Opinion
No. 35827.
April 9, 1945. Suggestion of Error Overruled May 14, 1945.
1. GIFTS.
Evidence that decedent had given a man's diamond ring to plaintiff and later took it back to have diamond mounted in a woman's ring setting for plaintiff but was stricken with a fatal illness before he could have the work done, and that at time of decedent's death ring and diamond were in possession of a third person who had been instructed to deliver them to plaintiff authorized finding of a completed gift inter vivos of diamond to plaintiff.
2. GIFTS.
To establish a gift, it must not only appear that donor intended to make gift but that he consummated gift by an actual, constructive, or symbolical delivery of property to donee and the mere declaration that a gift was made not accompanied by acts showing delivery of possession or an absolute parting of all dominion and interest is not sufficient to render gift valid.
3. GIFTS.
Where it clearly appears that donor has relinquished and donee has acquired all dominion over and control of the property, evidence is sufficient to establish a gift.
APPEAL from chancery court of Lauderdale county, HON. GEO. B. NEVILLE, Chancellor.
J.E. Parker and L.J. Broadway, both of Meridian, and E.C. Templeton, of Fayetteville, Tenn., for appellant.
It is well settled that when the claim of a gift is not asserted until after the death of the alleged donor, it must be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift.
Stewart v. First National Bank Trust Co. of Vicksburg, 192 Miss. 355, 5 So.2d 683; 24 Am. Jur. 799, Sec. 133; 38 C.J.S. 888, Sec. 67 (e); 28 C.J. 681, Sec. 86.
The general rule that the burden of proof is on the one having the affirmative of an issue finds application in actions with respect to gifts inter vivos or causa mortis, and, accordingly, it has been held that the burden of proving that a gift was made, including the existence of the elements necessary to its validity, is upon the donee. As a general rule there is no presumption in favor of a gift inter vivos or in favor of or against gifts causa mortis, although it has been held that where a gift is made by the donor during his last illness, it is presumed to be made causa mortis, even though not expressly so stated. But this presumption is rebuttable. Mere possession by an alleged donee of the alleged donor's property after the latter's death raises no presumption of ownership, while possession by the alleged donor is a circumstance raising a presumption against donation.
24 Am. Jur. 790, Sec. 115; 38 C.J.S. 856-858, Sec. 65 (b); 28 C.J. 669-670, Sec. 71.
Among the essential elements of a gift are an intention on the part of the donor to make it; the gift must be complete and nothing left undone; the property must be delivered by the donor, and accepted by the donee; the gift must go into immediate and absolute effect, and the gift must be irrevocable.
26 C.J. 626, Sec. 15.
The intention required is a present intention; a mere intention to give in the future, however well shown, gives rise to no obligation which the law will recognize or enforce.
28 C.J. 628, Sec. 19; 38 C.J.S. 786 et seq., Sec. 10; 24 Am. Jur. 738 et seq., Sec. 20 et seq.
The lower court erred in rendering a decree for appellee for the reason that a gift of the stone in question was not shown because, (1) there was no delivery shown; (2) there was no absolute and unmistakable intention to make a present gift shown; (3) there was no unconditional surrender of control and dominion over the stone; and (4) it was clearly shown that there remained yet something to be done before the gift was to be completed.
A delivery to be sufficient to support a gift must be absolute and unqualified; it must transfer possession to the donee, and vest in him a present and irrevocable title; it must vest the donee with, and divest the donor of, control and dominion over the property.
McClellan v. McCauley, 158 Miss. 456, 130 So. 145; Meyer v. Meyer, 106 Miss. 638, 64 So. 420; McWillie v. Van Vacter, 35 Miss. 428, 72 Am. Dec. 127; Newell v. Newell, 34 Miss. 385; Wheatley v. Abbott, 32 Miss. 343; Carradine v. Collins, 7 Smedes M. (15 Miss.) 428; Marshall v. Fulgham, 4 How. (5 Miss.) 216; Thompson v. Thompson, 2 How. (3 Miss.) 737; Smythe v. Sanders, 136 Miss. 382, 101 So. 435; Gidden v. Gidden, 176 Miss. 98, 167 So. 785; Smith v. Taylor, 183 Miss. 542, 184 So. 423; Ford v. Byrd, 183 Miss. 846, 184 So. 443; Jones v. Jones, 162 Miss. 501, 139 So. 873; 38 C.J.S. 794, 797, Secs. 18, 19; 28 C.J. 630-632, Secs. 21, 22; 24 Am. Jur. 742-744, Secs. 24-27; 38 C.J.S. 797, Sec. 19.
The declarations and admissions of the alleged donor are insufficient to establish the delivery of the subject of the gift.
In re Kelly's Estate (N.Y.), 33 N.E.2d 62; Beaver v. Beaver, 117 N.Y. 421, 22 N.E. 940, 6 L.R.A. 403; 28 C.J. 681-682, Sec. 87; 24 Am. Jur. 798-799, Sec. 131.
See also Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh-Day Adventists, 179 Miss. 642, 176 So. 534; Johnson v. Grice, 140 Miss. 562, 160 So. 271; Pace v. Pace, 107 Miss. 292, 65 So. 273; Meyer v. Meyer, supra; McWillie v. Van Vacter, supra; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; 24 Am. Jur. 790, Sec. 115.
A clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite of a gift inter vivos. This intention must be inconsistent with any other theory.
McClellan v. McCauley, supra; Gidden v. Gidden, supra; Meyer v. Meyer, supra; McWillie v. Van Vacter, supra; 28 C.J. 627-628, Sec. 19; 24 Am. Jur. 738-740, Sec. 21; 38 C.J.S. 790-792, Sec. 15.
There was no unconditional surrender of control and dominion over the stone. In order to constitute an effectual delivery the donor must not only have parted with the possession of the property, but he must also have relinquished to the donee all present and future dominion and control over it, beyond any power on his part to recall.
Meyer v. Meyer, supra; Wheatley v. Abbott, supra; 28 C.J. 634-635, Sec. 23; 38 C.J.S. 799-800, Sec. 20.
There remained something yet to be done before the gift could be completed. If anything remains to be done the transaction merely constitutes an executory agreement to give, and the title to the property does not pass.
24 Am. Jur. 741, Sec. 22; 38 C.J.S. 793, Sec. 16; 28 C.J. 629, Sec. 20.
M.V.B. Miller, of Meridian, for appellee.
Except as the statute may in effect provide otherwise, delivery is an element which must be proven by the donee or one claiming through him, although this proof need not be set forth by witnesses who actually saw the delivery made, but delivery may be inferred from facts and circumstances.
Wheatley v. Abbott, 32 Miss. 343; Ford v. Byrd, 183 Miss. 846, 184 So. 443; Carradine v. Carradine's Estate, 58 Miss. 286; Garrison v. Union Trust Co. (Mich.), 129 N.W. 691, 32 L.R.A. (N.S.) 220; Newell v. National Bank of Norwich In re Reynolds' Will, 212 N.Y.S. 158; In re Wendell's Estate, 201 N.Y.S. 845, 121 Misc. Rep. 569; 38 C.J.S. 860, 877; 28 C.J. 678, note 57.
This suit originated in the Chancery Court of Lauderdale County, wherein appellee sued the administratrix of the estate of W.A. Bledsoe, deceased, to recover possession of a diamond, set in a man's ring, demand for which had been made by appellee and refused by appellant. The chancery court in its final decree held the stone to be the property of appellee and directed appellant to have it removed from its mounting and thereupon to deliver it to appellee. From this decree appeal here was taken by the administratrix.
The deceased, W.A. Bledsoe, was a widower, and was Circuit Clerk of Lauderdale County at the time of the occurrences involved. The administratrix was one of his office deputies, as was also Mrs. Rivers. Mr. Bledsoe fell very much in love with appellee after his wife's death, and they were engaged to be married. The ring was worn constantly by him, except as will appear later in this opinion. On one occasion, some person in his office inquired what he intended to give appellee for a Christmas present, and he said, the ring. On a later occasion, he told a witness he had given it to her, and for several days thereafter, it appears, for the first time the ring was missing from his finger. Mr. Bledsoe suffered from a heart ailment, and was confined later to his home from said cause, but came back to his office stating he had come down to have the stone removed from the man's setting to a woman's setting, for appellee. However, before he could do so, he became ill again and returned home, subsequently being removed to the hospital, where he thereafter died intestate.
In one of the conversations referred to supra, he said to be his deputy, Mrs. Addie Rivers, that he had given the ring to appellee, and that it was not his but her ring, and on his last errand down town he stated his mission was to have the stone placed in a new mounting for her. Three weeks afterward Mr. Bledsoe died, but on the morning of the day he passed away Mr. W.C. Moore, a close friend, was visiting him, and Mr. Bledsoe delivered the ring to him to be turned over to Mrs. Rivers, with the statement, "she would know what to do with it." Mr. Bledsoe at an earlier date had instructed Mrs. Rivers that "if anything happened to him he wanted me to see that Miss Bessie Smith got the ring." Mr. Moore, upon receiving the ring, carried it to Mrs. Rivers, stating, "he said you knew what he wanted done with it." About ten minutes after this event, Mrs. Rivers was informed by telephone that Mr. Bledsoe had died, before she had opportunity to transfer possession of the ring to appellee. She, therefore, deposited the ring in Mr. Bledsoe's private vault.
At the time of making the inventory of the personal assets of the estate the matter of the ring came up for discussion. Appellant called to the attention of the solicitor for the estate that appellee claimed the ring, and that it had been turned over to Mrs. Rivers to be put in possession of appellee, and that "she was the rightful owner." Reluctantly, on the instructions of the said solicitor, the administratrix retained possession, and the litigation ensued, with the result stated supra.
We think the chancery court reached the correct solution on the pleadings and the facts, as to which, some were in contradiction, and that the gift was completed as a gift inter vivos; and was the property of appellee at the time of the death of Mr. Bledsoe.
We are not overlooking the rule that in order for a gift to be proved, it must not only appear that the donor intended to make the gift, but consummated it by an actual, constructive, or symbolical delivery of the property to the donee, and mere declarations of the owner that he had made the gift unaccompanied by acts showing the delivery of possession, or an absolute parting with all dominion and interest, are not sufficient to render the gift valid. Wheatley v. Abbott, 32 Miss. 343; Garrison v. Union Trust Co., 164 Mich. 345, 129 N.W. 691, 32 L.R.A. (N.S.) 220.
There is the further rule, however, that it is sufficient evidence of the gift if it clearly appears that the donor has relinquished, and the donee has acquired, all dominion over and control of the property. 28 C.J. 638; 38 C.J.S., Gifts, Sec. 24; Carradine v. Collins, 7 Smedes M. 428; Young v. Young, 25 Miss. 38; Wheatley v. Abbott, 32 Miss. 343.
In our opinion the evidence clearly shows actual delivery by Mr. Bledsoe to appellee, when, following his statement he had given the ring to her, for the first time the ring was missing from his finger for several days, and he later came down and said it was her ring and he was going to have the setting changed for her, which he was prevented from doing by a heart attack, from which he died three weeks later, 38 C.J.S., Gifts, Sec. 67, p. 877; Garrison v. Union Trust Co., 164 Mich. 345, 129 N.W. 691, 32 L.R.A. (N.S.) 220; and also, if the completeness of this gift then be challenged, when he gave the information and instructions to Mrs. Rivers about the ring, supra, and sent it by messenger to her on the day he died, as she would know what to do with it, he having previously told Mrs. Rivers that if anything happened to him he wanted her to see that appellee got the ring, which messenger delivered the ring to Mrs. Rivers. The evidence, considered all together, in our judgment sustained the judgment of the chancery court that Mr. Bledsoe made a gift inter vivos to Miss Smith of the ring, under the pertinent rules of law.
Being of the opinion, therefore, that the decree awarding the stone to appellee, as she prayed in her bill only for the stone, is correct, the same must be and is affirmed.
Affirmed.