274 Pa. 329 | Pa. | 1922
Opinion by
Plaintiff, as executor of Christian Huber, brought an action of assumpsit and detinue against the decedent’s son, John Huber, and his wife, to recover the value of certain property alleged to be a part of the assets of the father’s estate. It may be noted preliminarily that all of the claims were abandoned with the exception of a demand for $600 in U. S. Liberty Bonds transferred to John on April 16, 1919, and $2,626.75, turned over in cash to the daughter-in-law on July 16,1919. The statement filed averred the property in question whs in the possession of decedent on the dates mentioned, and it was handed to defendants for safe-keeping, because of his age and feeble health, but no specific allegation of wrongful conduct inducing this action appears. By way of defense, a voluntary gift was asserted.
On the trial, plaintiff rested after offering portions of the pleadings showing title to the property at one time
The testimony indicated a voluntary transfer of the bonds to the son, and the money to his wife, without words showing an intention to limit the right's of either in the ownership. In view of the family ties of the parties, one a son, and the other a daughter-in-law, with both of whom he resided, this act was a sufficient indication of an intention to make a gift, and, by so proving, the defendants met the preliminary burden cast upon them in such cases, though the question still remained one for the jury, resting as it did on parol: Second Nat. Bank v. Hoffman, 229 Pa. 429; Brown v. Judge, 77 Pa. Superior Court 106. The principles controlling have been recently set forth by this court (Yeager’s Estate, 273 Pa. 359), and a repetition of what is there said is needless. Having shown an unqualified transfer of possession, the burden then shifted to the plaintiff to establish a delivery of the property upon some condition or trust, as averred in the statement of claim: Crosetti’s Estate, 211 Pa. 490; Robinson v. Powell, 210 Pa. 232. This was not met by any testimony produced.
One of the defendant's in the present case was the son, and the rules stated clearly apply to him. The same we think is true as to his wife, who received the money. Both lived with the father in the same house as one family, and, though not a daughter in fact, she was in law. The like presumption of fairness has been raised where other relations were concerned, such as husband and wife (Crosetti’s Estate, supra), or a sister (Funston v. Twining, 202 Pa. 88); and, in other jurisdictions, in case of adopted children (Sears v. Vaughn, 230 Ill. 572, 82 N. E. 881; Stanfill v. Johnson, 159 Ala. 546, 49 So. 223), or a son-in-law: Beanland v. Bradley, 2 Smale & G. 339. See 29 Cyc 1660. This court said in the case of a housekeeper (Worrall’s App., 110 Pa. 349, 364) : “There is nothing in the relation of parent and child, or other near relation, to preclude one from accepting a benefit from the other in the shape of a gift, or of a contract upon more advantageous terms than would have been granted to a stranger, and the fact that such a gift has been conferred, or contract made, will not warrant an inference that it has been procured by undue influence.” “ [When ] gained by kindness and affection [it] will not be re
The legal principles having been stated, it remains to determine whether they were properly applied in the instructions given to the jury by the learned court below. It affirmed the first point of plaintiff (second assignment of error), which reads as follows: “The burden of proving that a gift was made is upon the one who alleges it, and if the relations between the donor and donee are such that because of weakness, dependence or trust justifiably imposed, unfair advantage is rendered probable, the transaction is presumed void and the burden of proof is upon the donee to show that all was fair, open, voluntary and well understood.” This language is taken from Stepp v. Frampton, 179 Pa. 284, 289, quoting in part Beach on Equity, omitting however, the important opening sentence, showing when the rule stated should be enforced. It is: “But when the relations existing between the contracting parties appear to be of such a character as to render it certain that they do not1 deal on equal terms,” the burden is upon the claimant to show the fairness of the transaction, and it was properly so held in that case, where the assignment of mortgages had been obtained by a stranger from an aged and mentally infirm man. Here, as already noted, no such duty as to proof rests upon the donee by reason of the relationship existing. The error pointed out could not fail to' prejudice the defendants, and makes necessary a retrial.
It is urged, however, that this assignment cannot be considered in view of the record presented. Defendants excepted to the affirmance of the point, but did not ask that the charge be filed of record. This was done by the plaintiff, however, and thus the entire instructions, including points answered, were put in position for review. It is true an exception by the one who complains of a ruling must always appear, — it does in this case, — and a request must be made that the charge
The judgment is reversed and a venire facias de novo awarded.