44 A.2d 847 | Pa. Super. Ct. | 1945
Argued November 13, 1945. This appeal is from the decree of the court below sustaining an alleged gift inter vivos of a grandfather's clock. There is very little, if any, conflict in the evidence, which may be stated quite briefly.
The testatrix, Mrs. Susan Landis Reist, died June 16, 1941, leaving a will dated February 24, 1938, in which she directed that all her furniture and household goods be divided among her children in such manner as they may agree. She was survived by her husband, Linn R. Reist, and three children, to wit, the claimant Linnaeus Landis Reist, John L. Reist and Anna Reist Baird. Her sons were named, and qualified, as executors. They filed an inventory and appraisement dated August 9, 1941, listing the household goods valued at $525.00, and included the grandfather's clock in question, which was valued at $225.00. Linnaeus Landis Reist thereafter discovered in the drawer of a mahogany desk ten codicils, one of which bequeathed the desk to him. These codicils were admitted to probate April 18, 1942. They gave a *283 portion of the testatrix's personal property to her children and grandchildren; none of them included the clock in question. In the same drawer where the codicils were lodged, claimant found a writing consisting of two paper labels pasted on a blank sheet of an old bankbook. It is upon this bit of evidence that he mainly relies to establish the alleged gift. The first of the labels, written by decedent except for five typewritten words, reads as follows: "My grand-father clock. This is the property of Linnaeus Landis Reist Sr. you shall give this clock to (Signed) Susan Landis Reist." (Italics typewritten.) The second label, pasted a short distance below the first, was entirely in decedent's handwriting and read as follows: "Linnaeus Landis Reist Sr. shall give this clock to Linnaeus Landis Reist Jr. when he is thirty-five years old (Signed) Susan Landis Reist." The writing was dated "October 17, 1934," about four years prior to the date of her will.
Claimant testified that as executor he caused the clock to be included in the inventory and appraisement of his mother's estate as he was then an employe of the Department of Revenue, Inheritance Tax Division, and did not want to be criticized for not listing it for tax purposes. Testimony was received over objection showing that at the time of the appraisement the father made the bare statement that the clock belonged to the claimant. We are assuming that his declarations were competent and admissible: In re Sadowski's Estate,
The pivotal question before us is: Was the evidence sufficient to support the finding of a gift?
An essential element required to be proved in support of a gift inter vivos is an unmistakable intention of the owner to give, to divest himself of title and possession and give dominion over the property to the donee. The evidence "`must show unequivocally an intention to invest the donee with the right of disposition beyond the recall of the donor . . .'": Leadenham's Estate,
Here it was shown only that actual delivery was impractical; standing alone this is not sufficient. There can be no doubt that the testratrix retained such possession over the clock that she could have sold, or otherwise disposed of, it at any time until her death. No one could have questioned her action by producing proof of ownership. "`Though every other step be taken that is essential to the validity of a gift, if there is no delivery, the gift must fail. Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite, without which the gift fails, regardless of consequence:' Thornton on Gifts, etc., p. 105." Clapper v. Frederick,
The lower court obviously felt that Sherman v. Stoner,
If the quantity and quality of the evidence support the court's finding, we are bound thereby: Gongaware's Estate,
In Pyewell's Estate, supra, Mrs. Pyewell made actual delivery of certain jewelry and securities to her niece, Mrs. Duffey. Evidence of a past gift was produced by the testimony of Mrs. Pyewell's attorney and by a formal bill of sale confirming the prior gifts. In Chapple's Estate, supra, the father delivered the stock to his son in the presence of the donee's sister and another witness. The donee then handed the stock to his sister to return to her safety deposit box where the certificates had been before the father made the delivery.
We are aware that less evidence is required to establish a gift from a parent to a child, but even with that relationship in mind we think the evidence fails to meet the legal test. The case in hand resembles in some of its features Clapper v. Frederick,
supra, and Ashman's *287 Estate,
In our opinion claimant has failed to establish the essential elements of a valid gift inter vivos. For these reasons, the decree must be reversed, the clock to remain as part of the decedent's estate and be distributed in accordance with the terms of her will.
Decree of the court below is reversed at appellee's costs.