Hecht v. Shaffer

• Citation: 15 Wyo. 34,85 P. 1056
• Parties: HECHT v. SHAFFER ET AL
• Decision Date: 26 June 1906
• Court: United States State Supreme Court of Wyoming

85 P. 1056

15 Wyo. 34

HECHT v. SHAFFER ET AL

Supreme Court of Wyoming

June 26, 1906

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

The material facts are stated in the opinion.

Affirmed.

W. R Stoll, for plaintiff in error.

Under the last paragraph of Section 3683, Revised Statutes exempting from the operation of the section prohibiting parties from testifying against executors, etc., actions involving the validity of a deed, will or codicil, and providing when a case is clearly within the reason and spirit of the act, though not within the letter, their principles shall apply, the donee of a gift causa mortis is a competent witness to prove the gift as against the executor of the decedent. (Murdock v. McNeely, 1 O. C. C., 16; Doney v. Dunnick, 8 id., 163; Cochran v. Almack, 39 Ohio St. 314; Bank v. Cornell, 41 id., 401; Keyes v. Gore, 32 id., 211.) Declarations of a deceased previous to making a gift causa mortis showing an intention to make a gift to a particular person, or declarations of the deceased relating to the gift after it has been made, are admissible in evidence as bearing on the question of the validity of the gift, whether or not a particular article was specified as the subject of the gift. (6 Ency. Ev., 241; Ridden v. Thrall, 11 L. R. A., 684; Levson v. Davis, 17 Mont. 220; Clayton v. Pierson (W. Va.), 46 S.E. 935; Smith v. Maine, 25 Barb., 33; In re Swade, 72 N.Y.S. 1030.)

Where the want of mental capacity of one claimed to have made a gift causa mortis is desired to be questioned, it must be pleaded. If pleaded, the evidence to sustain the want of capacity should come from him who charges it by direct proof, and it is not competent to show such want of capacity on cross-examination of the alleged donee's witnesses, who have not been examined in chief upon the matter.

A chose in action is transferable by delivery, and when evidenced by a written instrument capable of actual delivery, no written assignment or endorsement is necessary. The mere delivery of a note with the intention of transferring the right of property operates as an equitable assignment, and is sufficient to constitute a valid gift. (14 Ency. L. (2d Ed.), 1006-1086; Blazo v. Cochran (N. H.), 53 A. 1026; 7 Cyc., 729.) The possession of a note, whether endorsed or not, is presumptive evidence of a delivery to the one who has the possession. (Miller's Est., 151 Pa. St. 525; Varick v. Hitt (N. J.), 55 A. 139; Garrigus v. Soc., 3 Ind.App. 91; 5 Ency. Ev., 414; 6 id., 240; 14 Ency. L., 1068.)

Upon the question whether a gift causa mortis has been made, affection of the alleged donor for the donee, close intimate relations showing such affection, are relevant facts and admissible as tending to show a motive for the gift. (14 Ency. L., 1068; 6 Ency. Ev., 242.) To establish a gift causa mortis requires no greater amount of proof than that required in other civil cases--a fair preponderance is all that is required. (14 Ency. L. (2d Ed.), 1066-1067; 6 Ency. Ev., 235.)

Gibson Clark, for the defendant in error, John F. Carey, as Executor.

The plaintiff was not a competent witness to prove the gift as against the executor. (Rev. Stat., Secs. 3680-3683; Hudson v. Houser, 123 Ind. 309.) The evidence to support a gift causa mortis must be clear, unequivocal and convincing. (Caylor v. Caylor's Est., 72 Am. St. 331; Hatch v. Atkinson, 56 Me. 324; Parcher v. Sav. Inst., 7 A. 266; Buecker v. Carr, 47 id., 34; Harris v. Clark, 3 N.Y. 93; Delmatte v. Taylor, 1 Redf., 417; Gano v. Fisk, 43 Ohio St. 426; Conner v. Root, 17 P. 773; Johnson v. Colley, 99 Am. St. 884; 8 Ency. L. (1st Ed.), 1342, 1348.) Such a gift made in parol is clearly distinguishable from deeds, wills or codicils; and the exception in Section 3683 as to the latter does not apply to parol gifts causa mortis. (Varick v. Hitt, 53 A. 139.) Under statutes prohibiting parties from testifying when the opposite party is an executor, etc., an alleged donee under a gift causa mortis is incompetent to testify in support of the alleged gift as against the claim of the personal representative of the decedent. (30 Ency. L. (2d Ed.), 1013; Stuckey v. Bellah, 41 Ala. 700; Bothwell v. Dobbs, 59 Ga. 787; Elsinger v. Beytagh, 74 Ga. 399; Huggins v. Huggins, 71 Ga. 66; Way v. Harriman, 126 Ill. 132; Overbeck v. Lecquire, 39 S.W. 254; Albro v. Albro, 65 S.W. 592; Johnson v. Heald, 33 Md. 352; Dunn v. Bank, 109 Mo. 101; Sherman v. Lanier, 39 N. J., 249; Waver v. Waver, 15 Hun, 277; Flanagan v. Nash, 185 Pa. St. 41; Hopkins v. Manchester, 16 R.I. 663; Royston v. McCulley, 59 S.W. 725; Turner v. Murchison, 31 S.W. 428; La Mountain v. Miller, 56 Vt. 433; Lee v. Patton, 50 W.Va. 20; Paddoch v. Adams, 46 N.E. 1068.)

Conversations with the decedent not relating to the subject of the alleged gift are clearly inadmissible to establish it. Possession of the subject of the alleged gift by the donee, though a promissory note as in this case, does not import a delivery to her by the decedent payee; such a rule would be a dangerous one. (Buecker v. Carr, 47 A. 34; Podmore v. Bank, 60 N. Y. Sup., 533.) Though the possession of a negotiable note payable to bearer, or indorsed by the payee, is prima facie evidence of title, that is not the law with reference to an unindorsed note payable to another than the holder. (4 Ency. L. (2d Ed.), 319, 320; Redmond v. Stansbury, 24 Mich. 445; Robinson v. Wilkinson, 38 Mich. 299; Nichols v. Gross, 26 Ohio St. 425; Dorn v. Parsons, 56 Mo. 601; Cavitt v. Tharp, 30 Mo.App. 131; Quigley v. Bank, 80 Mo. 289; Thompson v. Onley, 96 N. C., 9; Ross v. Smith, 19 Tex. 171; Cobb v. Bryant, 86 Ala. 316; In re Wagner, 4 MacArthur, 395; Van Eman v. Stanchfield, 13 Minn. 75; Varick v. Hitt, 55 A. 139; Gano v. McCarty, 79 Ky. 409; Durien v. Moeser, 13 P. 797; 1 Daniel's Neg. Instr., 812; Tiedeman on Com'l Paper, 312; 6 Ency. Ev., 240; 22 Ency. L. (2d Ed.), 1287.) The evidence as to the mental capacity of the decedent was not prejudicial, since none of the witnesses testified to any fact tending to show incapacity to make a valid gift.

BEARD, JUSTICE. POTTER, C. J., and CRAIG, District Judge, concur. SCOTT, J., having announced his disqualification to sit in this case, HON. DAVID H. CRAIG, Judge of the Third District, was called in to sit in his stead.

OPINION

BEARD, JUSTICE.

The plaintiff in error, Fredericke Hecht, brought suit in the District Court of Laramie County against one of the defendants in error, Annie M. Shaffer, on a promissory note payable to the order of one Julia F. Schweickert. She alleged in her petition that Mrs. Schweickert, the payee of the note, had transferred and delivered the note to her as a gift and that she thereby became the owner thereof. The defendant Shaffer answered denying that the plaintiff was the owner of the note and alleging that it was the property of the estate of Julia F. Schweickert, deceased, and tendered and paid into court the amount then due on the same. The defendant in error, John F. Carey, executor of the will of Mrs. Schweickert, deceased, by leave of court intervened in the action and answered, denying the plaintiff's ownership of the note and alleging that it was the property of said estate. The claim of the plaintiff is that Mrs. Schweickert, a short time before her death, made a gift causa mortis of the note to plaintiff. The cause was tried to the court without a jury, and the court found that the note was the property of Mrs. Schweickert at the time of her death, which was prior to the time of the commencement of the action, and that it still belonged to her estate and that plaintiff had no interest or right of ownership therein, and gave judgment accordingly. From this judgment plaintiff brings error. The note was not endorsed and the only evidence of its delivery to plaintiff by Mrs. Schweickert was the fact that it was in the possession of plaintiff. Upon the trial the plaintiff was sworn as a witness in her own behalf and her counsel offered to prove by her that a short time before the death of Mrs. Schweickert and while she was ill, which illness resulted in her death, she called for a little receptacle which she had, and in which she had some jewels, some money and the note in question, and opened it and delivered the contents of the same together with the receptacle to plaintiff as a gift, saying at the time, in substance, "These I give to you, you understand. But in case I get well again, then of course the things are mine." That plaintiff took charge of the receptacle and the articles and from that time had the possession of the same. Counsel for the executor objected to this testimony and to the plaintiff testifying to anything that took place prior to the death of Mrs. Schweickert. The objection was sustained, and that ruling is the chief ground relied upon by plaintiff in error for a reversal of the judgment. The objection to this testimony is based upon the following provisions of our statutes: Sec. 3683, R. S. 1899, "A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person, except--"; then follows certain exceptions, within the letter of which it is conceded this testimony does not come. The section then closes with the following sentence: "Nothing in this section contained shall apply to actions for causing death, or actions or proceedings involving the validity of a deed, will or codicil; and when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied."

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