Hinton v. Bryant, 14730.

• Decision Date: 31 May 1934
• Docket Number: No. 14730.,14730.
• Citation: 99 Ind.App. 38,190 N.E. 554
• Parties: HINTON v. BRYANT et al.
• Court: Indiana Appellate Court

99 Ind.App. 38

190 N.E. 554

HINTON

v.BRYANT et al.

No. 14730.

Appellate Court of Indiana, in Banc.

May 31, 1934.

Appeal 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 the part of the judgment in favor of the defendants, the plaintiff appeals.

Judgment reversed, with instructions.

Ira M. Sharp, of Lebanon, for appellant.

Edgar M. Blessing, of Danville, for appellees.

BRIDWELL, Chief Judge.

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 ownershipof 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 & 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, Ind., of $23; a gold watch of the alleged value of $25; cash in pocketbook 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 court further finds that the said plaintiff is entitled to the possession of the share of certificate in the Ladoga Building, Loan, Fund & Savings Association in the sum of $200.00 and which certificate is held by said bank as collateral for a loan of said decedent.

“The court further finds that the defendants are entitled to possession of all the certificates of stock in the Ladoga Building, Loan, Fund & Savings Association aggregating the sum of $2,000.00 and that said defendants are entitled to the possession of the note and mortgage, which note was dated on or about the 12th day of January, 1929, payable to the order of Jacob Hinton and signed by Earl H. Roberts and Marie M. Roberts and also the mortgage executed by the said Earl H. Roberts and Marie Roberts both of said instruments running to Jacob Hinton and said mortgage being on the East half of the Northeast quarter of Section 23, Township 17 North of Range West situated in Montgomery County in the State of Indiana.

“The court further finds that said defendants are entitled to the possession of all the money which was in the pocket book of said Jacob Hinton at the time of his death and that the defendants are entitled to the possession of the gold watch and the wooden chest with lock and key which the defendants took possession of shortly before the death of the said Jacob Hinton, deceased.”

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.

“It is further ordered, adjudged and decreed by the court that the defendants are entitled to the possession of all the remaining certificates of shares of the Ladoga Building, Loan, Fund & Savings Association of Ladoga, Indiana, aggregating the sum of $2,000.00 and which certificates are now in the possession of said defendants.

“It is further ordered, adjudged and decreed that the defendants are entitled to possession of the pocket book and all the money contained therein which is now in possession of the defendants and that said defendants are also entitled to possession of a certain gold watch, described in plaintiff's complaint and the wooden chest described in plaintiff's complaint and which are now in the possession of the defendants.

“It is further ordered, adjudged and decreed by the court that the defendants pay to the plaintiff herein whatever sums are necessary to pay the debts of said decedent and the necessary costs of administration in addition to the assets in the hands of said administrator including said certificate of the Ladoga Building, Loan, Fund & Savings Association in said Roachdale Bank.

“It is further ordered, adjudged and decreed by the court that the defendants pay the costs of this action taxed at $-; all of which is fully, finally, ordered, adjudged and decreed.”

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 Nos. 3 and 6. 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 follow: (1) “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.” (2) “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.

[1] Among the causes assigned for a new trial is alleged error in the admission of Appellees' Exhibits 3 and 6 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,...