Sinclair v. Travis

• Decision Date: 03 February 1950
• Docket Number: No. 600,600
• Citation: 231 N.C. 345,57 S.E.2d 394
• Court: North Carolina Supreme Court
• Parties: SINCLAIR, v. TRAVIS et al.

Page 394

57 S.E.2d 394

231 N.C. 345

SINCLAIR, v. TRAVIS et al.

No. 600

Supreme Court of North Carolina.

Feb. 3, 1950

Malone & Malone, Louisburg, W. D. Sabiston, Jr., Carthage, for plaintiff appellant.

Spence & Boyette, Carthage, for defendants appellees.

WINBORNE, Justice.

While there are extensive allegations of fact in support of the position taken by defendants in this action, the evidence pivots around the letter of March 28, 1938, from N. A. Sinclair, plaintiff's deceased husband, and testator, to his daughter, the defendant Mrs. Effie S. Travis. Hence, decision on this appeal is determinable, in the main, upon proper construction as to the meaning of this letter. Defendants allege and contend that the defendants, Ruth Travis and Dorothy Travis, granddaughters of N. A. Sinclair, are the owners of the two notes on which this action is based--for that the letter created (1) a gift inter vivos from N. A. Sinclair to them; or (2) a trust in said notes for the benefit of them; or (3) an enforceable contract to devise said notes to them.

Plaintiff, on this appeal, challenges these contentions in this Court by assignments based on exception to denial by the trial court of her request for instructed verdict in her favor on the issue as to ownership of the notes, and on exceptions to peremptory charge of the court on which verdict was returned, and judgment entered.

The subject of gifts inter vivos has been under consideration, and treated by this Court, and pertinent authorities cited and assembled, in several recent decisions, among which are these: Cartwright v. Coppersmith, 222 N.C. 573, 24 S.E.2d 246, and Buffaloe v. Barnes, 226 N.C. 313, 38 S.E.2d 222; petition to rehear in the latter case being denied in written statement 226 N.C. 778, 39 S.E.2d 599.

In the latter case, Buffaloe v. Barnes, preferred stock in a corporation was the subject of the alleged gift inter vivos. Devin, J., writing the opinion for this Court, summarizes the law in this manner [226 N.C. 313, 38 S.E.2d 225]: 'To constitute a gift there must be an intention to give, and the intention must be consummated by a delivery of, and loss of dominion over. the property given, on the part of the donor. Jones v. Fullbright, 197 N.C. 274, 148 S.E. 229; Nannie v. Pollard, 205 N.C. 362, 171 S.E. 341. To complete a gift inter vivos there must be first the intention to give and then the delivery 'as it is the inflexible rule that there can be no gift of either (inter vivos or causa mortis) without the intention to give and the delivery.' Newman v. Bost, 122 N.C. 524, 29 S.E. 848, 849; Bynum v. Fidelity Bank, 221 N.C. 101, 19 S.E.2d 121. ' In order to be a valid gift of personal property inter vivos there must be an actual or constructive delivery with the present intent to pass the title.' Parker v. Mott, 181 N.C. 435, 107 S.E. 500, 501, 25 A.L.R. 637. Donative intent is an essential element. 24 A.J. 738, 770. To constitute delivery of shares of stock as the consummation of a valid gift inter vivos the donor must divest himself of all right and title to the stock and of all dominion over it. Phillips v. Plastridge, 107 Vt. 267, 179 A. 157, 99 A.L.R. 1074; Payne v. Tobacco Trading Corp., 179 Va. 156, 18 S.E.2d 281; Pomerantz v. Pomerantz, 179 Md. 436, 19 A.2d 713. There must be an intention to make a present gift accompanied by a delivery of the thing given or the means of obtaining it. Payne v. Tobacco Trading Corp., supra; and Pomerantz v. Pomerantz, supra. It cannot be made to take effect in the future. Askew v. Matthews, 175 N.C. 187, 95 S.E. 163. The transaction must show a completely executed transfer to the donee of the present right of property and the possession. Thomas v. Houston, 181 N.C. 91, 106 S.E. 466. Doubts must be resolved against the gift. Figuers v. Sherrell, 181 Tenn. 87, 178 S.W.2d 629, 152 A.L.R. 420.'

In Cartwright v. Coppersmith, supra, negotiable notes, such as those involved in the present action, were the subject in litigation. Mrs. Whitehurst alleged that she was the sole owner of the notes by virtue of endorsement and delivery to her by Sarah E. Elliott the payee named therein in her lifetime. There was evidence that the notes were endorsed to Mrs. Whitehurst without recourse under signature of Sarah E. Elliott, but there was none on them after death of Sarah E. Elliott. This Court, in opinion also by Devin, J., stated [222 N.C. 573, 24 S.E.2d 248]: 'Whether the transaction which constituted the basis of the appellant's case be regarded as the assignment of a negotiable instrument (C.S. § 3010 [now G.S. § 25-35]), or a gift inter vivos, in order to vest the title to the notes in Mrs. Whitehurst it must have been completed by delivery, actual or constructive, and the burden was upon her to show this. * * * to show not only the endorsement of the notes by Sarah E. Elliott, but also that the intention to give or assign them to her was completed by delivery, actual or constructive.' Then the opinion goes on: 'It is provided by C.S. § 3010 (G.S. now § 25-35) that if a negotiable instrument is made payable to order (as were these notes) the transfer from one person to another is 'by the indorsement of the holder, and completed by delivery.' To constitute delivery there must be a parting with the possession and with power and control over it by the maker or endorser for the benefit of the payee or endorsee. To constitute delivery it must be put out of possession of the endorser. Barnes v. Aycock, 219 N.C. 360, 13 S.E.2d 611. An actual delivery, however, is not essential, and a constructive delivery will be held sufficient if...