Myers v. Tschiffely

• Decision Date: 05 November 1934
• Docket Number: No. 6194.,6194.
• Citation: 73 F.2d 657,64 App. DC 17
• Parties: MYERS et al. v. TSCHIFFELY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 17, 73 F.2d 657 (1934)

MYERS et al. v. TSCHIFFELY et al.

No. 6194.

United States Court of Appeals for the District of Columbia.

Argued October 1, 1934.

Decided November 5, 1934.

George E. Sullivan, of Washington, D. C., for appellants.

Stanton C. Peelle, Dale D. Drain, Paul E. Lesh, and J. F. Barnard, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

ROBB, Associate Justice.

Appeal from a judgment, after verdict, upon issues framed and tried in the Supreme Court of the District holding a probate court.

The appellees, Charles Stott Tschiffely and Clifton L. Tschiffely, are the executors under the will (dated June 9, 1931) of their father, Frederick A. Tschiffely, who died August 16, 1931. The will was admitted to primary probate in the orphans' court of Montgomery county, Md. Thereafter ancillary letters issued to appellees in this District.

The proceedings herein were initiated through the filing by appellants of a petition "objecting and excepting to the first and final account of the Executors"; the contention being that the executors had omitted from the account assets consisting of an $18,000 first trust note of R. A. Veitch and $2,000 of United States government bonds. Appellants averred that the executors were making individual claims to the note and bonds.

Appellees answered, denying that their account as executors did not include all the assets in the District of Columbia left by the decedent, and denying that the $18,000 Veitch note and the $2,000 government bonds were any part of the estate of the decedent at the time of his death. They admitted that the note and bonds were claimed by them to be their individual property, "their claimed ownership being derived by and through a gift and delivery from decedent the latter part of June or early part of July 1931."

Thereupon the court framed issues for trial by jury, as follows:

"1. Was the $18,000 Veitch first-trust note here involved an asset of Frederick A. Tschiffely at the time of his death on August 16, 1931?

"2. Were the $2,000 United States Government bonds here involved assets of Frederick A. Tschiffely at the time of his death on August 16, 1931?"

At the commencement of the trial, the court aligned the parties as follows: The petitioning objectors and exceptants (appellants here) in their individual right, as plaintiffs, and the respondents (appellees here) "as executors under the will of Frederick A. Tschiffely, deceased, and also in their individual right," as defendants.

To this alignment, appellants objected on two grounds: First, because appellees admit that they claim the assets in question solely through an alleged gift from the decedent, and that therefore the burden is on them to prove the gift; and, second, that their (appellees) participation in the trial should be restricted to their individual capacity.

At the close of the evidence, appellants prayed that the jury be instructed, in effect, that the burden of proof was on the appellees. This prayer was denied, and the court instructed the jury that "the burden will be upon the plaintiffs (appellants) to establish their contentions that the note and the bonds were assets of the Tschiffely estate by a fair preponderance of all the evidence."

It is conceded by appellees, as indeed it must be, "that upon an issue as to whether a gift has been made, the general rule is frequently stated to be that the burden is on the donee to establish the gift." Where the gift is first asserted after the death of the donor, the rule requires it to be established by clear and convincing evidence. Whalen v. Milholland, 89 Md. 199, 211, 43 A. 48, 44 L. R. A. 208; Fitzpatrick v. Graham (C. C. A.) 122 F. 401, 404. This is especially true where a confidential relation existed between the parties. Chambers v. McCreery (C. C. A.) 106 F. 364, 369; In re Smith's Estate, 237 Pa. 115, 85 A. 76; Gerting v. Wells, 103 Md. 624, 634, 635, 64 A. 298, 433; Thomas v. Tilley, 147 Ala. 189, 41 So. 854.

In the present case, the appellees, as individuals, satisfied themselves as executors that the decedent in his lifetime made a gift to them of property of the value of $20,000. The only way in which their claim could be contested was through an effort to surcharge the estate with the amount of the assets which appellees claimed individually, and in such a proceeding we think, both upon reason and authority, the burden should be upon those asserting the gift.

In Smith v. Burnet, 35 N. J. Eq. 314, exceptions had been filed to the account of an executor on the ground that he had not charged himself with certain shares of stock claimed by him as a gift from the deceased. The court ruled that, the claimant being the executor, the only method of contesting his claim was through an effort to surcharge the estate in the amount of the assets claimed by him individually; that it was immaterial whether the exceptants could be said to represent the interests of the estate, as they really did, or that the accountant could be said to represent the estate technically as executor against a claim by himself individually; and that the burden of proving a valid donation of the stock was upon the executor.

In Tygard v. Falor, 163 Mo. 234, 63 S. W. 672, which was a proceeding against an executor for withholding...