Hudson v. Tucker
| Decision Date | 13 May 1961 |
| Docket Number | No. 42101,42101 |
| Citation | 188 Kan. 202,361 P.2d 878 |
| Parties | Robert F. HUDSON, Administrator of the Estate of Charles B. Hudson, Deceased, Appellant, v. Mrs. E. S. TUCKER, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In a replevin action by an administrator to bring assets into the estate of the decedent the jury returned a verdict for the defendant in accordance with the defense that the personal property in question had been the subject of a valid inter vivos gift from the decedent three years prior to his death. On appeal from a judgment on the verdict it is held: (a) The defense was properly asserted in the district court since it was not a claim against the decedent's estate; (b) the evidence was sufficient to sustain the verdict; and (c) the motion for a new trial was properly overruled.
2. Where an administrator in a replevin action seeks to bring assets into an estate, the action is properly brought in the district court, and the defendant who has possession of such assets, consisting of corporate stock certificates, bonds and an insurance policy, may defend the action by asserting that such property was the subject of an inter vivos gift from the decedent during his life since such defense is not an assertion of a claim against the decedent's estate, even though the securities were recorded in the decedent's name at the time of his death.
3. To establish a gift inter vivos there must be (a) an intention to make a gift; (b) a delivery by the donor to the donee; and (c) an acceptance by the donee. The gift must be absolute and irrevocable.
4. Instructions given by the trial court to a jury, which are not properly challenged or presented for appellate review, are presumed to be correct and become the law of the case.
5. In determining from the evidence whether there was a gift inter vivos the relationship of the parties is an important factor. Where the relationship of the parties is such that the donee has a natural claim on the generosity of the donor, courts look with favor on the claim of gift and, generally speaking, less evidence is required to support an inter vivos gift to a close relative than would be necessary to sustain one to a stranger.
6. While a complete and unconditional delivery is essential to the validity of a gift inter vivos, where there is a delivery the fact that the property may be redelivered to the donor as agent or trustee of the donee, or for safekeeping, will not unllify or affect the gift.
7. Newly discovered evidence, which with reasonable diligence could have been discovered and produced at the trial, is insufficient basis for the granting of a new trial. (G.S.1949, 60-3001, Fifth.)
L. M. Kagey, Wichita, argued the cause, and David W. Kester, Eureka, was with him on the briefs, for appellant.
George Forbes, Eureka, argued the cause, and Thos. C. Forbes and Harold G. Forbes, Eureka, were with him on the briefs, for appellee.
This is a replevin action by the administrator of an estate to recover certain personal property held by the defendant, a stepdaughter of the decedent. Defense was based upon the ground that the decedent had given the property to the defendant before his death. Judgment was entered in favor of the defendant by the district court upon the general verdict of the jury, and appeal has been duly perfected by the administrator raising the questions hereinafter discussed.
The substantive question presented is whether the defendant's evidence is sufficient to establish an inter vivos gift. A procedural question is also presented as to whether the district court was the proper forum in which to determine the issues raised by the pleadings.
The facts giving rise to this controversy are as follows: In September, 1909, Charles B. Hudson married the defendant's mother, Gertrude. At that time the defendant was eight years of age, and she also had an older sister, Erma. Charles B. Hudson, his wife, Gertrude, and the two girls resided together as a family in Wichita, Kansas, until the defendant and her sister each married and established homes of their own. The defendant married E. S. Tucker in August, 1929, and has resided in Eureka, Kansas, since that time. Erma has lived in California for many years.
Charles B. Hudson was an attorney and practiced law in the City of Wichita for many years. He and his wife, Gertrude, resided together in a very close relationship for forty-six years until her death in 1955. There is testimony in the record that the relationship between them was perfect and they were very devoted to each other. Charles B. Hudson died the evening of May 29 or early morning of May 30, 1959.
The defendant's natural father died soon after her birth and the defendant knew no father other than Charles B. Hudson. She thought of him as her father and so referred to him in her testimony. Charles B. Hudson had no other marriages and no children of his own. He raised the two daughters of his wife, Gertrude, as his own children and always referred to them as 'his daughters' but never legally adopted them. According to the testimony of witnesses the same relationship existed between Charles B. Hudson and the defendant as between a natural father and daughter. After the defendant's marriage and establishment of a home in Eureka, the defendant continued her close contact with her stepfather and her mother until the time of the death of each of them. After Gertrude's death, Charles B. Hudson received even greater comfort from his close relationship with the defendant. His letters to the defendant were quite affectionate and devoted.
The record discloses that Charles B. Hudson did not have much property in 1915, but he and his wife, Gertrude, jointly accumulated property during their marriage, consisting of suburban real property near Wichita, savings accounts in two separate building and loan institutions, a bank account, government bonds, corporate stocks, and an insurance policy insuring the life of Charles B. Hudson. The bonds, insurance policy and corporate stocks are alleged in the plaintiff's petition to be in the possession of the defendant. (After this action was instituted the insurance policy was surrendered to the insurance company, but the proceeds of such policy remain a matter in controversy.) The value of the reported assets of the decedent not here in controversy was approximately $26,000. The value of the assets in the defendant's possession was alleged by the plaintiff to be $24,326.
Shortly after Gertrude died on September 5, 1955, Charles B. Hudson expressed his intention to dispose of all his property so that he would not need to make a will, and there is testimony that he was planning to make a gift to defendant. In the middle of August, 1956, the defendant and her husband were called on the telephone by Charles B. Hudson and asked to come to the City of Wichita to see him. They went to his office in the Schweiter Building, and the government bonds, corporate stocks and the life insurance policy were given by Charles B. Hudson to the defendant. In making the gift Charles B. Hudson expressly stated that he was giving these items to the defendant but retaining the interest, dividends or other income during his lifetime. The defendant accepted the insurance policy, stocks and bonds and placed them in her handbag.
The items delivered to the defendant consisted of 370 shares of Kansas Gas and Electric Company common stock, 106 shares of Kansas Power and Light Company common stock, $5,500 in Series 'E' United States Savings Bonds, and an insurance policy with the Aetna Life Insurance Company for $5,000 payable to Mrs. Gertrude Hudson. At the time of this transaction Charles B. Hudson said these items were of the approximate total value of $30,000.
The defendant and her husband stayed that night in the home of Charles B. Hudson in Wichita, as was their custom when possible, and the gift was further discussed. Charles B. Hudson explained that all of the stocks and bonds stood in his name and Gertrude's jointly, and to facilitate the mailing out of the dividends on the various corporate stocks he was going to transfer them to his name alone so the dividend checks would be payable to him instead of to him and his wife as had previously been done. He also said he might want to transfer the government bonds, which had matured, into interest-bearing bonds, if he should need this income. The defendant said this was perfectly acceptable to her and she suggested that he keep all the securities for her. He could then make the changes desired, and in that manner she would not need to take them back and forth between Eureka and Wichita.
Charles B. Hudson agreed to keep the securities and said he would put them in a safety deposit box in the Fourth National Bank so she could get in the box at any she wanted, and if anything happened to him she was to go to the box immediately and remove the contents. On the 16th day of October, 1956, the defendant was in Wichita during banking hours and she and Charles B. Hudson went to the Fourth National Bank where the safety deposit box of Charles B. Hudson was changed. Both Charles B. Hudson and Mrs. E. S. Tucker signed a joint tenancy contract for the safety deposit box which contained a provision as follows:
'* * * In the event of the death of a joint lessee, the survivors severally or sole survivor shall have access to said box and the right to remove all contents, * * *'
The defendant was given a key to the box. On the same date the checking account of Charles B. Hudson was changed into a joint tenancy account with the defendant.
Approximately ten days after the death of Charles B. Hudson the defendant, being unable to locate her key to the lock box, had it drilled open and removed the contents which is the subject of this litigation. The bank authorities were satisfied that the defendant had the right to have the box...
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...elements of intent, delivery, and acceptance are usually questions of fact to be determined by the jury. See Hudson, Administrator v. Tucker, 188 Kan. 202, 211, 361 P.2d 878 (1961). One of the few Kansas cases involving gifts in contemplation of marriage is Douthitt v. Applegate, 33 Kan. 39......
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