Goodan v. Goodan

• Decision Date: 25 April 1919
• Citation: 211 S.W. 423,184 Ky. 79
• Parties: GOODAN ET AL. v. GOODAN ET AL.
• Court: Kentucky Court of Appeals

211 S.W. 423

184 Ky. 79

GOODAN ET AL. v. GOODAN ET AL.

Court of Appeals of Kentucky.

April 25, 1919

Appeal from Circuit Court, Carter County.

Suit by Charles F. Goodan and others against R. S. Goodan and others. From a judgment dismissing the petition, the plaintiffs appeal. Affirmed.

B. S Wilson, of Ashland, and G. W. E. Wolfford, of Grayson, for appellants.

Theobald & Theobald, of Grayson, for appellees.

CLAY C.

John M Goodan died unmarried and intestate in Carter county on April 27, 1914, leaving as his only heirs Charles F. Goodan, L. W Goodan, and J. E. Goodan, children of his brother S.W. Goodan, his brothers T. L. Goodan, P. W. Goodan, and F. W. Goodan, and the children of a deceased sister. Claiming that John Goodan had left an estate of $20,000, which R. S. Goodan, T. L. Goodan, and others had appropriated and divided among themselves, plaintiffs, Charles F. Goodan, L. W. Goodan, J. E. Goodan, children of S. B. Goodan, deceased, and Susan Goodan, his widow, brought this suit against R. S. Goodan, T. L. Goodan, and others to recover their share of the estate of the decedent. On final hearing the petition was dismissed, and plaintiffs appeal.

The depositions of R. S. Goodan and T. L. Goodan were taken by plaintiffs, and on their direct examination they testified that the decedent, John Goodan, left no estate at the time of his death. On cross-examination they testified, in substance, that several months prior to his death, John Goodan was the owner of an estate worth about $8,000. The estate consisted of a joint certificate of deposit in an Oklahoma bank, the decedent's interest therein being worth $4,135, a $300 title bond against John M. Maggard, a $3,000 note executed by J. W. Strother, and a certain amount in cash. On April 16, 1913, John Goodan delivered to R. S. Goodan the following assignment, which was recorded in the Carter county clerk's office:

"To Whom It may Concern: I have this day given to R. S. Goodan without reservation or condition the following: 1st. Four thousand one hundred and thirty-five ($4,135) dollars, it being by part in a joint bank certificate held by us in the Guaranty State Bank of Muskogee, Oklahoma, also one title bond held against John M. Maggard for three hundred ($300.00).

John Goodan."

The certificate of deposit was subsequently surrendered, and a new certificate of deposit issued by the Oklahoma Bank to R. S. Goodan. At the same time he turned over the title bond, cash on hand, and indorsed and delivered to R. S. Goodan the Strother note for $3,000, with directions to pay $500 to F. W. Goodan, $500 to P. W. Goodan, $2,000 to T. L. Goodan, and retain the balance for himself. Decedent gave as his reason for so doing that he wanted to transact the business himself and to give his property to those whom he wanted to have it, and that he did not want any lawyers, or any trouble, or any will. R. S. Goodan distributed the property among the donees in accordance with the directions of the decedent. It further appears that the decedent parted with all dominion over the property, and never thereafter exercised or claimed the right to exercise any control over it.

It is first insisted that the court should have sustained plaintiffs' exceptions to certain portions of the depositions of R. S. Goodan and T. L. Goodan on the ground that they related to transactions had with, and to statements made by, John Goodan, who was then dead. It appears, however, that the exceptions were not acted on by the trial court. Under the uniform ruling of this court, an error in the admission of improper evidence by deposition is waived, unless an exception is saved and acted on by the trial court. Keeton et al. v. Mahan et al., 177 Ky. 85, 197 S.W. 519; Skidmore v. Harris, 157 Ky. 756, 164 S.W. 98.

To constitute a valid gift inter vivos, there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, and fully executed by a delivery of the property by the donor and acceptance thereof by the donee. Where future control over the property remains in the donor until his death, there is no valid gift inter vivos. Foxworthy v. Adams, 136 Ky. 403, 124 S.W. 381, 27 L.R.A. (N. S.) 308, Ann.Cas. 1912A 327; Reynolds v. Thompson, 161 Ky. 772, 171 S.W. 379. It is not insisted that the delivery of the property in question was not sufficient. There was an actual delivery of the bond, note, and cash, and a constructive delivery of the cash on deposit in the Oklahoma bank. It is contended, however, that R. S. Goodan was the mere agent of the donor, and as the property was not to be distributed until the death of the...