Krull v. Arman

• Citation: 192 N.W. 961,110 Neb. 70
• Decision Date: 27 March 1923
• Docket Number: 22305
• Parties: WILLIAM KRULL, EXECUTOR, APPELLEE, v. CHARLES H. ARMAN, APPELLANT
• Court: Supreme Court of Nebraska

192 N.W. 961

110 Neb. 70

WILLIAM KRULL, EXECUTOR, APPELLEE, v. CHARLES H. ARMAN, APPELLANT

No. 22305

Supreme Court of Nebraska

March 27, 1923

APPEAL from the district court for Lancaster county: WILLIAM M MORNING, JUDGE. Reversed.

REVERSED.

R. J Greene and Hugh C. Wilson, for appellant.

Charles E. Matson and Clarence G. Miles, contra.

Heard before MORRISSEY, C. J., ALDRICH, DAY and GOOD, JJ., RAPER and TROUP, District Judges.

OPINION

RAPER, District Judge.

Action by William Krull as executor of the last will of Samuel S Griffin, deceased, to recover money alleged to have been loaned by Samuel S. Griffin to defendant. The answer is a general denial, and a denial that defendant is indebted to plaintiff upon the cause of action. During the trial the plaintiff called the defendant, who was son-in-law of deceased, as a witness and proved that Mr. Griffin had given defendant a check for $ 8,085.14, in March, 1918 Defendant testified that Mr. Griffin owed him $ 2,085.15 on some grain and other transactions, and that defendant did not owe anything to Mr. Griffin. He further testified, both on direct and cross-examination, that the $ 6,000 was a gift from Mr. Griffin to him and his family to put into a home for the family, so they would not move away, but would remain in the vicinity. There was much other evidence tending to support and refute the claim that the money was a gift, but there is no claim or evidence that deceased was subjected to any undue influence. The trial court gave an instruction (No. 2) in substance as follows: That since it is admitted by the defendant that the said sum of $ 6,000, turned over to him at said time (March, 1918) by said deceased, was not in payment of an obligation or debt due or existing against the deceased, and in favor of the defendant, the law presumes that it was a loan of so much money to the defendant, unless he satisfied you by a preponderance of the evidence that it was a gift from the deceased to him and his family, and, unless the defendant has satisfied the jury by a preponderance of the evidence that said transaction was a gift of said money to the defendant and his family, the plaintiff is entitled to recover that sum with interest at 7 per cent. from the time the defendant received the money. The jury returned verdict for plaintiff, upon which judgment was rendered; the defendant appeals.

The appellant alleges that the court erred in giving instruction No. 2, which places the burden of proof on the defendant. The petition alleged a loan. The answer was a general denial. Generally, under an issue thus formed, the burden does not shift, but remains on the plaintiff throughout the trial, and this seems to be the rule where the defendant, as in this case, claims that the money or property sued for is a gift. Payne v. Williams, 62 Colo. 86, 160 P. 196; Marra v. Bigelow, 180 Mass. 48, 61 N.E. 275; Jenning v. Rohde, 99 Minn. 335, 109 N.W. 597; Leask v. Hoagland, 205 N.Y. 171, 98 N.E. 395; 28 C. J., 669, sec. 71.

Another vice claimed in the instructions is that it tells the jury that the receipt of the money by defendant, when shown not to be in payment of a debt owing by deceased to defendant raises the presumption that it was a loan. Courts have in some cases laid down the rule as stated in the instruction, others have given a contrary holding. A study of these cases shows that, in most of those holding that burden is on the donee to prove the gift where he is defending his right thereto, there were special circumstances which gave rise to a situation that required such rule, as where the donor retained possession of the property or the donee had access to the property or fund before the date of the alleged gift, or where there existed a fiduciary relation between donor and donee, or where there is evidence of or opportunity for undue influence, or some mental or physical weakness or infirmity which might be sufficient to cast doubt upon the donor's intelligent and...