20 Ind. 185 | Ind. | 1863
The appellee, as guardian of one Oliver Rinker, a minor, sued Lucinda Rinker, alleging, in his complaint, that on January the 15th, 1859, one Silas Rinker executed to said Oliver two promissory notes, each for the payment of 200 dollars, and payable, one at twelve months, and the other at two years.
It is averred that the defendant wrongfully took said notes into her possession, and converted them to her own use, by delivering them to Silas Rinker, the maker thereof, in payment of a debt due from her to him, and that he, Silas, can-celled said notes by tearing his name therefrom; wherefore, &c.
The issues were submitted to the. Court, who found for the plaintiff 400 dollars, and having refused a new trial, rendered judgment, &e.
In the year 1849, one Joseph Hiatt died testate, leaving the present defendant, Lucinda Linker, then Lucinda Hiatt, his widow, and 'nine children, who were his heirs at law. The testator’s will appointed the defendant his executrix and guardian of the persons and estate of his children, and then provided that after the payment of debts, &c., all his real and personal property should remain in the hands of his wife, in trust, for the support and education. of said children, until the youngest child should arrive at the age of twenty-one; and that upon the arrival of all the children at that age, an equal division of whatever might remain unexpended for the purposes aforesaid was to be made amongst them, share and share alike, reserving to the widow all her rights given her by law. Immediately after the death of Hiatt, the defendant entered upon her duties as executrix, &c., under the will. She received personal property belonging to the estate worth 768 dollars, and, as executrix, paid debts to the amount of 234 dollars. Hiatt, at his death, left a farm of 160 acres, of which 90 acres were in cultivation. The executrix and her children, being also the children of Hiatt, remained on the farm until October, 1853, when she was married to one Levi Linker, and removed with him to his farm, taking with her five of the children of her former marriage, and a portion of the personal property on the farm at the time of her marriage. The value of this property is not proved. It consisted, however, of six head of cattle, four horses, and seventy head of partly fatted hogs. While on the farm left by her former husband, viz., on the 24th of April, 1852, the defendant purchased of one Thomas Neff eighty acres of land for the consideration of 1040 dollars, received of Neff a deed of conveyance, and paid him 640 dollai’s of the purchase-money. This payment was made prior to her marriage with Levi Linker — leaving the residue, 400 dollars, unpaid at the time of the marriage.
As has been seen, the present suit was instituted by the guardian of Oliver Rinker against the defendant to recover the amount of the notes. The Court, upon the above facts, found for the plaintiff, and the only question to settle is, Are they sufficient, in point of law, to sustain the finding ?
For a new trial the appellant assumes two grounds: 1. The Neff land,” having been purchased and paid for out of money and means derived from the estate of Hiatt, was held by the defendant in trust for his heirs, and she having sold the land thus purchased, became their trustee for the purchase-money, and could not, therefore, make a valid gift of any part of it. 2. Conceding that the property was not so held in trust, still the transaction of the execution and delivery of the notes was really no gift, but a mere attempt to make one.
The first ground is untenable. The facts, as we understand them,-do not allow the conclusion that defendant was the trustee of Hiatt’s heirs for the entire estate left b^ him at his death. Under the statutes in force when he died, as also by the provisions of his will, she was entitled to personal property worth 150 dollars, and, after payment of debts, &c., to one-third of the residue; and further, she was entitled to her dower in his real estate, and to occupy and use his mansion-house and messuage belonging to it, for the space of one
It may be fairly inferred from the evidence that her interest in the estate, over and above what she had herself received, was at least equal to the sum given by her to the plaintiff’s ward; that the gift was, in effect, the disposal of her own individual property, and that the heirs of Hiatt have, therefore, no right to complain. But suppose the defendant, in making the gift, really committed a breach of trust, she can not, in our judgment, set up such breach in bar of this action, because, having transferred the property as a valid gift, she has no right to question the title of her donee.
The second assumed ground remains to be considered. The notes, as we have seen, were executed to Oliver Rinker by the direction of the defendant, were given in consideration of real estate sold and conveyed, and were placed in the custody and keeping of his father, the donee, at the time, not being more than three years old. Do these transactions constitute a valid gift ?
It is essential to the validity of a gift, that the subject of it be delivered; “ the donor must part not only with the possession, but with the dominion, of the property.” 2 Kent’s Comm. 439. The delivery, however, need not be direct to the donee himself. If the thing given be delivered to another for his use, it will be sufficient, provided the effect of the transaction is to divest the donor of all title to the property. Stewart v. Weed, 11 Ind. 92; Sims v. Sims, 2 Ala. 117; Pope v. Randolph, -- 214; Grandiac v. Arden, 10 Johns’ E. 298. The exposition thus made is no doubt correct, and when applied to the gift in question, at once shows that it possessed all the essential requirements of an operative gift.
The notes were executed to the donee and placed in the hands of his father for his use, by the express direction and assent of the defendant, his mother, who owned the proper
The judgment is affirmed, with costs, and 5 per cent, damages.