184 Ky. 79 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
John M. Goodan died unmarried and intestate in Carter county on April 27, 1914, leaving as his only heirs,, Charles F. Goodan, L. W. Goodan and J. E. Goodan, children of his brother, S. W. Goodan, his brothers, T. L. Goodan, P. W. Goodan and F. W. Goodan, and the children of a deceased sister. Claiming that John Goodan had left an estate of $20,000.00, which R. S. Goodan, T. L. Goodan and others had appropriated and divided
The depositions of R. S. Goodan and T. L. Goodan were taken by «plaintiffs, and on their direct examination they testified that the decedent, John Goodan, left no estate at the time of his death. On cross-examination they testified in' substance, that several months prior to his death John Goodan was the owner of an estate worth about $8,000.00. The estate' consisted of a joint certificate of deposit in an Oklahoma bank, the decedent’s interest therein being worth $4,135.00; a $300.00 title bond against John M. Maggard; a $3,000.00 note executed by J. W. Strother and a certain amount in cash. On April 16,1913, John Goodan delivered to R. S. Goodan the following assignment, which was recorded in the Carter county clerk’s office:
“To whom it may concern:
I have this day given to R. S. Goodan without reservation or condition the following:
1st. Four thousand one hundred and thirty 'five ($4,135) dollars, it being my part in a joint bank certificate held by us in the Guaranty State Bank of Muskogee, Oklahoma, also one title bond held against John M. Maggard for three hundred ($300.00).
‘‘John Goodan.”
The certificate of deposit was subsequently surrendered and a new certificate of deposit issued by the Oklahoma bank to R. S. Goodan. At the same time he turned over the title bond, cash oil hand, and endorsed and delivered to R. S. Goodan the Strother note for '$3,000.00 with directions to pay $500.00 to F. W. Goodan, $500.00 to P. W. Goodan, $2,000.00 to T. L. Goodan and retain the balance for himself. Decedent gave as his .reason for so doing that he wanted to transact the business himself and to give his property to those whom he wanted to have it, and that he did not want any lawyers, or any trouble, or any will. R. S. Goodan distributed the property among the donees in accordance with the directions of the decedent. It further appears that the decedent parted with all dominion over the property and never
It is first insisted that the court should have sustained plaintiffs’ exceptions to certain portions of the depositions of R. S. Goodan and T. L. Goodan on the ground that they related to transactions had with, and to statements made by, John Goodan, who was then dead. It appears, however, that the exceptions were not acted on by the trial court. Under the uniform ruling of this court, an error in the admission of improper evidence by deposition is waived, unless an exception is saved and acted on by the trial court. Keeton, et al. v. Mahan, et al., 177 Ky. 85, 197 S. W. 519; Skidmore v. Harris, 157 Ky. 756, 164 S. W. 98.
To constitute a valid gift inter vivos, there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, and fully executed by a delivery of the property by the donor and acceptance thereof by the donee. Where future control over the property remains in the donor until his death, there is no valid gift inter vivos. Foxworth v. Adams, 136 Ky. 403, 124 S. W. 381, 27 L. R. A. (N. S.) 308; Reynolds v. Thompson, 161 Ky. 772, 171 S. W. 379. It is not insisted that the delivery of the property in question was not sufficient. There was an actual delivery of the bond, note and cash, and a constructive delivery of the cash on deposit in the Oklahoma bank. It is contended, however, that R. S. Goodan was the mere agent of the donor, and as the property was not to be distributed until the death of the donor, the gift, never went into immediate effect, nor was it accepted by the donees. In support of this contention, the cases of Duncan’s Admrs. v. Duncan, 5 Litt. 12; Walden’s Admrs. v. Dixon, 5 T. B. Mon. 170, and similar cases are relied on. In the first case, intestate delivered certain bonds to one Hanks, telling him to keep them until he called for them; that his wife and her children were wasting his estate; that he was afraid to keep the bonds in his house lest he should be robbed, and that if he did not call for the bonds, they were to be given, after his death, to his children by his first wife. The court held the gift invalid on the ground that Hanks was the mere agent of the donor, and it was the duty of Hanks to restore the bonds to the donor if he called for them. That being true, there was no delivery of the bonds to the donee. In the second case mentioned!
Judgment affirmed.