Duvall v. Henke, 53504

• Decision Date: 10 May 1988
• Docket Number: No. 53504,53504
• Citation: Duvall v. Henke, 749 S.W.2d 714 (Mo. App. 1988)
• Parties: Kathy DUVALL, Plaintiff-Appellant, v. Patricia HENKE, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 714

749 S.W.2d 714

Kathy DUVALL, Plaintiff-Appellant, v. Patricia HENKE, Defendant-Respondent.

No. 53504.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 10, 1988.

Victoria F. Taylor, St. Louis, for plaintiff-appellant.

Steven R. Ohmer, St. Louis, for defendant-respondent.

KAROHL, Presiding Judge.

Personal representative of the estate of David Pinkerton filed a Section 473.340 RSMo 1986 petition to discover and recover various items of tangible personal property. Pinkerton was living with defendant Henke at the time of death. The trial court found that Henke was an inter vivos donee of the property. The Estate appeals.

Pinkerton and Henke met and began dating during the first two months of 1986. He moved into her apartment at the end of February or the beginning of March of 1986. While the couple lived together he moved the following items into the apartment: one Hitachi color television, one GE radio, one VCR, four VCR tapes, one kitchen table, four kitchen chairs, and one typewriter. Title for the listed items of personal property is at issue in the case.

On appeal, Personal Representative assigns error claiming that the evidence was insufficient to support a finding of a valid inter vivos gift from Pinkerton to Henke of the personal property he brought into the apartment the couple shared. We review the claim of sufficiency of proof in a court tried case according to the standard set in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The general rule concerning an inter vivos gift is well established. Kelly v. Maxwell, 628 S.W.2d 931, 934-35 (Mo.App.1982). The following elements constitute a valid inter vivos gift: 1) present intention of the donor to make a gift; 2) delivery of property by donor to donee; and 3) acceptance by donee whose ownership takes effect immediately and absolutely. In re Evans' Estate, 614 S.W.2d 315, 317 (Mo.App.1981). The party claiming that an inter vivos gift exists, has the burden of proving the elements of gift by clear, cogent and convincing evidence. In re Estate of Wintermann, 492 S.W.2d 763 (Mo.1973)). The trier of fact determines whether a valid gift inter vivos exists. Id. at 383.

The initial question is whether decedent had the requisite present intent to make an inter vivos gift of his personal property to his girlfriend. Specific language is not required to reflect present intent to make a gift on the part of donor. Consequently, the circumstances surrounding the living situation has critical importance. We learn from the transcript the following facts: 1) the couple lived together and held themselves out to the public as husband and wife; 2) decedent brought personal property into the apartment for their mutual use and enjoyment; 3) decedent and girlfriend had a joint checking account for the purpose of paying household expenses. These circumstances create an inference that decedent had the present intent to make inter vivos gifts of the items he brought into the apartment he shared with Henke.

There is evidentiary support for finding a gift was intended and made. Henke stated during direct examination, "I also made a remark to him that, well, if something broke and it was his, he would have to pay for it, and he corrected me very swiftly on that and stated, 'No, these are our items. We both contribute to the funds, we will pay for it [repairs] out of the funds.' " This is ample evidence from which the trial court could conclude that decedent had the present intent to make a valid inter vivos gift.

The above testimony also bears heavily on the second inquiry; whether decedent made valid delivery of his personal property to Henke. The general rule concerning delivery is that there must be "some conduct on the part of the donor indicating change in character of his possession from that of sole owner to that of joint tenant." Wantuck v. United Savings and Loan Ass'n., 461 S.W.2d 692, 696 (Mo. banc 1971). The Supreme Court there recognized a special exception where family relations are involved. Id. at 695. In such cases a gift may occur by transfer from donor to himself and another as joint owners.

In Wantuck, the court applied the general rule and held no gift was made. However, it recognized the special exception to the general rule requiring delivery which allows for a presumption as to the presence of delivery in cases where a family relationship exists. Id. at 696. In a declaratory judgment action it held the exception did not apply because there was no family relationship between one Mengerhausen and his church. The case involved a certificate of deposit evidenced by a certificate issued in joint names of Mengerhausen and a church. Mengerhausen retained possession of the certificate in his safety deposit box where it was found after his death. Interest checks were paid solely to the deceased. The church was unaware of the existence of the certificate until after his death. The court distinguished these facts from those...