Hays' Administrators v. Patrick

• Decision Date: 15 December 1936
• Citation: 266 Ky. 713
• Parties: Hays' Administrators v. Patrick
• Court: United States State Supreme Court — District of Kentucky

266 Ky. 713

Hays' Administrators v. Patrick

Court of Appeals of Kentucky.

Decided December 15, 1936.

1. Gifts. — In suit by administrators of deceased's estate to recover bonds found in separate envelope in deceased's safety deposit box with name of defendant, an officer of bank, on envelope, testimony of defendant's witness that defendant put bonds in envelope, wrote his name on envelope, and stated to witness that bonds were given to him, held insufficient to establish gift where deceased, who was 12 feet away, said and did nothing and was not shown to have heard defendant's statement to witness.

2. Gifts. — To complete gift, there must be intention by donor to transfer title to property as well as delivery by donor and acceptance by donee.

3. Gifts. — Mere intention to make gift without delivery is unavailing, and delivery is insufficient unless made with intention to give.

4. Gifts. — Gifts inter vivos, furnishing ready means for perpetration of fraud, evidence necessary to establish all of essentials to complete them, must be clear and convincing.

5. Gifts. — "Gift" is parting by owner with property without pecuniary consideration.

6. Gifts. — To establish gift, there must be competent donor to make gift, intention to make it, donee capable of taking it, delivery by donor, acceptance by donee going into immediate and absolute effect, gift must be gratuitous, and, in case of gift intervivos, must be irrevocable.

7. Gifts. — Mere possession of property by donee is not sufficient evidence of gift, since possession may be consistent with mere custody or agency.

8. Gifts. — Undeviating requirements necessary to establish gift are doubly true where gift is first asserted after death of donor, and more emphatically true where confidential relations exist between donor and donee.

Appeal from Hickman Circuit Court.

HERSCHEL T. SMITH and NANCY DAY MONTGOMERY for appellants.

J.D. VIA and F.B. MARTIN for appellee.

OPINION OF THE COURT BY JUDGE RATLIFF.

Reversing.

Pete R. Hays died intestate, a resident of Hickman county, Ky., on March 22, 1934, 86 years of age, and had never been married. He left no brothers or sisters, but left a number of nephews and nieces. He left personal property of the approximate value of $30,000 and three or four farms, but the value of the farms is not shown.

In January, 1930, Hays purchased four Sewer Improvement bonds of the city of Paducah — two for the sum of $1,000 each which matured July 1, 1934, and one for $500 which matured at the same date, and one for $500 maturing July 1, 1936, with interest coupons thereto attached.

Soon after the death of Hays, J.R. Graham and D.B. Graham were appointed administrators of his estate and went to the Bank of Clinton to make an inventory of his personal estate and found the four Paducah bonds in an envelope separate from the other bonds, securities, etc., of the deceased, with the name of appellee, "U.W. Patrick," written on the envelope and also the words "Paducah Street Improvement Bonds." They were informed by Reuben Griffey, an employee of the bank, that Patrick claimed that Mr. Hays had given him the bonds more than four years previous to his death and Patrick claimed to be the owner of same. The administrators agreed for Griffey to retain the bonds in his possession until the owner thereof was determined, and soon thereafter the administrators brought this suit in the Hickman circuit court to recover the bonds. Patrick filed his answer in which he denied that Hays was the owner of the bonds in question at the time of his death, and further pleaded that more than four years before the death of Hays, he (Hays) of his own volition, and without any coercion or fraud upon the part of the defendant, made to the defendant an absolute gift of the bonds, and at the time of the gift he made absolute and complete delivery of them to the defendant, and since that time said bonds have been in the possession of defendant as his own property. He further alleged that at the time of the delivery of the bonds to him, Hays released all title to and control over them and recognized same as being the absolute property of the defendant, and at said time the decedent was capable both mentally and physically of making delivery and the transaction, and had mind and memory sufficient to know what he was doing and to know the value of his property and his obligations to his relatives. He also alleged that at the time of the gift and since said time he was the acting vice president of the Bank of Clinton, Ky., and the decedent transacted all his business through said bank and depended upon defendant to transact his business, and that he did transact all his business over a period of years, and that the value of the bonds including interest is less than the value of the services rendered by him to the decedent.

The appellants, plaintiffs below, moved the court to strike certain words from the answer which motion was overruled, but so far as the record discloses no reply was filed or other order entered of record traversing the affirmative allegations of the answer, though it is said in brief the order was made. However, it does not appear that any question was made by the defendant in regard thereto and the case was practiced to a conclusion as though the issues had been properly made and was so treated by the parties and the trial court. The case was tried before a jury and resulted in a verdict and judgment thereon for the defendant, and to reverse that judgment the administrators have brought this appeal.

Plaintiffs filed their motion and grounds for a new trial, insisting that the court committed the following errors: (1) In refusing to grant their motion for a peremptory instruction at the close of the evidence; (2) in its ruling on the admission of evidence; (3) the instructions were erroneous; (4) in refusing instruction B offered by plaintiffs; and (5) because the verdict is contrary to the law and flagrantly against the evidence.

Patrick did not testify concerning the transaction between himself and the deceased relating to the gift of the bonds, but testified, in substance, that he came to Clinton about the year 1914 and had been a customer and stockholder of the Clinton Bank for many years previous to the year 1930, when he became acting vice president of the bank, and Mr. Hays was also a customer of the bank, and that he (Patrick), after he became vice president of the bank, transacted some business for him and most generally waited upon him when he would be transacting his banking and, perhaps, other business at the bank. He also said that they were friends and became such shortly after they became acquainted, but we do not gather from his testimony with reference to the friendly relations between them that they were any stronger than what the record shows existed between Mr. Hays and others of his acquaintance; nor were they more than what is usual between individuals well acquainted with each other and between whom there exists confidence. The testimony of defendant with reference to such matters was objected to, but overruled with exceptions. The plaintiffs (the two administrators) testified that within a short time after their appointment they had a conversation with defendant with reference to the bonds, in which he claimed that the decedent had given them to him, but it is not stated that he then explained how it was done; but he did state to them that he (defendant) had no writing showing or evidencing the gift, and that "he requested him [decedent] to make a will and will him [defendant] the bonds * * * and Uncle Pete refused to do it." In rebuttal defendant was interrogated concerning that testimony and was asked if he made that statement, and he answered:

"The best I remember I told them I tried to get Uncle Pete to make a will.

"Q. Did you tell them you tried to get Uncle Pete to make a will willing you the bonds? A. No, sir, I don't think I did."

Reuben Griffey, the cashier of the bank at the time involved, was then introduced by defendant, and, since his testimony is the only proof heard to establish the alleged gift, we have concluded to insert all of its material parts bearing upon that transaction, omitting therefrom objections thereto and the ruling of the court thereon:

"Uncle Pete came in and walked around and came through a little private room there and asked for Mr. Patrick or probably didn't ask because it was always understood when he would come in that he wanted Patrick to wait on him. When he came in he sat down at the chair which was his custom and Mr. Patrick went in and got some papers out of the safe and brought them back and clipped the coupons and was doing something with the bonds there at the desk inside. I was busy over at the other desk, just normal business you know, and Mr. Patrick left Uncle Pete, which we always call him, and walked away from that desk to where I was and said `Uncle Pete gave me these bonds.' And he put them in an envelope.

"Q. Who put them in an envelope? A. Patrick reached over there in a pigeonhole and got an envelope and put the bonds in them and walked back to the desk where Uncle Pete was.

"Q. Now Mr. Griffey, when Mr. Hays come in and sat down Patrick got his papers? A. Yes, sir.

"Q. And walked to the desk where Uncle Pete was? A. Yes, sir.

"Q. And both sat there? A. Yes, sir.

"Q. Do you know how long they sat there? A. I couldn't say the time.

"Q. I believe you say they were doing something with the bonds — clipping coupons? A. Yes, sir.

"Q. Did I understand you to say Patrick got up and walked to where you were? A. Yes, sir.

"Q. Were there any envelopes kept where you worked? A. Yes, sir.

"Q. Where were they kept? A. In a hole under window.

"Q. What did Patrick do with reference to the hole in the window? A. He reached under there and got an envelope and put these bonds in it.

"Q. What else, if anything, did Pat do about the envelope? A. He wrote on...