261 Mass. 381 | Mass. | 1927
The plaintiff brings this action as administratrix of the estate of her sister, Hannah J. Leonard, to collect amounts alleged to have been lent by the intestate to the defendant, who was her brother. The defendant relies upon a gift to him by the intestate of the amounts involved. At the close of the evidence the presiding judge, upon a motion filed by the plaintiff, directed a verdict in her favor. The defendant excepted to this direction, and also to the refusal by the judge to make certain rulings requested by him.
It is recited in the exceptions that “In addition to the evidence the following agreement and stipulation was entered into by the parties after a request was made by the defendant for the court to instruct the jury that there was evidence that should be presented for their consideration of a perfected gift,— that if upon all the evidence in the case, both documentary and oral, there was no evidence to be considered by the jury on the question of a perfected gift, then there may be a verdict for the plaintiff in the sum of Sixteen hundred seventeen ($1,617) Dollars,— otherwise, judgment to be entered for the defendant. Such stipulation being made upon the agreed statement that the same was entered
The defendant testified, and offered other evidence tending to show, that in 1915 he talked with the intestate respecting the purchasing of a home and that she offered to give the money for that purpose, and in that year gave him $400 without taking any writing or security therefor; that in 1917, having a mortgage on his property which the bank holding it desired paid, his sister gave him $2,000; that no writing or other form of indebtedness was then taken by her; that he never paid any interest on the sums so given him; that while she was on a visit at his house in May, 1924, she expressed a wish that he keep the money; that she made no claim to it and thereafter she handed him the written instrument marked “A.”
The defendant further testified that, on two or three occasions subsequent to the delivery of the written instrument, the intestate told him “that she was angry with her two sisters, that they had treated her badly, that she wanted the defendant to keep the $2,400 which he had, and that she wanted him to. erect a suitable monument over her grave and to pay her funeral bills at the time of her death”; that “upon several other occasions she expressed in similar language the same thing, saying that the money was his, that she made no further claim to it, and that all that she wanted him to do was to erect a monument and to pay her burial expenses.” The defendant’s wife in substance corroborated his testimony above recited.
It was admitted that after his sister’s death on August 19, 1924, he paid her funeral expenses and erected a suitable monument; that he purchased in his own name a lot in the cemetery for that purpose, expending over $800 in carrying out her request.
The plaintiff offered evidence tending to show that the sums paid to the defendant were not in the nature of a gift, but were lent to him by his sister.
The question, whether there was a completed gift was a question of fact and it should have been submitted to the jury with appropriate instructions. The exception to the order directing a verdict for the plaintiff must be sustained. The other exceptions to the refusal of the judge to rule as requested by the defendant need not be considered. .
In accordance with the stipulation embodied in the record, judgment is to be,entered for the defendant.
So ordered. ¿