Knight v. Tripp

TEMPLE, J. This is an action brought. by the administrator of E. L. Cook, deceased, to recover personal property alleged to be the property of the estate, and which, if is charged, is wrongfully withheld by defendant. The answer denies that the property belongs to the estate, or that it belonged to the deceased at the time of her death, or that plaintiff is entitled to the possession thereof. Prom the evidence it appears that the property belonged to the deceased on the thirty-first of May, 1895, and that on that and the following day certain transactions were had which defendant claims constituted a gift of said property to bim, partly for his own use and partly in trust for others. Whether such was the effect of what was done is the question to be determined on this appeal. The findings and judgment were for the plaintiff, but subsequently a new trial was granted, and the plaintiff appeals from this order, claiming that the order cannot be sustained on any ground whatever.

It appears that Mrs. Cook had been a widow for about six years; that she was childless, and had an estate worth about $25,000, of which about $10,000 was personal property; and that she lived in her own house in Oakland, alone, except [737]that she had some lodgers, to whom she rented rooms in her house. She died June 14, 1895, having been sick for some months. On the 29th of May, 1895, defendant called upon her at her request. She told him she was about to undergo a surgical operation, and was somewhat uncertain as to the result, and desired to see him about her business. He promised to call on the next day, and did so. She then told him that she did not like the will she had made, and had destroyed it, and wished to dispose of her property while living, and said, “I want to give all of it to you, or place all of it in your hands, and tell you those whom I want should have it.” At the suggestion of defendant she sent for a lawyer, and on that day and the next her entire estate, both real and personal, was formally transferred to the defendant. The transfers were in writing, and in form were sales. The real estate was conveyed by deed which was then and there delivered; the furniture by a bill of sale, which recited a consideration of one dollar, and “other considerations to me moving, I do hereby sell and assign, transfer and deliver all my household furniture and wearing apparel, and all other personal property held or owned by me, in that certain house,” etc. No delivery of the furniture was made, but the donor continued to occupy the house, and use all that she had any use for, as before. She had some promissory notes and corporate stock in a tin box which she kept in her desk. The desk was brought, the notes and stock indorsed, and by the defendant were replaced in the box and locked, the defendant retaining the key. The box was then replaced in the desk, which was also locked, the defendant retaining that key also. The desk remained in the house with the other furniture. She had some $8,000 deposited in three different banks in' Oakland. Mr. Tripp testified that she assigned the books and the money to him by written assignments on the books. The books were not produced, and we are not informed further as to what the written assignments contained. Mr. Tripp further testified: “I made a memorandum at the time of the disposition of the property.....It was made in the course of the conversation between Mrs. Cook and myself with regard to the disposition of the property. The deeds to the real estate, the bill of sale, and assignments of mortgages were not made until