Wright v. SangerWright v. Sanger
The complainants are residuary legatees of the aforesaid decedent. The defendant is a co-executor with the complainant John P. Wright of the decedent‘s last will and testament. She claims ownership of the bonds in question as her individual property and bases her right thereto on a gift inter vivos. Her counsel urges: “We contend that the transaction was a gift inter vivos, and that all the circumstances point to the intention of the decedent to make these bonds an absolute gift to Mrs. Sanger without any restriction or limitation.”
It appears from the deposition of the defendant, given in inheritance tax proceedings (which by stipulation was received in evidence in this cause as Exhibit D. 3), that the bonds in question came to the defendant‘s possession several years prior to the death of the decedent, under circumstances which, in my opinion, disprove her claim that it was the intention of the decedent to make an absolute gift thereof to her without any restriction or limitation.
Robert Wright, at the time of his death, January 9th, 1924, was seventy-four years of age and possessed of considerable financial means. By paragraphs 2, 3, 4 and 5 of
The decedent for a number of years prior to his death was a confirmed invalid. John P. Wright testified that “for eight years prior to his death — eight or nine years — he was a confirmed invalid, not bedridden, but suffering from Bright‘s disease and heart trouble, and he had had a stroke.” The defendant (in her deposition aforesaid), in reply to a question as to whether decedent was an invalid during the last ten years of his life, said, “Yes, I would say he was a semi-invalid, couldn‘t attend to his business.”
The proofs disclose that a confidential relation existed between the defendant and the decedent for a period of over twenty years preceding his death. She resided with him in his home, acting as housekeeper, and attending to considerable of his business affairs, for a considerable period of time prior to his death. The decedent furnished to the defendant the moneys necessary to maintain the home. The defendant was aware of the provision made for her by the decedent‘s last will and testament. In her aforesaid deposition she declared that several years before the decedent‘s death he manifested concern as to what would happen to her if he was put in a sanitarium, and was fearful that in such event she would have no income with which to support herself. She says a conference was arranged with Lawyer Charles Lighthipe, to whom, in her presence, decedent made known his fear that the Bright‘s disease from which he suffered was liable to result in his insanity and might necessitate his being put away in an institution. She says the decedent told Mr. Lighthipe what he thought he wanted to do, if anything happened to him, in order to
Mr. Lighthipe, in a deposition made by him in the inheritance tax proceedings aforesaid (which, by stipulation, was received in evidence in this cause as Exhibit D. 4), says the decedent told him on the occasion of the conference first above mentioned, that the doctor informed him he had Bright‘s disease and it was liable to result in insanity, which would necessitate his being put away in an institution; that he had been told that a person with that disease
Mr. Lighthipe denied drawing a will for the defendant on the day the bonds were delivered to her, thus refuting the statement of the defendant in this regard. His attention having been called to the defendant‘s statement that her will was drawn up by him on the day of the delivery of the bonds to her by the decedent, he said, “Her will — well, Mrs. Sanger is wrong.”
The testimony of the defendant and of Mr. Lighthipe as to what transpired in the latter‘s office on the occasion when the bonds are alleged to have been given to the defendant varies materially. Mr. Lighthipe does not corroborate the defendant in details which might tend to substantiate her statement as to what occurred at the time of the delivery of the bonds to her. The defendant apparently relied upon Mr. Lighthipe to substantiate her claim of gift inter vivos of the bonds in question. The circumstances under which the bonds were delivered to the defendant and the conversation between the defendant, the decedent and Mr. Charles Lighthipe, at the time of the transaction and precedent thereto, forming part thereof, are strongly indicative that an absolute gift to the defendant without restriction or limitation was never contemplated nor intended by the decedent. Wigm. Ev. (2d ed.) § 1777 subdiv. 3. The whole of what was said at the time of the transaction must be taken together to ascertain the decedent‘s intention. 28 C.J. 675. Admissions by the defendant inconsistent with the claim of gift asserted by her are competent. 28 C.J. 676, 682.
The testimony of the complainants John P. Wright and William H. Wright, and of Frank W. Hastings, a solicitor of this court, as to statements made to them by the defendant with reference to the bonds in question and as to the circumstances
Neither the defendant nor Mr. Charles Lighthipe testified in this cause; consequently, the defendant was not subjected to cross-examination as to the testimony she gave in the tax proceedings aforesaid. She evidently was content to rely upon her possession of the bonds and the effect which might be given to the depositions of herself and Mr. Lighthipe hereinabove referred to.
The testimony of the complainants and Mr. Hastings remains uncontroverted — except in so far as it may be said to be in anywise controverted by the aforesaid depositions of the defendant and Mr. Lighthipe.
The evidence to substantiate the defendant‘s claim should be so cogent as to leave no doubt in the mind of an unbiased person. 28 C.J. 681 § 86 (5). If the statements made by the defendant in her deposition aforesaid are to be considered as truly manifesting the circumstances attending the transaction between herself and the decedent, it is clear that the bonds in question were entrusted to her by the decedent conditionally for the purpose to which I have hereinabove alluded, as testified to by the defendant and Mr. Lighthipe, and as admitted by the defendant to the complainants and Mr. Hastings. A gift first asserted after the death of a donor, as in this case, must be regarded with suspicion, and the rule of law requiring gifts to be established by clear and convincing evidence, applicable in such cases, is particularly applicable in this case, where a confidential relation existed between the decedent and the defendant. 28 C.J. 681 § 86 (5). See, also, In re O‘Connell, 53 N.Y. Supp. 748.
The naked and uncorroborated testimony of the defendant as to the alleged gift (the testimony of Mr. Charles Lighthipe varying as it does from the testimony of the defendant in essential particulars, and refuting her testimony, in part, thus minimizing the import thereof) is insufficient to sustain the defendant‘s claim against the estate of the decedent. Berg v. Baldwin, 84 N.J. Eq. 90; affirmed, Ibid. 193 (quoting on pp. 94, 95, from Tayl. Ev. § 965); Heyer v. Sullivan, 88 N.J. Eq. 165. Where, as in this case, bonds are delivered on agreement that in event the donee should predecease the donor the bonds revert to the donor, there cannot be said to be a valid gift (28 C.J. 646); and where conditions attach to the gift, such as established in this case, the gift is thereby rendered void. 28 C.J. 646.
In Meyers v. Meyers, 134 Atl. Rep. 95, it is said to be essential to the validity of a gift of personal property that
In Mullen v. Mullins, 130 Atl. Rep. 628, 629, it is said: “To establish a gift inter vivos, the following factors must appear — first, a donative intention on the part of the donor; second, delivery of the subject-matter of the gift in the manner in which delivery is most capable; third, the donor must strip himself of all ownership and dominion over the subject-matter of the gift.” Citing Swayze v. Huntington, 82 N.J. Eq. 127; affirmed, 83 N.J. Eq. 335.
The only donative intention of the decedent manifested by the proofs in this case is that which evidences that the bonds in question were entrusted to the defendant for a particular purpose, that is, to insure to the defendant the income to be derived therefrom in the event, and for such time as, the decedent might, during the defendant‘s lifetime, be confined in a sanitarium or other institution for the care and treatment of insane persons, or, at the utmost, during the lifetime of the defendant. Such delivery of the bonds as may be said to have been made by the decedent was qualified as aforesaid. It is clearly manifest from the proofs in the case, regarding same as most favorable to the defendant, that the bonds were delivered to her upon the conditions — first, that if she predeceased the decedent the bonds were to be returned to him; second, that if she survived the decedent the bonds should be hers as long as she lived; third, that she would make a will to effectuate the return of said bonds to the decedent, if she predeceased him — which latter condition, so far as the proofs disclose, was not complied with by her.
To substantiate the defendant‘s alleged claim of gift inter vivos, the defendant must not only sustain the burden by evidence of such probative force as clearly establishes every element of a valid gift, but, as is said in Taylor v. Coriell, 66 N.J. Eq. 262 (at p. 270): “To make a gift effective the evidence should show an intention on the part of the donor to divest himself of the possession of his property, and it should be inconsistent with any other intention.”
I conclude, from a consideration of all of the proofs submitted, that the decedent‘s purpose in delivering to the defendant the bonds in question was merely a matter of convenience to assure her of the income to be derived therefrom in the event that the deceased should become insane or otherwise incapacitated by the “Bright‘s disease” from which he suffered, and during such time that he might be confined in an asylum or other institution, when he would be disabled from providing for her; that the delivery thereof was conditional that the bonds, at her death, if she predeceased him, should be returned to him; and if the decedent predeceased her, the bonds should become part of the decedent‘s residuary estate, and the defendant was to assure the effectuation of such purpose by her last will and testament, which it was agreed she should make at the time of the delivery of the bonds to her, which latter condition was unfulfilled by her. Furthermore, as to the defendant‘s claim, as evidenced by the depositions aforesaid, that she was to make a will to assure the return of the bonds to the decedent if she predeceased him, and they were to be her bonds as long as she lived, and “if he should die they were her bonds,” and her attempt to claim ownership of the bonds by reason of the contingency last above mentioned is tantamount to an effort to circumvent the law of wills, and, therefore, nugatory. Such a gift as contemplated by the contingency last above mentioned is purely testamentary in its character, and, as
It does not appear from the proofs in this case that the decedent became insane or otherwise incapacitated, or confined in an asylum or other institution; nor does it appear that any of the eventualities which the defendant‘s proofs indicate the decedent contemplated or feared ever resulted.
I am of the opinion, therefore, and do hereby adjudge that the defendant‘s claim of gift inter vivos of the bonds in question is untenable, that such alleged gift is void, and that said defendant has no right, title or interest in or to said bonds, other than as executrix of the estate of Robert Wright, deceased, and that, as such executrix, she should account for said bonds as part of the residuary estate of said decedent. I will advise a decree accordingly.