Kelly v. . Maness , 123 N.C. 236 ( 1898 )

This action is for the possession of certain articles of personal property. The plaintiff claims them as the property of her ward, Lucy Grimm, widow of Lewis Grimm, and now a lunatic. The defendant claims that her father, Lewis Grimm, who was the husband of Lucy Grimm, during his lifetime gave them to her.

The plaintiff claims that this was the property of Lewis Grimm at the time of his death, except the sewing machine, which the plaintiff says belonged to Lucy before her marriage with Lewis. The other property claimed by plaintiff, except the sewing machine, was laid off and assigned to the widow Lucy, as a part of her year's support.

The court left it to the jury to say, from the evidence, whether the sewing machine belonged to Lucy or not, and there is no exception to his Honor's charge as to this.

There was evidence tending to show that Lewis had given the other property to the defendant Maggie, who is his daughter. That he had told Maggie if she would take the calf and raise it she might have it; that he had after this said he had given it to Maggie, and that he would not take it from her. But the evidence was that the calf remained with the other stock of Lewis, was fed and pastured with them until it was grown, and had remained there until after the death of Lewis, and was laid off to the widow as a part of her year's support.

The other articles were bedroom furniture, bought by Lewis, put in the bed chamber of Maggie, which he said he had fitted up for her, and frequently spoke of it as Maggie's. That he bought it (238) and gave it to her.

As we see no evidence of a delivery as to the cow, we would not disturb the verdict and judgment as to her, nor as to the sewing machine, if there was no error as to the other property (the bedroom furniture).

But we said in Newman v. Bost, 122 N.C. 524, that two things are necessary to constitute a gift — the intention to give and a delivery, actual or constructive. And these are facts to be found by the jury, where there is evidence tending to establish them. And that where the donor in that case bought a set of bedroom furniture, put it in plaintiff's room, and always after that spoke of it as hers, this was sufficient evidence of a delivery to sustain a finding by the jury that it was her property. Under the authority of this case, we are of the opinion that the question as to the title to this property, under proper instructions as to what it takes to constitute a gift, should have been submitted to the jury; and that it was error for the court to instruct the jury "that if they believed the evidence they should find this issue in favor of the plaintiff."

For this error there must be a

New trial.

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