299 N.W. 113 | Mich. | 1941
Defendant (appellant) Isabelle Fraser claims ownership of certain bonds, stocks and other securities by virtue of a giftinter vivos from her husband, Donald A. Fraser. The plaintiff herein is the daughter and only other heir-at-law of Donald A. Fraser now deceased, and files this bill in chancery seeking to compel Isabelle Fraser to turn these securities into the estate and inventory them as a part of the assets; to enjoin her from otherwise disposing of them; and for an accounting of the income therefrom. The only question in the case is, whether there was a gift inter vivos. The circuit judge who heard the case held that Isabelle Fraser had not proved ownership by a gift inter vivos, and Isabelle Fraser appeals. *376
Isabelle Fraser was married to Donald A. Fraser sometime during the year 1930. At that time he was the owner of a considerable number of first mortgage bonds, trust certificates, depository receipts, and stock certificates in a Detroit mortgage bonding company. These are referred to in the testimony as his "Detroit holdings." Appellant attempted to prove by her own testimony that these securities were given to her by her husband and to show statements made to her by him to that effect. On objection, this was properly excluded as being equally within the knowledge of the deceased.* Shepard v.Shepard,
Plaintiff introduced testimony showing that Fraser continued to exercise a measure of control over the securities from the time of his marriage until as late as the month of December, 1934. During that period Fraser exchanged some of the bonds for trust certificates and deposit receipts, accepted payment of dividends, and corresponded generally with the mortgage company regarding these securities. If the proofs were confined to showing a claimed gift inter vivos previous to 1935, this continued exercise of possession and control might *378
negative the gift. However, it is undisputed that four or five months after the last of these transactions and about two months before his death Fraser actually delivered the package containing the securities to his wife, referred to them at that time as her property, and asked her to take care of them. To a certain extent Mrs. Fraser continued in possession and control until the death of her husband. They were in the safe in their home at the time of his death, Mrs. Fraser had access to them, and since his death has continued possession and control. There was an actual delivery in May, 1935, and this, coupled with the other circumstances, sufficiently establishes a gift intervivos. Where there is no suggestion of fraud or undue influence, very slight evidence will suffice to establish delivery of a gift inter vivos. Love v. Francis,
The record does not disclose to what extent these securities were payable to bearer or transferable by delivery and plaintiff claims that the lack of evidence of a written assignment or transfer negatives the gift. However, a valid gift of securities inter vivos may be effective without a written assignment. Hoyt v. Gillen,
Chancery cases are heard de novo by this court and while we are reluctant to disturb the findings of the trial court we must hold that the positive testimony in this case establishes a gift inter vivos. *379
Reversed for entry of a decree for appellant Isabelle Fraser in accordance herewith, with costs.
SHARPE, C.J., and BUSHNELL, CHANDLER, NORTH, WIEST, and BUTZEL, JJ., concurred. McALLISTER, J., took no part in this decision.