Rolinson v. Rolinson

SHINN, P. J.

The principal question on this appeal is whether there was sufficient evidence to support a finding that Mary A. Rolinson did not receive title to certain corporate stock by gift of her husband, George H. Rolinson, since deceased. Mrs. Rolinson brought suit against the defendant, Myron A. Rolinson, executor of the estate of the deceased, to quiet title to certain specifically described shares of stock. She alleged that the decedent made a gift of the stocks to her during his lifetime and that she is now owner of them and entitled to their possession. Defendant denied those claims and filed a cross-complaint seeking recovery of possession of the stock or their fair market value. The court found that plaintiff had no interest in the stocks, and gave judgment for defendant for possession for purposes of probate administration. Prom that judgment Mary A. Rolinson appeals.

The cross-complaint filed by the respondent and defendant contained four separate causes of action. The first was for cancellation of a joint tenancy deed of the real property of the decedent on which his home was situated, executed by him on September 10, 1952, in favor of himself and the appellant. It was alleged the deed was procured through fraud, when deceased did not possess sufficient mental capacity to make a valid transfer. The court entered judgment for the appellant on this count. The second cause of action was for recovery of a Packard automobile that was transferred to appellant on the same date. Judgment was for the appellant on this count. The third cause of action, with which this appeal is concerned, was for recovery of the stocks in question, and for the recovery of certain articles of household furniture which the appellant had in her possession. Judgment was for the appellant as to the furniture, and for respondent as to the stock. The fourth cause was for money had and received by the appellant for the use of respondent. Judgment was for the appellant on this count. Appellant therefore appeals only from that portion of the judgment on the third cause of action awarding possession and title to the stock to the respondent.

[389]

The main issue, is whether a. valid int.er-vivos gift of the stock was made on September 28, 3952, four days before decedent’s death on October 2, 1952.

George Rolinson and appellant were married November 21, 1950. Deceased was then 74 years of age and appellant was 54. After about seven months of marriage, appellant moved into another bedroom in decedent’s house, and moved out of the house in June of 1952. The parties remained separated until an alleged reconciliation shortly before the death of George. June 23, 1952, Mary filed a separate maintenance action against George and July 12th was awarded $125 a month support pendente lite. July 24th an order to show cause