In re Harlow v. Harlow

• Decision Date: 03 December 1945
• Docket Number: No. 20598.,20598.
• Citation: 192 S.W.2d 5
• Parties: IN THE MATTER OF THE ESTATE OF E.J. HARLOW, DECEASED, G.W. HARLOW, ADMINISTRATOR OF THE ESTATE OF E.J. HARLOW, DECEASED, v. HAROLD HARLOW,
• Court: Missouri Court of Appeals

192 S.W.2d 5

IN THE MATTER OF THE ESTATE OF E.J. HARLOW, DECEASED, G.W. HARLOW, ADMINISTRATOR OF THE ESTATE OF E.J. HARLOW, DECEASED, v. HAROLD HARLOW,

No. 20598.

Kansas City Court of Appeals. Missouri.

December 3, 1945.

Appeal from Grundy County Circuit Court. — Hon. V.C. Rose, Judge.

AFFIRMED.

Andrew Field and Chas. D. Brandon for appellant.

H.J. Bain of counsel.

(1) (a) Gifts inter vivos — what constitutes. Dickson v. Dickson, 101 S.W. (2d) 775, 231 Mo. App. 515; Cartall v. St. Louis Union Trust Co., 153 S.W. (2d) 370, 376, 348 Mo. 372; Thomas v. Thomas, 107 Mo. 459, 463, 18 S.W. 27, 28. (b) General burden of proof. Kunst v. Walker (Mo. App.), 43 S.W. (2d) 886, 890; Spencer v. Barlow, 5 S.W. (2d) 28, 32, 319 Mo. 835; Wilkerson v. Wann, 16 S.W. (2d) 72, 75, 322 Mo. 842; In re Van Fossen (Mo. App.), 13 S.W. (2d) 1076, 1078. (c) Where gift inter vivos is not asserted until after death of alleged donor, such gifts are regarded with suspicion by the courts. In re Franz Estate, 127 S.W. (2d) 401, 404, 344 Mo. 510, 520; Reynolds v. Hanson (Mo. App.), 191 S.W. 1030, 1032; Cremer v. May, 8 S.W. (2d) 110, 115, 223 Mo. App. 57; Jones v. Falls, 101 Mo. App. 536, 548, 73 S.W. 903, 907. (d) It is a general rule that a gift inter vivos, sought to be established after the alleged donor's death, must be proven by forceful, clear and conclusive testimony which convinces the court beyond a reasonable doubt of its truthfulness. Manley v. Ryan, 126 S.W. (2d) 909, 914 (4), 235 Mo. App. 45; Cartall v. St. Louis Union Trust Co., 153 S.W. (2d) 370, 375, 348 Mo. 372; Stein v. Mct'l Home B. & T. Co., 148 S.W. (2d) 570, 572-3, 347 Mo. 732; St. Louis Union Trust Co. v. Busch, 145 S.W. (2d) 426, 430, 346 Mo. 1237; In re Franz Estate, supra; Foley v. Harrison, 233 Mo. 460, 588-590, 136 S.W. 354. (e) 1. It is generally held, where the paper writing is neither a deed, a sealed instrument, nor a formal instrument purporting to pass title, put is only an informal instrument, such as a letter, order, or memorandum, that the instrument is ineffectual as a gift without a delivery of the property. Coles v. Belford, 289 Mo. 97, 108, 232 S.W. 728; Foulke v. Hickman (Mo. App.), 259 S.W. 496, l.c. 498; Hamilton v. Clark, 25 Mo. App. 428, 436; K.C. Theological Seminary v. Kendrick (Mo. App.), 203 S.W. 628, 629; Nelson v. Diffenderffer, 178 Mo. App. 48, 53, 163 S.W. 271; Pennell v. Ennis, 126 Mo. App. 355, 359, 103 S.W. 147; Scottish Rite Temple Ass'n. v. Lucksinger, 101 S.W. (2d) 511, 513, 231 Mo. App. 486, 63 A.L.R. 555, 38 C.J.S., p. 803. 2. Donor must part with dominion or control or right of dominion or control of or power to repossess the subject of the alleged gift; delivery is essential. Perry v. First Nat'l Bank, 68 S.W. (2d) 927, 928, 228 Mo. App. 486; Blackiston v. Russell, 44 S.W. (2d) 22, 26, 328 Mo. 1164, 1173; Cremer v. May, 8 S.W. (2d) 110, l.c. 113, 223 Mo. App. 57; Reynolds v. Hanson, 191 S.W. 1030, 1031; Tygard v. McComb, 54 Mo. App. 85, 91; Gartside v. Pahlman, 45 Mo. App. 160, 164; Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629. 3. Intention to make a gift is not alone sufficient, there must be a complete and unconditional delivery. Neither will a delivery be sufficient, unless made with an intention to give. Napier v. Eigel, 164 S.W. (2d) 908, 912, 350 Mo. 111; Coles v. Belford, 232 S.W. 728, 289 Mo. 97, 108; Walker v. Travis (Mo. App.), 125 S.W. (2d) 79, 80; Tygard v. McComb, 54 Mo. App. 85, 91; Trautz v. Lemp, 46 S.W. (2d) 135, 144-145, 329 Mo. 580, 607; Lohnes v. Baker, 156 Mo. App. 397, 405, 137 S.W. 282; Brannock v. Magoon, 125 S.W. 535, 141 Mo. App. 316, 320; In re Estate of Soulard, 141 Mo. 642, 656-7, 43 S.W. 617. 4. Time when gift is first asserted has a bearing on delivery. Cartall v. St. Louis Union Trust Co., 153 S.W. (2d) 370, 375, 348 Mo. 372; Stein v. Mct'l Home B. & T. Co., 148 S.W. (2d) 570, 572, 347 Mo. 732. 5. Delivery must be such a delivery as the thing is capable of. Vogel v. Gast, 20 Mo. App. 104, 107. (2) (a) Inventory and appraisement. Coombs v. Coombs, 86 Mo. 176, 177; Helsley v. Ferguson, 67 S.W. (2d) 103, 105, 228 Mo. App. 386; Bogie v. Nolan, 96 Mo. 85, 93, 9 S.W. 14. (b) 1. Interrogatories and answer constitute pleadings. Starks v. Lincoln, 291 S.W. 132, 133, 316 Mo. 483; In re Estes Estate (Estes v. Estes) (Mo.), 166 S.W. (2d) 1061, 1062; In re Deckers Estate (Schrock v. Decker), 152 S.W. (2d) 104, 348 Mo. 32. 2. Statements as to intended gifts not competent. Gifts cannot be made to take effect in the future. McCune v. Daniels (Mo. App.), 225 S.W. 1020, 1021; Payne v. Payne, 57 Mo. App. 130; Perry v. First Nat'l. Bank, 68 S.W. (2d) 927, 928, 228 Mo. App. 486; Nasse v. Thoman, 39 Mo. App. 178; Scottish Rite Temple Ass'n v. Lucksinger, 101 S.W. (2d) 511, 513, 231 Mo. App. 486, 489; Walker v. Travis (Mo. App.), 125 S.W. (2d) 79, 80; Lohnes v. Baker, 156 Mo. App. 377, 405, 137 S.W. 282; Spencer v. Vance, 57 Mo. 427, l.c. 429. (3)' Declarations or statements of the alleged donor made at or subsequent to the time the gift was alleged to have been made are admissible to show a state of mind inconsistent with the making of a gift, and to refute and as rebuttal of declarations and statements of alleged donor against interest admitted in evidence on behalf of party claiming gift. Crismond v. Kendrick, 29 S.W. (2d) 1100, 1108, 325 Mo. 619, 638; Coles v. Belford, 289 Mo. 97, 108-9, 232 S.W. 728, 105 A.L.R., p. 408, 410; Dunn v. Alton R. Co. (Mo. App.), 88 S.W. (2d) 224, 228; Friedman v. Griffith (Mo. App.), 196 S.W. 75, 77. (4) Where a gift is not asserted until after the death of the alleged donor, such gifts are regarded with suspicion by the court and must be proven by forceful, clear and conclusive testimony which convinces the jury beyond a reasonable doubt of its truthfulness. In re Franz Estate, 127 S.W. (2d) 401, 404, 344 Mo. 510, 520; Jones v. Falls, 101 Mo. App. 536, 548, 73 S.W. 903, 907; Reynolds v. Hanson, 191 S.W. 1030, 1032; Cremer v. May, 8 S.W. (2d) 110, 115, 223 Mo. App. 57. (5) The court erred in giving defendant's Instruction DA. McCune v. Daniels (Mo. App.), 225 S.W. 1020, 1021; Defendant's Answer (p. 15), as stricken on Motion (p. 19), See Appellant's Statement, this Brief, page 3.

Thomas J. Layson and L.B. Gillihan for respondent.

(1) The evidence was sufficient to establish a gift inter vivos. Jones v. Jones (Mo. App.), 201 S.W. 557; Dickson v. Dickson (Mo. App.), 101 S.W. 774; McBride v. Mercantile Commerce Bank and Trust Company (Mo.), 48 S.W. (2d) 922; Schwalbert v. Konert (Mo. App.), 76 S.W. (2d) 445. (a) The action was at law, and the credibility of the witnesses is settled by the verdict of the jury. McBride v. Mercantile Commerce Bank and Trust Company, 48 S.W. (2d) 922, 928; (b) The true rule is that a parole gift from a parent to his child or to one standing in close relationship requires less positive and unequivocal testimony to establish the gift than in case of other persons where they are not so related. McBride v. Mercantile Commerce Bank and Trust Company, 48 S.W. (2d) 922. (c) The question of a valid gift inter vivos is a question of fact to be determined by the trier or triers of the fact. Dickson v. Dickson (Mo. App.), 101 S.W. (2d) 774. (d) Delivery is presumed on slight evidence where intent of donor is proved under his own hand. In re Pastor's Estate, 279 N.Y.S. 200, 155 Misc. 247. (e) Where there is no suggestion of fraud or undue influence even slight evidence will suffice to establish delivery of the gift inter vivos. Cook v. Fraser, 298 Mich. 374, 299 N.W. 113; 38 C.J.S., Sec. 67, p. 880. (f) Where the relationship of the parties is such that the donee has a natural claim on the generosity of the donor, the courts look with favor on the claim of a gift and, generally speaking, less evidence is required to support a gift to a close relative than would be necessary to sustain one to a stranger. Gillespie v. Gillespie (Mo.), 289 S.W. 579, 581; 38 C.J.S., Sec. 67c, p. 883; (g) Where the gift is evidenced by some writing executed by donor, delivery of the writing is a sufficient delivery to support the gift, especially where it is not in the power of the donor to make a manual delivery. 38 C.J.S., Sec. 22, p. 803. (h) Where intention to make gift is clearly established, less evidence is required to show that delivery was made to donee. In re Pyewell's Estate, 5 Atl. (2d) 123, 334 Pa. 154; In re Henlein's Estate, 46 Pa. Dist. & Co., 47, 24 Erie Co., 240. (i) Declarations of the donor especially if repeatedly made are sufficient on which to establish a title by gift. Schwalbert v. Konert (Mo. App.), 76 S.W. (2d) 445. (2) The financial condition of the donor was admissible. 38 C.J.S., Sec. 66, p. 868; Schwalbert v. Konert et ux. (Mo. App.), 76 S.W. (2d) 445, l.c. 451. (3) The rule is well established that declarations made by a person, since deceased, in explanation of a voluntary conveyance or a gift of any kind, are admissible if made against his interest, but are inadmissible if made in favor of his interest or in the interest of his estate. Weller v. Collier et al. (Mo.), 199 S.W. 974, 975; Weller v. Weaver et ux. (Mo. App.), 100 S.W. (2d) 594, 598; Reynolds et al. v. Hanson (Mo. App.), 199 S.W. 279. (4) The court did not commit error in excluding from the evidence testimony of witnesses as to declarations made by the donor. Lanphere v. Affeld et al., 99 S.W. (2d) 36, 40; Townsend v. Schaden, 275 Mo. 227, 204 S.W. 1076. 1. The declarations offered by the appellant were not a part of the same transaction or conversation where donor made declarations against interest as received in evidence on behalf of respondent. Schwartz v. Mercantile Trust Company (Mo. App.), 279 S.W. 253, 255, Syl. 2. 2. The respondent was entitled to prove admissions against interest and show a gift and such a showing did not render admissible self-serving statements tending to destroy a gift. Pursifull v. Pursifull et al. (Mo.), 257 S.W. 117, Syl. 2. 3. The death of the...