State v. Swanson , 60 Wash. 2d 452 ( 1962 )


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  • Rosellini, J.-

    This is an appeal from the judgment of the trial court awarding certain intangibles of the decedent to the respondent, who is also the administrator of his estate. The state of Washington contested the claim of the respondent, contending that the property should escheat to it, since the decedent died intestate and left no heirs at law. The trial court found that the decedent had made a valid gift causa mortis to the respondent within a month prior to his death.

    The appellant maintains that the evidence was insufficient to support the material findings of fact to the effect that the decedent delivered to the respondent savings account bank books and postal savings certificates with the intention that they were to belong to the respondent absolutely unless the decedent recovered from his pending sickness, and that the gift was made in view of his approaching death from his existing sickness.

    The evidence showed that the respondent and the decedent had been friends for about ten years prior to the *454decedent’s death and had been intimately acquainted for at least six years, during which the respondent looked after the elderly man, taking him on trips and errands, buying groceries for him, visiting him when he was ill, and doing whatever favors he requested. Witnesses who had known the two testified to these facts and also testified that the decedent had stated on a number of occasions that the respondent was the only person who had been kind to him, and that he wanted him to have his property when he died.

    The decedent’s health failed noticeably during the six months preceding his death; and about a month before he died, the respondent took him to a nursing home. After he had been there for a few days, the respondent went to the decedent’s home, found the bank books and postal savings certificates (where they were hidden in tin cans), took them to the nursing home, and gave them to the decedent. After examining them, the decedent handed them back to him, with instructions about which the respondent was not allowed to testify at the trial, owing to the restrictions of RCW 5.60.030, the “dead man statute.” For the same reason, he was not allowed to disclose the source of his knowledge of the whereabouts of the items.

    The respondent kept the bank books and postal savings certificates in his possession until after the decedent’s death, when he turned them over to the attorney for the estate. His claim was filed a few days before the expiration of the six-month period of limitations. In it he alleged that he was entitled to the items under a contract to convey, or in the alternative as a gift causa mortis, or as representing the reasonable value of services rendered. The trial court did not find the proof sufficient to establish a contract or that the reasonable value of his services had not been proved; but it did find that all of the elements of a gift causa mortis had been sufficiently established.

    These elements are: (1) the gift must be made in view of approaching death from some existing sickness or peril; (2) the donor must die from such sickness or peril without having revoked the gift; (3) there must be a delivery, either actual, constructive, or symbolical, of the sub*455ject of the gift to the donee or to someone for him, with the intention of passing title thereto, subject, however, to revocation in the event of recovery from the pending sickness. In re White's Estate, 129 Wash. 544, 225 Pac. 415.

    As we said in that case, the vital, although not the only, difference between a gift causa mortis and one inter vivos is that the former may be revoked by the donor if he survive the pending sickness or peril, and does not pass an irrevocable title until the death of the donor, while a gift inter vivos is irrevocable and vests an immediate title. In determining whether a gift causa mortis is valid, this court, in harmony with other courts, stresses the pending sickness, death resulting therefrom, an intention to give, subject to revocation if death does not ensue from the pending sickness, and a delivery of the gift. The testimony on these stressed points must be clear and convincing, but need not be beyond dispute or doubt. Whether a gift of this character is valid is largely a question of fact.

    The burden of proof is lightened somewhat in a case of this sort, where there is no conflicting claim in a case of creditors or other subsequent donees or assignees and no heirs, and the policy of the law is to give effect to the intention of the donor and sustain the gift if possible. Phinney v. State, 36 Wash. 236, 78 Pac. 927.

    Because the evidence did not disclose the nature of the decedent’s illness, the appellant contends that the element of pending sickness was not proved. But we think the evidence was sufficient on this point. It was shown that he had been in declining health for six months and that a month before his death he had had to enter a nursing home; that although at first he was able to go out for rides with the respondent, it was not long before he was unable to do this; that he remarked to a visitor after he had turned the bank books and certificates over to the respondent that the latter had been very good to him, and that, if anything happened to him, he wanted the respondent to have his property. When these facts are considered in conjunction with the fact that he died within a short time thereafter, it can be inferred that he was suffering from the sickness of which *456he died and that he was aware of the fact that he might soon die when he turned the indicia of ownership of his property over to the respondent.

    It is next contended that there was no evidence to show that the items were turned over to the respondent with a donative intent. The appellant does not deny that the record is replete with evidence that the decedent manifested his intent to give the property to the respondent when he died, but it is apparently the theory of the appellant that the law requires proof of an intent to make a gift during the decedent’s lifetime. It is true that there must be an intent to pass a present interest, but that interest is simply the right to dominion over the property, subject to the right of the donor to revoke the gift. Because of this right of revocation, the donee actually has no right to use or dispose of the property until after the death of the donor: All gifts causa mortis are conditional on the donor dying as he apprehends, the donee surviving, and the donor not exercising his right of revocation while he lives, 38 C. J. S. 909, §94.

    The evidence clearly establishes that the decedent intended the respondent to have his property on his death. He delivered it to him a short time prior to his death. From this the trial court was justified in inferring that he gave it to him to keep if he died. There was nothing in the evidence to belie that intent.

    A case closely in point is Wilson v. Joseph, 101 Wash. 614, 172 Pac. 745. There the decedent delivered a diamond ring and a diamond brooch to two friends at the time of her last sickness. As in this case, there was no direct evidence of what the donor said or did when the jewelry was received by the donees. But there was evidence that she had a great deal of affection for them and had, on a number of occasions, expressed her will that they should have the jewels when she died. We held that the court could properly infer that they were delivered by her as a gift. There was in that case, as in this, not the slightest suggestion that there had been any fraud or dishonesty on the part of the recipients.

    *457We conclude that the trial court was justified in inferring from the evidence that the bank books and certificates were delivered with the necessary donative intent.

    The judgment is affirmed.

    Finley, C. J., Foster, Hunter, and Hamilton, JJ., concur.

Document Info

Docket Number: No. 35987

Citation Numbers: 60 Wash. 2d 452

Judges: Hill, Rosellini

Filed Date: 9/6/1962

Precedential Status: Precedential

Modified Date: 9/23/2021