Medler v. Henry.

• Decision Date: 12 April 1940
• Docket Number: No. 4504.,4504.
• Citation: 101 P.2d 398,44 N.M. 275
• Parties: MEDLERv.HENRY.
• Court: New Mexico Supreme Court

44 N.M. 275

101 P.2d 398

MEDLER

v.HENRY.

No. 4504.

Supreme Court of New Mexico.

April 12, 1940.

Appeal from District Court, Bernalillo County; Thomas J. Mabry, Judge.

Replevin suit by Margaret Medler, as executrix of the estate of Sophie (Sophia) Osterloh, deceased, against Catherine M. Henry, to recover possession of personalty claimed by defendant as a gift from deceased. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

In action involving issue of whether valid gift was made, where jury was fully instructed on essential elements of gift, instruction that mere opportunity and inclination to take or convert property is not sufficient evidence of such taking and conversion was properly refused as giving undue prominence to an isolated fact.

Barnes & Corey and Marron & Wood, all of Albuquerque, for appellant.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellee.

BRYAN G. JOHNSON, District Judge.

Appellee, as special administratrix of the estate of Sophie Osterloh, deceased, filed suit in the nature of replevin, against Catherine M. Henry, the appellant. Appellee was thereafter appointed executrix under the last will and testament of said Sophie Osterloh, deceased, and as such executrix was substituted as party plaintiff.

In her complaint appellee alleged that Sophie Osterloh died May 18, 1938, the owner of certain personal property; that appellant had possession of said personal property, and had refused to deliver possession of such personal property to appellee. The value of the personal property was alleged to be $22,000. Appellee waived immediate delivery of the property but prayed for possession of the property or damages. By her answer appellant denied that Sophie Osterloh owned the property in dispute at the time of her death, and by way of new matter appellant claimed ownership of said property by gift from Sophie Osterloh on May 13, 1938.

The case was tried before a jury with Honorable Thomas J. Mabry presiding as judge. The jury found the issues in favor of appellee and judgment was entered upon the verdict in favor of appellee for the possession of the personal property involved.

The principal contention made by appellant is that the trial court erred in not directing a verdict for the appellant at the close of the case. Counsel for appellant takes the position that appellant had established the fact of a gift by uncontradicted and unimpeached testimony, and that it was therefore the duty of the trial court to direct a verdict in her favor. Counsel for appellant moved for a directed verdict at the conclusion of the case; after the adverse verdict, counsel for appellant moved for judgment non obstante veredicto and then by a motion for a new trial again raised the same question. These motions were all denied by the trial judge.

We must now determine whether or not the evidence in this case presented a jury question on the issue of gift or no gift.

A brief sketch of the circumstances leading up to the alleged gift, as disclosed by the evidence, follows:

Sophie Osterloh at the time of her death on May 18, 1938, was seventy-eight years of age. She was a native of Germany, but had lived in Albuquerque, New Mexico, for over forty years and had worked as a cateress until she fractured her hip about five years before her death. She never married. During her residence in Albuquerque she lived with Christine Lundin, who had been her close friend for forty years. Christine Lundin was an elderly woman, and apparently somewhat crippled. During the later years of Sophie Osterloh's life these two old ladies lived in rooms on the second floor of an old business building in the business district of Albuquerque. Their living quarters were meagerly furnished and their method of living was simple and frugal. Sophie Osterloh's material wealth was largely represented by securities which she kept in tin boxes in her home. These boxes she carried with her to the hospital in a bag, and from the hospital to the home of Mrs. Kottman when she was removed there shortly before her death. She had no near relatives. There were several women in Albuquerque with whom she was on varying terms of intimacy and friendship, and included in this list of friends were Mrs. Delia Kottman and the appellant, Mrs. Catherine Henry. Mrs. Kottman had been acquainted with her for many years; Mrs. Henry's acquaintance dated back to 1936. Both Mrs. Kottman and Mrs. Henry had been attentive to Miss Osterloh in the last months of her life.

In the fall of 1937 Sophie Osterloh had been informed by her physician that she was suffering from an incurable malady; that it was his professional opinion she had but a few months to live, and should go to a hospital where she would receive proper attention. She was reluctant to go to an institution but finally did consent to be taken to a hospital in March, 1938. Miss Osterloh had expressed a dislike for wills, but nevertheless she called C. M. Botts, an attorney, to come to the hospital to draw her will about May 5, 1938. She instructed her attorney to prepare her will with the following provisions: To Mrs. Sarah Goodrich, $1,000; to appellant, Mrs. Catherine Henry, $1,000; to Christine Lundin, $1,000; to Pablo Apodaca, $500; to Margaret Medler, the residuary estate. She then decided on changes in her will. The will, as finally executed on May 6, 1938, provided as follows, in so far as changes were made in the original draft: To Catherine Henry, $500; to Christine Lundin, $500; to Pablo Apodaca, nothing; to Sarah Goodrich, the residuary estate. The will named Margaret Medler as executrix and expressly recited that it was the desire of testatrix that none of the heirs of testatrix should share in her estate.

Miss Osterloh was not satisfied to remain in the hospital. She insisted on leaving against the advice of her physician. At first she planned to return to her own rooms, but finally went to the home of Mrs. Delia Kottman. She was removed from the hospital to the Kottman home by ambulance on Thursday, May 12, 1938. On the following day, Friday, May 13th, the alleged gift took place between 5:00 and 6:00 o'clock in the evening. Five witnesses testified as to the gift. These witnesses were the appellant Catherine Henry, Mrs. Delia Kottman, Fred L. Kottman, husband of Mrs. Delia Kottman, Thomas Cadle and his wife, Mary Cadle.

Appellant related the events as follows:

“Q. Tell the jury in your own way all that took place after the Kottmans came in? Tell them all that you can remember now? A. After the Kottmans came in we were sitting there talking and we were talking about a party, a little birthday party that she had been to at the Cadle's home, and she asked Mr. Kottman how he was, and she said, ‘I suppose you are tired.’ And in the meantime while we were all there she said, ‘Mrs. Henry, get my big white box,’ which I did. It was in the wardrobe, opposite her bed; she said ‘Get me my keys out of my pocket book,’ which I did; she said-

“Q. Where were they? A. In her pocket book in the dresser drawer. She said, ‘Unlock it,’ and I did. After I unlocked it she opened it and she put her hand in this big box and took out a little small-

“Mr. Wood: The witness refers to Exhibit F in speaking of ‘this big box.’ A. Yes, and she took out a little tin box and she said, ‘Mrs. Henry, I am giving you this box, and what is in it is a gift; you have been a loyal friend to me; keep it, it is yours.’ I took the box over and. laid it on the dresser. I opened the box and I said, ‘Look what she has given me.’ I opened the box and took out the papers and looked at them before all the folks in the room; after I did that I put them back in the box again and I left the box on the dresser; she called me back over to her bed, and she said, ‘Mrs. Henry’-She had me lock the box, which I did, and she handed me the big white box, and she said, ‘I am also giving you this box, and what is in it, but I want you to give it to Christinie,’ which she called Christine, 'she has been good to me, and you be good to her.' That is what she said to me.

“Q. You looked at the things you say were in the box, the small box? A. I did.

“Q. And that is the box which I show you, Plaintiff's Exhibit B? A. That is the box.

“Q. And you looked at what was in it? A. I did.

“Q. Now, after you say you placed it on the dresser while she called you back to give you this box, Exhibit F, what did you next do; what was next done with the box, Exhibit B? A. I opened it and looked at it again and I put them in my suitcase under the bed which I had in Sophia's room.

“Q. And thereafter what did you do with this box? A. I left it there in my suitcase in her room until after her death.”

The other four witnesses testified similarly to appellant as to the making of the gifts to Mrs. Henry and Christine Lundin, without material deviation. There was no contradiction by the testimony of any witness as to the making of the gifts. In fact, there was no one who could have disputed the testimony of these five witnesses for the reason that the five of them all stated that no one was present except Sophie Osterloh and the five witnesses.

Counsel for appellant urges upon us the proposition that since the gift was positively testified to by five witnesses, at least three of whom were disinterested, the trial court was duty bound to direct a verdict for appellant, in the absence of any testimony contradicting or impeaching the five witnesses.

Whether or not uncontradicted testimony can be disregarded by the trier of facts has frequently been the subject of discussion by courts of last resort. It is a question which has already received consideration by this court.

In First National Bank of Albuquerque v. Stover, 21 N.M. 453, 155 P. 905, 915, L.R. A.1916D, 1280, Ann.Cas.1918B, 145, the question of lack of notice of infirmities and of good faith on the part of the plaintiff bank in purchasing a note was in issue. The only...