Hinton v. Bryant
Decision Date | 31 May 1934 |
Docket Number | 14,730 |
Citation | 190 N.E. 554,99 Ind.App. 38 |
Parties | HINTON, ADMINISTRATOR v. BRYANT ET AL |
Court | Indiana Appellate Court |
From Hendricks Circuit Court; Fred C. Gause, Special Judge.
Action by Burr F. Hinton, administrator of the estate of Jacob Hinton, deceased, against Mason Bryant and another. From a judgment for defendants, plaintiff appealed.
Reversed.
Ira M Sharp, for appellant.
Edgar M. Blessing, for appellee.
Appellant, as administrator of the estate of Jacob Hinton deceased, brought this action against the appellees to recover the possession of certain personal property alleged to have been owned by said Jacob Hinton at the time of his death. Appellees each filed an answer in general denial and also an affirmative paragraph of answer asserting ownership of the property in question in appellee, William Jean Bryant, by way of gift causa mortis from the said decedent. A reply in general denial to the affirmative paragraphs of answer closed the issues. The property involved in this controversy, and of which appellant sought to recover the possession, consisted of 22 shares of stock of the Ladoga Building, Loan, Fund and Savings Association alleged to be of the value of $ 2,200; a promissory note, secured by a real estate mortgage, of the alleged value of $ 1,000; a bank deposit in the Roachdale Bank of Roachdale, Indiana, of $ 23; a gold watch of the alleged value of $ 25; cash in pocket-book of decedent to the amount of $ 40; wearing apparel of the decedent and a certain wooden chest or box, with the key thereto. The cause was submitted to the court for trial and at the close of the evidence was taken under advisement.
On the 28th day of September, 1931, the following general finding was made by the court: "That the plaintiff is entitled to recover possession from the defendants the sum of $ 23.00, being the amount of money deposited in the Roachdale Bank to the credit of Jacob Hinton on the date of the death of said decedent.
The judgment rendered on this finding is as follows: "It is therefore ordered, adjudged and decreed by the court that the plaintiff recover the possession from the defendants the sum of $ 23.00 in money, the same being the money which was on deposit to the credit of said decedent at the time of decedent's death, and that the plaintiff, as administrator of the estate of Jacob Hinton, deceased, is entitled to the possession of the certificate of stock of $ 200.00 in the Ladoga Building, Loan, Fund & Savings Association subject to any rights of the Roachdale Bank of Roachdale, Indiana.
Appellant, on October 27, 1931, in vacation, filed his motion for a new trial assigning as causes therefor that the decision of the court is contrary to law, that the decision of the court is not sustained by sufficient evidence, and that the court erred in admitting in evidence, over his objection, defendants' Exhibits numbered three and six. This motion was overruled on January 27, 1932, and appellant excepted, and, on said day, filed his motion to modify the judgment in two particulars as follows: (1st) "By striking out and expunging therefrom all that part of said judgment which purports to award to the defendants, or either of them, any part of the personal property described in the complaint. " (2nd) "That said judgment be so modified as to award to the plaintiff the personal property described in the complaint for the purpose of the proper administration of the estate of the said Jacob F. Hinton, deceased, and the payment of the debts and liabilities of the said Hinton and of his estate." This motion was overruled and appellant excepted. This appeal was thereafter perfected, the appellant assigning as errors that the court erred in overruling his motion for a new trial, and that the court erred in overruling his motion to modify the judgment.
Among the causes assigned for a new trial is alleged error in the admission of appellee's exhibits three and six in evidence, but there is no discussion or mention of any such error under appellant's "Propositions and Authorities" and the question is therefore waived.
Appellant earnestly insists that the evidence is not sufficient to sustain the decision and that it fails to establish a valid gift causa mortis to appellee, William Jean Bryant, for the reason that it is not shown that there was such a delivery of the property in controversy, either actual or constructive, as is required by law in order to constitute a valid gift.
The evidence, without conflict therein, shows that the decedent, Jacob Hinton, became seriously ill on Sunday, March 30, 1930, and died from this sickness on April 1, 1930; that a physician was called to attend him on said Sunday and he was advised by said physician as to his serious condition, and knew that death was imminent; that he owned all the...
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