Lord v. Katz

Plaintiff has appealed from a judgment in favor of defendant as administrator of the estate of John Ryan, deceased, in an action seeking to quiet title to certain shares of corporate stock. Plaintiff’s claim of ownership of the shares is based upon an alleged gift inter vivos by the decedent of whose estate respondent is administrator. A second count of' the complaint sought to enforce payment of a

The decedent at the time of his death on January 27, 1941, was a bachelor seventy-nine years of age. He had been retired for more than twenty years, living on the income and proceeds of securities he had accumulated. The plaintiff is a widow. Her husband, Frank Lord, died on June 13, 1937. Frank Lord and the decedent had known each other since the former was a boy four or five years of age. The decedent was about eighteen years his senior. In about 1920 the two met again in San Francisco and Frank Lord invited the decedent to his home for dinner. Thereafter the decedent called for dinner about every two weeks. Commencing a few years later the decedent was almost a daily visitor. About eighteen years ago the Lords moved to a home on Funston Avenue. Thereafter Ryan spent almost every day there puttering in the garden and having his noonday meal with Mrs. Lord. On occasions he would remain for dinner and sometimes spend the night. On holidays and other occasions such as birthdays he was always among the guests. During this period he lived at a small hotel but for about five months after Mr. Lord’s death he stayed at the Lord home. He had frequently told Mrs. Lord that he had no relatives except that he might have some “forty-second cousins.” In January of 1940 while he and Mrs. Lord were having lunch, no one else being present, the decedent handed her a key and stated that it was the key to his safe deposit. She inquired why he was giving it to her and he replied, “Well, because everything in it is yours.” He then said there were 570 shares of Transamerica, 50 shares of Bank of America, 11 shares of Bank of Blair (Bankamerica Blair Corporation) and 26 of Equity Corporation. (These were the only securities found in the box after Mr. Ryan’s death. All the certificates bore dates prior to January of 1940.) Subsequent to this time the key remained in Mrs. Lord’s possession continuously. Mr. Ryan at no time asked that it be returned to him. Mrs. Lord did not tell anyone of the conversation except that her daughter knew she had the bey and she told her daughter what Mr. Ryan had stated was in the box. (The daughter did not testify.) Mr. Ryan dropped dead on January 27f 1941, at Mrs. Lord’s home, and was buried in the

After the alleged gift plaintiff did nothing towards reducing the stock certificates to her physical possession, though she had her own safe deposit box in the same bank. During this same period Mr. Ryan visited the box on five different occasions though his purpose in so doing does not appear nor does it appear where or when he obtained the key to gain access. In her briefs appellant apparently concedes that he must have had a second key at all times. Mr. Ryan had been accustomed to receiving his mail at the Lord residence. Subsequent to January, 1940, dividend checks were received by mail which plaintiff gave to Mr. Ryan unopened. She testified that Mr. Ryan would ask her why she had not opened them and when she replied that she would not he would say that it would all be hers anyway. She testified on one occasion that she had told him, “Well, we will wait until it is”; and on another that she told him he would enjoy it. Plaintiff did state that Mr. Ryan owned the stock “all the time” but immediately thereafter she modified this by stating that she meant all the time prior to his giving her the key. She also testified that she felt the stock would be hers after Mr. Ryan’s death but this answer she explained by stating that she felt the stock was hers when Mr. Ryan gave her the key but that she would not take anything while he was alive. Though she further testified that even after Mr. Ryan gave her the key he could have given the stock to someone else she also explained this testimony by stating that if he had wanted to do so she would have given the stock back.

After Mr. Ryan’s death a representative of the defendant telephoned to plaintiff and at his request she delivered to him the key to the box but the court found that “plaintiff, at the time of said delivery, claimed to be entitled to the contents of said safe deposit box”; and “plaintiff delivered said key to said safe deposit box under protest.” This finding is supported by the evidence.

After defendant’s appointment as administrator plaintiff through an attorney filed a creditor’s claim against the de

We have related the evidence in perhaps greater than usual detail because the first and determinative question presented is whether under this evidence the lower court was justified in finding “that it is not true that said John Ryan gave or delivered said certificates of stock, or any of them, evidencing the right to said stock, or any of said shares of stock, or that said John Ryan intended to make a gift of said stock . . . to plaintiff ...” More properly stated the question is whether as a matter of law the evidence required a contrary finding. The solution of this question must be found in a determination whether the facts presented bring this case within the well settled rule that the court may not arbitrarily reject the uncontradicted testimony of a witness or the equally well settled exceptions to said rule that such testimony may be disregarded when it is inconsistent with surrounding circumstances or where inconsistencies in the witness’s testimony or his manner of testifying or the inherent improbabilities of the testimony justify such action. Davis v. Judson, 159 Cal. 121 , 128 [ 113 Pac. 147 ]. In truth this is not an exception to the rule for if there are such inconsistencies or inherent improbabilities the rejection of the testimony is not “arbitrary.” This determination must be made in the light of the rule that ‘ ‘ every element necessary to constitute a gift must be sustained by explicit and convincing evidence.” Sullivan v. Shea, 32 Cal. App. 369 , 371 [ 162 Pac. 925 ].

Appellant stresses the fact that at the conclusion of the testimony and before the argument the trial judge stated the facts were proved without dispute and stated among other things that it was uncontradicted that the decedent “handed the key to his safe deposit box to Mrs. Lord and told her that the contents of the safe deposit box belonged to her.”

It is respondent’s contention that appellant’s testimony was full of inconsistencies of which the trial court was the exclusive judge in reaching its determination whether a gift was intended. Respondent adds that the fact that the gift would have divested the decedent of his only means of support except for a bank account of about $1,100 makes it improbable

In a case of this kind we cannot say that the conclusion of the trial court was entirely arbitrary, and we cannot say that the court was bound as a matter of law to accept all the testimony of appellant as true. Since the judgment must be affirmed on this ground it is unnecessary to consider any of the other grounds urged by respondent.

The judgment is affirmed.

Sturtevant, J., and Spence J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied November 9,1942.