Townsend v. Schaden
| Decision Date | 05 July 1918 |
| Citation | 204 S.W. 1076,275 Mo. 227 |
| Parties | CORNELIA TOWNSEND v. M. L. SCHADEN, Administratrix of Estate of GEORGE TOWNSEND, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.
Affirmed.
William G. Holt, Haff, Meservey, German & Michaels and Beardsley & Beardsley for appellant.
(1) There was no proof of a gift from George Townsend to the plaintiff of the 40 Water bonds and therefore the court should have directed a verdict for defendant. (a) Giving all possible weight to the testimony offered on plaintiff's behalf, there was no proof whatsoever of a delivery of the bonds in October, 1907. Tomlinson v. Ellison, 104 Mo. 105; In re Estate of Soulard, 141 Mo. 642; McCord's Admr. v. McCord, 77 Mo. 166; Burchett v. Fink, 139 Mo.App. 381; Walter v Ford, 74 Mo. 195; Harris Banking Co. v. Miller, 190 Mo. 640; Jones v. Falls, 101 Mo.App. 536; Pennell v. Ennis, 126 Mo.App. 355; Doering v Kenamore, 86 Mo. 588; Citizens Nat. Bank v McKenna, 168 Mo.App. 254; Gray v. Doubikin, 188 Mo.App. 667; Chambers v. McCreery, 106 F. 364; Basket v. Hassell, 107 U.S. 602; Reynolds v. Hanson, 191 S.W. 1030; Liebe v. Battman, 33 Ore. 241, 54 P. 179; Knight v. Tripp, 121 Cal. 674, 54 P. 267; Apache State Bank v. Daniels, 32 Okla. 121, 121 P. 237; 20 Cyc. 1234; 2 Kent. Com. 556; Newman v. Bost, 122 N.C. 524, 29 S.E. 848; Bauernschmidt v. Bauernschmidt, 97 Md. 35, 54 A. 637; Millard v. Millard, 221 Ill. 86, 77 N.E. 595; Foley v. Harrison, 233 Mo. 460. (b) The whole record shows that George Townsend never intended to make any gift of bonds to his sister in October, 1907; that the bonds in question were never treated by him or by her as having been so given and the attempted proof of a gift falls far short of the character of proof required to support gifts inter vivos. Foley v. Harrison, 233 Mo. 460; Northrip v. Burge, 255 Mo. 653; Denny v. Brown, 193 S.W. 552. (2) The alleged declarations of Townsend made to his relatives and partner subsequent to October, 1907, are valueless and ineffectual, because there had been no proof of delivery, and therefore the trial court should have disregarded them in passing on the demurrer to the evidence. Chambers v. McCreery, 106 Feb. 364. (3) The court erroneously excluded letters and statements of Townsend made or written subsequently to October, 1907, showing that he had not given any bonds in 1907 to plaintiff. Simms v. Saunders, Harper (So. Car.) 374; Stone v. Stroud, 6 Rich. (So. Car.) 306; Exrs. McKane v. Bonner, 1 Bail. (So. Car.) 113; Caldwell v. Wilson, 2 Spears (So. Car.) 63; Chambers v. McCreery, 106 F. 364. (4) The trial court, having permitted one of plaintiff's witnesses to relate a particular conversation with the deceased, should have permitted the other witness who was present to give her version of the same conversation. Harmon v. Insurance Co., 170 Mo.App. 309; Hodges v. Hill, 175 Mo.App. 441; Gourley v. Callahan, 190 Mo.App. 666; Enyeart v. Peterson, 184 Mo.App. 522; Crawford v. Stock Yards Co., 215 Mo. 416; 16 Cyc. 1039, 1041; Reevs v. Hardy, 7 Mo. 348; Haver v. Schwyhart, 48 Mo.App. 50, 54. (5) The court erred in excluding the testimony of Mrs. Schaden as to what Townsend said at the time when he wrote the letter which was dated October 25, 1907. Stewart v. Glenn, 58 Mo. 481; McMahon v. Cronin, 128 N.Y.S. 425. (6) The court erred in striking out certain statements of Mrs. Schaden with reference to the writing of the letter dated October 25, 1907. (7) The court erred in giving instructions "A" and "B" of its own motion. Black's Law Dictionary, "Reasonable;" Foley v. Harrison, 233 Mo. 589; Hunt v. Railroad, 126 Mo.App. 83; Smith v. City of Brunswick, 61 Mo.App. 581. (8) The five-year Statute of Limitation is a bar to plaintiff's claim. (9) Mrs. Davis was an incompetent witness. Sec. 6354, R. S. 1909. (10) The finding of the jury in this case that there was a gift, since it has no foundation in fact upon which it can stand, calls for a reversal outright. Beaver v. Beaver, 117 N.Y. 421, 6. L. R. A. 403, 15 Am. St. 531.
Lynn S. Pease, Walter F. Mayer and H. F. Wieman for respondent.
(1) The intention of the donor to make a gift is the controlling element and factor to establish a gift. Hamilton v. Armstrong, 120 Mo. 597; Richardson v. Richardson, 148 Ill. 563; Devol v. Dye, 123 Ind. 321; Weaver v. Weaver, 182 Ill. 287; Weber v. Christen, 112 Ill. 91; Rumsey v. Ottis, 133 Mo. 85. (2) The admissions, declarations and acknowledgments of the donor are competent evidence to prove any of the essential elements of a gift. Lord v. N. Y. Life Ins. Co., 66 S.W. (Tex.), ___; Crouse v. Judson, 84 N. Y. S., 755; Grangiac v. Arden, 10 Johns. 293; In Re Townsend, 5 Dem. Sur. 147; Estate of Soulard, 141 Mo. 642; Bank v. Miller, 190 Mo. 640; People v. Benson, 99 Ill.App. 325; Sparling v. Smeltzer, 133 Mich. 454; Jacques v. Fourthman, 137 Pa. St. 428; Weaver v. Weaver, 182 Ill. 287; Dehm v. Dehm, 86 Ill.App. 479; Brandon v. Dawson, 51 Mo.App. 237. (3) The delivery of the gift as a manifestation of the intention of the donor may be actual, constructive or symbolical. Delivery may be made to a third person to be by him delivered to the donee. Reese v. Phila. Trust Co., 218 Pa. 150; Hamilton v. Armstrong, 120 Mo. 597; Hageman v. Hageman, 90 Ill.App. 251; Devol v. Dye, 123 Ind. 321; People v. Benson, 99 Ill.App. 325; Shackleford v. Brown, 89 Mo. 546; Sneathen v. Sneathen, 104 Mo. 201; Bickford v. Mattacks, 95 Mo. 547; Grangiac v. Arden, 10 Johns. 293; Hall v. Hall, 76 Kan. 806; Seavey v. Seavey, 30 Ill.App. 625; Telford v. Patton, 144 Ill. 619; Williams v. Latham, 113 Mo. 165; Waite v. Grubbe, 43 Ore. 406; Muir v. Gregory, 168 F. 641; Hess v. Hartwig, 83 Kan. 592; Marsh v. Fuller, 18 N.H. 360; In Re Palmer's Estate, 102 N.Y.S. 236; Jast v. Wolf, 130 Wis. 37; Bates v. Vary, 40 Ala. 421; Sparling v. Smeltzer, 133 Mich. 454. (4) The donor may hold the subject of the gift, constructively deliver the property to himself for the donee and thereby put himself in the position of trustee for the donee. The donee need not have possession of the subject of the gift. Harris Bank v. Miller, 190 Mo. 640; Mize v. Bank, 60 Mo.App. 358; Hamilton v. Armstrong, 120 Mo. 597; Yokem v. Hicks, 93 Ill.App. 667; Martin v. Funk, 75 N.Y. 134; Grangiac v. Arden, 10 Johns. 293; Trowell v. Carroway, 10 Heisk. 104; Dressen v. Dressen, 46 Me. 48; Bants v. Ellis, 17 Beav. 121; Gamian v. McGuire, 160 N.Y. 476; Crouse v. Judson, 84 N.Y.S. 755. (5) The questions of intention and delivery are exclusively within the province of the jury. The jury may presume intention and delivery from the facts and circumstances, admissions, declarations and acknowledgments of the donor. Reynolds v. Hanson, 191 S.W. 1030; Fair v. Wynne, 155 Mo.App. 341; Sparling v. Smeltzer, 133 Mich. 454; Jacques v. Fourthman, 137 Pa. St. 428; Clough v. Clough, 117 Mass. 85; Hunt v. Hunt, 119 Mass. 474; Keeney v. Henrick, 148 Pa. St. 223; Sprouse v. Littlejohn, 22 S.C. 358; Grangiac v. Arden, 10 Johns. 293. (6) The appellate court will not weigh the evidence and set a verdict aside as against the weight of the evidence. Reynolds v. Hanson, 191 S.W. 1030; Shackleford v. Brown, 89 Mo. 546. (7) Mrs. Davis was a competent witness. Snider v. McAtee, 178 S.W. 484; McKee v. Downing, 224 Mo. 115; Cole v. Waters, 164 Mo.App. 567; Morvell v. Cooper, 155 Mo.App. 445; Weiermueller v. Scullin, 203 Mo. 467; Gray v. Doubikin, 188 Mo.App. 667. (8) Conversations with and letters written by the deceased which were not declarations or admissions against interest are not competent evidence. Baker v. Baker, 43 Ind.App. 26; Hitt v. Hitt, 131 S.W. 369; Dalby v. Maxfield, 244 Ill. 214; Tyler v. Wright, 164 Mich. 606; Reese v. Trust Co., 218 Pa. 150; Church v. Comb's Ex'r, 113 S.W. 119; Mahan v. Schroeder, 142 Ill.App. 538; Dillivan v. Savings Bank, 124 N.W. 350; Driscoll v. Driscoll, 143 Cal. 528. (9) The court properly instructed the jury that "the plaintiff must prove to your reasonable satisfaction by the greater weight of all the credible evidence," etc. Jones v. Park, 101 Mo.App. 536; Reynolds v. Hanson, 191 S.W. 1030. (10) The five-year Statute of Limitations does not apply in this case.
RAILEY, C. Woodson, J., not sitting; Bond, P. J., concurs in result.
This action was commenced in the probate court of Jackson County, Missouri, on January 8, 1914, in the following form:
Before the case was finally submitted to the jury, plaintiff reduced her demand for the par value of the thirty-two Citizens Street Railway Company bonds, of Indianapolis, Indiana, from $ 32,000 to twelve of said bonds of the alleged value of $ 12,000. She also withdrew from the consideration of the jury, as shown by her instruction "D," that part of her claim relating to the one hundred shares of the Central States Bridge Company, of the alleged value of $ 10,000.
From the judgment of the probate court in favor of defendant, plaintiff appealed to the circuit court, where the case was tried de novo, at the November Term, 1914, before a jury. The trial began on January 5, 1915, and thereafter resulted in a verdict for plaintiff in the sum of twenty thousand dollars, upon which judgment was entered in due form.
There was substantial evidence offered upon the part of plaintiff tending to show that George Townsend, who was a brother of plaintiff, on or about the 25th...
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