Dick v. Harris' Exor , 145 Ky. 739 ( 1911 )

Opinion op the Court by

Chiep Justice Hobson

Affirmed.

Tlieodore Harris died a resident of Jefferson county in August, 1909. He left an estate wortli $350,000 or $375,000. By Ms will, wMcli was duly admitted to probate, be devised to eacb of bis children an annuity of $1,200 a year; tbe remainder of tbe estate be devised to certain trustees as a permanent fund to aid in tbe building of Baptist cburcbes. Tbis suit was brought by Elcey Dick against tbe executors of tbe will to recover ten bonds of $1,000 eacb which she alleged tbe testator bad given her, and had placed in bis safety vault box in the Louisville National Banking Company to be delivered to her at bis death. Tbe allegations of her petition were denied by tbe defendants, and on final bearing of tbe case tbe circuit court dismissed tbe petition. Tbe plaintiff appeals.

Tbe facts shown by tbe record are these: Elcey Dick is in no way related to Mr. Harris. Her mother rented a part of bis bouse on Fourth street in Louisville, and be occupied a part of tbe bouse. He was fond of the child, and when she was about four years old gave her some money to go across tbe street to a candy store to get some candy. As she was crossing tbe street she was knocked down by a bicycle and ber back was injured. Mr. Harris regarded bimself as tbe innocent cause of tbe accident. He bad tbe child treated by physicians and paid her much attention. Por a while ber health improved, but finally tuberculosis of tbe spine developed and for two years before bis death she bad become a helpless invalid. He was much attached to ber and frequently visited ber, taking an affectionate and fatherly interest in ber.

While these facts are shown by a number of witnesses, tbe facts as to tbe ten bonds are proved only by Elcey Hick and ber mother. Tbe circuit court sustained exceptions to Elcey Dick’s testimony. This was proper, for under section 606 of tbe Code she cannot testify for herself concerning any verbal statement of or transaction with tbe testator'. (Overbeck v. Lecquire, 19 R. 164; Jones v. Jones, 102 Ky., 450.) This leaves ber mother, Mrs. Belle Dick, tbe only witness in tbe case as to the alleged gift of tbe ten bonds. Her testimony put in narrative form is as follows: Harris when at ber bouse said to ber daughter: “Elcéy, I put ten $1,000 bonds in tbe Louisville National Banking Company drawing 5 per cent interest for you. ’ ’ He said tbe bonds and tbe will were together in bis safety vault box. I said, “What steps will be taken in getting tbe bonds?” He said, “No steps are necessary, my executor will notify you.” I asked him why it was not in bis will. He said, “My will may be contested and in that case Elcey would have to wait a long time for ber money.” This was in July, 1907, after bis will was made. He told me if I would come down to tbe bank be would show tbe bonds to me. Tbe next day I went to tbe bank and be got up and walked down tbe steps and got tbe bonds and showed them to me. Thev bad a rubber band on them. He said they were for Elcey. After be showed them to me I said, “Do you think she will ever get them?” He'said, “Why certainly she will. I feel that I am responsible for Elcey’s condition, and I could not rest easy unless she was provided for.” On another occasion she testified he told Elcey tbe bonds were there and that they were drawing five per cent interest. She said, “Why, whose getting interest on tbe money?” He said, “The interest is unpaid; for as long as I live Elcey will need nothing and tbe longer I live the more money she will have. ’ ’ He said that Elcey now bad $1,000 and said to Elcey, “Your accumulated interest will buy your mother anything she wants.” She also testified that a few days before Mr. Harris died she was talking of quitting keeping a hoarding house, and said she would do so, hut hadn’t any means to live on, and he said, “Well, I will take the accumulated interest on Eleey’s bonds and put that on deposit for you,” and then he said he would.give her each month what her bonds were drawing, and I said, “Will you do that?” and he said, “Tes.” But he died soon after this. He at no time told her what bonds they were; he only told her that the bonds drew 5 per cent. After Mr. Harris’ death there were no ten bonds found together, apart from the others, in his box, nor.was there any paper there directing any bonds to be delivered to Elcey Dick. There were a number of 5 per cent bonds in his box, but the interest coupons on all of them had been cut off as they matured. Mr. Harris had to his credit in the bank about $6,000 in cash at his death, and the executors declined to deliver to her any of the 5 per cent bonds which they found in the box. This suit followed.

In Walden v. Dixon, 5 T. B. Mon., 170, Walden on leaving Kentucky told Dixon he would leave his mare with him, and that if he did not return to Kentucky the mare should be his. Walden left the mare with Dixon and died without returning to the State. The court, holding that this was not a valid gift because Walden had not parted with control of the property, said:

“Whatever may have been intended therefore, by Walden in relation to this property, and howsoever willing he may have been that Dixon should have it, if he never returned to Kentucky, that intention cannot have the effect to pass the right of property from Walden to Dixon, because that intention has not been signified and declared according to the rules of law, established for the general safety and protection of property, against spurious and fraudulent claims by strangers.”

In Throckmorton v. Grigsby, 124 Ky., 512, Grigsby, a bachelor about sixty years old, became very much attached to a twelve year old girl at whose father’s house Grigsby made his home much of the time. He drew a check in her favor for $1,000 and also a will disposing of his estate in case he did not return. He went away and returned. He had in bank at the time only $400 and after-wards drew this out. Holding that there was no gift to the child of $1,000, this court, after referring to a number of authorities, said:

£ ‘ From the facts as presented in this record it is evident that Grigsby had a great fondness for appellant and desired to give her a portion of his estate; hut, unfortunately for her, he did not accomplish his purpose in a way so as to make it binding upon himself or his estate.”

In Stark v. Kelley, 132 Ky., 376, where the same question was again before us, we said:

“To constitute a gift inter vivos, the property must he delivered absolutely, and the gift must go into immediate effect. Where futilre control over the property remains in the donor until his death, there is no valid gift inter vivos. ******** But it is insisted that the gift may he sustained as a gift causa mortis. A gift causa mortis exists where the property is given by the donor in his last sickness, or in other imminent peril. It takes effect only in the event of his death by the existing disorder or peril.”

The question was again before us in Foxworthy v. Adams, 136 Ky., 403. There, upon facts not unlike those shown here, we said:

“The rule is that to constitute a valid ‘gift inter vivos, there must he a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately and fully executed by a delivery of the property to the donor and acceptance thereof by the donee. Gifts inter vivos have no reference to the future, hut go into immediate and absolute effect. Thus, a gift of property, to take effect after the donor’s death, the donor in the meantime retaining the control and dominion of the property, cannot be sustained. The delivery must be absolute. All gifts that are not to take effect at once are void.”

It is insisted for appellant that Harris constituted himself trustee for Elcey Dick of the ten bonds, and that the delivery of the ten bonds to himself as trustee was sufficient to create a trust in himself. (See Pomeroy’s Equity, Sec. 997 and Notes; Williamson v. Yeager, 91 Ky., 286; Krankel v. Krankel, 104 Ky., 745; Malone v. Lebus, 116 Ky., 976.) In Roche v. George, 93 Ky., 609, however, it was said:

“We think to establish a trust by parol, the chancellor should require certain and undoubted testimony, and when it is conflicting in its character and such as to leave in the mind of the court a rational doubt as to the act of the testator by; which the transfer is claimed to have been made, the chancellor should deny the relief. ’ ’

The evidence in this case is not certain either as to the subject matter of the trust or as to the existence of the trust itself. What ten bonds were referred to in the conversation to which Mrs. Dick testifies no one can tell. If testimony such as we have here is sufficient to establish by parol a trust by the donor to hold the property for another, the rule that a gift to be valid must be followed by a delivery of the property, would be of little value; for in nearly every case declarations such as we have here could be shown to create a parol trust although the alleged donor had not parted with the possession of the property or surrendered his control over it. In this case the decedent cut off all the coupons from his bonds; he at no time set apart any money for Elcey Dick or did any act from which we can know that he held any part of his estate as trustee for her. He may have intended to provide for her, and perhaps would have done so, had he not died suddenly, but that he did not do so on the evidence here shown must be held, unless we are to abandon the rule that a gift is invalid so long as the giver retains possession and control of the property. In all the cases where the parol trust has been upheld, the proof was clear and explicit as to the precise property and the nature of the trust; and there were in each of these cases peculiar facts taking it out of the rule as to incomplete gifts. The common law rule on the subject seems to us a wise one and sound public policy requires that exceptions should not be made to it on the ground that a parol trust was created, where, as here, the proof simply shows an incomplete gift. A disposition of property which is to take effect at the owner’s death, is in its nature testamentary, and can only be made by a will executed with the formalities provided by the statute. To sustain a parol trust on such evidence as we have here would be to defeat the evident purpose of the statute.

Judgment affirmed.