74 P. 1102 | Kan. | 1904
The opinion of the court was delivered by
The controversy in this case is as to the ownership and possession of- a stock of goods in Cherryvale, known as the “Variety Store.” It was attached by the sheriff at the instance of creditors of J. F. Bruce and as his property. Nannie L. Bruce, his wife, replevied the stock from the sheriff, claiming it as her own and that she had acquired it by gift from J. M. Bruce, the father of her husband. On her part, it is claimed-that in 1898 J. M. Bruce obtained a half-interest in the stock; that, as he was very old and feeble, he employed plaintiff, who was then Nannie L. Butler, to take care of his interest in the store, and that in 1898 he purchased the remaining interest, when she. was given entire charge of the business and became sole manager for J. M. Bruce. She testified that for this service she received five dollars per week and such goods from the store as she needed for' herself and family. In 1899 she married J. F. Bruce, and thereafter she and her husband lived in the family of J. M. Bruce, and she continued to manage the store. J. M. Bruce died about four months after the marriage, but for a number of months thereafter the business
On the other hand, it is claimed that J. M. Bruce never owned the store nor had any interest in it to give to any one ; that he had no money with which to purchase a stock of goods, and, being about eighty years of age and very feeble, had no interest in business and was unable to give any attention to such an investment. It was further claimed that J. F. Bruce furnished the money with which the store was purchased, and, as he was financially involved in another business which he was carrying on, he used the name of his father in the purchase and management of the store, and arranged that Nannie L. Butler, who was soon to become his wife, should be placed in charge of it; that he conducted the negotiations in the pur
After the evidence of both parties had been submitted, the court directed the jury to return a verdict in favor of the sheriff.
• The main question discussed here is whether the the plaintiff acquired any ownership or interest in the property by the proposed gift from her father-in-law. If it be granted that J. M. Bruce had something to donate, did his proposals and statements made to the plaintiff constitute a gift ? It will not be seriously contended that there was a gift causa mortis, as the things essential to such a gift were not present. One of" these is that it shall be made in view of impending death; another, that the donor shall die from' the disorder or peril; and still another, that there shall be an actual delivery of the thing donated. Some, if not all, of these essentials were lacking, but we still have the question whether there was a gift inter vivos, or any other legal donation of the property.
To constitute a gift of any kind it must be completely executed and go into immediate effect. Whether it is a gift causa mortis or inter vivos, an essential to its validity is that there was an actual and complete delivery of the property made in execution of the gift and for the express purpose of consummating it. Here it is admitted that the gift was not to take immediate effect. No transfer or change of title was contemplated by the parties at the time the proposals were made, nor until the death of the donor, and in fact there was no delivery or change of possession during the lifetime of
In Gallagher v. Donahy, 65 Kan. 341, 69 Pac. 330, it was held that “to constitute a valid gift inter vivos there must be not only an intention gratuitously to give, but an absolute transfer of. the property, which takes immediate effect.” It has been well said that “a mere intention to make a gift, however clearly expressed, which has not been carried into effect amounts to nothing, and confers no rights in the subject-matter of the. proposed gift upon the intended donee.” (14 A. & E. Encycl. of L., 2d ed., 1017, and cases cited.) There being neither a gift nor a bequest of the property, the plaintiff ’ utterly failed to sustain her claim to the ownership and possession of the property. She was the plaintiff in the action and undertook to recover the possession of the property by virtue of her ownership acquired by gift from her father-in-law, and having failed to prove that she was the owner of the property, and as her possession was only incidental to ownership, she necessarily failed to show a right of recovery, and the court was therefore warranted in directing the jury to find against her.
The attachment processes were valid upon their face, and presumably were issued in good faith. No
There was nothing substantial in the objections to the rulings on the testimony, nor do we find any exceptions which justify a reversal.
The judgment of the district court is affirmed.