Thomas' Adm'r v. Lewis

• Decision Date: 16 June 1892
• Parties: Thomas' Adm'r v. Lewis et al.
• Court: Virginia Supreme Court

15 S.E. 389

89 Va. 1

Thomas' Adm'r

v.Lewis et al.

Supreme Court of Appeals of Virginia.

June 16, 1892.

Gifts Causa Mortis —Evidence — Delivery of Keys—Pass Book—Sufficiency op Possession.

1. In a suit to establish a gift, causa mortis, of the entire personal estate of the donor, consisting of money and choses in action valued at 1200, 000, 'it appeared that the donor was an unmarried man, 70 years old, and the donee his illegitimate daughter, 35 years old, whose mother had been the donor's slave; that the donor had educated the donee liberally, built a dwelling house for her, and resided therewith her and her husband until his death, refusing all other ministrations than hers in his last illness. He had none other than collateral relations, and these he had said should not share in his estate. Ho displayed great affection for the donee, and frequently declared his intention to provide for her. The only person who testified to the fact of the gift was a companion of the donee provided by the donor. This she did minutely, and was cross-examined at great length without effect. Her testimony was corroborated by that of others, and contradicted by none, and the facts testified to by her showed a valid gift causa mortis. The donee had mentioned the fact of the gift before the donor's death to his business agent. Held, that a decree establishing the gift should not be disturbed.

2. The testimony of one credible competent witness is sufficient to establish a gift causa mortis.

3. The declarations of the donee and her companion as to the facts and circumstances of the gift, made the day thereafter, were properly received in evidence on behalf of the donee, both as parts of the res gestae, and because of the testimony of an adverse witness that the donee had failed to disclose her claim to him in an interview three days after the donor's death.

4. The gift, among other things, of the keys of a box deposited 'in the vaults of a bank containing bonds, stocks, etc., was sufficient as a constructive delivery of the contents of the box; and the existence of a duplicate set of keys, placed in the hands of a trusted friend theretofore as a precaution in case of loss, did not impair the validity of the gift.

5. The fact that the donee, in an affidavit for the appointment of a receiver of the estate, stated that the property was given to her, "to be hers in case of his death, " did not show the gift to have been testamentary, since all gifts causa mortis are defeated by the survival of the donor.

6. A gift causa mortis is none the less valid because it embraces the entire personal estate of the donor.

7. Code 1887, § 2414, providing that no gift of chattels shall be valid unless actual possession shall have come to the donee, and that, if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient, within the meaning thereof, has no application to gifts causa mortis. Lacy, J., dissenting.

8. The gift, among other things, included a national bank pass book which had just been written up, showing a balance of $18,000 due the donor. Held, that the gift of the pass book was insufficient to pass title to the deposit. Fauntleroy, J., dissenting.

Appeal from chancery court of Richmond; W. J. Leake, Chancellor.

Bill by John H. Lewis and Bettie, his wife, against Legh R. Page, administrator of William A. Thomas, deceased, to establish a gift causa mortis. From a decree for plaintiffs, defendant appeals. Affirmed.

Guy & Gilliam, Staples & Munford, Green & Miller, Peatross & Harris, Wm. J. Robertson, and G. W. Hansbrough, for appellant.

Edmund Waddill, Jr., Christian & Christian, Edgar Allen, W. W. Gordon, and E. C. Burks, for appellees.

Fauntleroy, J. The petition of Legh R. Page, administrator of William A. Thomas, deceased, represents that, on the 4th of January, 1889, the said William A. Thomas died intestate, leaving an estate valued at some $225,000, of which some $20,000 was realty, $18,000 on deposit in the Planters' National Bank of Richmond, and the balance, represented by bonds, stocks, choses in action, and gold coin, deposited in a rented box in the vaults of the said bank. That on the 14th day of January, 1889, the county court of Henrico county, on the motion of the heirs at law of the said decedent, appointed William R. Quarles and Mann S. Quarles curators of the said estate, who immediately qualified as such, by giving bond in the penalty of $300,000, and entered upon the discharge of their duties. That on the 29th day of January, 1889, said Bettie Lewis, along with herhusband, filed her bill in the chancery court of the city of Richmond, against the aforesaid curators, in which she asserted that said William A. Thomas, deceased, during his last illness, by gift causa mortis, gave her the keys to the tin box in the vault of the Planters' National Bank, above described, and with them all the property contained therein. That he gave her the pass book showing the status of his account with said Planters' Bank for money placed on deposit therein, and with it gave to her the balance on deposit to his credit in said bank, amounting, as aforesaid, to some $18,000; and that he also gave to her several negotiable notes, aggregating less than $1,000, which he had with him at his residence at the time of his last illness. That, to this bill, the curators filed their joint demurrer and answer, denying the claim asserted by said Bettie Lewis; denying that said Thomas had attempted during his last illness to make a gift to the plaintiff of said property; and insisting that actual possession of the several subjects of this pretended donation had never come to or remained with the plaintiff; and that no possession, either actual or constructive, by her, at the joint residence of the donor and donee, could render valid the alleged gift, the same not being evidenced by deed or will. That, on the 19th day of February, 1889, petitioner, Legh R. Page, was appointed administrator of the estate of said William A. Thomas, deceased, by the county court of Henrico county, and, as such, he filed his answer to the bill of said Bettie Lewis. Before the assets in the hands of the curators aforesaid could be turned over to petitioner, the chancery court of the city of Richmond, on the motion of Bettie Lewis, appointed N. W. Bowe and I. A. Coke receivers, to take charge of and hold of all the aforesaid assets, pending a decision of the questions raised by the suit aforesaid. After the appointment of the aforesaid receivers, depositions were taken by both plaintiff and defendants, and the case made ready for a hearing at the June term, 1890, of the chancery court. The cause was argued, elaborately and exhaustively, before the Honorable E. H. Fitzhugh, the judge of the said court. No decree was, however, rendered by him, he having unexpectedly and suddenly died before the next term of his court. The Honorable W. J. Leake having been appointed his successor, the cause was again argued, at great length, before him; and on the 8th day of January, 1891, a decree was pronounced by him, sustaining the claim of the said Bettie Lewis (as preferred in her bill) to all the personal estate of the said William A. Thomas, deceased, except the sum of $18,000, money on deposit in the Planters' National Bank, which was awarded to petitioner, as administrator aforesaid. From this decree the case is here on appeal.

The question raised in the controversy, and to be decided by this court, is, what constitutes a valid gift causa mortis? and whether the evidence adduced by the complainant comes up to the law's requirements to establish such a gift by the decedent, William A. Thomas, to the complainant Bettie Thomas Lewis, by and through the facts and circumstances detailed in the bill and attested by the proofs. It is essential to a correct and just estimate of the facts of the case, as disclosed by the record, that they be viewed in the light of the history and relations of the parties to the controversy, the congruities of the case, and the legal weight of the testimony.

Bettie Thomas Lewis, who, before her marriage, was Bettie Thomas, is the only living child of the late William A.Thomas, a wealthy retired merchant, who, at the age of 70 years and enfeebled by long sickness, departed this life, intestate, on the 4th day of January, 1889, at his residence, in or near to the city of Richmond, possessed of a large estate of both real and personal property, but principally personalty. He never married, but cohabited with a woman of half white blood, formerly his slave, in the county of Pittsylvania, Va., by whom he was the father of two daughers, Bettie, and an older sister, Fannie, who married and died, soon after the late civil war, without issue. Bettie, 35 years of age when her father died, and Fannie were always recognized and acknowlelged by William A. Thomas as his children; they called him father; and he called them and cherished and lived with them as his children. The death of Fannie was a great grief to him; and, after that event, his whole and devoted affec tion was centered upon Bettie, as the "daughter of his heart and house, " whom lie loved "passing well, " and from whom he was never thereafter separated, except for the two years that he sent her to a boarding school. Soon after the termination of the late war, he removed to Richmond to engage in business, and he purchased a small farm just outside the city limits for a home for himself and Bettie; and there they lived together for more than 20 years; she presiding at bistable and over his household affairs, and administering to him in sickness and in health, nursing and caring for him with the constant assiduities of a devoted and dutiful daughter, and he providing for her comfort and pleasure, in every conceivable form that lavish parental love and large means could suggest. He built the house in which they lived for her; and, according to...