Ogden v. Title Ins. & Trust Co.

• Decision Date: 19 November 1954
• Citation: 129 Cal.App.2d 26,276 P.2d 146
• Court: California Court of Appeals Court of Appeals
• Parties: Robert M. OGDEN, as Administrator with Will annexed of the Estate of Frank Carter, deceased (substituted for Mable Belle Carter, Executrix of the Estate of Frank Carter, deceased), Plaintiff and Appellant, v. TITLE INSURANCE AND TRUST COMPANY, administrator, c. t. a. of the Estate of George Louis Junge, also known as George L. Junge, deceased, Defendant and Respondent. Civ. 20450.

Page 146

276 P.2d 146

129 Cal.App.2d 26

Robert M. OGDEN, as Administrator with Will annexed of the Estate of Frank Carter, deceased (substituted for Mable Belle Carter, Executrix of the Estate of Frank Carter, deceased), Plaintiff and Appellant, v. TITLE INSURANCE AND TRUST COMPANY, administrator, c. t. a. of the Estate of George Louis Junge, also known as George L. Junge, deceased, Defendant and Respondent.

Civ. 20450.

District Court of Appeal, Second District, Division 2, California.

Nov. 19, 1954.

Rehearing Denied Dec. 6, 1954.

Hearing Denied Jan. 12, 1955.

Charles I. Rosin, Los Angeles, for appellant.

Wallace & Wallace, San Diego, for respondent

McCOMB, Justice.

From a judgment in favor of defendant after trial before the court without a jury, in an action to recover upon a promissory note, filed by Mable Belle Carter, the widow of Frank Carter and executrix of his estate, plaintiff appeals. At the commencement of the trial Robert M. Ogden, the present administrator with Will annexed of the estate of Frank Carter, was substituted as plaintiff.

Facts: ^* In 1944, George Louis Junge, now deceased and of whose estate defendant is administrator, executed a promissory note to Frank Carter, now deceased. When the statute of limitations was about to run on the 1944 note, Mr. Junge, who was a long time friend of Mr. Carter, in order to insure the latter's receiving a portion of his estate, executed a promissory note in favor of Mr. Carter in the sum of $3,000, payable one day after date. The note was a gift to Mr. Carter, who gave no consideration therefor. Mr. Carter predeceased Mr. Junge. The present suit is to recover for the estate of Mr. Carter the amount of the promissory note.

Questions: First: Was there substantial evidence to sustain the trial court's finding that the note given to Mr. Carter by Mr. Junge was executed and delivered as a gift and without consideration?

Yes. Witness Bennett, who worked for Mr. Carter in his office, testified: 'Q. You say Mr. Junge at that time said that he wanted to make a gift to Mr. Carter of $3,000? A. Yes, it was to be a gift and the money was to come from a trust fund and he wanted Mr. Carter to have a note so he could collect at the time of Mr. Junge's death. Q. That was said about the same time the old note was taken up? A. Yes.'

From the foregoing evidence the trial court was justified in drawing the inference that the note executed by Mr. Junge was a gift and without consideration. It is elementary that contrary evidence must be disregarded. No useful purpose would be served by a further discussion of the evidence. (Thatch v. Livingston, 13 Cal.App.2d 202, 56 P.2d 549.

It is settled that a negotiable instrument which is given without consideration, with directions to the payee to present it for payment after the death of the maker, and which is not so presented until after his death, is not a completed gift, does not vest in the drawee an absolute property in the thing given, and is revoked by the death of the drawer prior to the time the instrument is paid. (Pullen...