Fouts v. Nance

CourtSupreme Court of Oklahoma
Citation1916 OK 162,55 Okla. 266,155 P. 610
Decision Date08 February 1916
Docket NumberCase Number: 5217
PartiesFOUTS et al. v. NANCE.
Syllabus

¶0 1. GIFTS--Gift Inter Vivos--Proof--Requisites. After the death of an alleged donor, in order to establish a gift inter vivos, the evidence must be clear, explicit, and convincing in support of every element necessary to constitute a valid gift.

2. SAME--Completion of Gift. A "gift inter vivos" is complete where there is an intention to give, accompanied by a delivery of the thing given, and an acceptance by the donee.

3. SAME--Completion by Delivery--Possession. The mere finding of a note, the subject of a pretended gift, in a pigeon hole of a bank vault, inclosed in an envelope addressed to the claimant, 18 months after the date of the alleged gift and after the death of the alleged donor, in the absence of any showing that the claimant had access to or control of such pigeon hole and vault, held not evidence tending to establish the possession of such note by such claimant.

4. SAME--Proof of Delivery--Declarations of Donor. A gift cannot be established by proof of declarations of the claimed donor that he had given the property to the claimant, in the absence of an actual delivery, and the fact of delivery must be shown by other evidence than such declarations.

A. J. Welsh, G. T. Webster, and J. C. Shull, for plaintiffs in error.

Phillips & Mills and George W. Cornell, for defendant in error.

RITTENHOUSE, C.

¶1 On April 27, 1910, T. J. Nance borrowed $ 15,000 from an Indian by the name of Shoe Boy. On October 1, 1910, Shoe Boy died, intestate. N. F. Fouts and Perry Reynolds subsequently became the administrators of his estate, and instituted this action to recover the amount borrowed with interest. The defendant answered, admitting that he had borrowed the amount sued for, and that Shoe Boy was dead, but alleged that the indebtedness had been fully paid to Shoe Boy during his lifetime, to wit, on October 1, 1910, by the execution and delivery of two certain promissory notes signed by the defendant, T. J. Nance, and delivered to Shoe Boy, one for $ 5,000, which was afterwards paid to the former administrator of said estate, and the other for $ 10,000, payable to the order of Darwin Hays, a half-brother of Shoe Boy. It is further alleged in said answer that it was the desire of Shoe Boy to make a gift inter vivos of the said $ 10,000 note to Darwin Hays; that it was the donor's intention to deliver said note to him as such gift; that defendant, at the instance and request of Shoe Boy, did execute said note to Darwin Hays, who is now the owner and holder thereof; that defendant withheld the payment of said note to Darwin Hays because of this litigation, and defendant alleges that it is his desire to pay said note to the proper party. The evidence in support of a gift inter vivos is, in substance, as follows: C. R. Strong testified that Shoe Boy came into his office on October 1, 1910, and stated that he was going to New Mexico for his health, and wanted $ 10,000 in money for Darwin Hays; Nance told him that he did not have the money, but that he would pay it to Darwin, and Shoe Boy suggested that he make Darwin a note for $ 10,000, and Nance at that time gave him a written document, which witness presumed was a will; Shoe Boy stated that he did not understand the will, but that he was leaving and wanted to give Darwin Hays $ 10,000 in cash or paper, and requested Nance to make a note; that witness understood that the papers were fixed up between Shoe Boy and Nance at that time; that he thought he was present when the renewal notes were delivered to Shoe Boy, because he was out of the office only a very short time that afternoon, but would not state that he had seen any notes delivered. The most he testified to was that he had seen them writing at an adjoining desk. W. C. Smoot testified that he was assistant cashier of the Oklahoma State National Bank; that W. C. Mills came to the bank about two weeks prior to the trial of the instant case, and requested that he look through the papers of Darwin Hays which were in the vault; that upon an investigation of some papers, he found, in a pigeon hole marked by the letter "H," an envelope bearing the name of Darwin Hays, and in the envelope was a promissory note dated October 1, 1910, signed by T. J. Nance for $ 10,000, payable to Darwin Hays one year after date. Nowhere in the evidence does it appear that Darwin Hays had access to said vault or control of such pigeon hole or its contents. These pigeon holes were not locked. Little Wolf, Mrs. Little Wolf, and Red Leaf Woman each testified, in substance, that they had had a talk with Shoe Boy, and that he had told them that he loved Darwin Hays most of all, and that he intended to give him most of his money. William Penn testified that on October 5, 1910, he had a conversation with Shoe Boy in front of the Oklahoma State National Bank, in which Shoe Boy told him that he had given Darwin Hays a note for $ 10,000, signed by T. J. Nance, and that the note was given for favors that Darwin had been doing for Shoe Boy ever since Shoe Boy was quite a child. This constitutes, in substance, all the evidence that was offered in support of the alleged gift. Such evidence is very unsatisfactory on all the elements necessary to constitute a valid gift. It is the general rule in every jurisdiction that after the death of the donor, in order to establish a gift inter vivos, the evidence must be clear, explicit, and convincing in support of every element needed to constitute a valid gift. 20 Cyc. 1224, and cases cited. This court, in the case of Manning, Adm'r, v. Maytubby, 42 Okla. 414, 141 P. 781, held that a gift inter vivos was complete where there was an intention to give, accompanied by a delivery of the thing given, and an acceptance by the donee. An intention of the donor to give is not alone sufficient; the intention must be executed by a completed delivery. Harris Banking Co. v. Miller et al., 190 Mo. 640, 89 S.W. 629, 1 L.R.A. (N. S.) 790. This brings us to the main question involved in this action, and that is whether under the evidence there is any showing of a delivery of the note from Shoe Boy to Darwin Hays. In order to support such a gift, the evidence should be sufficient to render a finding of the fact of delivery reasonable, and should disclose some evidence reasonably tending to show the circumstances under which the delivery occurred so that the court may know whether the gift was absolute or conditional. The evidence which is urged in support of the gift, and especially of the fact of delivery, divides itself into two parts: (1) The evidence of Smoot that a note for $ 10,000, signed by T. J. Nance, was found in an envelope bearing the name of Darwin Hays in the vault of the bank. This evidence, it is contended, establishes the fact that Darwin Hays had possession of the note, and that the possession of the note was sufficient to show a delivery. (2) The second class of testimony offered was that of William Penn, that on October 5, 1910, in front of the Oklahoma State National Bank, he had a conversation with Shoe Boy, in which Shoe Boy told him that he had given Darwin Hays a note for $ 10,000, signed by T. J. Nance, and that the note was given for favors that Darwin had been doing for Shoe Boy ever since Shoe Boy was quite a child. On the first subdivision of this testimony, we find that the only evidence in the record as to possession is the fact that a note was found in the bank in an envelope addressed to Darwin Hays. No evidence was offered that this note had ever been in the possession of Shoe Boy, or that Shoe Boy had, in fact, delivered it to Darwin Hays. It was not made payable to Shoe Boy and indorsed by him, but Darwin Hays was made the payee of such note, and T. J. Nance the payor, and the note was found in a place to which numerous persons had access, and long after the death of Shoe Boy, and the record is silent as to who had rented the particular box or who had control over it. These circumstances do not show a possession on the part of Darwin Hays, and are no evidence of a delivery. It amounts to nothing, and has no weight on the question of delivery. In Liebe v. Battmann, 33 Ore. 241, 54 P. 179, 72 Am. St. Rep. 705, it is said:

"Where, a man having committed suicide in his private room, a sealed and addressed envelope is found on his table, containing a promissory note in deceased's favor and generally indorsed by him, although the deceased undoubtedly intended to make a gift of the note to the addressee of the envelope, the intended gift must fail for imperfect delivery."

¶2 There must be some act or circumstance shown amounting to an actual delivery at the time of the gift. It is not the possession by the donee that is material, but the delivery to him by the donor. In the Matter of Seitz's Estate, 17 A.D. 1, 44 N.Y.S. 836; Conklin, Adm'r, et al. v. Conklin, 20 Hun 278; Grey et al., Adm'r, v. Grey, 47 N.Y. 552; In re Bolin, 136 N.Y. 177, 32 N.E. 626; Kenney v. Public Adm'r, 2 Bradf. Sur. (N.Y.) 319; Drischler et al. v. Van Den Henden et al., 49 N.Y. Super. Ct. 508; Chambers et ux. v. McCreery et al., 106 F. 364, 45 C.C.A. 322; Bellis v. Lyons, 97 Mich. 398, 56 N.W. 770; Thomas v. Tilley et al., 147 Ala. 189, 41 So. 854; Hecht v. Shaffer, 15 Wyo. 34, 85 P. 1056; Bean v. Bean, 71 N.H. 538, 53 A. 907. We come now to the declaration of Shoe Boy of October 5, 1910, at which time it is contended that Shoe Boy told the witness William Penn that he had given Darwin Hays a note for $ 10,000, signed by T. J. Nance, and that the note was given for favors that Darwin had been doing for Shoe Boy ever since Shoe Boy was quite a child. It will be remembered that this conversation was had several days after the alleged gift, and the alleged donor was speaking in the past tense, showing clearly that the declaration was made subsequent to the alleged gift. Such...

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