117 P. 889 | Mont. | 1911
delivered the opinion of the court.
John O’Neil died at Glendive, Dawson county, Montana, on September 22, 1908, at the age of sixty-eight years. He had neither wife nor children. He left a will dated August 12, 1908. designating the plaintiff, a brother, as his executor. By order
Some contention is made by counsel upon the question whether these actions are at law or. in equity, the appellant contending that they are in equity and hence that this court should examine
The statute defines a gift as a “transfer of personal property, made voluntarily, and without consideration.” (Rev. Codes, sec. 4635.) It defines a gift causa mortis, or one made in view of death, as follows: “A gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver.” (Sec. 4638.) To constitute a gift inter vivos, within the statute, the donor must voluntarily deliver the subject of the gift to the donee with the present intention to vest the legal title in the donee, who must accept it. The essential elements are therefore: the delivery, the accompanying intent, and acceptance by the donee. Such a gift is made without condition, and becomes
Counsel devote much of their argument to the question whether the evidence justifies the conclusion that the deceased was moved to make the gift of the certificates to his brother because, weakened as he was by his existing illness, he feared that he would die under the operation, or whether he was apprehensive that he would eventually die of his illness even though he might survive the operation. As we view the evidence, it is not of moment what his apprehension was. As appears from the instructions
Fridell testified: “John and James came down in the afternoon, and John says, ‘Order me a hack and look up my bill,’ and he paid his bill, $9.50, I think it was. * * * He said, ‘I hardly think I will pull through, but if I do I will be glad to
If these statements stood alone and were not impeached by direct contradiction or by circumstances, it might well be argued that the finding of the jury was contrary to the evidence, for there is nothing inherently improbable in them. But when they are weighed in the light of the circumstances as they existed, the character and disposition of the deceased, and the subsequent conduct of the defendant and his witness Fridell, the truth of them is open to serious question. John O’Neil, it appears, was very averse to contracting indebtedness and was habitually prompt in the payment of his obligations. There is some testimony that when he went to Rochester he had in his wallet several hundred dollars in currency, besides the certificates. What became of the currency it is not important now to inquire. When his nephew reached him in Rochester in response to his telegram, he was wholly without funds, and it was necessary for the nephew to obtain them from home to pay the hotel bill and railroad fare. The hospital and surgeon’s bills were left unpaid. If James O’Neil’s story is true, he accepted as a gift from his brother all the funds he had to bear his expenses and after a day or two returned to his home, leaving his brother in the hospital wholly destitute. He omitted even to thank his brother for his generosity. He did not return, though the evidence shows that about
Taking into consideration these circumstances, together with the fact that the defendant was an interested party, and, as appears from the evidence, further that Fridell exhibited a
If it was not the intention of deceased to make a gift, then as heretofore stated, it is not of moment to inquire what was the cause of his death.
The court entertained the view that the validity of defendant’s claim was to be determined according to the law of the state of Minnesota relating to gifts causa mortis and instructed the jury accordingly, having ascertained it from reported decisions of the supreme court of that state which were introduced in evidence by counsel for plaintiff. Error is assigned upon the action of the court in this behalf, counsel insisting that though the case is one in equity, the view of the court was fundamentally wrong because, since the gift could not become effective until the death of deceased, and since the death occurred in Montana, the validity of the gift would have to be determined by the law of this state. Counsel also insist that the court erred in admitting in evidence
The judgment and order are affirmed.
'Affirmed.