Maxler v. Hawk
| Decision Date | 02 January 1912 |
| Docket Number | 1 |
| Citation | 233 Pa. 316,82 A. 251 |
| Parties | Maxler v. Hawk, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 3, 1911
Appeal, No. 1, Oct. T., 1911, by defendant, from judgment of C.P. Armstrong Co., March T., 1909, No. 52, on verdict for plaintiff in case of Frank Maxler, Executor of Clarence W Hawk, deceased, v. Albert A. Hawk. Reversed.
Detinue to recover possession of thirty-three negotiable coupon bonds. Before REED, P.J., specially presiding.
The facts are stated in the opinion of the Supreme Court.
The trial judge charged in part as follows:
[It appears from the undisputed testimony, that Clarence W. Hawk retained these bonds, and collected the interest on them, up until July 1, 1908, and that he died on the twenty-third day of that same month.
Now these facts present what the law terms a prima facie case as to the ownership of those bonds. Unless the defendant by his testimony has overcome this prima facie case, and satisfied you of his contention, that he is the owner of the bonds, it would be your duty to return a verdict in favor of the plaintiff for the value of the bonds, $3,300, with interest from July 1, 1908.]
[It appears that at that time these bonds were not included in the appraisement. It also appears that the estate left by C W. Hawk, exclusive of these bonds in controversy, amounted to between $14,000 and $15,000, and that he left no debts, except one claim made by the wife of the defendant Mrs. Catherine Hawk, whose claim is $2,000 on a note, on which she has brought suit against the estate. If she recovers on that, it would reduce the value of the estate that amount, and would reduce it to about $12,000 or $13,000, exclusive of these bonds. That is the only claim against the estate so far as the testimony discloses.
After the appraisement was held, it appears that certain papers were handed to the executor by Mrs. Catherine Hawk, the mother of the decedent, consisting of canceled checks and bank deposit books; the executor after looking over these papers and books discovered this check of $3,308, which had been given by the decedent in payment for these Freeport borough bonds. When he discovered that, he went back and demanded these bonds of the defendant A. A. Hawk. He did not deny having the bonds, but claimed to be the owner of them and refused to surrender them. It appears that later on the executor made another demand upon him, and he again refused to give them up claiming that he was the owner of them and that he proposed to hold them. Subsequently this suit was brought by the executor to recover the possession of the bonds.]
[And then the family relation may be such that the possession even of bonds might be easily acquired, and they might be temporarily in the possession of a party, and it would not raise the same presumption as if that relation did not exist.]
[On the other hand, the defendant contends that his evidence, showing that he had had the possession of these bonds some weeks prior to the death of the decedent, raises such a presumptive title to the bonds in him, that the court should peremptorily instruct you to find that title to the bonds is in him, and that you should find for the defendant. We are not prepared to give that instruction and therefore refuse it. I think upon the whole case, it is a question for the jury to determine, and that it is the duty of the court to refer it to the jury.
If you are fully satisfied from all the evidence in the case, that the defendant has overcome the prima facie case presented here by the plaintiff, as to the decedent's ownership of these bonds, and that there was an actual giving of those bonds by the decedent to his father, with the intent to pass the title to the bonds to him, and that they were actually delivered to him, with the intent on the part of the donor or decedent, to surrender all claim to the bonds, and all control and dominion over them, and to vest them in his father; then we say, that so far as these bonds are concerned, your verdict should be for the defendant, otherwise in favor of the plaintiff.]
Verdict and judgment for plaintiff for $3,773. Defendant appealed.
Errors assigned among others were (1-5) above instructions, quoting them.
The first assignment of error is sustained, and the judgment is reversed with a venire facias de novo.
Orr Buffington, with him S. F. Clark, for appellant. -- As men generally own the personal property they possess, proof of possession is presumptive of ownership: 1 Greenleaf on Evidence, 39; Winlack v. Geist, 107 Pa. 297; Malone's Est., 8 W.N.C. 179.
After the death of C. W. Hawk and when the bonds were demanded by the executor the declaration of ownership made by A. A. Hawk should have been taken as true: Miller's Est., 151 Pa. 525.
H. A. Heilman, with him J. W. King, for appellee. -- The appellee by the undisputed testimony in this case having established that the alleged donor, C. W. Hawk, was surrounded during his last illness by his father and mother, and that A. A. Hawk had opportunity to obtain possession of the bonds without title, the proof in support of his claim should be clear and satisfactory upon every essential to title by gift: Scott v. Reed, 153 Pa. 14.
If the appellant relies upon possession and ownership by reason of a gift, then it was incumbent upon him to prove by competent testimony every essential necessary to make a valid gift inter vivos: Rhodes v. Childs, 64 Pa. 18; Fross' App., 105 Pa. 258; Walsh's App., 122 Pa. 177; Pryor v. Morgan, 170 Pa. 568; Reese v. Philadelphia Trust Safe Dep. & Ins. Co., 218 Pa. 150.
If there is evidence of undue influence or of circumstances giving rise to suspicion touching the transaction itself, the burden is upon the donce to show the fairness of the transaction: Vaughn v. Vaughn, 217 Pa. 496; Worrall's App., 110 Pa. 349; Simon v. Simon, 163 Pa. 292.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
This is an action of detinue, the plea being non detinet, brought by Frank Maxler, executor of Clarence W. Hawk, deceased, against Albert A. Hawk, his father, to recover, inter alia, thirty-three negotiable coupon bonds, of the par value of $100 each, issued by the borough of Freeport, Pa. It appears by the plaintiff's evidence that the decedent had purchased the bonds in 1904 and collected the interest on them semiannually, payable on the first days of January and July, until July 1, 1908, the last interest-paying period prior to his death which occurred July 23, 1908. C. W. Hawk was married about ten years before his death, but his wife died within a short time after their marriage, when he returned to the home of his father and mother and continued to reside there until his death. The parents and their son lived in the same house, occupied the same living room, ate at the same table, and the son kept at least a part of his private papers in a drawer in the table in the sitting room occupied in common by the decedent and his parents. Some time after the death of her son, his mother handed to the appraisers of his estate checks, bank books, etc., which had been taken from a table drawer in the sitting room of their home. The will of the decedent was found in the possession of his father, the defendant.
The defendant claimed the bonds by a gift inter vivos. To prove the gift he introduced evidence to show that they were kept by the decedent in a safe deposit box in a bank in Freeport where the parties lived, that at the semiannual interest-paying periods the decedent would open the box, cut the coupons and secure the borough treasurer's check for the interest, that he continued this practice until July 1 or 2, 1908, the last interest-paying period prior to his death. The defendant called as a witness Howard Smith, the decedent's brother-in-law, who testified that on July 4 or 5, 1908, in a conversation with the decedent, the latter, referring to some unintentional injury said to have been done by him to his father, remarked: "I have fixed that," and that on the following Monday the defendant came into his sitting room and exhibited the bonds to Mr. Smith. The defendant contends that these alleged facts together with his possession of the bonds after the death of his son show that the title and possession of the bonds had passed to him by the gift of his son prior to the latter's death.
It will be observed that the only question in the case is whether the decedent had made a gift inter vivos to the defendant of the bonds in question. The issue raised by the pleadings required the plaintiff to show title to the bonds in the decedent. This he attempted to do by showing that he purchased the bonds in 1904 and collected the interest on them semiannually until the last semiannual interest-paying period to his death. Prior possession is sufficient to sustain detinue by the prior possessor against anyone who cannot show a superior right of possession: 14 Cyclopedia of Law & Procedure, 251. The plaintiff also attempted to show the mala fides of the defendant's possession of the bonds by showing the declarations of the defendant,...
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