Kling v. McCabe

• Decision Date: 14 November 1929
• Docket Number: No. 8557.,8557.
• Citation: 36 F.2d 337
• Parties: KLING v. McCABE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

36 F.2d 337 (1929)

KLING v. McCABE et al.

No. 8557.

Circuit Court of Appeals, Eighth Circuit.

November 14, 1929.

Thomas A. Daily, of Indianapolis, Ind. (Charles T. Hanna, of Indianapolis, Ind., and Carter, Jones & Turney and Harold R. Small, all of St. Louis, Mo., on the brief), for appellant.

William F. Woerner, of St. Louis, Mo. (George O. Durham, of St. Louis, Mo., on the brief), for appellees.

Before STONE, Circuit Judge, and MUNGER and REEVES, District Judges.

MUNGER, District Judge.

This suit was brought by the bill of complaint of Mrs. Anibel W. Kling and Lewis C. Willis, as plaintiffs, against Duran P. McCabe, personally and as executor of the last will and testament of Mary E. Culver, deceased, to recover corporate stocks which the plaintiffs claimed as a gift causa mortis made by Mrs. Culver. The making of the gift was denied in the answer, and, after hearing the testimony, a decree was entered, dismissing the bill. Lewis C. Willis refused to appeal, and an order was made allowing the separate appeal of Anibel W. Kling. Mrs. Culver, a widow, living in St. Louis, Missouri, died there on July 20, 1925. She had no descendants. She left a last will which was duly admitted to probate. It was dated August 21, 1924. By its terms she disposed of an estate of a value of about half a million dollars. In brief, it bequeathed $1,000 to each of seven of her nephews and nieces, or to their descendants. If the legatee had no descendants, the legacy was to lapse and to become a part of the residue of her estate. She bequeathed to an old time friend, Mrs. Kilpeck, if she survived the testatrix, 50 shares of stock in the American Telegraph & Telephone Company. To another friend, Mrs. Waters, if she survived the testatrix, she bequeathed 75 shares of stock in the Boatmen's Bank of St. Louis. She bequeathed 150 shares of stock in the Pennsylvania Railroad Company to a blind girls' home.

The executor was allowed to lease or sell the real estate and household furnishings, the proceeds to be distributed as part of the residue of her estate.

After making these bequests, the will contained this provision: "All the rest and residue of my estate, including lapsed legacies and the proceeds of the sale or letting of real estate, I give, devise and bequeath to my following named nephews and nieces, namely: George Comegys, Courtney Comegys, John Comegys, Mrs. Roxie Chandler, Mrs. Carrie Hurt, Mrs. Annabelle Kling and Louis (or Lucius) C. Willis, share and share alike, and in the event any of said beneficiaries be dead at the time of my death then the share of such beneficiary so dying I give, devise and bequeath to the descendants of such deceased beneficiary, if any, in the proportions fixed by the statute of descents of the State of Missouri, in effect at my death, and in the event there be no such descendants of the beneficiary so dying then such legacy to lapse and become part of the residue of my estate."

After this will was executed, a copy of it was deposited in a safety deposit box of a trust company in St. Louis, and a memorandum was attached, by a separate strip of paper, giving notice that the original will was in the possession of an attorney in St. Louis.

At the time of Mrs. Culver's death, and probably at the time her will was executed, she had in this safety deposit box, 8 certificates representing 881 shares of the common stock, and 1 certificate representing 1,081 shares of the preferred stock of the Majestic Manufacturing Company, of a par value of $158,500; 6 certificates representing 600 shares of stock in the Pennsylvania Railroad Company, of a par value of $30,000; 7 certificates representing 350 shares of stock in the Boatmen's Bank of a par value of $35,000; 10 certificates representing 800 shares of stock in the American Telegraph & Telephone Company; United States Liberty bonds and treasury notes of a par value of $169,000; a promissory note given to her for $7,800; some deeds and miscellaneous paper, and a small amount of jewelry. The records of the trust company show that Mrs. Culver applied for her box twice on August 21, 1924, the date of her will, being accompanied by a woman on each visit, once on September 18, 1924, accompanied by a man and a woman, and once on September 24, 1924, no one being with her on that occasion. When the safety deposit box was opened a few days after Mrs. Culver's death, there was found attached to the copy of the will, two slips of paper, each of them containing a memorandum in the handwriting of Mrs. Culver and reading as follows:

"I wish for Mrs. Kling my niece and L. C. Willis to have all my stock that is not given to any one in the will. Mrs. Culver."

"I wish Mrs. Kilpeck to have all of my Stock in Telegraph telephone Company instead of Fifty shares as is named in my Will. Mrs. Culver."

The plaintiffs' bill alleged that Mrs. Culver, on March 18, 1925, in apprehension of her impending death told Mrs. Kling that she had given to her and to her brother, Lewis C. Willis, her stocks in the safety deposit box, and delivered the key to the box to Mrs. Kling with the intention to give to her and to her brother all the corporate stock, except such as was specifically bequeathed by the will to the blind girls' home, to Mrs. Waters and Mrs. Kilpeck, the stock so sought to be recovered having a par value of $327,250.

A gift causa mortis must be absolute and made by one in apprehension of his impending death, and intended to take effect and operate as transfer of title in the event of his death. It is revocable by the act of the donor prior to his death, and is revoked if the donor recovers from the sickness, or escapes from the danger, in view of which the gift was made. It is essential that the thing given shall be delivered to the donee, or to his use, "The intention to give must be accompanied by a delivery and the delivery must be made with an intention to give." 3 Pom. Eq. Jur. §§ 1146, 1149. It has often been decided that the evidence to establish gifts causa mortis, in cases of this nature, must be clear and satisfactory, and will be closely scrutinized. 3 Pom. Eq. Jur. § 1146; Parish v. Stone, 14 Pick. (Mass.) 198, 25 Am. Dec. 378; Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313; Hatch v. Atkinson, 56 Me. 324, 96 Am. Dec. 464; Devol v. Dye, 123 Ind. 321, 24 N. E. 246, 7 L. R. A. 439; Foley v. Harrison, 233 Mo. 460, 136 S. W. 354; In re Van Alstyne, 207 N. Y. 298, 100 N. E. 802; Gano v. Fisk, 43 Ohio St. 462, 3 N. E. 532, 54 Am. Rep. 819; Fitzpatrick v. Graham (C. C. A.) 122 F. 401; Grignon v. Shope, 100 Or. 611, 197 P. 317, 198 P. 520; Atchley v. Rimmer, 148 Tenn. 303, 255 S. W. 366, 30 A. L. R. 1481; 28 Corp. Jur. 704; Thornton on Gifts 193.

Mrs. Culver was 84 years of age when she died. She had executed prior wills in 1913 and 1921 and two in 1923. She had a period of illness in 1919, but was active and apparently recovered her health afterwards. In March, 1925, she became ill with what was supposed to be influenza. After a few weeks her health improved. It is doubtful if she left her home until the time of her death, but she was able to care for her home and her ordinary business. The appellant, Mrs. Kling, visited Mrs. Culver soon after she was taken ill in March, 1925, and remained for about two weeks. It is claimed that the key to the safety deposit box was delivered during this visit. To establish the delivery of the key and the intention of Mrs. Culver in delivering it, Mrs. Kling was called as a witness. The defendant objected to her competency as a witness under section 5410 of the Revised Statutes of Missouri (1919), but the court allowed her to testify, reserving a ruling upon the objection. Mrs. Kling testified that on the occasion of this March visit, she had a conversation with Mrs. Culver on Sunday, March 15, 1925, or the next day. She testified: "* * * And she told me that morning of her burial, she wanted * * * she said there was a dress hanging in the closet that she wanted me to examine and see if it was proper for her to be buried in and if it was not, she wanted me to secure something that was proper. She said that she had given my brother and I stocks that she had intended for my mother and that. * * * She had in her hand her key and she put her hand this way (indicating) and gave me the key to her safety box and she said, You will need this. I said, `Well, Aunt Mary, that is lovely. I thank you.' She told me that I was to call Mr. Vierling on her death and Mr. Vierling would tell me what to do. She referred to Mr. Vierling of the Mississippi Valley Trust Company."

Later in her testimony she undertook to relate the conversation with Mrs. Culver, but she gave the time of this conversation as the last time she visited Mrs. Culver, which her testimony fixed as near the 10th of June, 1925. This testimony was given over a renewed objection to her competency. She testified: "I had a conversation with my Aunt with reference to what was to be put in her coffin to be buried with her. It had been an understanding for a long while, and the last time when I visited her and she gave me the key for her safety box, she reminded me that I was to put these things in the casket."

Section 5410 of the Revised Statutes of Missouri (1919) contains the following: "Provided,...