Dean v. Lestina L. Dean's Estate , 43 Vt. 337 ( 1871 )

The opinion of- the court was delivered by

Royce, J.

The first exceptions taken in the county court were to the rulings of the court in the admission of the evidence given by Dean and Tyler, and the extracts read from the letter of June 4th, 1867. We think that all of this evidence had a tendency to prove the making of the gift under which the plaintiff claimed title to the money in controversy, and was properly admitted for that purpose, and the objection to the testimony of the plaintiff was not well taken. He was only permitted to testify to facts which transpired after the appointment of an administrator upon defendant’s estate ; and this testimony came within the proviso to sec. 24 of chap. 36 of the General Statutes, which permits a party to testify as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator. ”

It appears from the bill of exceptions, that upon a hearing of this case before the probate court for a decree of distribution, the plaintiff, under objection from defendant’s counsel, was permitted to, and did, testify generally in relation to the subject matter of the gift. The defendant introduced the judge of probate as a witness, and proved by him that upon that occasion the plaintiff, in his cross-examination, testified that he did not get possession of the certificates of deposit, or pass-books, (which were the evidences of title to the money in question,) and did not give notice to the bank in which the money was deposited, and which was the subject of the alleged gift, that he claimed the money as his own, until after the defendant’s deail. It appeared that the judge of probate took minutes of the testimony which the plaintiff gave at said hearing. Upon the cross-amination of this witness, the plaintiff claimed the right to have the witness read the whole of said minutes as evidence to the court and jury. The defendant objected to their being read, but the objection was overruled, and the witness was permitted to read the whole of said minutes as evidence in the case : thus, after the plaintiff had been properly excluded as a witness, giving him the benefit, as evidence, of all he had testified to in relation to the same subject matter before the probate court. We understand the rule upon this subject to be, when an admission of a party is given in evidence against him, that whatever was said by the party at the time the admission was made, that would in any, way qualify or explain it, is also admissible. And we think the court erred in permitting the witness to read any portion of his minutes that did not come within this rule.

It further appears that the defendant introduced a witness who was present at the hearing before the probate court, and proved by him that the plaintiff then testified that the pass-books were in a casket in Mrs. Dean’s trunk, and that he took them out after her deail. Upon the cross-examination of this witness, he was inquired of if, at the hearing before the probate court, the plaintiff did not state that Mrs. Dean gave him the money. The defendant objected to the witness answering this question, but the objection was overruled and the witness was permitted to answer it. The rule of evidence, which precludes a party from proving his declarations in his own favor, clearly renders this kind of evidence inadmissible, unless it comes within the above rule, as being explanatory of the admission which the witness had previously testified to. There is nothing in the case to show that the answer could be treated as thus explanatory, and hence we think the court erred in admitting it. The defendant also excepted to the charge of the court and the refusal to charge as requested. We think it was the duty of the court to instruct the jury what facts it was necessary for them to find to constitute a valid donatio causa mortis of the money in question, and to make a gift inter vivos, which would have been binding upon the parties. The facts necessary to constitute a donatio causa mortis have been so well and fully stated in the opinion of the chief judge in the recent case of French, Adm’r, v. Raymond, 39 Vt», 623, that they need not be repeated here. These requisites, or the most important off .them, were not even alluded to by the court in the charge to the jury. The evidence is all detailed and referred to in the exceptions, and we are unable to find any evidence that the gift, if any was made, was made upon any condition ; and yet, under the charge of the court, the jury were left at liberty to find, and for aught that appears may have found, a donatio causa mortis of the money in controversy. Gifts inter vivos have no reference to the future, and go into immediate effect; and in order to constitute a valid gift of this character, there must be evidence of an unequivocal intention upon the part of the donor to convey his interest in the property donated to the donee, and such a delivery of the property donated as to divest the donor of all possession or control over it. 2 Kent’s Com., 438-439. But the court, in the charge, said that “ if they (the jury) find the gift was made,” then they were at liberty to consider certain facts as evidence to show a delivery of the gift in the life-time of the donor. The court should have instructed the jury that the delivery , must be proved, to justify them in finding that the gift was made, and that it was incomplete without it. We think the court erred in instructing the jury that they might find a sufficient delivery of the gift from the kind of possession and control of the pass-books which the evidence showed that the plaintiff had over them; and we are unable to find any evidence that justified the court in instructing the jury that they might find that the plaintiff had the exclusive possession of the pass-books at any time ; and it is clearly error for the court to instruct the jury that they may find a material fact, when there is no evidence in the case which has a tendency to prove it. Manwell, Adm’x, v. Briggs, 17 Vt., 176.

The judgment of the county court is reversed and the cause remanded.