Taylor v. Smith

• Decision Date: 10 March 1958
• Docket Number: No. 4758,4758
• Citation: 199 Va. 871,102 S.E.2d 160
• Parties: MAXINE JACKSON TAYLOR, ADMINISTRATRIX, ETC. v. HATTIE SMITH. Record
• Court: Virginia Supreme Court

Page 160

102 S.E.2d 160

199 Va. 871

MAXINE JACKSON TAYLOR, ADMINISTRATRIX, ETC. v.HATTIE SMITH.

Record No. 4758.

Supreme Court of Appeals of Virginia

March 10, 1958.

William Davis Butts, for the plaintiff in error.

Richard Newman and Rutherford C. Lake, Jr.(Newman, Allaun & Bateman, on brief), for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Maxine Jackson Taylor, administratrix of the estate of Hunter Taylor, deceased, filed her motion for judgment against Hattie Smith to recover a judgment for money found in a safety deposit box rented in Hattie Smith's name and alleged to belong to decedent's estate.The case was heard by the court, ore tenus, without the intervention of a jury.Judgment was rendered in favor of Hattie Smith and the administratrix appealed.

The parties will be referred to as plaintiff and defendant in accordance with the respective positions they occupied in the court below.Plaintiff's decedent, who was murdered on May 28, 1951, will be referred to as Taylor.

Taylor was a nephew of defendant and was reared in North Carolina by defendant's parents.He moved to Hampton in 1931.Shortly thereafter defendant and her husband, Dewey Smith, moved from North Carolina to Hampton.Taylor joined them and lived continuously in their home as a member of the family without paying board from that time until he married plaintiff on July 23, 1948.Thereafter he visited the Smiths almost daily.He continued to keep his safe at their home and when opened subsequent to his death it contained approximately $51,000.The relationship between Smith and Taylor was one of friendship and confidence.Smith made loans to Taylor on various occasions.Defendant said Taylor very seldom discussed his business affairs with her.Taylor was generous to defendant's two children.

During the war Taylor's business was that of buying and selling rationed goods.At his death he operated a juke box business.He was also a dealer in used furniture.Federal income taxes were assessed against his estate for the years 1947 through 1951 and settlement was made by paying the sum of $42,677.34.

On January 6, 1947 Taylor and defendant went to Crown Savings Bank in Newport News where Taylor rented and paid for a safety deposit box in the name of 'Mrs. Hattie Smith'.While there defendant signed a card authorizing and directing the bank to permit Taylor to enter 'my box' at any time.A receipt for one year's box rent was issued in the name of 'Mrs. Hattie Smith' ant two duplicate keys to the box were delivered to Taylor.Defendant testified Taylor told her at the bank 'that it was my box; it was my money in the box.'When she was asked why he was putting money in the box for her, she replied: 'Well, he said he just thought that much of me, he wanted to put something in the box in my -- in my name for me.'Both keys were delivered to defendant by Taylor when they returned to defendant's home.Defendant did not see Taylor put any money in the box at that time or at any time thereafter, and she never entered the box until it was forced open shortly after Taylor's death.

On occasions Taylor borrowed the keys from defendant without explanation and returned them to her.About ten days before Taylor was murdered, he borrowed the keys from defendant and did not return them.Defendant requested plaintiff to deliver them to her but she refused.Whereupon defendant caused the box to be bored open in the presence of witnesses and in it was found $8,000 in currency.She deposited in bank to the credit of Dewey Smith, her husband, $7,000 in a savings account and $1,000 in a checking account.

LeRoy Ridley, president of Crown Savings Bank testified that Taylor was not admitted to the box at the time it was rented and that the bank's records do not indicate that anyone entered the box from the day it was rented until it was bored open.Apparently the bank's records in this respect were not accurate.The box must have been entered by someone for there is no question about the fact that it contained $8,000 when it was bored open.

Plaintiff testified Taylor told her he rented the box in defendant's name because he expected trouble and did not want to lose everything he had.

Plaintiff assigns two errors.It is contended (1) the judgment is contrary to the law and the evidence, and (2) that it was error to hold that the contents of the safety deposit box were a gift to defendant.

Plaintiff argues that the burden of proof was on defendant to establish the gift and not upon her to show the contrary, and to further show that the gift remained with her from its inception.(Code, § 55-3¹ ).She maintains there was a misconception by the court as to who had that burden of proof and she directs attention to a part of the court's oral opinion: 'Anyway, in this case I don't think the Plaintiff -- the Plaintiff hasn't established any right to recover by the preponderance of the evidence.'

It is well settled that the law does not presume a gift and where a donee claims title to personal property by virtue of a gift inter vivos, the burden of proof rests upon him to show every fact and circumstance necessary to constitute a valid gift by clear and convincing evidence.Grace v. Virginia Trust Co., 150 Va. 56, 142 S.E. 378;Nelson v. Liggan, 189 Va. 637, 645, 53 S.E.2d 798; King, Ex'x v. Merryman, Adm'x, 196 Va. 844, 86 S.E.2d 141;Rinehart v. Rinehart, 14 Ill.App.2d 116, 143 N.E.2d 398.

The common elements necessary to establish a gift inter vivos are stated in Thomas v. First Nat. Bank, 166 Va. 497, 504, 186 S.E. 77.They are: '(1) The gift must be of personal property; (2) possession of the property must be delivered at the time of the gift to the donee, or some other for him and the gift must be accepted by the donee; and (3) the title of the property must vest in the donee at the time of the gift.'9 M. J.Gifts, § 8 p. 188.

In order for a gift inter vivos to be effective there must be an intention in praesenti on the part of the donor to make the gift and there must be such actual or constructive delivery...