Hocks v. Jeremiah

• Decision Date: 26 October 1988
• Citation: 92 Or.App. 549,759 P.2d 312
• Parties: Ruth C. HOCKS, personally and as Personal Representative of the Estate of Robert W. Hocks, Appellant, v. Joanne JEREMIAH, Respondent, and Ernest Burrows, Defendant. 8510-06128; CA A43326.
• Court: Oregon Court of Appeals

Page 312

759 P.2d 312

92 Or.App. 549

Ruth C. HOCKS, personally and as Personal Representative of the Estate of Robert W. Hocks, Appellant, v. Joanne JEREMIAH, Respondent and Ernest Burrows, Defendant.

8510-06128; CA A43326.

Court of Appeals of Oregon.

Argued and Submitted April 15, 1988.

Decided Aug. 17, 1988.

Reconsideration Allowed and Opinion Clarified Oct. 26, 1988.

James M. Callahan, Portland, argued the cause for appellant. With him on the briefs were Bittner & Barker, P.C., Portland.

Ferris F. Boothe, Portland, argued the cause for respondent. On the brief was Thomas S. Boothe, Portland.

Before WARREN, P.J., ROSSMAN, J., and RIGGS, J. pro tem.

ROSSMAN, Judge.

Plaintiff, personally and as personal representative of the estate of Robert Hocks (Hocks), appeals from a judgment after trial to the court dismissing her action against Hocks' sister, defendant Jeremiah, for replevin and conversion of personal property. Defendant asserted that Hocks gave the property to her before his death, and the trial court agreed.

Replevin and conversion are legal claims, Geary v. Prudhomme, 117 Or. 165, 243 P. 101 (1926), subject to review as actions at law. Sautter v. Coffey, 283 Or. 303, 584 P.2d 245 (1978); Alery v. Alery, 203 Or. 101, 277 P.2d 764 (1955). Defendant's affirmative defense of gift must be established by clear and convincing evidence. Johnson v. Steen, 281 Or. 361, 575 P.2d 141 (1978). On review, we do not weigh the evidence but examine the record to determine whether the trier of fact could have found on the basis of clear and convincing evidence that Hocks had made a gift to defendant. Sautter v. Coffey, supra; Alery v. Alery, supra.

We recite the facts in the light most favorable to defendant. On December 29, 1980, Hocks arranged to meet defendant at a restaurant in Portland. He handed her two envelopes, each containing two $5,000 bearer bonds. He said "Here, I have something I want to give you. * * * This is just the beginning. I plan to give you a lot more." He told her that he was giving her the bonds because he loved her, because he was grateful for what she had done for their mother in her last years and to satisfy a promise he had made to their mother.

Hocks suggested to defendant that she place the bonds in a safety deposit box. He told her that everything in the box would be hers. They then went to a nearby bank and jointly rented a safety deposit box. Each signed the signature card, and each retained a key to the box. ¹ Defendant testified that she offered to pay the rent on the box, but that her brother refused, saying, "Your money isn't any good." Hocks explained to defendant that the bonds were like cash and that the interest on them could be collected by clipping and redeeming the coupons. Defendant told Hocks that she and her husband did not need the money and that she preferred that he collect the interest on the bonds. He told her that that was fine but that, if she ever needed money, she should go to the box and clip the coupons, letting him know so that he did not waste a trip to the bank. Defendant and Hocks never talked about the interest coupons again.

In 1981, shortly after they opened the box, Hocks told defendant that he was giving her an "investment" diamond and that he had put it in the safety deposit box. Over the years, Hocks mentioned to defendant when they met or spoke that he had added more bonds to the box. By the time of his death in March, 1985, he had added 22 bonds to the box.

From December 12, 1980, until two days after Hocks' death, defendant never opened the box. She testified that, although she did not believe that she needed Hocks' authorization to open and remove the bonds or coupons, she would not have done so without it. Hocks visited the box regularly to clip the coupons and to add more bonds and the diamond.

Defendant testified that, one day in the summer of 1984, over coffee at the restaurant, she asked her brother to leave a note in the safety deposit box indicating her interest, because, in the event of his death, it would save her "a lot of hassle." She was concerned at the time that there would be problems with her sister-in-law, plaintiff here. She thought that a note from Hocks would "put the icing on the cake." Hocks placed two handwritten notes in the box. The first, dated August 17, 1979, ² stated:

"To whom it may concern:

"In the event of my death, I do hereby give and bequeath this diamond to my sister Joan, with all my love[.]"

The second note, dated August 23, 1984, stated:

"To whom it may concern:

"Upon my death, the contents of this safety deposit box # 7069 will belong to and are to be removed only by my sister Joan Jeremiah."

Defendant acknowledged in her testimony that the notes indicate an intention on the part of Hocks that the gift of the diamond and bonds take effect on his death. She testified, however, that, although he had the power to do so, Hocks would not have considered removing the contents of the box for his own use. "[M]y brother was not that way. I mean, I suppose some people are that way. When my brother gave a gift, it was a gift. It was mine." Yet, when asked why, if Hocks had made an outright gift and in view of potential problems with plaintiff, she did not remove the bonds and diamond and place them in her own safety deposit box, she answered, "Bob was still living, Bob was still living."

Burrows, Hocks' long-time friend and former attorney, testified that Hocks had told him about his plan to leave the bonds and diamond to his sister on his death, but not as a part of his testamentary disposition. Two days after Hocks' death, defendant entered the safety deposit box in Burrows' presence and removed the bonds and the diamond. Later, acting as defendant's attorney, Burrows wrote to the estate:

"I am, of course, representing Joanne and it is her position that because of the nature of the Bonds and the manner in which the box was held that she became the owner of all of the box contents upon Bob's death."

Defendant has retained the bonds and diamond and has collected the interest on the bonds and has cashed one of them when it became due.

An action for replevin requires proof that the defendant holds property that rightfully belongs to the plaintiff. See Windle v. Flinn, 196 Or. 654, 251 P.2d 136 (1952); Almada v. Vandecar, 94 Or. 515, 185 P. 907 (1919). It is a defense that the defendant acquired the property as a gift. Jenck v. Taylor, 235 Or. 348, 385 P.2d 179 (1963). The rules for the establishment of an inter vivos gift are strict. Every element must be shown by clear and convincing evidence. Estate of McConnell v. McConnell, 71 Or.App. 795, 694 P.2d 982 (1985). "Clear and convincing" means that the evidence is free from confusion, fully intelligible and distinct and that the truth of the facts asserted is highly probable. Riley Hill General Contractor v. Tandy Corp., 303 Or. 390, 407, 737 P.2d 595 (1987).

Proof of a gift requires a showing that the donor made an actual or symbolic delivery of the property to the donee by the transfer of possession and absolute dominion over the property, accompanied by a manifested intention to make a present gift. Johnson v. Steen, supra, 281 Or. at 369, 575 P.2d 141. A gift to take effect in the future is ineffective. If no present interest is created at the time of delivery, there is only a gratuitous promise to make a gift in the future. If no interest is created until after the donor's death, the transaction is testamentary and ineffective, unless it is executed with the formalities required for a will. Allen v. Hendrick, 104 Or. 202, 218, 206 P. 733 (1922).

We affirm the trial court's determination that Hocks gave defendant the first four bonds. He hand delivered them to her. He told her then that they and the interest income from them were hers. She accepted the bonds but said that she would like him to have the interest from them. The facts that Hocks later had possession of the bonds, collected the interest on them and indicated that he wanted the four bonds, along with the others, to pass to defendant on his death does not negate the evidence of a completed gift. In re Norman's Estate, 161 Or. 450, 88 P.2d 977 (1939); Gilbert v. Brown, 71 Or.App. 809, 817, 693 P.2d 1330 (1985). That evidence is sufficient to support the trial court's finding of a gift as to the first four bonds.

As to the remainder of the...