Pickerd v. Dahl

• Decision Date: 03 July 1942
• Docket Number: 7008
• Citation: Pickerd v. Dahl, 64 Idaho 14, 127 P.2d 759 (Idaho 1942)
• Parties: JOSEPH W. PICKERD, a minor, by and through his guardian, Zella Pickerd, Respondent, v. KATHRYN DAHL, Appellant, KATHRYN DAHL, Administratrix of the Estate of Lucy M. Pickerd, Deceased, Intervenor and Appellant
• Court: Idaho Supreme Court

127 P.2d 759

64 Idaho 14

JOSEPH W. PICKERD, a minor, by and through his guardian, Zella Pickerd, Respondent, v. KATHRYN DAHL, Appellant, KATHRYN DAHL, Administratrix of the Estate of Lucy M. Pickerd, Deceased, Intervenor and Appellant

No. 7008

Supreme Court of Idaho

July 3, 1942

1. Instruction that in order to constitute a "gift" of certificate of deposit there must be immediate, intentional voluntary delivery of possession so as to place certificate under control of donee to exclusion of future control of donor with intent on part of donor to divest herself of title thereto and place title in donee, was proper.

2. Instruction that in determining whether it was the intent and purpose of donor to give certificate of deposit to donee jury could consider donor's acts in placing money in the bank and in procuring the certificate, as well as her declarations that in event, prior to her death, she became incapacitated or otherwise incapable of transacting business the money should belong to the donee and the certificate of deposit should be turned over to him, was proper.

3. An action in claim and delivery to recover possession or value of certificate of deposit, which allegedly had been given to plaintiff prior to donor's death, was not an action on a "claim" or "demand against an estate" within statute making parties to such an action prosecuted against an executor or administrator, incompetent to testify concerning communications with decedent, and hence plaintiff's testimony that donor informed plaintiff where certificate in question was and directed him to go and get it was admissible. (I.C.A., sec. 16-202, subd. 3.)

4. Where there was substantial conflict in the evidence on question whether donor was competent at time she made gift of certificate of deposit, jury's verdict in favor of donee would not be disturbed.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. A.L. Morgan, Judge.

Action in claim and delivery to recover the possession of a certificate of deposit, or its value in case delivery can not be had. Judgment for plaintiff and respondent. Affirmed.

Judgment affirmed, with costs to respondent.

J. H. Felton for appellant.

It has long been the rule in Idaho and other states that there are certain essential elements of a gift:

1. A donor competent to contract;

2. Freedom of will of donor;

3. The gift must be complete and nothing left undone;

4. The property must be delivered by the donor and accepted by the donee;

5. The gift must go into immediate and absolute effect. (Bliss v. Bliss, 20 Idaho 467; Lewis County v. State Bank of Peck, 31 Idaho 244; Witthoft v. Commercial D. & I. Co., 46 Idaho 313; Grignon v. Shoupe, 197 P. 317.)

Neither Joseph W. Pickerd nor Zella Pickerd could testify as to communications and conversations with the deceased, Lucy M. Pickerd. (Sec. 16-202, I.C.A.; Hickman v. Barrett, 52 P.2d 40.)

J. M. O'Donnell for respondent.

(1) In passing upon the correctness and propriety of instructions, the reviewing Court considers the charge as a whole. If the instructions, when taken in their entirety, fairly submit the issues to the jury and the law applicable, error is not committed. (3 Am. Jur. 381; Missouri, K. & T. Ry Co. v. Zuber, 184 P. 542; Newton v. Allen, 168 P. 1009; Raide v. Dollar, 34 Idaho 682.)

(2) The instructions given by trial Court on mental capacity required of donor making a gift, considered as a whole, were proper. ( Succession of Berthoff, 122 So. 886; 28 Corpus Juris, sec. 17; McLeod v. Brown, 98 So. 470; Williams v. Peterson, 271 S.W. 1016.)

(3) The Court's instructions concerning the essential elements of a gift were proper and sufficient. (Lewis County v. State Bank of Peck, 31 Idaho 244, p. 250.)

HOLDEN, J. Givens, C. J., Budge and Ailshie, J.J., and Featherstone, D. J., concur. Morgan, J., did not sit at the hearing nor participate in this decision.

OPINION

HOLDEN, J.

December 29, 1940, the First Bank of Troy issued a certificate of deposit to Lucy M. Pickerd or Joe Pickerd, in the following words and figures:

"CERTIFICATE OF DEPOSIT

FIRST BANK OF TROY

92-212 $ 2,950.00

Troy, Idaho, Dec. 29-40. No. 16076

Lucy M. Pickerd has deposited in this bank FIRST BANK OF TROY, $ 2,950. & 00 Cts. Dollars payable to the order of Self or Joe Pickerd in current funds on return of this certificate properly endorsed, 6-12 months after date with 2 1/2 percent interest per annum for the time specified only.

F. O. BROCKE,

NOT SUBJECT TO CHECK Cashier."

March 30, 1941, Lucy Pickerd died. Thereafter Joseph W. Pickerd, a minor, by and through his guardian, Zella Pickerd, commenced this action in claim and delivery for the possession of the certificate or the value thereof in case delivery could not be had. October 16, 1941, Kathryn Dahl, a daughter of Lucy M. Pickerd, having been appointed administratrix of the estate of Lucy M. Pickerd, petitioned for leave, and leave was granted, to such administratrix, to file, and she did file, a complaint in intervention. December 17, 1941, the cause was tried by the court, sitting with a jury. December 19, 1941, the jury returned its verdict in favor of plaintiff and respondent. December 23, 1941, judgment was entered on the verdict, from which Kathryn Dahl appealed, both individually and in her representative capacity as administratrix.

At the close of the evidence, the court, among other instructions, gave Instruction No. 7, instructing the jury that:

"Where one competent party, voluntarily and without compensation, transfers property to another with the intent on the part of the giver to divest said giver of title thereto and to place such title in the recipient of such property, such transaction constitutes a gift and the recipient of such property takes all of the title formerly held by the giver. To constitute a gift of a certificate of deposit, there must be an intentional delivery of the possession of such certificate, either actual or constructive, so as to place such property under the domination and control of the recipient to the exclusion of future domination or control by the giver. Delivery of property, the subject matter of a gift, may be shown by showing actual physical delivery of the property or by facts and circumstances admitted in evidence showing an intention on the part of the giver to place in the recipient of the gift immediate, absolute and exclusive domination and control of the property. Where the essential elements of a gift appear by a preponderance of the evidence, then it is not necessary that the giver of a certificate of deposit indorse (that is write his or her name upon) such certificate of deposit.

"You are instructed that it is incumbent upon the plaintiff, Joseph W. Pickerd, to prove all of the essential elements of a gift, as in these instructions defined, by a preponderance of the evidence; otherwise, he cannot recover.

"If you find from all of the evidence that Lucy M. Pickerd placed the money represented by the certificate of deposit here in question in the Bank of Troy and at said time, or thereafter at a time when the said Lucy M. Pickerd was competent to make a gift, declared that such money was so placed in the bank with the intent and purpose that such money should belong to the plaintiff and the certificate of deposit turned over to him in the event she became incapacitated or otherwise incapable of transacting business prior to her death, and if you further find that the said Lucy M. Pickerd did prior to her death so become incapacitated, then, I instruct you that you may consider such acts and declarations on the part of the said Lucy M. Pickerd in determining the question of whether or not it was her intent and purpose of such acts and declarations to place such certificate of deposit and the money represented thereby out of her domination and control and under the domination and control of the said plaintiff immediately upon the occurrence of such incompetency or physical incapacity of the said Lucy M. Pickerd. I further instruct you that if you find from all of the evidence and by a preponderance thereof that all of the elements of a gift, as in these instructions defined, existed at a time when Lucy M. Pickerd was mentally competent to make a gift, and that it was her intent and purpose that upon the happening of her mental incapacity or other physical inability to handle her affairs during her lifetime that domination and control of said deposit and the certificate representing said deposit should immediately pass from Lucy M. Pickerd to the plaintiff, Joseph W. Pickerd, then, I instruct you that such evidence is sufficient to show such a delivery as would support a gift."

Appellant insists the instruction is erroneous, in that, in effect, the court thereby instructed the jury that a gift might, "without delivery and acceptance, become complete upon the happening of a contingency."

On the other hand, respondent contends the trial court, by such instruction, "specifically said that where all the essential elements of a gift appear by a preponderance of the evidence, the jury...