Tucker v. Brown
| Decision Date | 22 June 1939 |
| Docket Number | 27274. |
| Citation | 199 Wash. 320,92 P.2d 221 |
| Court | Washington Supreme Court |
| Parties | TUCKER v. BROWN et al. |
Action to have a trust declared and for an accounting by William Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased against Sadie R. Brown and others. From the decree, the plaintiff appeals.
Reversed and remanded.
Appeal from Superior Court, Yakima County; Dolph Barnett, judge.
Allen Froude & Hilen, and Rummens & Griffin, all of Seattle, and P.J. Gallagher and George B. Guthrie, both of Portland, Or for appellant.
Bonsted & Nichoson and F. C. Palmer, Jr., all of Yakima, and Poe Falknor, Emory & Howe, of Seattle, for respondents.
This action was brought to have a trust declared, and also for an accounting. The defendants answered, with certain admissions and denials, and affirmatively pleaded the statute of limitations and that the property in controversy was transferred as a gift. The trial was to the court without a jury, and resulted in a decree dismissing the action. From this decree, Wilmon Tucker, as administrator of the will annexed of the estate of Sarah E. Smith, deceased, appealed.
The facts will only be stated in so far as it appears necessary to present the questions which are controlling upon this appeal. It may be stated that the respondent Guaranty Trust Company, as administrator de bonis non with the will annexed of the estate of Reese B. Brown, deceased, is the principal respondent.
At the time the transactions here involved took place, Sarah E. Smith, deceased, was about seventy years of age, if not a little more. She was a very wealthy woman, having money, bonds, securities, and other property, which, the appellant says, would amount to $1,600,000, and the respondent says that it would be less than $1,000.000. The exact amount is not material at the present time. Reese B. Brown was a shrewd, energetic, and capable business man. During the latter part of the year 1928, Mr. Brown had been negotiating for some time for the purchase, either for himself or auother, of two apartment hotels in the city of Seattle, and during the time that these negotiations were carried on, he had frequent conferences with the manager of the hotels. When those negotiations were nearing a conclusion, as testified to by the manager, 'He [Mr. Brown] said 'As soon as I get this Daly deal over I am going after that fortune of Mrs. Scollard [Mrs. Smith].' He said he didn't know her. I said 'How are you going to get acquainted with her.' He said 'You leave that to me. I have never started out for anything unless I finished it.''
Subsequently, Mr. Brown became acquainted with Mrs. Smith, with the result that during the year 1929 she turned over to him at least $350,000 in cash. Mrs. Smith and the Brown family, consisting of Mr. Brown, his wife Sadie R. Brown, and a son of high school age, became very friendly. February 14, 1930, Mrs. Smith withdrew from a bank in the city of Seattle approximately five hundred thousand dollars worth of bonds or securities which had been left in the bank for safekeeping, and at the same time withdrew the balance of her money deposit, which was a large amount. These were turned over to Mr. Brown. As a result of the transactions mentioned, it appears that Mrs. Smith had turned over to Mr. Brown all her money, securities, and property of every description. She subsequently stated that Mr. Brown had possession of her property, but she had control of it.
During the year 1930, the Federal Internal Revenue officers began an inquiry to determine whether Mrs. Smith was paying the amount of income tax that she should. In pursuit of this inquiry, a safe deposit box in Kansas City, Missouri, was attached, and subsequently opened. It contained fifty-three one thousand dollar bills and some other currency of smaller denominations. Afterwards, and in the city of Seattle, the Internal Revenue officers interrogated Mrs. Smith as to her income, and she refused to produce, for their inspection, certain bonds and securities. At the request of the officers, a subpoena was issued out of the Federal court, but Before it could be served, Mr. Brown had hastily taken Mrs. Smith to the city of Vancouver, in British Columbia, where she remained until about the middle of November following. During the time that Mrs. Smith was in Vancouver, Mr. Brown was also there a substantial portion of the time.
October 24, 1930, Mrs. Smith went Before a notary public and signed and verified what is referred to here as Exhibit No. 50. November 8, 1930, she went Before the same notary and signed and verified what is referred to as Exhibit No. 52. These exhibits will subsequently be referred to. After these documents were executed and, as indicated, about the middle of November, Mrs. Smith returned to the city of Seattle and shortly thereafter went with Mr. Brown and his family to the city of Los Angeles, in California, where a house was rented in which they resided until sometime during the year 1931. After leaving Los Angeles in 1931, Mr. Brown and Mrs. Smith visited a number of cities, and later, after they had both been indicted by the Federal grand jury, sitting at Seattle, for failure to make proper income returns, they started on a trip east, and, as Mrs. Brown says, 'they did not want to be traced on that trip.' After arriving in an eastern city, they were joined by Mrs. Brown and the son Fred. From there, they went over to Canada where the Browns were registered under an assumed name and Mrs. Smith was registered, not as 'Sarah E.', but as 'Mrs. J. R.', giving the initials of her first husband who had died many years Before . Mrs. Smith remained in Canada at a hotel in Quebec for a time, and then at a hotel in Montreal until her death on July 24, 1932. The Browns returned to the state of Washington, Mr. Brown in the meantime visiting Mrs. Smith on one or more occasions. When Mrs. Smith became seriously ill in Montreal, Mr. Brown was notified and went to that city. He took charge of the remains, had the body cremated, the ashes placed in an urn, and brought them back with him, and the urn was kept in his home, without the knowledge of anyone outside of the Brown family, until after his death. Mr. Brown died as the result of an automobile accident January 27, 1934.
The principal question upon this appeal is whether Mrs. Smith had made a gift to Mr. Brown of all her money, bonds, securities, and other property.
It will be admitted that the owner of property has a right to give it away to whomsoever he desires, and that the law is now less strict with reference to establishing gifts than formerly, and, it may be said, favors the disposition of property by gift, the same as though the donor had undertaken to dispose of his belongings by the stricter formality of a written disposition. But Before a gift can be sustained, certain things are essential.
In order to constitute a gift of personal property, it is necessary (a) that there be an intention on the part of the donor to personally give; (b) a subject matter capable of passing by delivery; (c) an actual delivery at the time; (d) the delivery must divest the donor of present dominion and control over the property absolutely and irrevocably and confer upon the donee the dominion and control; and (e) a gift will not be presumed, but he who asserts title by this means must prove it by evidence which is 'clear, convincing, strong, and satisfactory.' Jackson v. Lamar, 67 Wash. 385, 121 P. 857; In re Slocum's Estate, 83 Wash. 158, 145 P. 204; Newsome v. Allen, 86 Wash, 678, 151 P. 111; Dingley v. Robinson, 149 Wash. 301, 270 P. 1018; In re McCoy's Estate, 189 Wash. 103, 63 P.2d 522.
Prior to the time that Exhibits 50 and 52 were executed, there is no evidence from which it could be concluded that Mrs. Smith ever made a gift to Mr. Brown of her money, bonds, securities, and other property. If a gift can be sustained, it must be by reason of the two exhibits mentioned. Without so deciding, it will be assumed (a) that these exhibits were executed in the absence of any undue influence; (b) that they were signed by Mrs. Smith; and (c) that, prior to her death, a legal delivery had been made of them.
Exhibit 50 reads as follows:
'Province of British Columbia
'County of Vancouver.
To this exhibit was attached a schedule of bonds, securities, and other property.
It will be observed that this...
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Tucker v. Brown
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