*1 297 objections they court, made at the trial nor time properly presented been Court consideration. appellant preju- One of these contentions is that was prior diced reason of the introduction of a sex offense of years previously. which he was convicted some is contended It incompetent alleged this evidence is because it is to be remote.
In (1964), 98, LaMar State v. 245 195 Ind. N. E. 2d prior we held that competent. evidence of sex offenses was question weight given as to the to be such evidence may jury. bearing one for the Remoteness have some upon weight jury might give which the desire to such However, evidence. the evidence itself is admissible for weight jury might give such desire to it. As this Court (1950), stated in 80, 104, Watts v. State 229 Ind. 95 2d N. E. 570, 580: “The fact that the crimes under the circumstances cov- period years ered a from prior six months to three appellant charged crime with which the render does not only the evidence inadmissible. Remoteness of time would go weight evidence, and not to the admissibil-
ity Booher (1926), 315, 321, of it. v. State Ind. E. 497.”. N. judgment stated,
For the reasons court is the trial affirmed.
Hunter, Mote, J., C. J. and concur. J.,
Jackson, concurs result.
Note.—Reported in 227 2d N. E. 171. Copeland. Burke, Ex. of the Estate of Grace
Lewis v. 31,175. May 16, Rehearing June Filed denied 1967.] [No. 1967. *2 Denmure, Aurora, Kartell Justice, and Robert S. Logansport, appellant. for Callis,
Chester Yevay, Cooper, Cooper, Cooper R. Cox, & Madison, Spencer, Indianapolis, Frank E. appellee. transfer, C. J. case to us comes on from
Arterburn, Appellate (See Court. 2d 186 for N. E. Appellate Court.) petition granted. to transfer is now *3 appeal
This is an from petition appellant denial against the estate Grace Copeland, deceased, L. in which appellant ownership goods the claims of household and furn- ishings located in the in Vevay, decedent’s home The Indiana. alleged gift claim is made virtue of an the decedent made prior to her death. appellee petition first contends that the filed for re
covery specific property proper the not in was form since petition comply (Burns’ the not did with the Probate Code Ind. Repl.]) Stat. Anno. 7-802 under which an affi [1953 § required stating davit setoffs, there no credits or deductions to Appellee which the estate is entitled. no cites support authorities to Admittedly, such a contention. the petition personal property for this not was filed Burns’ under (1953 Repl.) Ind. State. Anno. claim, 7-802 as a but rather § 1953, 112, p. being under Acts ch. Burns’ Ind. § (1953 provides Repl.), Stat. Anno. 7-821 which as follows: § any any property person in in “When claims interest possession personal representative the adverse the may file, prior (6) months expiration the estate six he creditors, published first notice to after the date of the petition having jurisdiction estate set- thereupon the court with concerning ting the facts such interest out given parties to such cause such notice to court shall trial proper be set for the case shall as it deems ordinary actions.” in civil tried as provision Code, under the Probate This a new provide provision remedy purpose was obvious this personal property specific persons claimed who those happened in to be of the decedent time of the decedent’s death. Under law at the remedy Code, merely a prior to the normal was the Probate money property. paid value of claim be always adequate particularly remedy, if the estate an was specific property or the desired the insolvent owner was peculiar section property of its value. The new because the Pro Repl.]) of (Burns’ Stat. Anno. Ind. [1953 § 7-821 remedy against provides an estate one bate the same Code against replevin individual, might in an an action recovery personal property. specific therefore namely, We appellee. agree the contention of the cannot with appellee The brief of the states: agreement Appellee Appellant is in as to “The facing case, question the Court the fundamental this decedent, Copeland, L. Grace made which is whether goods George complete of her household inter vivos Appellant, May 9, her letter of Lewis, 1957.” C. point primary question up this take at therefore We decedent, Grace L. appears from the evidence case. It *4 Hillis, Logansport, office of Hillis & Copeland, law went attorneys, prepared and Indiana, under the advice and following witnesses, signed presence letter : of two & “HILLIS HILLIS Attorneys at Law and Fourth North Sts. Logansport, Indiana May 9, 1957 “George Lewis C. Twenty-sixth 203 Logansport, Street
Indiana
My George dear : writing you my promises I am confirm this letter you furnish- and statements heretofore made to about the Vevay ings in I am contents in now and of the home living past. forty years in the have lived odd and where I for furnishings my all home are the contents of These yours, and great you get pleasure enjoy- and I know will and ment of them. out many your like and There really that will will are items wife many enjoy appreciate. I these fine want Elva to So my items that are home. Right helping my you your time me and wife are now my pleasure me to life know need—and will be George that now know time things it is and Elva who that great gave Copeland in his to Dr. satisfaction many years, yours and that so time, to me for life you many my enjoy articles live in home and can folks enjoyed. I Doctor and yours take them you items are now So all these you want to. whenever my love best all wishes. With Copeland Grace L. /s/ WITNESS: Marylin Wikle /s/ /s/ Jennifer Wallace” appeared at the letter instrument
Both witnesses authenticity. further The evidence to its and testified trial Indiana, Copeland Vevay, Mr. lived in while that Mrs. shows state, part most of the in the northern Lewis lived in her home furnishings for a house remained and contents years approximately three later. her until death *5 prior The that, evidence shows at or of time Mrs. Copeland’s George death, Lewis, appellant, posses C. had May 9,1957.
sion of the letter and instrument of There no Copeland, decedent, evidence Mrs. or her attorneys retained of such letter. Pos gift, session of the deed of or a deed in real the case of estate presumption acceptance raises a of of the same. Klingaman (1940), 695, 25 Burch v. E. 2d 996. Ind. N. tangible
The main contention of the estate is that a of personal property cannot be made or written instrument gift; deed personal of property, symboli- cally regardless totally, place any or must take written insrument.
Historically, days people write, in the when few could for physical mal presence cerémonies and acts in the of witnesses given legal significance. Delivery were personal property making was one form of or of trans fering estate, title. This true in was the case of real livery necessary ownership seisin was to transfer people real writing estate. As became more be literate common, came more deeds and replaced written instruments largely physical these ceremonies and were found to be more demonstrating parties reliable the intentions of the transferring early days reference to people title. In those re genuine on lied seals to make a written instrument and au thentic. early Sealed instruments were inviolate in so law that writing once a seal was attached to a it was held that not even, forgery fraud could be shown to avoid its effective parties. ness. seal was conclusive of the intent of Since people literate, have more become has im seal lost its mutability, writing expression but the execution of a as highest parties importance is still intentions necessity law. In Indiana have we eliminated the of a seal on give a written instrument an it elevated an unusual position credibility. being p. 240, Burns’ (Spec. Sess.),
Acts 1881 Ch. § Repl.) provides: (1946 Anno. 2-1601 Ind. Stat. § sealed in evidence between “There be no difference shall every writing writings; not sealed shall and unsealed have if sealed. force and that would the same effect conveyances estate, or writing seal, except real A under changed, therefore, or al- therein, may, interest agree- writing An together under discharged, seal. compromise writing or settle- without a seal ment obligatory affixed.” if a seal is as were of a debt ment *6 therefore, letter this statute, us under the In the case before effecting by attorneys purpose a valid prepared for the of legally significance a gift if it were has the same gift by deed words, a instrument. In other is sealed prop physical personal of other under seal instrument the instru erty letter and Indiana? This valid in the State purporting present tense, to divest question in ment in are the gift immediately. causa It is not a the owner title effective testamentary character, effect to take in mortis or a although in the case of will. witnesses, as future, it has two only present. the as an act in We can consider it only urged requiring physical an It is law actual safeguard against impulsive delivery promises. fraud or is a particularly reasoning, unable to such follow where a We goes and after consultation party into a law office with attor- question case, prepares in in in neys, the instrument this appears presence To us the action of two witnesses. prevent question case is one to of fraud. On taken physical property, hand, the other by testimony explained after oral witnesses must be individual, opens possibilities the door to of an more death present instrument case. the written than does argument distinguish attempt been made in the has Some by property sale, personal bills of title transfers way intangible by personal property and trusts done made of instrument, from the facts in the case before us. of a written making any en- no reason for If those see distinction. We gaged found in business and commercial transactions have convey physical written instruments sufficient to title without desiring delivery why persons possession, we see no reason deprived same a benefits of the make should principle of law. universally recognized jurisdictions
It is almost in all under Anglo-American may give person physical personal a law that property expressing means a written instrument present immediately. intent to make transfer of title may delivery personal property if, done without at time, gift, written instrument or deed of as it some- is called, times is delivered donee. uniformly vivos or held that inter is almost “It by writing delivery, may mortis be effected without causa writing is a or instrument under seal.” deed where the (1939). Gifts, Jur.,
Am. § 33 writing executed is evidenced “Where delivery writing a sufficient donor, Gifts, (1943). gift.” C.J.S., 22b support the § gift by universally instrument held that a “It is almost property, good writing the instrument without is under seal.” 63 A.L.R. is a deed or 540. *7 R. 2d states: L.
A later annotation A. de- that no support rule appear cases “The later necessary to a security tangible is livery or chattel of a formally evidenced gift executed and is thereof seal, under instrument or other deed and delivered instru- the written appears true where to be the same formally seal, although is under upon, not relied ment executed 48 property.” of the assignment of sale or bill 1405, 1407. 2d A.L.R. recognized rule: this
Indiana has (1940), Bank Co. & Tr. Tr. v. Elston Co. In Crawfordsville 626, 637, it is stated: 625, 2d 25 N. E. 216 Ind. physical delivery object “. . . Actual of the of the required. delivery may actual, be either construc- symbolical. recognized Wilson, tive or that such supra, Richards v. gift might delivery.” be made a deed without (Our italics) therefore We conclude that law Indiana is such that tangible intangible or per transfer of title as well may property (or
sonal be made written instrument stating may gift) present deed of intent. This be physical property done without at time, if the written instrument is delivered.
Some contention has been made in case that there was evidence that pay decedent-donor continued to taxes on personal property following the execution of the
written gift, instrument of and there was other evi property dence that remained in the decedent, appellee which the contends inconsistent with an part intent on gift. of the donor to make the refer With evidence, ence such items of we must state that the admis sion or consideration of the same violates the well known principle parol evidence rule. Parole evidence or other evidence extrinsic to a written instrument is not admissible purpose altering, modifying changing its mean ing, terms or appears conditions. If a written instrument complete on executed, its face and pre there is a conclusive sumption (a rule of law) substantive it is the ultimate maker, intention of may and its terms or conditions not be changed by parol varied or coming or extrinsic evidence de Only hors fraud, the instrument. mistake and like matters going validity may of its execution if considered put in In issue. Matter Estate Harvey, etc. v. Huffer App. (1955), 784; I.L.E., Ind. 126 N. E. 2d Evi (1959). dence 181§ appeal Appellate from is transferred Court to the
Supreme Court. *8 judgment reversed, of the trial court is with directions judgment appellant. enter
Myers, J., concurs. concurring: “Although Hunter, J., Ap- I concurred in the pellate opinion, upon Court a careful reconsideration I believe Judge opinion.” in law should be as stated Arterburn’s J., opinion. dissents with
Mote, participating. Jackson, J., not
Dissenting Opinion. claiming pride authorship unjust Without in the Mote, J. opinion Court, Appellate Second Division N. E. 2d all members con Division curred, respectfully I must to the transfer of this dissent to this cause reversal Court and thereof. opinion Appellate clearly Court’s I believe
While case, perhaps amiss it would in the the law states concerning my under- remarks additional were I make Indiana; standing prevails also, to gifts, it the law majority opinion; in the upon contained the theories comment upon applica- my clarify well as comment views as and to by majority. upon bility and relied cited of the authorities authority every in Indiana each and facts in As I consider the Arter- uphold reached Justice the conclusion Chief cited to similarity of them my burn, there is no view that it bar; also, my if at view in the case to the facts by Judge Arter- applied, authorities cited properly the Indiana Appel- actually support and decision burn late Court. recognize exceptions irrevo- today two courts
Some vivos, these inter theory case of cable delivery, such as that evidenced being (1) constructive (2) key only to a locked chest yielding possession of the passing absolute an instrument symbol, objects. title to the law, At common there were but three *9 transferring methods of sale, required title: the which con- ; testament, required sideration statutory the a instru- testandi; gift ment with an animus and a inter . vivos or required causa delivery mortis, which absolute in the of case upon inter vivos or subsequent a condition in the case mortis, coupled causa both with an animus donandi. From the us, however, record before upon part comments of which will subsequent have our herein, any attention if there should be possible question on the exceptions, above referred to in two number, by decision of court, the trial sustained sub- stantial evidence on the treatment of the letter indicates validity finding judgment, such and and in effect forecloses any consideration of exceptions either of the two above. majority opinion
The Klingaman cites (1939), v. Burch 216 Ind. support 25 N. E. 2d the statement that “possession of the gift, deed of or a in deed the case of real estate presumption acceptance a delivery raises and same.” bar,
In the writing case at there awas or letter which would serve deed, acceptance the function similar to a but since and delivery missing fact, presumption as a cannot be enjoyed. quotation
When above context, is considered in dowe support not find for the Appellant, contentions nor can adversely we conceive that such statement can affect law gifts, prevail jurisdiction. we as understand it to in our majority opinion states: “The main contention of the tangible (appellee) personal property estate is that a cannot gift; be made a written instrument or deed of delivery personal symbolically property, totally, or regardless place must take written I instrument.” do not Estate, understand this to be main contention of the Appellee my Contrariwise, understanding herein. it is completed gift the written instrument to be effective inter vivos, acceptance not con- must obtain. We do expressing as means of demn the written instrument alleged may ex- donor. Such intention intention instruments, by many pressed many ways, of written in forms parol. Currently way in such a or we have mind even vivos, inter involved, complete but to letter as here acceptance by necessary. The au- the donee is jurisdiction the intention to our hold that with thorities praesenti, intention make evidence of first must orally shown, writing, thereafter the donor either possession, part must dominion and control over intangibles. tangibles Expressed corpus, does intention say gift. complete alone we have to not serve What respect real because does concern estate our Statutes requirements for a valid deed. set forth the *10 dispute no con- there is The record herein discloses that cerning tangible personal property than was other that which control, dominion, of the and under the and bequeathed by property was will she testatrix when died. Appellant; other it was inventoried than of decedent to alleged by the estate; property to be and such was owned her gift her letter of and before death testatrix after the guardian appointment for by Appellant of a petition for her. opinion majority discusses the advance of education
The writings coming general to into use of evidence and personal. ownership real property both and transfer general quoted digests which announce are cited Several applicability to gifts, but law of their of the theories distinguish least, appears, to to me at of facts statements language the decisions and in relation to when considered able subject is jurisdiction on the of what of this the courts inter gift, support In of the vivos. necessary complete “Indiana digest majority stated that opinion, it is cited rule,” of the deed recognized “Possession has. .to-wit: 309 gift, or presumption a deed in the case of real estate raises a acceptance of the same.” Tr. v. Crawfordsville Elston (1940) 626, Bank & Tr. 596, Co. 216 Ind. 25 N. 2dE. following quote: cited physical delivery “. . object . Actual required. delivery may actual, either construc- symbolical. recognized Wilson, supra,
tive or that such Richards v. gift might delivery.” be made deed without quotation Neither support nor the citation conclusion reached; fact, they as a matter of considered in context both support this dissent.
A careful examination of the case of Richards v. Wilson (1916) Ind. N. E. discloses consider- ing a charitable there involved, this Court stated: “A more liberal charity, rule obtains as to for trusts charity equity, are favored and are to be construed possible as upheld valid when private and are often trusts tions, upon fail. . . . look Courts with favor all such dona- carry effect, endeavor them into if it can be consistently done with the rules of If law. the words of ambiguous they contradictory, are construed .so charity support possible.” if Perry ed.) (6th on Trusts 709 is cited and the § continues: liberality equity carry “And into effect a chari- purpose applicable particularly once it table to beneficiary is discovered is acceptance, things, for, in the nature of unborn, actually receive unknown and cannot *11 gift.” proposed
the careful examination of noted from a the facts It will be large Wilson, supra, number of that a donors or Richards v. quite substantial, contributors, them subscribed to a some of institu- of fund to establish an educational or trustees fund of the first institution established There a failure was tion. sought part return of such of the contributors the and some 3Í0 acquired through
of their contributions after a sale of assets
parted
posses-
had
the
The contributors
with
contributions.
sion, dominion and control to trustees
the
and
contributions
gift.
authority
upheld
completed
sup-
were
as a
does not
**
majority
port
the
herein.
Returning
the
of
Tr. Co.
Elston
to
case
Crawfordsville
v.
referring
quote therefrom,
supra,
Co.,
Bank & Tr.
to the
understanding
out, for an
Court’s then ex
above set
necessary
pressed
subject,
view on the
it is
to read further
clarify
opinion,
thus to
matter. This Court said:
requiring delivery
reason
is that actual
“The
possession
thing given
and,
the donor
takes the
out
beyond
power
places
his
therefore,
revocation. A
assignment,
here,
makes
written
such as we
which
present
personal property
which is in the
assignment
as
person,
a third
to
which
delivered
of
signee
given
possession,
and notice thereof
one
re
completed
cannot
which the donor
makes a valid
voke. Such a written
of
place
assignment,
therefore,
takes
App. 487,
delivery.
Ex’r, Watkins,
Ross,
1923, 80 Ind.
v.
presented
different case is
It possible, think, symbol- we applied personalty ism could be to the such as in the large nearly of a volume of or identical identical items perhaps such as a warehouse filled with or fruit steel handing grantor gran- manner of feudal seizin in tee an But, majority emblem of the states, soil. as the better ways conveyance education, through been discovered reading writing and and the advancement of civilization.
We cannot subscribe to view that a written instrument estate, such as a deed real form of execution prescribed by statute, perform can and does serve to respect per- same or even similar function with sonalty. imply, however, does that a written instru- you ment, may, call not available cannot what employed express point is that the will a donor. except instrument, use of such written in the limited manner suggested, coupled proof symbolic above or emblema- possession, tic title sufficient investment of can will be praesenti. v. to constitute a Tr. Co. Crawfordsville Co., supra; Ross, supra; Ex’r. v. Watkins, Elston Bank & Tr. carefully supra, also, v. Wilson, think Richards we when especially considered, repetitiously and for em- wherein phasis it is said this Court: requiring delivery “The reason for is that actual thing and; given takes the out of of the donor
therefore, places beyond power revocation.” it the of his Again: assignment (as bar) “A written in the case at such as we here, present gift personal property makes which of assign- possession which is in the person, of a third which assignee given to the
ment is delivered and notice thereof possession, completed to valid the one in makes a cannot revoke.” the donor Again: presented makes “A is delivers the an different case owner agent assignment who on, even an his order or to agent gift. completes an to take an essen- the If fails never stopped of step, if the owner short it the same as
tial completion and, course, makes the invalid.” of impress language us only quoted this Court the of does Not being view, con- amply our but when sufficient to sustain as light further in the of the stated, and sidered, as above alleged donor, testatrix, continued the the facts that additional objects possession of of to retain the her death the time of will; in her bequeathed the same alleged gift; that she appointment petition of alleged for the in the Appellant that alleged she, men- the latter donor that guardian for the alleged gift, objects of then the owner tioned, was overwhelming. Thus would appears rather result gift, the complete a an intent ever were if there that seem alleged vivos donor inter said taken subsequent actions And to revocation. amounted to have be said properly could requirement for for the reasons potent and relevant one revocation can- that assure dispossession and for place. expressed circumtances, take In the or intent long personalty may offer to make be revoked so as alleged power donor has it within his revoke. Such right yielding of revocation ends con- with trol, by personally, or not an donee to one agent donor, with instructions to transfer. my deep majority opinion wholly
It is conviction that departs gifts jurisdic- from established in our law ; tion that the decision even said cannot be clothed changing necessity thought with the stream alleged my modernization of outmoded It is further view laws. guard that pronouncements of the courts should zeal the wrought through time, law which have been crucibles application and need. suggestion even a
Without there is other than highest purpose part point on Appellant, I must out open perpetration, the door will near now for perpetration, I of fraud in the matter inter vivos. myself entirely expressions wish to disassociate from the *14 guides. which will be used as future my
In
opinion, transfer
should have been denied.
Note.—Reported in
Thornburg et al. v. et Martin al. 31,144. Filed
[No. June 1967.]