest to March 10-27."

"Paid $ 180.00 interest to March 10-28."

"At my death this note is to become the property of my wife, Emma A. Dickson."

It appears that in May, 1926, Willis G. Dickson executed a will wherein the $ 3000 note in question was bequeathed to his wife Emma A. Dickson. Emma A. Dickson was designated as "Executor."

In this will Carl Dickson, a grandson, and outside of the widow, the only heir at law of Willis G. Dickson, was not mentioned.

In August, 1928, Willis G. Dickson died and his aforesaid will was duly probated. Thereafter inventory was made, however, the $ 3000 note in issue was not inventoried.

Thereafter the appellant herein, Carl Dickson, his grandfather having died intestate as to him, filed proceeding in the probate court to discover assets. Thereafter hearing was had in probate court and issue was found against the appellant. An appeal was taken to the Circuit Court of Chariton County, Missouri, and change of venue was taken and cause sent to Randolph County, Missouri.

Trial was by jury in the Randolph Circuit Court and the jury, as to the $ 3000 note, found against appellant and found that Emma A. Dickson, the widow, was the owner of the $ 3000 note in issue. The transcript filed herein states that judgment was entered in accordance with the verdict. The transcript shows that an appeal was granted to the Supreme Court.

By stipulation of the parties, the Supreme Court transferred the cause to this court.

The appellant, in taking this appeal, has shown but little consideration to the rules of this court. The printed record filed does not contain a bill of exceptions. The record proper does not set forth respondent's answer and does set out the judgment of the trial court. Further, an abridgment of the record is made by printing part in narrative form and wherein the narrative is in the language of counsel stating conclusion as to what witness testified to, instead of narrative in language of the witness. Other parts of the evidence is shown by question and answer.

Upon an examination of appellant's brief, we fail to find a single assignment of error. However, under points and authorities, appellant presents arguendo as to "gift inter vivos," delivery, indorsement, burden of proof and as to instructions altered by the court and so given.

The respondent filed a motion to affirm the judgment, by reason of the above stated defects. We conclude that respondent's motion to affirm must be sustained. However, as respondent in her brief invites further consideration, by admitting that the issue of gift inter vivos is presented and by conceding that there is sufficient showing from which to determine as to whether an issue of fact on that question is presented, we have carefully examined the record and conclude that the judgment is entitled to be affirmed on the merits. So finding, we feel that it is not out of place to here discuss from the standpoint of the merits and give our conclusions as based upon the showing of facts.

OPINION.

The general rule in Missouri as to gift inter vivos is well established. We quote from appellant's brief as follows:

"To constitute a valid 'gift inter vivos,' there must be a voluntary, gratuitous and ABSOLUTE TRANSFER OF THE PROPERTY FROM THE DONOR TO DONEE EFFECTIVE IMMEDIATELY and fully executed by delivery to and acceptance by the donee." [Lohnes v. Baker, 137 S.W. 282, 156 Mo.App. 397.]

Such has been declared the law by every appellate court of this State. However, the question of valid gift inter vivos is a question of fact to be determined by the trier or triers of the fact. [Cremer v. May, 8 S.W.2d 110.]

There is no question but what respondent's husband, from the inception of the note, intended it as a gift to his wife to take effect after his death. Such intention is expressed by his will and by his indorsement first made on the note. Such, however, was not a completed gift.

The question arises in this case as to whether or not the husband in his lifetime expressed an intent of immediate gift and whether or not there was any delivery or change of possession so as to perfect a gift of the note in his lifetime.

The above presents a question of fact in this case. Touching such issue of fact, the courts of this State recognize a somewhat different rule than is applied in those cases where family relations do not exist.

In Missouri the doctrine as laid down in Davis v. Zimmerman, 40 Mich. 24, has been quoted and commented upon with approval. The doctrine as laid down in the above case and quoted and approved by our courts, is as follows:

Ch. J. Cooley, in Davis v. Zimmerman, 40 Mich. 24, speaking to a state of facts quite similar to these at bar, said: "The question of change of possession must be considered in connection with the other facts in the case. It is no doubt true that in respect to the property in general there was no open and visible change of possession. But how could there have been? The donor and donee were living together as husband and wife, at a public hotel. Must she separate from him in order to be competent to receive from him a gift? If he gives her a picture or an article of furniture, must she procure it to be kept by some one else instead of placing it in her own apartments? . . . No doubt the circumstances of the relation, and the facility with which frauds may be accomplished under the pretense of sales or gifts between husband and wife ought to be carefully weighed, in determining whether or not a gift has been made, but when all are considered, the one question, and the only question is, whether the wife has established her right by a fair preponderance of evidence; if she has, no court has any right to require more.'"

Judge PHILIPS of the Kansas City Court of Appeals in Schooler v. Schooler, 18 Mo.App. 69, 76, says:

"The matter of change of possession is often necessarily a relative question. Regard must be had to the relation of the donor and the donee, and the situation of the property. It would be unreasonable, as it might be utterly impracticable, for the wife, receiving such gifts from the husband, to take it away and keep it at other place than the common home."

An opinion by Judge ELLISON of this court, Fair v. Wynne, 155 Mo.App. 341, 137 S.W. 78, quotes from the Michigan case, supra, and cites Schooler v. Schooler, supra, and in the course of the opinion says: "The sufficiency of possession necessarily depends on the circumstances surrounding the parties and the necessity of the situation."

The principle stated above has been approved by the Missouri Supreme Court by a majority opinion in banc Harvey v. Long, 260 Mo. 374, 168 S.W. 708, l. c. 384-5 of the above opinion it is said:

"The real question in the case...