Reasner v. Bohne
| Decision Date | 25 January 1921 |
| Docket Number | 10,614 |
| Parties | REASNER, ADMINISTRATOR, v. BOHNE |
| Court | Indiana Appellate Court |
Rehearing denied April 28, 1921.
Transfer denied June 9, 1921.
From Marion Probate Court (1,111); Mahlon C. Bash, Judge.
Action by William Bohne against Edward H. Reasner, Administrator of the estate of Ellen C. Holtman, deceased, James L. Mitchell and others. From a judgment for plaintiff, the defendants named appeal.
Reversed.
James L. Mitchell and Fesler, Elam & Young, for appellants.
Frank T. Brown and Theodore F. Vonnegut, for appellees.
Complaint by William Bohne, hereinafter designated as appellee, to recover $ 103.60, alleged to have been paid through mistake to appellant Reasner, as administrator of the estate of Ellen C. Holtman. The complaint alleges that in September 1912, he signed a certain promissory note calling for $ 100, which was made payable to Elonore Nolting; that appellant, through his attorney, wrote a letter to appellee to the effect that he as administrator of said estate had certain notes given by appellee to Mrs. Holtman, one being for $ 100; that relying upon the statement of said letter he paid appellant the amount demanded on said $ 100 note, to wit, $ 103.60; that he never executed such note to Mrs. Holtman and was not indebted to said estate on said note, but that when he so paid said money to appellant he thought said note was payable to Mrs. Holtman and was ignorant of the fact that it was in fact made payable to Miss Nolting; that Miss Nolting claimed that she was the owner of said note and demanded that appellee pay the amount due thereon to her; that appellee had demanded repayment of the sum so paid to appellant and a refusal of appellant to repay.
Miss Nolting was made a defendant to answer as to her interest in said note. She filed a cross-complaint alleging that she was the owner of said note and asking for possession of the same.
The cause was tried by the court and resulted in a judgment against the appellant in favor of appellee Bohne, for $ 103.60, the amount which he had paid appellant and in favor of Miss Nolting, that she was the owner and entitled to possession of said note, and ordering that the clerk with whom it had been deposited should deliver it to her.
Appellant contends that the decision of the court is not sustained by sufficient evidence.
The facts are in substance as follows: September 8, 1912, appellee borrowed $ 100 of Ellen C. Holtman, this loan was evidenced by a promissory note which at the request of Mrs. Holtman was made payable to Elonore Nolting, but which at the time of its execution was delivered to Mrs. Holtman, who died, and appellant Edward H. Reasner is administrator of her estate. The interest on said note was paid 1913, 1914, 1915 and 1916 to Mrs. Holtman. The indorsements showing such payments in 1913 and 1916 are in the handwriting of Mrs. Holtman while the indorsement for the years 1914 and 1915 are in the handwriting of Miss Nolting, the payee named in the note. This note was delivered to Mrs. Holtman at the time of its execution and so far as shown by the evidence remained in her possession until about three weeks before her death. About two months before her death she gave a bundle of papers not including the note in question to a stepson, telling him to take care of them until she wanted them again. About three weeks before her death and while she was sick and confined in her bed, this stepson visited her. At this time she had some papers, including the note in question, under her pillow. Appellant Reasner was present at that time and in a conversation with Mrs. Holtman, who was his mother, said that if this stepson had any papers in his keeping he should have all of them. Mrs. Holtman then told her stepson to take the papers she had under her pillow, which he did. He took these papers, including the note in question, home with him and put them with the other papers which he had theretofore received from Mrs. Holtman. After Mrs. Holtman's death all of these papers were delivered to Reasner, administrator of her estate. Among the papers so delivered, in addition to the $ 100 note, there were two other notes signed by the appellee, Bohne: One for $ 250, payable to Elonore Nolting and one for $ 40, payable to Mrs. Holtman. Also four notes of Carl Nolting, three aggregating $ 1,350, payable to Mrs. Holtman and one for $ 500, payable to Elonore Nolting, and a certificate of stock in the Citizens Gas Company issued to Mrs. Holtman as trustee for Elonore Nolting. Mrs. Holtman was godmother of Elonore Nolting, and had told this stepson and others that she was going to give her "around $ 500." She also said that she was going to leave money to different parties. She afterwards talked about making a will but never did so.
Later she complained to others about the treatment she had received from the Nolting family, and stated that she had given them all she was going to give them. After the death of her first husband and prior to her marriage to Mr. Holtman in 1900, she resided in the Nolting home, she and the Nolting family being at that time intimate friends. She could not write any English and could read but little. Miss Nolting as a child had assisted her in many ways, such as going on errands, writing receipts for rent and taking the money for rent when Mrs. Holtman was not present, etc. Miss Nolting was twenty-six years of age at the time of this trial in 1918. She was a sister to appellee's wife, and, having died since the cause was tried, her administrator is named as one of the appellees. Miss Nolting was not present when the note in question was executed, and there is no evidence that she ever saw it or had possession of it during the lifetime of Mrs. Holtman, other than can be inferred from the fact that the payments of interest, as before stated, are indorsed on the note in her handwriting.
In February 1917, the appellant as administrator, through his attorney, wrote a letter to Mr. Bohne stating the amount due on each of the three notes signed by the appellee. In April 1917, appellee went to the attorney's office and told him that he wanted to pay the $ 100 note. Appellee at the time thought that the note was payable to Mrs. Holtman. He then paid the sum due on the note, $ 103.60, to the attorney and received the note. This payment was made by check $ 96.85 belonging to his wife, Maria Bohne, and $ 6.65 in cash.
After this payment was made, Elonore Nolting claimed that this $ 100 note belonged to her and informed appellee that she would like to have the money. Two days after making said payment appellee returned to the office of said attorney and demanded the return of the amount he had paid on the note.
Appellants insist that the evidence in this case wholly fails to show that the note in question was ever delivered to Miss Nolting. His contention being that in order to make a valid and effective gift inter vivos there must be an intention to transfer title, a delivery by the donor and an acceptance by the donee.
A gift inter vivos of personal property may be defined as the voluntary act of transferring the right to and the possession of a chattel, whereby one person renounces, and another acquires immediate right and title thereto. It cannot be made to take effect in the future. Walsh's Appeal (1888), 122 Pa. 177, 15 A. 470, ...
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