Smith v. Acorn., 29.

• Decision Date: 12 February 1943
• Docket Number: No. 29.,29.
• Citation: 32 A.2d 252
• Parties: SMITH v. ACORN.
• Court: D.C. Court of Appeals

32 A.2d 252

SMITH

v.ACORN.

No. 29.

Municipal Court of Appeals for the District of Columbia.

Jan. 29, 1943.

Rehearing Denied Feb. 12, 1943.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Suit in replevin by Robert E. Acorn as executor of the estate of Harry H. Nichols, deceased, against Nellie Smith to recover an automobile. From a judgment for plaintiff for possession of automobile or its ascertained value of $445, the defendant appeals.

Judgment reversed and cause remanded for further proceedings.

James A. Crooks, of Washington, D. C., for appellant.

Robert E. Acorn, of Washington, D. C., for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

RICHARDSON, Chief Judge.

A suit in replevin was brought by appellee as executor of Harry H. Nichols, deceased, to recover an automobile which was in the possession of appellant. The latter claimed to be the rightful owner in lawful possession; that it was a gift to her by the deceased. The court found for the executor and entered judgment against appellant for possession of the automobile or its ascertained value of $445.00.

Deceased had purchased the automobile from the Takoma Motor Company on April 15, 1939. It was thereupon titled and registered with the District of Columbia Department of Vehicles and Traffic. On April 18, 1939 a document entitled ‘Certificate of Title of a Motor Vehicle’ was issued to deceased by the Director of Vehicles and Traffic wherein the automobile was described, certified to have been duly registered, and the deceased, Harry H. Nichols, named as the lawful owner.

Deceased and appellant had been acquainted for nearly 25 years, were employed in the same Government office, and for several years had driven to and from work together. She resided at 2001 16th Street N. W., an apartment building without garage facilities. The decedent, a widower, occupied premises 7400 12th Street N. W., which included a private garage.

On May 1st, 1939, deceased went with appellant to the office of Takoma Motor Company at Takoma Park, Maryland. Derrick, a salesman employed by that company who had known deceased for many years and had sold him several automobiles including the car in question, testified to the matters which then transpired. Deceased, he stated, signed the assignment on the back of the certificate of title to the car, and witness, after deceased had signed, executed the oath as a notary public, and at deceased's direction then handed the certificate to Miss Smith who put it in her purse. Deceased said to him-‘If anything happens to me I want Miss Smith to have the automobile’.

In evidence in the case is the certificate of title, on the back of which is the assignment described by the witness Derrick. It is entitled ‘Assignment of Title’ and the substantial part is as follows: ‘For value received the undersigned hereby sells, assigns or transfers unto Nellie Smith, Address 2001 16th St., N. W., Wash., D. C., the motor vehicle described on the reverse side of this certificate.'

The signature thereto of Harry H. Nichols, the deceased, is followed by a form of acknowledgment dated May 1st, 1939, executed by the witness Derrick under his seal as a notary public of the State of Maryland.

Deceased also gave appellant a set of keys for the car. She retained both certificate of title and keys and they were in her possession when Nichols died on October 3, 1941. At the executor's request she gave him the certificate to forward to decedent's son in Detroit for his examination, after which it was returned to her.

When not in use, the automobile was kept in decedent's garage. Appellant testified that this was because she did not have a garage; that they used the car together and it was a convenience for both of them for deceased to come for her and to leave her at her home and use the car to drive to his home; that the car was given to her at the time title was transferred.

At the time of decedent's death and of the funeral on October 6, 1941, the car remained in decedent's garage. It was removed by appellant about a week later.

The certificate of title and assignment were not presented to the Department of Vehicles and Traffic for the issuance of a new certificate to the appellant until November 15, 1941. During the period between May 1, 1939 and October 1941 the tags issued in April 1939 to deceased, and renewal tags applied for by deceased as owner, were used on the car. Deceased continued his membership in the American Automobile Association, the car remained registered in the name of deceased, and he carried automobile liability insurance thereon.

A witness, Helen Fernald, called by appellant, testified that she worked in the same office with deceased and appellant and had known both for about 20 years; that during the last 10 days of Mr. Nichols' life she visited him at the Washington Sanitarium. On one occasion when she and Miss Smith visited him there, deceased seemed concerned about an automobile which he referred to as ‘Miss Smith's car’; that he said to appellant in witness' presence ‘Nell, the car is yours', and that on another occasion when they visited him at the Sanitarium he asked appellant if she had taken the car from the garage.

Upon this statement of facts the trial court held that the gift was incomplete for want of a sufficient delivery of the car to the appellant.

This statement of facts presents two questions bearing upon the validity of the gift.

First, was there a completed gift resulting from the transaction in April 1939 when the deceased executed and delivered to the donee the certificate of title to the automobile in question and stated to the notary who executed his assignment endorsed thereon that ‘If anything happens to me I want Miss Smith to have the automobile’?

Second, did the continued custody of the automobile by the deceased and subsequent acts usually referable to ownership impugn the character of the written instrument as a gift in praesenti?

In approaching this subject we are mindful that gifts either inter vivos or causa mortis are not looked upon with disfavor, but when they partake of testamentary character, as do those made to take effect in enjoyment at the death of the donor, clear and convincing evidence is required to support them and such evidence is scrutinized with extreme care by the courts. In this case all essential facts introduced by both parties are undisputed and the question is one of law arising upon those facts. In...