Jackson v. Lamar

• Decision Date: 09 March 1912
• Citation: 121 P. 857,67 Wash. 385
• Court: Washington Supreme Court
• Parties: JACKSON v. LAMarch

121 P. 857

67 Wash. 385

JACKSON v. LAMarch

Supreme Court of Washington

March 9, 1912

Department 2. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by H. S. Jackson, as administrator of the estate of Joseph Lamar, deceased, against David Lamar, revived after his death in the name of Bessie Lamar, as administratrix of his estate. Judgment for plaintiff, and both parties appeal. Affirmed.

Sharpstein & Sharpstein and James H. Hull, for appellant.

Rader &amp Barker and T. P. & C. C. Gose, for respondent.

MORRIS J.

This action was brought by respondent to recover the value of 21,575 47/60 bushels of wheat and other personal property from David Lamar, a nephew of Joseph Lamar, who claimed the right of possession as against the estate, under a claim that the wheat and other property had been given to him and his two brothers by his uncle during his lifetime. The court below found in favor of respondent as to the wheat, which was valued at $15,102.50, and a threshing machine valued at $2,457.91, to which amounts interest was added, on the wheat from May 1, 1907, and on the threshing machine from January 1, 1907, to the date of the finding, January 20, 1911, making a total finding of $21,538.88 in favor of respondent. The remainder of the personal property was awarded David Lamar and his two brothers, and both parties have appealed.

Since the filing of the original briefs here, David Lamar has died and Bessie Lamar, his administratrix, has been substituted in his stead. Much of the controversy here is upon the proper rules of law applicable to cases of this character as to what constitutes a gift and the character of evidence demanded by the law to sustain it. We are not disposed to review these contentions, as we believe the law relating to gifts to be well settled and the announcement of the controlling rules will be sufficient. As is said in Thornton on Gifts, § 217: 'What constitutes a gift, what combination of circumstances will bring a case within the legal definition of a gift, is essentially a matter of evidence, and not of law, and each particular case must depend upon its own circumstances, and must be such as to authorize the belief that a gift was intended.' Under the old cases, gifts were looked upon somewhat with suspicion as fruitful sources of litigation, lacking those formalities and safeguards which the law throws around wills, and creating strong temptation to the commission of fraud and prejury. They were not favored by the law, and almost conclusive evidence was required to sustain them. Such, however, is not now the rule.

The law regards with favor every man's right to dispose of his property as he will and when he will, and favors as much his disposition by gift, when the intent and the act are clearly established by competent evidence, as though he had undertaken to dispose of his belongings by the stricter formality of a written disposition. We find the rule so stated in Crook v. First Nat. Bank of Baraboo, 83 Wis. 31, 52 N.W. 1131, 35 Am. St. Rep. 17: 'The law favors free and comprehensive power of disposition by an owner of his property, and the vigor of the earlier cases has been materially relaxed, both as to the subjects of such gifts and as to what will serve as a delivery to make them effectual.'

While it is true the courts have relaxed the rigor of the old rules, they have never departed from holding that something more is required to constitute a gift either inter vivos or causa mortis than the expression of an intent or purpose to give. Evidence of such intent is admissible to prove the act, but it does not constitute the act, and delivery either actual or constructive is as essential to-day as it ever was.

The donor must not only signify his purpose to give, but he must deliver, and, as the law does not presume that an owner had voluntarily parted with his property, he who asserts title by gift must prove it by evidence that is clear and convincing, strong and satisfactory. Although it may not be true that the law now presumes against a gift, it certainly does not presume in its favor, but requires proof. Lewis v. Merritt, 113 N.Y. 386, 21 N.E. 141; Devlin v. Greenwich Sav. Bank, 125 N.Y. 756, 26 N.E. 744. The modern rule, that the intention of the donor having been ascertained, great latitude should be given in carrying out that intention, still demands a delivery as perfect and complete as the nature of the property and the attendant circumstances and conditions will permit. Blake v. Jones, Bailey, Eq. (S. C.) 141, 21 Am. Dec. 530; Phinney v. State, 36 Wash. 236, 78 P. 927, 68 L. R. A. 119. Having, as we believe, correctly stated the law governing cases of this character, we will now notice the evidence upon which appellant relies to sustain the theory of a gift.

Joseph Lamar was an old resident of Walla Walla county. He had accumulated about 7,000 acres of land and much personal property. He was a bachelor, and, so far as this record goes had no relatives nearer than Missouri. His age is not given, but it is apparent from the record that he was well along in years. On January 9, 1902, he wrote to his brother at Weston, Mo., as follows: 'Your note at hand. Can't you send David out and let him see this country. I would like for him come and take charge of my place as I am not able to do it myself. I will divide with him as long as I live when I am gone I will let the boys take the place. I have close to 6,000 acres of land that is worth 100,000 thousand or more. I am going down hill all of the time, it is only 4 or 5 days trip to my place. Maby Parte would come out with him and Joseph Lamar. I have 1200 acres of wheat in this fall. I haven't sold last years crop, 20,000 bushels. Wheat is looking up. I may sell soon.' In response to this letter David Lamar came to his uncle, and on February 28, 1902, Joseph Lamar executed a deed whereby he conveyed to David Lamar and his two brothers, Joseph and James N. Lamar, a large tract of land approximating 7,000 acres, reserving and excepting all the rents, issues, profits, and the exclusive right of possession of the lands conveyed for and during his lifetime. On March 17, 1902, he executed a bill of sale of all his horses, cattle, machinery, and all other personal property to the same three nephews, reserving to himself as in the deed of the real property the right of full possession during his lifetime, and fixing delivery as at the time of his death. From that time David Lamar took full charge of his uncle's affairs, and conducted all his business operations, including the management of the farm lands, until the death of Joseph October 24, 1906. The record does not disclose what became of the 20,000 bushels of wheat Joseph had on hand at the time he wrote the letter of January 9, 1902, nor what disposition has been made of the wheat crops or other products of the farm for the years 1902 to 1905 inclusive, the wheat in issue here being the 1906 crop. On November 25, 1902, Joseph Lamar gave David a check for $5,000 for what purpose is not disclosed, and on September 10, 1906, about a month and a half prior to his death, he closed his account at the bank by giving David a check for $2,621.49, and on the same day he executed a deed whereby he conveyed to David 80 acres of land without reservation or exception. The notary who drew the deed and took his acknowledgment and a nurse who acted as a witness to the deed testify that at that time he was asked about the disposition of his personal property to which inquiry he replied in substance that he had given it to David and the boys. Other testimony relied upon is as follows: Harvey Shaw testified that soon after David came to his uncle (early in 1902), Joseph Lamar said to him: 'I sent for him, and he came out, and I gave him all I had.' Ed Shaw testified that in 1905 he went to Joseph Lamar to purchase a ham, and Joseph then said to him, 'I have turned everything over to Dave, and he put up this meat to do the farm work,' and he did not know whether there was any meat for sale or not. Thomas Hoggerty testified that in 1904 he bought some hogs of Joseph Lamar, and, when he came down to pay for them, Joseph told him to settle with David; that he also wanted some pasture land, and Joseph told him to see David about it, because he had turned everything over to the boys. M. S. Jones testified he was the purchasing agent of the 1906 wheat crop in issue here; that, as it was delivered to the warehouse, receipts were issued; that the first few...