O'Gorman v. Jolley
| Decision Date | 04 May 1914 |
| Docket Number | 3519. |
| Citation | 147 N.W. 78,34 S.D. 26 |
| Parties | O'GORMAN et al. v. JOLLEY et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Clay County; R. B. Tripp, Judge.
Action by Thomas O'Gorman, trustee, and others against John L Jolley, administrator, and others. From an adverse judgment plaintiffs appeal. Affirmed.
Lyons & Lyons, of Sioux Falls, for appellants.
French & Orvis, of Yankton, for respondents.
This appeal involves the validity of certain alleged gifts causa mortis. The facts disclosed by the record are substantially as follows:
On June 2, 1911, one Margaret Sullivan, an aged woman residing in the city of Vermillion, was in poor health, resulting from an acute attack of pneumonia, which had left her in a feeble condition. She then had $4,000 in cash, which she caused to be deposited in the First National Bank of Vermillion, and received therefor a certificate of deposit, containing the recital: On the back of the certificate was pasted an instrument in the following words: "This certificate and the interest thereon is my property during the remainder of my life. In the event of my death, I hereby authorize and instruct the First National Bank of Vermillion, S. D., to pay and distribute the amount of said certificate of deposit as follows:" Then follow the names of 15 persons to whom payments are to be made in various amounts set opposite their names, respectively aggregating the sum of $4,000. "*** I direct that the certificate be handed to Father Flood, immediately after my death, and the above conditions be fulfilled."
The circumstances under which instrument was executed, as disclosed by the record, are substantially as follows Margaret Sullivan was a member of the Catholic Church, and at her request Father Flood, her spiritual adviser, visited her on the afternoon of June 2, 1911. The matters discussed between them are not disclosed by the record. Immediately thereafter Father Flood went to the office of Col. Jolley, an attorney in the city of Vermillion. What occurred there is not disclosed. From the law office he went to the First National Bank of Vermillion, where he had a conversation with Mr. Inman, president of the bank, who drew up the certificate of deposit. Mr. Hart, vice president of the bank, under the direction of Mr. Inman, in the presence of Father Flood, and party at his dictation, wrote out on the typewriter the indorsement above recited, which was pasted on the back of the certificate of deposit. Another writing, Exhibit B, was prepared at the same time, and attached to the certificate of deposit. This writing related to the disposition to be made of certain sums set opposite the names of two persons named in the indorsement on the back of the certificate, and is immaterial to any question presented on this appeal. Upon these two instruments being prepared, Mr. Inman and Father Flood went to the home of Margaret Sullivan, where they remained some three-quarters of an hour or an hour. What was said between them is not disclosed by the record. At that time Margaret Sullivan signed the instrument pasted on the back of the certificate of deposit. Father Flood took the certificate away with him, and kept it three or four days, or possibly a week, and then, at the request of Margaret Sullivan, returned and delivered it to her. She exhibited it to her nurse, Ida Mcgrath, who, after conversation as to certain of the amounts named on the back of the certificate, took it and deposited it in a tin box belonging to Margaret Sullivan, locked the box, and retained the key in her possession until after the death of Margaret Sullivan on July 4, 1911. After the death of Margaret Sullivan, and on the same day, Mrs. McGrath handed the certificate to Father Flood, who retained it for three or four days, and then placed it in the First National Bank of Vermillion. Col. Jolley, named as one of the donees, declined to accept the proposed donation, and thereafter, upon application to the probate court of Clay county, was duly appointed and qualified as administrator of the estate of Margaret Sullivan.
The plaintiffs, who are appellants here, and are named as donees on the back of the certificate, began this action against the First National Bank of Vermillion, to recover the amount remaining unpaid on the certificate, whereupon Col. Jolley, as administrator, filed a petition in intervention, claiming the funds as the estate of Margaret Sullivan, deceased, and asked and was granted leave to intervene and defend in behalf of the estate. Prior to the complaint in intervention, the administrator demanded of the First National Bank possession of the certificate of deposit, which was refused. Findings and conclusions of law were made favorable to the intervener Jolley, as administrator, and by the judgment he was awarded possession of the certificate of deposit, and an order was made that the First National Bank pay to him, as administrator, the money on deposit. From this judgment, and an order overruling motion for a new trial, plaintiffs appeal.
Appellants assign: First, error of law occurring at the trial; second, insufficiency of the evidence to sustain the findings of fact, conclusions of law, and judgment; third, that the findings of fact and conclusions of law and judgment are against the law.
The first eight assignments are upon rulings of the trial court, on matters of evidence. A careful examination of the record satisfies us that the court committed no reversible error in any of these rulings, and none of them, we think, is of sufficient general importance to require discussion. The ninth assignment is that there is no evidence to sustain the trial court's finding numbered 7. The specifications of insufficiency are that there is "no evidence tending to prove that Margaret Sullivan did not give to the plaintiffs the sum of $4,000 on deposit in the defendant's bank, and that Margaret Sullivan did deliver to this plaintiff, an instrument whereby she assigned to them the sum of $4,000 on deposit in the First National Bank of Vermillion; further that the evidence shows that the certificate of deposit described in the findings of fact was delivered by the said Margaret Sullivan to T. L. Flood, to be held in trust by him, for the plaintiffs, and that T. L. Flood accepted the gift of $4,000 from the said Margaret Sullivan for himself and on behalf of the other plaintiffs in the action; that the undisputed evidence shows that the certificate of deposit was delivered to Father Flood in trust for plaintiffs, and by him handed to Mrs. McGrath, and kept in a tin box belonging to Mrs. McGrath, who at all times retained and had absolute control of the said box."
The finding of fact referred to is in substance that the certificate of deposit was never delivered by Margaret Sullivan to T. L. Flood or to D. M. Inman, president of the First National Bank of Vermillion, or to any of the plaintiffs in this action, during the lifetime of said Margaret Sullivan, and that she did not deliver to said plaintiffs, or any of them, any instrument whereby she assigned to them, or any of them, the money on deposit in the bank.
The conclusion of law is that Margaret Sullivan did not make a valid gift of the money in the bank evidenced by the certificate of deposit, but that the certificate and the money represented thereby was her property at the time of her death, and now belongs to her estate.
These specifications undoubtedly refer to the matters contained in finding of fact numbered three, and should be considered in connection with that finding, which is as follows: "That said certificate of deposit, with the indorsement thereon by said Margaret Sullivan, was kept by T. L. Flood for about two or three days after the same was issued, and he then placed it in the hands of one Mrs. McGrath, who was taking care of said Margaret Sullivan at her residence, and said Mrs. McGrath thereupon placed said certificate of deposit in a tin box belonging to said Margaret Sullivan, and locked said box, she (said Mrs. McGrath) retaining the key to said tin box at all times thereafter until the death of said Margaret Sullivan, which occurred on or about the 4th day of July, 1912, and a few days after the death of said Margaret Sullivan said Mrs. McGrath placed said certificate of deposit in the possession of T. L. Flood, who took the same to the First National Bank of Vermillion and left it with said bank, and the same has ever since been in the possession of said bank." Appellants in their brief admit, and the undisputed evidence is, that the certificate was returned to Mrs. Sullivan's home by Father Flood, at her request. It was thus subject to her control. And the testimony of Father Flood is that he delivered it to Margaret Sullivan personally.
Appellants' contention that the findings are not sustained by the evidence in the record is clearly wrong, except as above noted. It is sustained, not only by a preponderance of the evidence, but by evidence which is practically undisputed.
'The real question is whether the findings sustain the conclusions of law, to wit, that the facts are insufficient in law to sustain the alleged gift causa mortis. Appellants contend that the facts support two legal theories, under either of which they are entitled to a reversal of the judgment. First. That Margaret Sullivan made a valid gift causa mortis by executing the instruments in evidence as Exhibits A and B and delivering them to T. L. Flood. Second. That the indorsement on Exhibit A made the bank a trustee for the beneficiaries named on the back of the certificate. It may be...
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