Conner v. Root

11 Colo. 183 | Colo. | 1887

Stallcup, C.

We cannot agree with counsel for appellant that the evidence is all one way, and against the finding of the court. If the gift and delivery were made during the last sickness of the donor, in anticipation of death therefrom, the donation became complete upon such death; and a certificate of deposit may be the subject of such gift without indorsement. Upon this subject the law is stated in section 1148, 3 Pom. Eq. Jur., as follows: “All kinds of personal property, using the word in its broad mercantile sense as equivalent to assets, which are capable of manual delivery, of which the title, either legal or equitable, can be transferred by delivery, may be the subject-matter of a valid donation causa mortis. That all actual chattels, including money, either coin or banknotes, may be donated has never been questioned. Whatever doubt may have once been entertained, the rule is now well established that all things in action which consist of the promise or undertakings of third persons, not the donor himself, of which the legal or equitable title can pajss by delivery, may be the subject of a valid gift, including promissory notes, bills of exchange, checks, bonds, mortgages, .savings bank pass-books, certificates of deposit, policies of insurance, and the like; and it is settled by the recent cases that a valid donation of negotiable instruments may thus be made without indorsement.” The delivery may be made to the donee or to another for the donee’s use. Section 1149. Under our statutes, in the making of such gift of such property, a married woman is under no disability by reason of her marriage. Though courts do not lean against gifts causa mortis, the evidence to establish them should be clear and unequivocal. Section 1146.

The deceased was attended to the last by Conner and the donee, and the funeral expenses were paid by Conner. Had the deceased feelings of aversion against her husband calculated to prompt her to make the donation as claimed by plaintiff ? Wrecked, as she was, upon the threshold of her wedded life, if the cause thereof was according to the evidence offered, it seems but natural and reasonable that she should turn,‘as it is said she did, from him who was her husband to her who seemed kind and constant, and, as best she could, divert from him to her what little of property and money she would have left after her death and burial. There being a controversy as to the donation, evidence upon this point was in corroboration of the other evidence in support of the donation, and was therefore admissible. While there was some evidence on this question, it appears that the court regarded it improper, and sustained the objections whenever made against its admission. The court erred in rejecting this evidence offered to show the nature and cause of this illness of deceased, and the conduct of her husband touching the same, as the same was of a character to show the motives and reasons for making the gift of the certificate to another, and so diverting it from her husband, to whom the same would have descended. Gilham v. French, 6 Colo. 196. And the court erred in denying the motion of the plaintiff for a new trial. Under chapter 66, General Statutes, the said Conner, Hunt and Hennessey were under like restrictions as to the right to testify in the case, and such right is limited to facts occurring after the death of the deceased, except as specified therein. The judgment should be reversed.

Eising and De France, 00., concur.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment of the superior court is reversed and the cause remanded for a new trial.

Reversed;