Waite v. Grubbe

• Decision Date: 27 July 1903
• Citation: 43 Or. 406,73 P. 206
• Parties: WAITE v. GRUBBE et ux. [*]
• Court: Oregon Supreme Court

73 P. 206

43 Or. 406

WAITE v. GRUBBE et ux. ^[*]

Supreme Court of Oregon

July 27, 1903

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Action by F.B. Waite, executor of Fendal Sutherlin, deceased against J.H. Grubbe and Kate Grubbe, his wife. Judgment for plaintiff. Defendants appeal. Reversed.

This is an action to recover possession of $7,885 in gold coin alleged to be the property of the estate of Fendal Sutherlin deceased. The defendant Kate Grubbe claims to be the owner of the money, and to have acquired it by gift from the deceased. At the trial, all the evidence having been submitted, the circuit court, upon motion of the plaintiff, directed the jury to return a verdict in his behalf for the entire sum and, judgment having been rendered accordingly, the defendants appeal.

J.C. Fullerton and Rufus Mallory, for appellants.

O.P. Coshow and F.W. Benson, for respondent.

WOLVERTON, J.

Fendal Sutherlin died testate August 29, 1901, leaving an estate of the probable value of $200,000. The defendants are his daughter and her husband. Mrs. Grubbe testified, in substance: That she was with her father one week in May during his last illness, and from the last of June or first of July to the day of his death, and attended upon him constantly. That he told her several times he intended to give her some money, as he had not done as much for her as for the other girls--had never sent her to school, or educated her, or given her any money. That late one night he observed that there was a swelling in his legs, and became apprehensive that it was going to his heart, and said to her: "I have $10,000 buried on this place, and I want to give it to you. I am going to give it to you, and in the morning I will show you where it is buried;" and she continued in language following: "So in the morning he said for me to get a little bucket, and go to the garden, 'and I will come to the garden. I can take a little bucket along, and get some beans, and the rest will not suspicion what we are going for.' So I got a bucket, and we went to the garden, and I saw that he could not walk very far, so as we passed the smokehouse there was a box there, so I picked up the box and carried it along for him to sit on, and when we got a little ways he began to fall. So I got hold of him, and placed him on the box, and he sat there, and he pointed the place out to me, and he said: 'I give this money to you. It is yours. But if I should get well, and want some of it, would you let me have it?' And I said: 'Yes, papa; if you get well you can have all of it. I will give it back to you if you get well.' He went then and pointed out the places there. He said, 'You know that old chicken house down there in the hog lot,' and I said 'Yes,' and he said, 'I buried about $2,000 there.' He said: 'I dug up $1,000. I had the boys scrape the dirt away from the top of it, and haul it on the garden. They thought I was putting it on the garden, but I was having them take it away so I could get the money. Now,' he said, 'in the old chicken house across the creek I buried $2,000 there. In some places there may be more, and in some places there may be less; but the next place, now,' he said, 'is the smokehouse. I buried $2,000 there, but I have strong suspicions some one found part of it.' Then he said: 'The next place is the water-closet. I buried $2,000 in there.' And he said: 'You know the garden, there. You see that Red June tree in the corner of the garden?' And I said 'Yes.' And he said: 'The second post this side of that tree is a tile ditch goes through there, and out this way there is a tile ditch goes through there;' and he says, 'I buried $2,000 there; $1,000 on each side of the ditch.' *** He said it was mine; he gave it to me; he wanted me to have it. *** He talked with me about it several times during his sickness. The next time, I think, that he mentioned it, was when Mr. Waite and his wife came back over there, and he said not to tell any one about this money." The witness further testified that her father told her to leave the money where it was unless he should rent the place, in which event she should get what was in immediate danger of being found, but he said to leave the other where it was for safekeeping and get it as she needed it; and that she left the money there on the premises on the advice of her father. Benton Myers testified that Sutherlin some time in July, about six weeks prior to his death, told him that Kate, who was present at the time, was a noble woman; that he had not provided for her as well as he had for the other girls, and that he intended to pay her for staying with him--to give her something before he died; that he was so bad off after that he did not talk about the matter, but that at one time prior he said he expected to make Kate a present of enough money before he died to make her even with the other girls. It was further shown that about the time of the transaction Sutherlin was very feeble, and was soon confined to his bed, from which he was never able to arise. Mrs. Grubbe did not possess herself of the money, or any part of it, until some nine or ten months after the death of her father, when she and her husband and son found money at every locality pointed out to her as a place of concealment. This evidence was practically undisputed, and the question arises, was it sufficient to carry the case to the jury? And that depends upon its sufficiency to support a gift.

The gift, if consummated, was manifestly made in the apprehension of death from an impending mortal affliction. Two things are essential to a valid gift--the intent on the part of the donor to bestow the thing to be given upon the donee or object of his bounty, and a delivery, coupled with an acceptance on the part of the donee, express or implied. From the testimony of Mrs. Grubbe there can be no cavil touching the intent of her father to give her the money secreted at the different places disclosed and pointed out to her. His declarations were positive, signifying unmistakably a present gift or bestowal of the money upon her. His words were "I give this money to you; it is yours," and other expressions of like import, indicating a purpose to bestow the money presently and unconditionally. True, he said to her in the same connection, while pointing out the places of deposit, "If I should get well, and want some of it, would you let me have it?" and she replied, "Yes, papa, if you get well you can have all of it. I will give it back to you if you get well." But this only emphasizes the purpose to give presently and effectually, as he made himself dependent upon her favor to let him have some money if he should get well, and be in need of it. He was manifestly laboring under the solemn conviction that he would never recover from his impending malady, and that he was making an absolute and final disposition of the money, and that in all human probability he would never be in want of any of it. The intention to give being manifest (and this is tacitly conceded), the real controversy is whether there was a delivery of the money by the father to the daughter sufficient to meet the requirements of the law, and thereby to make the gift effectual. We held in Liebe v. Battmann, 33 Or. 241, 54 P. 179, 72 Am.St.Rep. 705, that, to constitute a delivery, "there must be a parting with the dominion over the subject-matter of the pretended gift, with a present design that the title shall pass out of the donor and to the donee, and this so fully and completely, to all intents and purposes, that, if the donor again resumes control over it without the consent of the donee, he becomes a trespasser, for which he incurs a liability over to the donee, except after revocation of a gift causa mortis." From the viewpoint of the...