49 P. 838 | Cal. | 1897
This is an action brought. by the administrator of E. L. Cook, deceased, to recover personal property alleged to be the property of the estate, and which, if is charged, is wrongfully withheld by defendant. The answer denies that the property belongs to the estate, or that it belonged to the deceased at the time of her death, or that plaintiff is entitled to the possession thereof. Prom the evidence it appears that the property belonged to the deceased on the thirty-first of May, 1895, and that on that and the following day certain transactions were had which defendant claims constituted a gift of said property to bim, partly for his own use and partly in trust for others. Whether such was the effect of what was done is the question to be determined on this appeal. The findings and judgment were for the plaintiff, but subsequently a new trial was granted, and the plaintiff appeals from this order, claiming that the order cannot be sustained on any ground whatever.
It appears that Mrs. Cook had been a widow for about six years; that she was childless, and had an estate worth about $25,000, of which about $10,000 was personal property; and that she lived in her own house in Oakland, alone, except
Section 1147 of the Civil Code reads as follows: “A verbal gift is not valid unless the means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee.” By verbal gift is meant an oral gift—one which cannot be proven by any writing. Many different transfers are shown in this case, but all purport to be sales, or they are blank indorsements. Not one of them evidences a gift. That must be proven by oral evidence. The memorandum, though made in the presence of the al
There is no injurious error in any of the rulings at the trial against the defendant. . In most cases the rulings were plainly correct, and those that may be questioned were of no consequence. There was no necessity for a demand before bringing the suit. The defendant held the goods under a claim of title, and his intention to retain them as his own was clearly manifest, and in his answer he asserts his title and denies the right of the plaintiff. The answer itself shows that the possession of the defendant was adverse. The order granting a new trial is reversed.
¡We concur: McFarland, J.; Henshaw, J.