132 Ky. 376 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.'
J. C. Kelley died intestate in December, 1906, a
The testator was a bachelor 78 years old at his death. He had no own brothers and sisters, but four half-brothers and a sister, the children of his father by a second marriage. By his will, which he made in the year 1892, he devised his whole estate to these brothers and the sister. He had at his death an estate •consisting of land worth about $10,000, and notes and personal property, including the $8,000 ip controversy, amounting to $10,000 or $11,000.'
The proof for Stark is briefly as follows: D. W, Wright, who was his attorney and had written his will, testified that in February or March, 1906, Kelley was talking to him about his estate, and asked him whether he could make a gift of his notes, and whether the delivery of his notes to a person he wanted to have them would be good. Wright told him that it would be. Dr. A. O. Wright, who was his physician and old friend, testified that in March, 1906, he received a message through J. W. Stark that Kelley wanted to see him; and he and Stark went to Kelley’s house in a buggy. After they had taken dinner, Kelley went to his desk, got his pocketbook, sat down between them, and commenced taking out some notes, and handing them to Stark to read and approximate the interest. ■ Stark would take up a note and examine it, and Kelley would take another. They kept on in
“The proof for the devisees is briefly as follows: On May 29th Stark’s son borrowed of Kelley $3,000, and J. W. Stark signed the note as his surety. This $3,000 was checked out of bank by J. C. Kelley. The note was payable 12 months after date, and is one of the notes now claimed by Stark. On August 20, 1906, Stark collected from E. D. Thomas the amount of one of the notes handed to him by Kelley, and made this indorsement on it: “Paid to me for J. C. Kelley and deposited to his credit.” He made a similar indorsement on the same day upon a note executed by Crit Smith. Another of the notes claimed by Stark is one for $1,400, dated February 29, 1904, given by his son with Stark as surety. On the back of this note is this indorsement: “Paid in check $84.60 this Mjarch 26, 1906.” On June 6, 1906, Stark collected on one of the notes handed to him $219.50 in a check which he yyrote himself, and which was made payable to J. O. Kelley. Another note included in those handed to him when Dr. Wright was present was collected by Stark the following summer, and the money was handed by him to Kelley, who in his presence paid it over to Dr. Wright on his doctor’s bill. The other sums collected by Stark on the'notes were all deposited to Kelley’s account in the bank, and Kelley continued to draw checks upon the account as long as he lived, leaving a moderate balance to his credit at his death. When Stark did not include these notes in his' appraisement, there was a hearing before the county court, and on that hearing Stark was asked to explain why, if these notes had been given to him, he de
We have no doubt of the truthfulness of Dr. Wright’s testimony, and we are satisfied that every fact that he states occurred as he states it. We are also satisfied that J. C. Kelley intended that Stark should have the notes or so much of them as were- left at his death; but the evidence leaves no room for doubt that Kelley actually controlled the funds as, long as he lived. While what occurred in Dr. Wright’s presence would be sufficient-to show a gift if h stood alone, that conversation must be taken in connection with other conversations between the two parties and their subsequent conduct when we come to de
To constitute a gift inter vivos, the property must be delivered absolutely, and the gift must go into immediate effect. Where future control over the property remains in the donor until his death, there is no valid gift inter vivos. 20 Cyc. 1211; 14 Am. & Eng. Encyc. of Law, 1015; 4 Words and Phrases, 3092. In Duncan v. Duncan, 5 Litt. 12, this court said: “It is perfectly clear that the court below was mistaken in supposing that the transaction in ■ this case amounted to a valid gift inter vivos. To the validity of such a gift it is essential that there should be a delivery to the donee, and that the property of the thing given should immediately pass and be irrevocable the donor.” In Knott’r Adm’r v. Hogan, 4, Metc. 100, the court again said: “In relation to the various requisites of a valid gift, a vast amount of obstruse learning is to be found in the decisions of the courts, English and American, upon this subject. And, conflicting as those opinions are upon most other points, it seems to be agreed, on all hands, that it is essential
But it is insisted that the gift may be sustained as a gift causa mortis. A gift causa mortis exists where property is given by the donor in his last sickness, or in other imminent peril. It takes effect only in the event of his death by the existing disorder or peril. The answer in this case does not plead any facts to show a gift causa mortis. In a gift causa mortis the gift becomes absolute at the death of the donor, and not,before. It is revocable by him at any time during life. The answer alleges simply that the decedent several months prior to his death gave the notes to the defendant, and then and there delivered them into his hands as an absolute gift which he then and there accepted. The allegations of the pleading exclude the idea of a gift causa mortis. Not only so, but the proof is insufficient to show a gift causa mortis. When Dr. Wright and Stark were there in March, Kelley was up and going about the house. He had no physician. He did not need Dr. Wright as a physician. His mind was as clear as a bell. In April be had an attack of pneumonia, but after he recovered from that in May he went off to the springs, and during the summer and fall after his return from the springs he attended to his business as usual. In the ease of Duncan v. Duncan above referred to, the court, after showing that the'transaction then before the court could not be sustained as a gift causa mortis, said: “The transaction has, however, a still greater analogy to a nuncupative will than it has to either a gift inter vivos or a donatio mortis causa. It was undoubtedly the intention of the intestate that the property of the bonds in question should at his death be vested in the defendants, and this intention seems
The conclusion we have reached on the merits of the controversy makes it unnecessary for us to consider what notes were handed by the testator to Stark, or to pass on the question whether Dr. Wright's testimony, taken as a whole, is sufficient to show that all the notes in controversy were handed 'to Stark by the testator. The testimony on Stark’s behalf would warrant a judgment in -his favor, but for his own frank admission that he held the notes for the testator because of other conversations between them when Dr. Wright was not present.
Judgment affirmed.