Jones v. Falls

• Citation: 73 S.W. 903,101 Mo. App. 536
• Parties: JONES v. FALLS.
• Decision Date: 31 March 1903
• Court: Missouri Court of Appeals

73 S.W. 903

101 Mo. App. 536

JONES v. FALLS.

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

GIFT INTER VIVOS—BURDEN OF PROOF—RELATION OF PARTIES—INTENTION OF DONOR— SUFFICIENCY OF EVIDENCE—INSTRUCTIONS —COMMENT ON ITEMS OF EVIDENCE—ADMISSIBILITY OF EVIDENCE.

1. The burden of proof is on the donee to establish a gift.

2. The general rule requiring gifts inter vivos to be established by conclusive evidence is especially applicable where the gift is not asserted until after the donor's death.

3. Evidence in an action by the administrator of the mother against a son to recover money, claimed by the son to have been a gift to him in the mother's lifetime, examined, and held insufficient to establish the intent on the mother's part to donate the money to the son, especially in view of his payment of interest to the person from whom the mother borrowed the money, and the fact that the claim of gift was not made until after the mother's death.

4. In an action by an administrator to recover from decedent's son money claimed by the latter to have been a gift, an instruction, requested by the son, that, if the money was delivered to him as a gift, the administrator could not recover, is sufficiently covered by instructions that if, when the decedent delivered or agreed to deliver the money to the son, she intended that he should keep it as his own, and that she would thereafter have no claim against him therefor, then it was an absolute gift, and could not be recovered, and that to establish a gift the evidence must show a delivery with intent to relinquish any claim or dominion.

5. Instructions that, if the evidence showed that at the time of giving the money decedent stated that she had given it to the son, judgment must be in his favor; and that, if she stated to the son, in the presence of a witness, that she would give it to him, and afterwards delivered it, then judgment must be for the son; and that, if decedent informed a witness on the day the money was delivered that she had given it to the son, and that, if he lost it, she would never give him any more—then the court was warranted in finding a gift, were properly refused, as mere commentaries upon isolated parts of the testimony.

6. In an action by an administrator against the decedent's son to recover money claimed by the latter as a gift, a letter written by the son to his sister, after decedent's death, threatening that he would present a claim against the estate for services, taxes, etc., in case he was pressed for the money, but making no claim to it as donee, is admissible.

7. Evidence that decedent had expressed an intention of leaving her property to the son at her death was property excluded.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by Wesley D. Jones, as administrator of the estate of Margaret Falls, deceased, against John Falls. Judgment for plaintiff, and defendant appeals. Affirmed.

Crites & Garrison, for appellant. T. M. & C. H. Jones, for respondent.

REYBURN, J.

This record discloses that several years prior to the 29th day of September, 1901, Margaret Falls, plaintiff's intestate, had resided at Rolla, Mo., with her only son, John Falls, appellant herein, occupying as their home a house the property of the son, and on the 29th day of September, 1901, Margaret Falls died, leaving as her heirs at law, appellant and four daughters. At the time of her decease Margaret Falls had $306 cash in her possession, which was delivered by the sisters of appellant to him, and deposited by him in bank in his own name, and from which he afterwards paid the expenses of the funeral and last illness of his mother, aggregating $204.55. Prior to December, 1897, appellant and C. P. Reinoehl proposed to buy a stock of goods then offered for sale in Rolla, and appellant, finding he required $600 to provide sufficient money to pay his share, in company with Reinoehl, went to deceased, and asked her for the money. With some reluctance, and after some hesitation on her part, she agreed to let him have it, but, not having the amount at hand, appellant, through J. J. Crites, procured a loan of $600 on a farm belonging to his mother, upon which she executed a deed of trust securing her note for that amount, of date December 6, 1897. After thus obtaining the money, deceased turned it over to appellant without taking from him any acknowledgment of its receipt, or any obligation of any character for its return or repayment to her. Appellant invested the money in his business, and paid interest on the loan during the lifetime of his mother, but after her death, upon default in payment of the mortgage indebtedness under the provisions of the deed of trust, the realty was sold, and bought in by appellant.

The petition is in two counts, the first reciting that defendant, not having any property of his own to pledge as security for money, importuned deceased to borrow for him $600, and on the 6th day of December, 1897, deceased borrowed for defendant, at his instance and request, such sum, executing her promissory note therefor, and securing payment thereof by a deed of trust on the property described; that defendant received said sum from deceased, and agreed to pay same to her, or to pay off and discharge said note and deed of trust given by her for said sum of money, but defendant had failed and refused to pay off said note and have such deed of trust satisfied of record, and had failed and refused to pay deceased in her lifetime, and had permitted the deed of trust to said real estate to be foreclosed, and had failed and refused to pay plaintiff, as her administrator, said sum. In the second count plaintiff averred that prior to the death of his mother defendant had received from her sundry sums of money, collectively $350, to be deposited to her account in the bank, which defendant had converted to his own use, and had refused to account to plaintiff for such sums or pay same to him.

The answer of defendant admitted the administration, and that deceased had borrowed for him the sum alleged, to be used by him in his business, and had pledged her real estate for its payment; and, further, that on the 6th of December, 1897, he was engaged in business in the city of Rolla, and needed said sum of $600 in his business; that the deceased, his mother, was desirous of assisting him in his business, and suggested to him that, being the owner of the real estate described in plaintiff's petition, she would borrow the money for him, pledging such real estate for the payment thereof, and that she would give to defendant, for use in his business, said sum of $600 so procured from such loan, and informed him he need not repay the same; that she made him a present of same on account of the kind treatment and support she had received from him during the past; that thereupon she borrowed said sum, and executed and delivered her promissory note for the sum of $600, and a deed of trust upon such real estate to secure its payment; that his mother delivered to him, as a gift, such sum of $600, and that it was so intended and understood by her and defendant at the time. In answer to the second count defendant denied he had converted any money belonging to the estate of his mother to his own use, but that a short time before the death of his mother, during her last illness, his sisters, who were in attendance upon her, delivered to him for safekeeping $306 of the deceased, and at their request and suggestion he had placed it in bank, and after the death of his mother he had paid therefrom the funeral expenses, physicians and nurses, $204.55, and to a sister the sum of $21.24, leaving a balance in his hands of $80.21, belonging to the estate of his mother, which he then tendered into court, and offered to allow judgment to go against him in said sum; that the amount of $44.85 in cash on hand at the residence of his mother at the time of her death was divided equally by her heirs at law, and was never in his possession.

The reply was a general denial, and an averment that defendant was to pay off and discharge the mortgage indebtedness, and have the deed of trust satisfied of record, which he had failed to do, permitting the note to mature, and the land mortgaged to be sold in satisfaction.

At the close of the case defendant asked the following instructions:

"No. 1. The court declares the law to be that, if it believes and finds from the evidence that Margaret Falls, now deceased, on the 6th day of December, 1897, delivered to the defendant, John Falls, as a gift, the sum of $600, described in plaintiff's petition and defendant's answer, the plaintiff cannot recover in this action, and the finding and judgment of the court will be for the defendant.

"No. 2. The court declares the law to be that a gift is a transfer of personal property, made voluntarily and without consideration; and this case, if the evidence shows that the said Margaret Falls, after or at the time she gave the defendant the $600 charged in plaintiff's petition and admitted in defendant's answer, stated that she had given the defendant said $600, the judgment of the court will be for the defendant.

"No. 3. If the court believes from the evidence that Margaret Falls stated to the defendant in the presence of witness Reinoehl that she would give him, the defendant, John Falls, the $600 in question, and afterwards delivered and gave to the said defendant the sum of $600, then in law it was a voluntary transfer of the said personal property without consideration, and the finding and judgment of this court will be for the defendant.

"No. 4. If the court believes from the testimony of the witness Crites that the said Margaret Falls, on the day said $600 was delivered to the defendant, John Falls, informed said witness that she had given the defendant the $600 in question, and, if he lost it, she would never give him any more money, then in that case the court is warranted...