In re Estate of Claus , 93 Ohio Law. Abs. 308 ( 1963 )

Brown, J.

Euby A. Claus, formerly Brichford, gave a metal box in a brown paper bag to Mrs. Swanson, a neighbor, written upon the paper was Mrs. Claus’ name and that of her niece, Alma Koenig. This occurred prior to the marriage of Euby Brichford to Stanley Claus in July 1956. Subsequently Mrs. Swanson, before moving away from the area returned the box to Mrs. Claus. Mrs. Claus delivered it to one Mrs. Euth 1. Eichardson.

Mrs. Claus died on October 27, 1961, and Mrs. Eichardson delivered the box to Mrs. Koenig.

The Administrator claimed the contents of the box for the estate and Mrs. Koenig tendered the property to the Probate Court and submitted the validity of her claim to the court.

Counsel for the estate and for Alma Koenig stipulated at trial that the delivery to Mrs. Eichardson was with the request that Mrs. Eichardson hold the same and deliver it to Mrs. Koenig in the event of the death of Mrs. Claus.

Mrs. Koenig testified (E. 14) that Mrs. Claus had told her “I have given it (the box) to Mrs. Swanson to keep for you,” and later told her that the box had been given to Mrs. Eichardson. At record page seven Alma Koenig testified “she (Mrs. Claus) told me they (the contents) were mine.”

There was no evidence except the stipulation and the testimony of Mrs. Koenig.

In view of the stipulation, the intention of Mrs. Claus cannot he questioned. She intended to give the box and contents to her niece, with possession and enjoyment deferred until the donor’s death.

Whether or not the donor accomplished a valid gift is the only question. A gift inter vivos must be completed during tbe lifetime of the parties, but tbe delivery may be made to a third person for tbe donee and so long as this is done under such circumstances as to indicate tbat tbe donor has relinquished all control and dominion over property, tbe gift is complete and irrevocable and is not affected by tbe death of tbe donor before tbe property comes into tbe bands of tbe donee. This general statement is found in 24 American Jurisprudence (2d), at page 748, and is borne out by appellee’s principal case cited, Streeper v. Myers, 132 Ohio St., 322. This case effectively disposes of tbe proposition urged by tbe appellant, who argues tbat tbe third person is the agent of tbe donor, and tbat tbe agency is terminated by death. Streeper v. Myers bolds tbat in cases in which control is retained by tbe donor tbe intermediary is tbe agent and tbe agency terminates upon death, but in cases in which tbe property is delivered by the donor with tbe intention tbat tbe present title and ownership pass to tbe donee, then the gift is executed and the third person is trustee for tbe donee.

Tbe only question remaining is whether it was tbe clear intent of Mrs. Claus to make a present gift at tbe time of tbe delivery to Mrs. Richardson. Tbe trial judge decided this question in tbe affirmative. Tbe record indicates tbat from tbe date of tbe delivery to tbe date of her death some years later Mrs. Claus never exercised tbe slightest dominion or control over tbe box and its contents.

In view of this, tbe testimony quoted earlier, and total lack of any evidence suggesting a retention of dominion by tbe donor, we cannot say tbat tbe trier of tbe facts erred in bis conclusions as a matter of law, or tbat tbe conclusion reached is against tbe manifest weight of tbe evidence.

Judgment affirmed.

Donahue, P. J., France, J., concur.