Leitch v. Diamond National Bank , 234 Pa. 557 ( 1912 )

Opinion by

Mr. Justice Potter,

Forty-five assignments of error are here filed, but they actually raise but three questions: First, whether there was a gift of bonds by James T. Arnold to his wife, perfected by delivery; Second, whether Eobert H. Leitch, upon whose testimony plaintiff’s case largely depended, was a competent witness, and Third, whether evidence of declarations by James T. Arnold that he had given the bonds to his wife, or was purchasing them for her, was admissible. The learned judge of the court below made full and complete findings of fact, and stated clearly his conclusions of law, and determined, upon all the facts and circumstances of this case, that there was a gift inter vivos of the bonds in question, made by James T. Arnold to his wife, Isabella. After a careful consideration of the arguments of counsel, and a close examination of the evidence, and of the law applicable to the issue raised, we see no sufficient reason to differ with the conclusion reached by the trial judge. His opinion shows that he had clearly in mind the essential elements of a valid gift inter vivos, and we are not convinced that he erred in the application of those principles to the facts which he found were established by the testimony in this case. Counsel for appellants contend strongly that the evidence does not show that there was an actual delivery of tbe bonds. But in determining this question, the situation of the subject of the gift, and its nature, must be considered. A controlling principle is thus stated: “If the language used by the donor is clear and unambiguous, showing a clear intent to make the gift and a belief on his part that he had done all that was necessary to complete it, then the act of delivery if slight and ambiguous, will be aided thereby, not, however, dispensing with an actual delivery: but rendering the gift valid where it would be deemed invalid if the acts of delivery were uncertain or ambiguous.” Thornton on Gifts, sec. 148. The parties here were husband and wife living harmoniously and taken up with matters of mutual interest: and that must be kept in mind. The writer just quoted very properly says; “The relation of husband and wife is so close, and their every day life is so blended that it is often difficult to tell when the husband has perfected a gift to his wife by delivery; * * * The law takes cognizance of these relationships, of the daily contact of such a donor and donee, of the blending, as it were, of their daily walks and acts, and will construe an act to amount to a delivery where it often would not if the donor and donee were not members of the same family. The law does not dispense with an actual or constructive delivery, but it accepts the acts of the donor, if a clear intent to give is shown, as amounting to a delivery, when it would not do so if the donor and donee occupied separate habitations and were not members of the same family.” Thornton on Gifts, sec. 169. This principle is recognized in our Pennsylvania cases. Thus in Herr’s Appeal, 5 W. & S. 494, where a husband placed coin in a chest or trunk, and stated that it was for his wife, and that it was his wife’s, it was held that there was a gift of the coin to the wife. In that case the husband had access to the chest, and there was no manual delivery of the coin by the husband to the wife. He merely put it in the chest, and said it was hers. Practically the same thing was done in the present case, except that here the box in which the bonds were placed was in the vaults of a bank, and not in the house Avhere the parties made their home. It will be noted that Herr’s Appeal is authority for the admission of evidence of the husband’s declarations, as it holds that both subsequent declarations and acts of the donor (the husband) were evidence of the gift. To the same effect was the decision in Wise’s Estate, 182 Pa. 168, where Mr. Justice Mitchell said (p. 171): “Three other witnesses testified to decedent’s repeated declarations, about the time of the gift, that all his property was to be his wife’s. * * * These declarations would not of course establish a gift, but they are confirmatory of the intent Avith which the actual delivery of the securities testified to by the other witnesses was made. The evidence as a whole was sufficient, if believed, to sustain the claim of a gift; the auditor and the judge below believed it; and we have not been convinced that they were in error in so doing.” These cases, which we follow, dispose of the objection raised upon behalf of appellants, to the admissibility of evidence of declarations by Mr. Arnold, the husband, that he had given the bonds to his wife, or was purchasing them for her. Such evidence was clearly admissible. Herr’s Appeal was closely followed in Crawford’s Appeal, 61 Pa. 52, where Mr. Justice Agnew, dwelling upon another phase of the decision, said (p. 56), in referring to Herr’s Appeal, “There the subject of the gift was money unaccompanied with any declaration amounting to a trust. There money was kept in a lower or false bottom of a trunk to which the husband had access at all times, and to which he often went without the presence of his wife. The, money continued just as much within his actual dominion as if it had been kept by him in another place. There was no evidence of actual delivery or passing over of the money, as the gift was inferred from the declarations of the husband that the money was his wife’s, his keeping it in the lower division of the trunk, apart from his other money, his adding to it from time to time and taking none away, and his wife’s carrying the keys. There was no formal delivery, no counting of the money, no specific sum stated by him; indeed the sum was not known except as a probable or supposed amount, so that the case in fact rested directly on the declarations of the husband, and the setting aside that much money apart from his own; while his actual access and control over it, and the legal unity of person, made the possession as much his own as his wife’s.” The facts of the present case bring it within the principle of the decision just cited. There is evidence here that Mr. Arnold obtained an additional box in the safe deposit vault, and designated it as his wife’s box, saying that he was going to give to Mrs. Arnold all his negotiable bonds, and would put them in this box number 158; that he placed certain securities in the box at the time; that he gave her a key to it, and provided that she should have access to it whenever she wished; that she did have such access to the box thereafter, coming to the bank at times for that purpose in company with Mr. Arnold, and sometimes alone; that Mrs. Arnold said in the presence of her husband that he had given her all his bonds, and that she was to get any thereafter purchased by him; that Mrs. Arnold produced a list of bonds, which he said belonged to his wife; that his own will and that of Mrs. Arnold were then prepared in accordance with instructions, and in his own will he declared that he had turned over to Mrs. Arnold a certain portion of his property, which she had accepted, and that Mr. Arnold read his wife’s will and witnessed its execution, in which will she bequeathed a large estate, when at the time she had nothing to bequeath unless she was then owner of the bonds. There was also evidence that from time to time thereafter Mr. Arnold placed other bonds which he purchased, in the same box, and that nothing but such bonds were placed therein, he having two other boxes in the same vault, in which he kept his own securities and valuable papers. Under the principle of Herr’s Appeal, as cited above from Crawford’s Appeal, all this was evidence from which the fact of delivery of the bonds could be found. In Crawford’s Appeal a husband placed upon his books, to the credit of his wife, the sum of $3,000, and credited interest thereon from time to time. It was held that the facts of the transaction amounted to evidence of an executed gift. In cases of this character it is not necessary that any eye witness should be produced as to the fact of delivery; words of the donor indicating that he had renounced ownership are sufficient. Judge Penrose puts this clearly in Malone’s Estate, 8 W. N. C. 179, where he says (p. 182): With regard to the proof of actual delivery, it is not necessary that the witnesses shall have seen it take place. The bonds, or the notes, or the policy may have been at the time already in the custody of the donee, and in such case words indicating that the donor renounces all ownership would undoubtedly be sufficient.” He further says that “the delivery may be proved by the declarations of the donor, just as the gift itself may be; and when the donor declares that he had given at a previous time, and that the donee had then become the owner, it is implied that delivery, and indeed every other formality necessary to create a gift, had taken place. The law always presumes knowledge of its requirements.”

In the present case, without going into details of the testimony we may say that there are five witnesses, Mrs. Campbell, Mr. R. H. Leitch, Mr. Clark, Mr. Jenkins and Mr. Phillips, whose testimony as to the acts and declarations of Mr. Arnold, constitute ample justification, we think, for the findings of fact by the learned trial judge, and, upon those findings, his conclusion of law that they make out all the essentials of an executed gift, is warranted. This conclusion is further buttressed by the language of the wills already referred to, which were executed simultaneously by Mir, and Mrs. Arnold. In the will of Mr. Arnold he speaks of having turned over to his wife absolutely a certain portion of his property, and for that reason gives her nothing in that will. In the will of Mrs. Arnold, she gave to her husband the income of her bonds for life and after his death directed that the principal of her estate should be devoted to benevolent purposes. The evidence shows that Mrs. Arnold had little estate of her own, and therefore these references in the wills to property of Mrs. Arnold would be without meaning or significance, except upon the theory that the bonds had been given to her, and were subject to her disposal in her will.

It appears from the evidence that each knew and approved of the contents of the other’s will. The trial judge was impressed by this fact for he says, “These two wills, with the testimony of witnesses as to the declarations of the husband, and those of his wife made in his presence, before, at the time of, and after the execution of these wills, force the mind to the conclusion that he had made a gift of his bonds to his wife, and. that she had accepted them as her share of his estate.”

If the bonds became the property of the wife, as .and when they were placed in the safe deposit box for her by her husband, then all that he did with them thereafter, as disclosed by the evidence, was not inconsistent with such ownership by the wife. His access to the box and to the bonds was with her permission, and for purposes stated by her and consistent with her ownership. She was at liberty to give the coupons to her husband and to allow him or any other person to make sale of the bonds for her in case of necessity and to reinvest the funds in other securities. This is what seems to have been done. That shé should have relied upon her husband for these ■ services was. entirely natural.

Counsel for appellants cite the decisions in Clapper v. Frederick, 199 Pa. 609, and Ashman’s Estate, 223 Pa. 543, as sustaining their contention that there was no valid gift here. But in neither case was the alleged gift from husband to wife. In Clapper v. Frederick, the evidence showed merely an intention to give. There was no testimony at all showing delivery. In Ashman’s Estate the alleged donor stated in writing that he gave certain bonds to his son, but added that they were “not to be used until after my death.” The decision was based on the express grounds (p. 550) that the retention of control over the bonds was inconsistent with the claim of an executed gift and that the writing showed only a testamentary gift which was revoked by a subsequent will.

Counsel for appellants question the competency of E. H. Leitch as a witness, on the ground that he was counsel for James T. Arnold. But the evidence shows, and the court below finds as a fact, that at the time Mr. Leitch went with Mr. Arnold to the bank, and when the bonds were transferred in his presence to box 158, the relation of attorney and client did not subsist between them. Afterwards he was employed as counsel for both Mr. and Mrs. Arnold, and the transactions about which he testified, were their joint business and the conversations took place in the presence of both. Under these circumstances he was a competent witness: Goodwin Gas Stove & Meter Company’s Appeal, 117 Pa. 514; Seip’s Estate, 163 Pa. 423; Hummel v. Kistner, 182 Pa. 216.

The assignments of error are dismissed, and the d«r cree of the court below is affirmed.