Goff v. Guyton , 86 Ariz. 349 ( 1959 )

DUDLEY W. WINDES, Justice

(Retired).

Flora Bernice Goff, Administratrix of the estate of Wiley Andrew Day-berry, brought suit against James C. Guy-ton and Katherine Guyton, his wife, to recover monies held by the Guytons which plaintiff claimed belonged to the decedent, Dayberry, at the time of his death. Admittedly the Guytons had funds formerly belonging to decedent but which they claimed he gave to Mrs. Guyton prior to his death. The controlling issue is whether such a gift was made. The trial court rendered judgment in favor of defendants, the effect of which was to rule that the decedent, prior to his death, gave the funds to Mrs. Guyton. Plaintiff appeals, contending that the court erred in permitting the Guytons to testify to transactions and conversations with decedent in violation of the provisions of Section 12-2251, A.R.S., and that there was insufficient evidence to legally authorize the decision of the trial court.

Section 12-2251, A.R.S., reads as follows :

“Limitations on testimony in actions by or against executors, administrators or guardians

“In an action by or against executors, administrators or guardians in which judgment may be given for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court. The provisions of this section shall extend to and include all actions by or against the heirs, devisees, legatees or legal representatives of a decedent arising out of any transaction with the decedent.”

The Guytons were permitted to testify to transactions with, and statements by, the decedent. Whether the court was justified in allowing this testimony requires a statement of the circumstances and the testimony in the case.

The decedent had sold his property to the Guytons for $12,000, leaving him a net of $10,910.26 which he- deposited in the bank. Mrs. Guyton was called for cross-examination by the plaintiff and required to testify in effect that shortly after the funds were deposited they were drawn out with a check made payable to and endorsed by Mr. Guyton. The cash was given to her by the decedent and she deposited it in a savings account in the joint names of herself and husband. She further testified that the savings account remained for approximately three years, until after decedent’s death, and she was the only one who ever made withdrawals. Mr. Guyton was also called for cross-examination and required to testify to the effect that he cashed the check and gave the money to the decedent. Later during the trial Clementine Billingsley, with whom decedent lived for some time, testified that he told her he had given his money away. After the money was delivered to Mrs. Guyton, and during the approximately three year period it remained in her possession and her control, decedent never attempted to exercise any dominion over it.

We have consistently held that whether one coming under the provisions of Section 12-2251 A.R.S., supra, should be allowed to testify to transactions or statements of a decedent is within the sound discretion of the trial court, Stewart v. Schnepf, 62 Ariz. 440, 441, 158 P.2d 529; and it is only where it clearly appears that such discretion has been abused that the appellate court will interfere, Johnson v. Moilanen, 23 Ariz. 86, 201 P. 634. In Davey v. Janson, 62 Ariz. 39, 153 P.2d 158, a majority of the court sustained the trial court when such testimony was admitted. Justice Ross dissented feeling that the trial court abused its discretion because plaintiff’s testimony was the only evidence concerning the transaction with deceased. There is much merit in the dissent but even Justice Ross stated that if there were evidence corroborating that of the plaintiff there weuld be some reason for allowing the testimony.

Since the plaintiff herein called defendants and examined them concerning the transaction whereby defendants got possession of the money, and another witness testified to statements by the decedent concerning the subject matter, and in view of the circumstances wherein complete dominion over the funds was relinquished and never claimed for a period of approximately three years, we are unable to say that the trial court had no reasonable basis for allowing defendants’ testimony for the purpose of getting a full and complete explanation of the entire transaction. We rule, therefore, that the court did not abuse its discretion in this regard.

The final question is whether from all the evidence including the testimony of defendants the court was justified in rendering the judgment in favor of defendants. Approaching the problem and stating the relevant facts we must assume all evidence tending to support the judgment is true unless the same is inherently impossible or improbable, and if two inferences may he drawn we must accept the one chosen by the trial court. Stewart v. Schnepf, supra.

The essential elements of a gift inter vivos are that the donor manifest a clear intent to give to the party claiming as donee and give to the latter before death full possession and control of the property. McNabb v. Fisher, 38 Ariz. 288, 299 P. 679. In the instant case it is undisputed that the decedent passed to the defendants the complete possession and control of the funds involved and the money remained in their possession and control during the rest of decedent’s life (approximately three years), and that at no time during this period did decedent attempt to reclaim or exercise any dominion or control there-over. He told Mrs. Billingsley he had given his money away. He delivered the money to Mrs. Guyton, telling her he did not want what he had to go to the state and that he would give it to her now and there would be no reason to make a will. There was evidence that he claimed to have no relatives. The Guytons had taken decedent into their home and cared for him as a member of the family but subsequent to delivering possession of the funds they continued to care for him and provide for all his needs including clothing, medical and dental care. They took him on their vacation, provided him with spending money, and generally treated him as a member of the family. Sometimes they gave him cash — sometimes a check. They kept no accurate account of the amounts. There is no evidence that they attempted to dominate him. Since we cannot weigh the evidence we are unable to say that the trial court was compelled to conclude that the decedent did not intend to make a present gift of the funds. The trial judge being the judge of the weight of the evidence and credibility of the witnesses we feel that he could legally conclude that the decedent clearly intended to relinquish all future claim to the property.

Appellant presents considerable argument concerning the burden and degree of proof required of defendant. Since the undisputed evidence shows that the decedent relinquished complete control and dominion over the property, and since we rule that the court might legally say that he evidenced a clear intent to make a present gift of the money, a discussion of the relative burdens required by the parties becomes unimportant.

The judgment is affirmed.

PHELPS, C. J., and BERNSTEIN, J„ concurring.

Note: Justice UDALL having disqualified, by stipulation of the parties retired Judge DUDLEY W. WINDES was called to sit .in his stead in accordance with Article 6, Section 26 of the Constitution of Arizona, A.R.S.