Wilkerson v. Wann , 322 Mo. 842 ( 1929 )

The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.

ON MOTION FOR REHEARING. In his motion for a rehearing, defendant challenges the finding of a record entry that shows that the bill of exceptions was duly filed. The abstract of the record shows this entry: "Thereafter, on the 23rd day of April, 1927, and within the timeObjections allowed by the court and by law, plaintiff dulyto Abstract: filed in said court his bill of exceptions, dulyWaiver. signed by the court and made a part of the record, and which is as follows." This record entry, together with three other record entries, appears on a sheet of paper containing typewriting, and which sheet of paper is pasted to page 13 of the abstract of the record. Before writing our opinion, we were advised by the clerk that this page of typewriting was attached to the abstract of record at the time of filing. On the record before us, there is nothing to show an irregularity. Moreover, Rule 11 (Supreme Court Rules) in substance provides: "If the respondent desires to make objections to the consideration of any question because the abstract of the record fails to show . . . that the bill of exceptions was duly signed or filed, . . . such objections and the reasons therefor shall be served in writing on the appellant or his counsel, fifteen days before the day on which the cause is docketed for hearing, or within fifteen days after the abstract is served." Our docket shows that the cause was set, argued and submitted on October 16, 1928. The affidavit of service of said motion, filed by respondent, shows that the motion to dismiss the appeal or affirm the judgment was served on appellant on October 4, 1928, or twelve days only before the cause was docketed for hearing. The motion was filed in this court on October 8, 1928. The service copy of the abstract of the record on file shows that it was served on respondent on September 6, 1928, and filed in this court on September 11, 1928. It develops that the motion to dismiss the appeal or affirm the judgment was not served on appellant either fifteen days before the day on which the cause was docketed for hearing or within fifteen days after the abstract was served. Consequently, the motion to dismiss the appeal or affirm the judgment was not filed in time, and the motion is not before us for review, as the matters therein, for the reason stated, are, by force of the rule, waived.

II. Defendant complains that our ruling, "defendant was castwith the burden of proof to demonstrate every essential fact necessary to the validity of a gift," while applicableBurden of to a gift of personal property, does not apply to aProof. gift of real estate by deed. We know that there are cases in this State which hold that, where the petition avers fraud or undue influence, the burden of proof is on the plaintiff to develop them, even where a gift is involved. The cases probably have followed, as to the burden of proof, where fraud or undue influence is alleged, the general rule that the burden of proof is on the one alleging fraud or undue influence, but, we apprehend, the court, in writing the opinions, has failed to recall to mind that the rule, as to gifts, places the burden of proof on the donee of the gift. While the burden of the evidence, at the opening of the case, was on the plaintiff to develop a state of facts showing fraud, yet when defendant's evidence came in to the effect that the conveyance was a gift, the situation so changed that the burden of proof devolved on defendant to demonstrate that a gift was intended and completed, including the elements necessary to its validity. We are unable to perceive, upon principle or precedent, that the rule applicable to personal property differs when applied to real estate. In Hamilton v. Armstrong, 120 Mo. 597, l.c. 622, 25 S.W. 545, the facts show a gift of real estate. An excerpt reads: "But it is urged again that the fact that John Hamilton gave away all his estate to his nieces, of itself raises a presumption against the gift. We think the rule unquestionably is that the fact that Mr. Hamilton gave away his whole estate, requires strict and satisfactory proof of all the essentials of a valid gift. That a man of sound mind may voluntarily give away all he has cannot be questioned, but when such a transaction comes under review, the donees must show that he fully understood the nature of the gift and its consequences to him, and those dependent on him." The above case, we think, is authority for the rule that the burden of proof is on the donee of a gift to prove all the facts essential to its validity. But, even though it is not, we think that such is the salutary rule.

We have considered, in reaching a decision, the effect of the evidence adduced by defendant, as well as that adduced by plaintiff. Following such consideration, we think it clearly shows that a gift of the property was not intended.

The motion for a rehearing is overruled. Henwood, C., concurs; Cooley, C., not sitting.