Action to recover sum of money in possession of defendant but allegedly belonging to a decedent's estate. The Superior Court, in and for Sussex County, Richards, P. J., held that where deceased, when not well but not shown to be in extremis or in expectation of death, took defendant and others into room and unlocked a bureau drawer and took from it a pocketbook which he handed to defendant saying ‘ this is yours take it with you’, there was a gift inter vivos, even though defendant requested and was granted right to leave the pocketbook in the bureau drawer, and received and retained the key with which he locked it.
Judgment for defendant.
[48 Del. 306] This action was brought to recover the sum of $840 which it is claimed belongs to the estate of Landreth Hill.
James M. Tunnell, Sr., of Tunnell & Tunnell, Georgetown, for plaintiff.
Ralph S. Baker, Georgetown, for defendant.
Before RICHARDS, P. J., without a jury.
RICHARDS, President Judge.
It appeared from the evidence introduced before me that Landreth Hill died testate on April 4, 1952; that he was never married and lived alone in a house which he owned near Concord; that for a number of years prior to his death he was engaged in trapping around Concord and Seaford, and during a portion of the time he was engaged in this undertaking he was assisted by his nephew, J. Clyde Baker, the defendant in this suit, who is the son of his sister, Mary J. Baker; that when J. Clyde Baker decided to devote his time to other employment he stopped trapping with his uncle regularly and left all of his traps with him, but continued to help him from time to time by taking him to and from the trapping area and rowing the boat for him to visit his traps; that Landreth Hill continued to rely upon J. Clyde Baker for favors practically up to the time of his death; that prior to his death, namely, July 28, 1943, the said Landreth Hill made his will which was duly admitted to probate on April 10, 1952, and by which he devised and bequeathed all of his property, real, personal and mixed, of whatsoever kind and wheresoever found, to his nephew, Charles Lewis Hill, to have and to hold and to dispose of as he deemed advisable; that Mary J. Baker lived only a short distance from her brother, Landreth Hill, who visited her almost daily and had many meals at her house; that for a period of four years prior to his death her said brother had numerous conversations with her during which he told her that he had given J. Clyde Baker his ‘ money which [48 Del. 307] he had in the bureau’ ; that Landreth Hill also had conversations prior to his death with his niece, Mildred E. Morris, her husband, Ronald E. Morris, and Mabel B. Baker, wife of the defendant, J. Clyde Baker, during which he told them that he had given J. Clyde Baker his ‘ money which he had in the bureau’ ; that about ten days before he died he sent word to J. Clyde Baker, by his sister, Mary J. Baker, that ‘ he wanted Clyde to come and get what was his'; that on Sunday, March 30, 1952,
the defendant, J. Clyde Baker, and Mabel B. Baker, his wife, Mildred E. Morris and Ronald E. Morris, her husband, visited Landreth Hill at his house and found him unwell but able to be up and around the house; that while Mrs. Morris and Mrs. Baker were out in the yard with the children, Landreth Hill insisted that Ronald E. Morris and the defendant, J. Clyde Baker, go upstairs with him, and when they got upstairs he went to a room opposite his bed room, unlocked a bureau drawer and took from it a pocketbook which he handed to J. Clyde Baker saying, ‘ this is yours, take it with you’ ; that Clyde took the pocketbook and he and Landreth Hill counted the money found in it; that after they had finished counting the money they both said that it amounted to $840; that Clyde asked Landreth Hill if he could keep the money where it was, and Hill then gave him the key to the bureau drawer and told him to keep it; that Clyde then put the pocketbook and money back in the bureau drawer from which Landreth Hill had taken it, locked the drawer with the key which he had given him and put the key in his pocket; that on the following Friday, being April 4, 1952, Landreth Hill died; that after learning of his death J. Clyde Baker went to his house, unlocked the drawer in the bureau in which he, Clyde, had put the pocketbook and $840, with the key which the deceased have given him, and took out said pocketbook and $840.
The plaintiff contends that the pocketbook and money in question were in the possession of Landreth Hill at the time of his death, and became a part of his estate which at the time of his death passed, under the terms of his will, to his nephew, Charles Lewis Hill.
The plaintiff further contends that the conversations which the deceased had with his sister, Mary J. Baker, and the other members of his family, including the conversation and what took place between him and the defendant, J. Clyde Baker, on [48 Del. 308] March 30, 1952, were not sufficient to support a donatio inter vivos or a donatio causa mortis, because there was no delivery of the property to the donee, either actual or constructive.
The defendant takes the position that the evidence in this case not only supports a gift inter vivos, but that based upon the authorities cited in his brief, it is sufficient to constitute a gift causa mortis.
In the case of Drummond v. Hopper, 4 Harr. 327, the Court charged the jury that the first evidence of the ownership of personal property is possession; also that one in the possession of personal property who holds himself out to others as the ...