Grimes v. Barndollar

• Decision Date: 07 December 1914
• Docket Number: 7842.
• Parties: GRIMES et al. v. BARNDOLLAR.
• Court: Colorado Supreme Court

148 P. 256

58 Colo. 421

GRIMES et al. v. BARNDOLLAR.

No. 7842.

Supreme Court of Colorado, En Banc.

December 7, 1914

On Petition for Rehearing February 1, 1915.

On Motion to Recall Remittitur and Correct Mandate May 3, 1915.

Error to District Court, El Paso County; James Owen, Judge.

Action by Minnie Barndollar against Oliver P. Grimes and others, as administrators of the estate of Harry Hall, deceased, in which Elizabeth Mary Pattison and another, as heirs intervened. Judgment for plaintiff, and defendants and interveners bring error. Reversed and remanded.

Scott J., dissenting.

On Petition for Rehearing.

On Motion to Recall Remittitur and Correct Mandate.

Charles S. Thomas, William H. Bryant, George L Nye, and William Malburn, all of Denver (James A. Orr, of Colorado Springs, of counsel), for plaintiffs in error.

Samuel H. Kinsley and John A. Carruthers, both of Colorado Springs, for defendant in error.

HILL J.

The basis of this contention is the ownership of stocks in sundry mining companies, which stood upon the books of the companies in the name of Harry Hall, at the time of his death. Trial was to the court, which found that Hall gave, transferred, and delivered to the plaintiff (the defendant in error here) all stocks described in her complaint, the certificates for which had been indorsed by him; that the transaction constituted a gift inter vivos, but found against her as to the stocks, the certificates for which had not been indorsed. The court also found that a portion of an agreement in writing between the other claimants to the Hall estate, which, it is alleged, provides that the plaintiff should have all of these stocks, was not capable of specific enforcement because too ambiguous and uncertain. The defendants and interveners bring the case here. The plaintiff has assigned cross-errors upon the theory that she was entitled to all the stocks under her claim of a gift inter vivos, also by virtue of the agreement between the other parties interested. Many errors are assigned. As the trial was to the court, those made by the defendants pertaining to evidence are not sufficient to justify a reversal. Its substance is material and responsive to some phase of the various contentions put in issue by the pleadings.

The main issue made by the first pleadings is: Who was the owner of these stocks at the time of Mr. Hall's death which occurred very suddenly on January 29, 1909? The record discloses that, for about 14 years prior thereto, the plaintiff, Minnie Barndollar, lived at his residence and acted as housekeeper (she was probably there prior to the death of Mrs. Hall, which occurred in 1896); that Hall left an estate valued at about $170,000, of which $117,000 was in real estate; that in the fall of 1903 Hall and Miss Barndollar were starting on a trip to California, when she placed what purported to be certain stocks in charge of Mr. and Mrs. Jones, then residing in the house with them; that the stocks were in a tin box, the contents of which the Joneses did not see, but were informed by Miss Barndollar, in the presence of Hall, that the box contained stocks belonging to her, and that in case of fire these stocks should be saved, as they were all she had; that Hall, while hearing it, did not dispute this assertion, but joined in the conversation, and among other things said, 'Yes, for goodness sake save the stocks; that they were hers, and they were all she had;' that in May, 1905, when Hall was leaving for England, he called the Joneses, who were still living in his house, to witness an agreement between Miss Barndollar and him, saying that he wanted to make this gift of stocks that Minnie held legal; that the stocks he was then giving her were valued at about $30,000; that during this conversation he presented a paper in his handwriting signed by himself and Miss Barndollar, requesting the Joneses to witness it. It reads:

'Colorado Springs, Colo., May 1st, 1905.

'This agreement entered into by H. Hall, of the first part, and Minnie Barndollar, of the second part, this 1st day of May, 1905, to wit: The said Hall, in consideration of services rendered by Minnie Barndollar, has indorsed and left with Minnie Barndollar certain mining stock certificates, and in case of his death the said mining stock certificates are to become the property of Minnie Barndollar, and in the meantime, if the stock should enhance in value, and she should decide that it would be advantageous to dispose of some of them, she is at liberty to do so, and the proceeds, in case of my death, are to belong to Minnie Barndollar; and that it is my desire that all courts of law and equity so construe the above that the same shall in no case, for want of legal form or otherwise, be construed as that my relatives or any other person should possess or enjoy the above, except and in the manner and for the uses hereinabove specified, without any mental reservation or purpose of evasion.

'Witness our hand and seal this 1st day of May, 1905.

H. Hall. [Seal.]

'Minnie Barndollar. [Seal.]

'Witness:

'Rose Jones.

'W. C. Jones.

'(Made in duplicate.)'

Another instrument in the handwriting of Mr. Hall, dated June 6, 1908, signed by himself and Minnie Barndollar, is in the record. It reads:

'Colorado Springs, Colo.

'This agreement entered into by H. Hall, of the first part, and Minnie Barndollar, of the second part, this 6th day of June, 1908, to wit: The said H. Hall, in consideration of services rendered by Minnie Barndollar, has indorsed and left with Minnie Barndollar certain mining stock certificates, and in case of his death the said mining stock certificates are to become the property of Minnie Barndollar, to do with as she thinks proper, and the proceeds, in case of my death, are to belong to Minnie Barndollar; and that it is my desire that all courts of law and equity so construe the above that the same shall in no case, for want of legal form or otherwise, be so construed as that my relatives or any other person should or shall possess or enjoy the above, except and in the manner and for the use hereinabove specified, without any mental reservation or purpose of evasion.

'Witness our hand and seal this 6th day of June, 1908.

H. Hall. [Seal.]

'Minnie Barndollar. [Seal.]

'Witness:'

Jones testified to a conversation with Hall about a week or ten days before his death, on the street, in which Mr. Hall said:

'Do you know what I think I will do? * * * I believe I will put this lot in Miss Minnie's and Laura's name. * * * I believe you ought to look after your friends first. * * * You know I have given all my stocks to Miss Minnie.'

That they then talked about what could be done on the other end of the lot in the way of cheap buildings for rent, etc. The witness further states that the stocks were discussed a great deal by Hall and Miss Barndollar; that he has heard Hall ask her to go up and get the stocks, and things like that, not once but a dozen times; that he had repeatedly seen them go over the stocks on the table and discuss them in general conversation.

Mrs. Jones testified that ostensibly Miss Barndollar occupied the relation of housekeeper and was supposed to be paid for her services; that she did the washing and mending, tending to all those things. Witness further testified that in the fall of 1907 she saw Miss Barndollar in the dining room in tears; that Hall asked the witness what the matter was; that she stated Miss Barndollar was dissatisfied with the arrangements about stocks; that it worried her; that the value of the stocks fluctuated, and inasmuch as he had this property in her name at one time, and it suits her better and satisfies her, why not do the same thing again; that he said she ought to be satisfied with them; that they would always represent about $30,000, and then, if she did not have these stocks, he had taken care of her in another way, which he did not tell the witness about; that later she told the plaintiff what he said.

Jones testified that the first he saw of the stocks after Mr. Hall's death was the evening thereafter; that it was in the plaintiff's room at the Hall residence; that he went over the stocks to see what she had; that he next saw them after he and Mr. Grimes had been appointed administrators to collect, which was two or three days thereafter; that the stocks were in a box which she brought down and unlocked; that they took them out of the box, making a list of them later that day; that all stocks referred to in the inventory as having been received from her were actually received from her, except 6,000 shares of Isabella, which Mr. Grimes testified were taken from the desk in the library or somewhere in the house. Jones says that, after their appointment, Miss Barndollar was called upon to deliver the stocks; that she did so under protest, claiming them as her property by reason of the gift to her of them by Mr. Hall.

Mr Grimes testified, in substance, that, after his first talk with Miss Barndollar, he discussed the advisability of taking the stocks, with the county judge; that the judge advised him that they should take the stocks, making a record of any protest and claim Miss Barndollar might make, inventory them, and that the matter of her ownership would be settled afterwards; that, after stating to her what the judge had suggested, she delivered the stocks to them under protest, claiming them as her property; that it had been previsouly stated to her that they would discuss the matter with the county judge and get his suggestion; that she said she did not think any advantage would be taken of her, only she wanted to save whatever right she had; that if it was proper to turn them over she would deliver them; that the...