Yardum v. Evans
| Decision Date | 20 February 1931 |
| Docket Number | 27489 |
| Citation | 235 N.W. 85,120 Neb. 699 |
| Parties | VINCENT YARDUM, EXECUTOR, APPELLEE, v. THOMAS H. EVANS, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Madison county: CHARLES H STEWART, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
Possession by an alleged donee of personal property of the alleged donor, after the death of the latter, raises no presumption of ownership in the alleged donee.
Section 20--1202, Comp. St. 1929, prohibits one claiming to be a donee of personal property given him by one who is now deceased from testifying to " any trans action or conversation" between the alleged donee and the deceased, unless the adverse party, representative of the deceased, shall have introduced a witness who shall have testified in regard to such transaction or conversation.
If the alleged donee plead that the deceased delivered the securities to him, then such donee is not permitted to testify to the date when such securities were delivered to him.
Evidence of the declaration of a claimant, while in the possession of securities and shortly before the decedent's death, that he claimed the securities as a gift and that they belonged to him, is admissible as in the nature of res gestæ to show the intent attending possession, but not to prove the origin of his title.
To make a gift causa mortis there must be clearly and intelligently manifested by the donor an intention to make a present gift to the donee.
If a gift be a good gift causa mortis the donee takes title as of the moment of the gift, subject to defeasance while the donor lives.
On appeal in equity cases, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying.
Additional Syllabus by Editorial Staff.
Evidence sustained finding that one claiming securities by delivery from decedent during decedent's lifetime failed to prove gift causa mortis.
Appeal from District Court, Madison County; Stewart, Judge.
Suit by Vincent Yardum, as executor of the last will of Armenag B. Tashjean, deceased, against Thomas H. Evans. From a decree for plaintiff, defendant appeals.
Affirmed.
Webb Rice and Forrest Lear, for appellant.
Mapes, McDuffee & Mapes, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is a suit in equity brought by an executor claiming ownership and the right to the possession of personal property alleged to belong to the estate. The defendant appealed from a decree in favor of the executor.
The petition of the executor, filed September 3, 1928, alleges that Armenag B. Tashjean died testate on May 27, 1928, and plaintiff is the executor; that for more than two years prior to his death the testator was ill and infirm and during said period the defendant acted as his agent and confidential adviser in the handling of securities and in selling real estate; that thereby the defendant secured possession of certain specifically described personal property, consisting of time certificates of deposit, government bonds and certificates and a real estate note and mortgage, all of a total face value of $ 29,500; that the testator suffered a severe stroke of paralysis on May 25, 1928, and from that time on was dying, and defendant claims that on May 26, 1928, the testator gave said property to defendant in contemplation of death. But plaintiff alleges that neither at the time defendant claims the property was given him nor at any other time was there any gift or any delivery of said property, that no indorsements were made by Tashjean on any of the securities, and that Tashjean was incompetent, by reason of his physical and mental condition, to give the property to defendant. Plaintiff alleges that he duly brought action in replevin to secure possession of the property, and the defendant refused to deliver it to the sheriff or to disclose where it was, though admitting its possession; and resisted a citation to go into court and submit to an examination as to its whereabouts; that the property is liquid and liable to be transferred out of the jurisdiction. Wherefore plaintiff prays for a decree that plaintiff, as executor, is the owner and entitled to the possession, that a receiver be appointed to take charge of the property until the ownership has been determined by the court, and that the defendant be enjoined from transferring, removing and secreting the property.
The parties stipulated in writing that the application for a receiver should be sustained. A receiver was appointed and evidently took over the property and holds it and the proceeds of some that was sold, subject to the ultimate disposition of the court.
By the amended answer of the defendant it is admitted that the defendant has possession of the securities described in the petition, but defendant avers that he is the owner thereof by gift from Armenag B. Tashjean during his lifetime. It is admitted that the securities given defendant by Armenag B. Tashjean, who was popularly called Dr. Tashjean, do not bear his indorsement, and that defendant has no written assignment of them, but it is alleged that Dr. Tashjean intended to indorse them and offered to indorse them at the times of their respective deliveries, which times are set out, and would have done so had defendant then consented to accept said securities as a completed gift, and that they were not indorsed solely because of defendant's request to the donor not to indorse them at the time they were delivered, at which time defendant accepted them subject to the condition that Dr. Tashjean might need them for his own use before his death; that later, about the middle of May, 1928, Dr. Tashjean requested defendant to bring the treasury certificates for his indorsement, so that defendant could cash them and use the funds, and defendant then showed Dr. Tashjean that they would not begin to mature until August and suggested that they be not indorsed until then, and so they were not indorsed; that on May 26, 1928, after the stroke of paralysis on the preceding day, Dr. Tashjean called defendant to his bedside, told him he wanted him to keep for himself the securities theretofore given him, and also the money on his person when he was stricken, and avers that he was then physically unable to indorse the securities; and "that the gift of said securities to defendant was fully completed without indorsement, and that said gift was a gift causa mortis."
The reply consists of a general denial and of specific allegations that, on the several dates named in 1928, Dr. Tashjean was not possessed of sufficient mental capacity to transact the business alleged in the amended answer.
The decree of the district court finds that the evidence is insufficient to sustain defendant's claim of a gift of the property, that the alleged donor was mentally incompetent to make a gift causa mortis on May 26, 1928, and that plaintiff is entitled to the possession of the property. Judgment was entered, directing the receiver to turn over to plaintiff the property remaining and the proceeds of any part sold.
In this case, as is usual in those of its type, there is not so much difficulty about the law as about the evidence. In an unusual sense each case is ruled by its own facts. Once the truth is discerned, it is not so hard to find the applicable rules of the law.
At the time of his death Armenag B. Tashjean was probably somewhat more than 70 years of age. An Armenian by birth, he had come to Norfolk about 40 years earlier and there had practiced his profession as a doctor until about two years before his death, when he suffered a stroke of paralysis. The evidence shows that for some years his power of locomotion was impaired so that he took very short steps, without lifting his feet, in order to preserve his balance when walking; that he did not have very good control of his bowels, and that his urinary tract was likewise affected. About the time he retired from business, he had sold his home, in which he also maintained his office, and, while in Norfolk, made his home chiefly at a hotel. For a few weeks in that period he had lived at the home of defendant, who testified he is an auditor, insurance and real estate man, who had sold the doctor's home for him and who had acted for the doctor in some of his transactions concerning his securities. By frugality the doctor had accumulated considerable personal property, and retired with approximately $ 100,000.
Vincent Yardum, the executor, lives in Scarsdale, a suburb of New York City. He is a lawyer with offices in the city. Mrs Yardum, also born in Armenia, is a cousin of Dr. Tashjean. Her father was his mother's youngest brother. When Mrs. Yardum testified, she was 36 years old. She states that her own mother died when she was two weeks old and she was then adopted by the doctor's mother. She came to this country when she was 13. At first she lived a few years in California and then two years in Michigan, after which she lived in Nebraska. The doctor paid her bills from the time she first arrived in this country. He sent her to Lincoln to college. After a few years she went to New York and was married to Vincent Yardum in 1917. They have three children, boys, ranging from ten years down to three. Several years before his death the doctor visited the Yardums in their home. At another time they visited him in Buffalo, where he had gone for rest and treatment in a private hospital. In November, 1927, they came to Norfolk and took him back to their New York home, where he remained until the last of February, 1928, when he returned to Norfolk and remained until the end. While at the Yardums he gave $ 40,000 to the...
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