Fite v. Perry (1908) · DecisionDepot

Fite v. Perry

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Apr 13, 1908 No. Civ. No. 425.Published

Before: Chipman

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Holding. The court held that a gift causa mortis was invalid because the donor failed to deliver possession of the property to the donee prior to his death, rendering the attempted transfer an ineffective testamentary disposition.

Issues

Whether the evidence supported a finding of a valid gift causa mortis.
Whether the donor effectively delivered possession of the property to the donee before his death.

Disposition. reversed

Quotations verified verbatim against the opinion

“In a gift causa mortis a written instrument is not necessary; it may be, and usually is, made by parol, and the possession of the thing given must be absolutely delivered to the donee before the death of the donor and the donee.”

“If the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will.”

Synopsis

Gift Causa Mortis—Delivery Essential.—In order to complete a gift causa mortis, the delivery of the property to the donee, actual or symbolic, before the death of the donor, is essential. There must be something to distinguish it from an ordinary testamentary bequest, which is good only when proved as a will.

Id.—Ineffective Gift.—Where the evidence shows that a gift by a dying person of horses, harness and a buggy was understood by the donee not to become effective, or to confer any right of possession before the death of the donor, the gift is ineffective, and the property belongs to the estate of the donor.

CHIPMAN, P. J.

Action to recover possession of certain two horses, two sets of harness and a buggy, alleged to be the property of plaintiff and wrongfully withheld by defendant.

[86]

The cause was tried by the court without a jury, and plaintiff had the judgment, from which defendant appeals on bill of exceptions.

The findings are made up largely of probative facts. The ultimate facts found which are controverted are the following: That deceased, on November 4, 1906, “being in contemplation of death, but of clear and sound mind, did give and grant to the said plaintiff the said property” (describing the property mentioned in the complaint); that “at the time the gift of said property was made to the plaintiff, as aforesaid, the said personal property was in the possession of said C. C. Carlton, and was situated in a barn and corral jointly used by him and one T. J. Kennedy.” There is no finding that plaintiff took possession of the property prior to the death of decedent, or at all, but there is a finding of certain facts which the court probably treated as equivalent to taking possession of or relieving plaintiff from the necessity of taking actual possession. This finding is as follows:

“That after said gift was made to plaintiff by said C. C. Carlton, to wit: about the hour of eleven o’clock A. M. of said 4th day of November, 1906, plaintiff left the sick-room of said C. C. Carlton and went out to make arrangements to take said personal property; that plaintiff met said T. J. Kennedy and informed him that said C. C. Carlton had made such gift to her of said property, and said T. J. Kennedy thereupon said to plaintiff, ‘I am glad of it; I would rather see you have it than anyone’; that plaintiff, being satisfied and understanding from his statements that said T. J. Kennedy would care for and hold said property for plaintiff, returned to the bedside of said C. C. Carlton and there remained until his death at about the hour of eight o’clock P. M. of said 4th day of November, 1906; that the said horses, and particularly one of them, was too fractious and dangerous to be handled and controlled by plaintiff personally. ’ ’

As conclusions of law the court found that deceased, “in contemplation of death, on the 4th day of November, 1906, did give and grant to the said plaintiff the said personal property, and that said plaintiff ever since has been and still is the owner of said property, and entitled to the possession thereof.”

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and was particularly attached to her in a friendly way; that he had been sick for some time and plaintiff was told he wanted her, and she went to him on November 4th. She testified: “He died about eight o’clock in the evening of the 4th of November, 1906, and I was with him nearly all the time. The time he made the gift to me was early in the morning, about 9 or 10 o’clock. I think he was in a dying condition, but perfectly in his right mind. . . . He seemed to realize that he was about to die.” She was asked to state what was said by him in reference to the gift, and replied: “Why, the way the subject came up, he was upstairs and he was right on an angle to where his barn was where he kept these horses, and I looked out and says, ‘You ought to see Prince and Doc.’ Mr. Carlton says, ‘How do they look?’ I says, ‘They look fine; they are playing. ’ Then he said—he gave them to me. Shall I say what he said? Mr. Boardman (plaintiff’s attorney): Go ahead.” Witness continuing: “He says, ‘If I don’t happen to get over this,’ he says, ‘I want you to have the buggy, horses and harness’; he says, ‘Make arrangements and get them,’ or ‘and take them,’ I wouldn’t swear to that, either get or take. ’ ’ She further testified that he called the attention of Mrs. Packwood to what he had said; “called her by her given name twice, and I understood it and she did, as he wanted her to witness that he had given me the property.” Mrs. Packwood was a friend of deceased and plaintiff, and was present and to some extent corroborated the testimony of plaintiff. The plaintiff further testified: “A few minutes after this conversation I went downstairs out into the street and met Mr. Kennedy, and I told him that Mr. Carlton had given me the team, buggy and harness. He said he had rather see me get them than anyone else, or some words to that effect. Mr. Kennedy is the man who had the buildings and butcher shop and tools rented from Mr. Carlton. Besides the premises known as the butcher shop there was a barn where Mr. Carlton kept his horses, and there was a back room on the premises that Mr. Carlton kept his things in and slept in there when he was in the town of Bieber. Mr. Carlton took care of his horses until he was sick—until he went to bed. Mr. Kennedy fed the horses for Mr. Carlton after he took sick. At that time- Mr. Kennedy gave me to understand that he thought they were mine. Q. Then what did he give you to understand about the horses being there? A.

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Synopsis

CHIPMAN, P. J.

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