Foley v. Harrison

• Decision Date: 28 February 1911
• Parties: FOLEY v. HARRISON.
• Court: Missouri Supreme Court

136 S.W. 354

233 Mo. 460

FOLEY v. HARRISON.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. APPEAL AND ERROR (§ 933)—PRESUMPTIONS —GRANT OF NEW TRIAL—INSUFFICIENCY OF EVIDENCE.

An order granting a new trial after verdict for plaintiff, "for the reason that plaintiff is not entitled to recover," may have been made because the trial court concluded that the verdict was against the weight of the evidence, or that the evidence was insufficient to support a verdict, and the court on appeal cannot review the order on the theory that it was made because of the insufficiency of the evidence.

2. APPEAL AND ERROR (§ 1015)—GRANTING OF NEW TRIAL—REVIEW.

The granting of a new trial on the ground that the verdict is against the weight of the evidence will not be disturbed on appeal.

3. NEW TRIAL (§§ 70, 72)—GROUNDS—INSUFFICIENCY OF EVIDENCE.

The court, believing that the verdict is not supported by the evidence or is against the weight of the evidence, should not hesitate to grant a new trial.

4. GIFTS (§ 53)—"GIFT CAUSA MORTIS"—REQUISITES.

A gift causa mortis is a gift by the donor in contemplation of death to take effect only in the event of his death, and there must be a physical or symbolical delivery of the article given, and the gift is subject to revocation by the act of the donor prior to death, and is revoked by his recovery from sickness or escape from the danger in view of which the gift was made.

5. GIFTS (§§ 56, 62)—GIFT CAUSA MORTIS— PROPERTY SUBJECT TO.

All species of personal property, whether corporeal or incorporeal, are proper subjects of gifts causa mortis, and where the nature or the location of the property is such that actual delivery cannot be made, or where the existing conditions are such as to render a physical delivery unreasonable, a symbolical delivery is sufficient, but in such cases the intention of the donor to part with the control of and dominion over the property given is a prime factor to be considered in passing on the question of delivery.

6. GIFTS (§ 62)—GIFT CAUSA MORTIS—DELIVERY —REQUISITES.

A donor of gift causa mortis of the contents of a deposit box in a safety deposit vault consisting of notes payable to him and of money, who delivers to the donee the keys to the box with the intention of making an absolute gift of the contents, makes a sufficient delivery.

7. GIFTS (§ 82)—CAUSA MORTIS—EVIDENCE— SUFFICIENCY.

The evidence to support a gift causa mortis must be clear and conclusive, and the evidence must be weighed in the most scrupulous manner, and deemed wanting whenever its overwhelming probative force is lacking and fails to convince the judicial mind of its truthfulness beyond a reasonable doubt.

8. GIFTS (§ 82)—CAUSA MORTIS—EVIDENCE— SUFFICIENCY.

Evidence held not to establish a gift causa mortis.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by Elizabeth Foley against J. S. Harrison. From an order granting a new trial after verdict for plaintiff, she appeals. Affirmed.

The plaintiff instituted this suit against the defendant in the circuit court of Jackson county by filing the following petition therein, to wit:

"The plaintiff says that she is the owner of and entitled to the immediate possession of certain promissory notes or bonds, secured by mortgages or deeds of trust, and of the value of the amounts thereof, as follows: Note or bond, $500, dated January 14, 1903, payable three years after date at the office of Harrison & Son, Kansas City, Mo., bearing 7 per cent. interest; maker, Fritz Dolde; secured by a mortgage or deed of trust on lot forty-seven (47) Brighton Park, an addition to Kansas City, Jackson county, Mo." Then follows 15 other allegations, describing 15 other notes and deeds of trust, differing from the foregoing only in the dates, the amounts, rates of interest, when payable, the makers, and the description of the land.

Continuing, the petition states:

"The plaintiff says that said promissory notes or bonds and the mortgages or deeds of trust securing the same are in possession of the defendant; that the defendant, although possession thereof has been duly demanded by plaintiff, refuses to deliver the possession thereof to the plaintiff, and wrongfully detains the same from the plaintiff; that all of said promissory notes or bonds have interest accruing thereon as appears by the terms thereof. Wherefore, plaintiff prays judgment against the defendant that the defendant be ordered to deliver the possession of said promissory notes or bonds, and the mortgages or deeds of trust securing the same to the plaintiff, or, if possession of any thereof cannot be delivered, that the defendant pay to the plaintiff the value thereof and for costs of suit.

"Second Count. The plaintiff says that on or about the 25th day of September, 1906, the plaintiff was the owner of $4,495 in current moneys, then in a safety deposit vault of the Kansas City Safety Deposit Company, in Kansas City, Jackson county, Mo., and on or about said date defendant took possession thereof; that thereafter the plaintiff demanded possession thereof from the defendant, and the defendant refused to deliver the same to the plaintiff, but wrongfully converted same and has deprived the plaintiff thereof. Wherefore, plaintiff prays judgment against the defendant for four thousand, four hundred and ninety-five dollars ($4,495), with interest at 6 per cent. from the date of the commencement of this action and for costs of suit."

The answer was as follows: "Defendant for answer denies each and every allegation of plaintiff's petition. Wherefore, he demands judgment with his costs. Further answering, defendant says that John Medley died on the 20th day of September, 1906; that on the 25th day of September, 1906, he, defendant, was duly appointed administrator of the estate of said John Medley, and on the 26th day of September, 1906, he duly qualified as such administrator; that said John Medley, when he died, was the owner of the notes described in the petition as well as the sum of $4,495 in money; that prior to the commencement of this suit he, as such administrator, took possession of said notes and money; that said notes and money belong to defendant as such administrator, and that he has inventoried them as such. Wherefore he demands judgment with his costs."

The reply was as follows: "For reply to the answer of the defendant, the plaintiff says that she denies that said John Medley, when he died, was the owner of the notes described in the petition, as well as the sum of $4,495 in money. And plaintiff herein prays judgment as in her petition."

A trial was had before the court and jury, which resulted in a verdict and judgment for the plaintiff, as prayed. In due time a motion for a new trial was filed, which was by the court sustained, "for the reason that the plaintiff is not entitled to recover," and plaintiff excepted and appealed the cause to this court; the amount involved being about $14,000 or $15,000.

Plaintiff's claim is predicated upon an alleged donatio mortis causa.

The plaintiff's evidence tended to show the following facts:

John Medley, the alleged donor, a Frenchman by birth, a bachelor of about 75 years of age, lived for about 16 years, and died, in the home of the plaintiff. Her husband was a carpenter, and they resided in Armourdale, Kan. Medley was a man of some education in his own tongue, but his knowledge of English was imperfect. He was a good business man. By industry and frugality, he accumulated sufficient of this world's goods to support him comfortably during his latter years. He paid the plaintiff for his room and breakfast the sum of $5 a week. He had no relatives except a brother, who resided in the state of Pennsylvania, from whom he had become estranged, and had no communication with him for some 35 years. The brother was also a bachelor, and was four or five years younger. There was evidence tending to show that Medley had bitter feelings against his brother and did not like his habits, and frequently stated that his brother should never have any of his property; that his relations with the Foleys had been intimate and affectionate for a number of years, their home being his; they cared for his clothing, mended the same, and did his washing; they attended and nursed him during sickness. He advised with and assisted in teaching the children, and did many little things about the house and garden. He was particularly fond of the youngest child, John, who was born subsequent to Medley's becoming a member of the family. He nursed and cared for the child and was with him much of the time, slept with and spoke to him in affectionate terms. A number of times he was heard to say that his property should go to those who were kind to him and to those with whom he had lived if they were kind to him; and upon some of these occasions he mentioned the Foleys by name. It also appears that he was opposed to disposing of property by will, and frequently declared that he intended to dispose of his property during his life. He was a man of few words, had a mind of his own, and acted with promptness. The defendant for a number of years prior to Medley's death had been his agent, looking after his property, lending his money, and collecting his interest. About the year 1903 Medley rented a box in the Safe Deposit Company of Kansas City, in Kansas City, Mo., in which he usually kept his money, papers, and other valuables, and they were there at the time of his death, which occurred September 20, 1906, except $3,750 worth of securities, which at the time of his death were in the hands of defendant for collection. The defendant was duly appointed by the probate court of Jackson county, Mo., administrator of the estate of Medley shortly after his death. He qualified as such, and took possession of the property which is now the subject-matter of this suit. He claims no other interest in the property save that as...