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I think the judgment below should be reversed and a new trial ordered, so that a fair opportunity may be given to the plaintiffs to present such case as they may have.

BEAUMONT v. BEAUMONT (two cases).
(Circuit Court of Appeals, Third Circuit. March 1, 1907.)

Nos. 66, 67.

1. GIFTS-GIFTS INTER Vivos-DELIVERY--NECESSITY.

It is essential to a completed gift that the donee should have such control, and such control only, of the subject-matter of the gift, as is consistent with the ownership purported to be transferred to him.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Gifts, SS 31, 34.] 2. SAME.

Where delivery of property as a gift has once been made, and possession transferred, the gift is irrevocable, and is not affected by the fact that the donor immediately thereafter comes into physical possession and control of the property without any retransfer of the ownership by the donee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Gifts, $ 20.] 3. SAME-CONDITIONS.

A donor may attach a condition to a gift in presenti, if that condition be not inconsistent with possession or control by the donee of the thing given.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Gifts, 8 68.] 4. SAME-JOINT ACCESS TO PROPERTY BY DONOR AND DONEE.

If a donor, with the clearly expressed intention of making a gift, make an actual delivery into the hands of the donee, the fact that the donor has lawful access to the depository of the thing given does not invalidate the gift, if the donee has also the same access to said depository, and has such control over the thing given that he may remove it at any time he

chooses to do so. 5. SAME.

The owner of 50 bonds rented a box of a safety deposit company in the name of himself and his two brothers, whom he took to the company, introduced them, and had them sign the contract of renting, and then retired with them to a room, taking the box and the bonds. He then handed one-half the bonds to each brother, stating that they were a gift, but that he desired the brothers to give him the coupons therefrom which should mature during his lifetime. After some conversation, they cut off some of the coupons next maturing, and gave them to him. They then placed the bonds and the coupons in the box, which was put in the vault; be taking one key, and giving them the other. Held, that the fact that he retained a key, and that he afterward visited the vault and took coupons from the box was not such a retention of control over the bonds

as to invalidate the gift. 6. TRIAL-INSTRUCTIONS—CREDIBILITY OF TESTIMONY.

An instruction held erroneous, in that it intimated to the jury that the testimony of a witness which was uncontradicted was inberently improbable, and was discredited by the cross-examination, which inferences were not warranted.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 46, Trial, $8 414

In Error to the Circuit Court of the United States for the District of New Jersey.

See 144 Fed. 288.
Wm. Findley Brown and Gilbert Collins, for plaintiff in error.
John B. Leavitt, for defendant in error.
Before DALLAS and GRAY, Circuit Judges.

GRAY, Circuit Judge. The writs of error in these cases are to judgments in two separate actions of replevin, brought in the court below by the same plaintiff, who is the defendant in error in each. Both cases depended upon the same material facts, although in one, there was some testimony additional to that adduced in the other. Being so related as to both the facts and the law applicable thereto, they have been so argued, and may now be considered together.

The facts in evidence common to the two cases are as follows:

It appears that one Jacob A. Bostwick died about 1893 or 1894. For many years prior to his death, Lucius S. Beaumont, the intestate of the plaintiff below, had been Mr. Bostwick's confidential agent. From the date of the latter's death until October 23rd, 1901, Lucius S. Beaumont was the confidential agent of Mr. Bostwick's widow. On the last mentioned date, Mrs. Bostwick presented to Lucius S. Beaumont, then about sixty years of age and about to leave her employment, the sum of $50,000. On October 24th, 1901, Lucius S. Beaumont purchased fifty bonds of the New York Gas, Electric Light, Heat & Power Co., of the par value of one thousand dollars each, and made a partial payment thereon. On the same day, he also rented a box in the safety vault of the Lincoln Safe Deposit Company of New York (a different deposit company from that in which he kept his other valuables), in the names of himself and his two brothers, John and Charles. On October 25th, 1901, he paid the balance due on the bonds, secured possession of them, met his two brothers by previous arrangement, at the Grand Central Station in New York, took them to the office of the Lincoln Safe Deposit Company, introduced them to an employé of that company, had them sign the card containing the contract of renting, which he had signed on the previous day, and retired with them and the box to a small room. He then put his hand in his coat pocket, and, taking out a package, said: “Here, John, is 25 bonds, $1,000 each, I give to you, and handed them over to John. He then took out of his other pocket another package, and said: “Here, Charley, is 25 bonds, which I give to you. What I want you to do, is to give me the coupons,-cut off the coupons and give me the coupons of these bonds as long as I live." "He then said we were to go there once in six months cut them off, and then it was decided, as he was going to leave New York and going West, it would be inconvenient for us to get away from our work; that we had better cut off two or three years' coupons; we then cut off the coupons for two and a half years and gave them to him.” He then put an elastic band around each six months' coupons and put them in an envelope. The next coupon was due February, 1902, and the coupons from February to February were cut off, which included February, 1904. He also said: "Sit down and take the numbers of the bonds and see if they are all right. Count

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them and see if they are there," and this was done, John taking the numbers down as Charles called them off. John then put his bonds into the box and Charles, his, and Lucius put his coupons in. Charles then took up the box and carried it to the vault, where it was locked in its receptacle. One key was given to Charles for both the brothers, and the number of the box and the pass-word were communicated to them, Lucius telling them that they had access to the box when they pleased, but that he trusted them (presumably about the coupons). The other key was kept by Lucius. On being asked by one of his brothers whether his wife knew anything of the transaction, he said that she did not; that he did not want her to know; that she was otherwise provided for. He said: "She thinks Mrs. Bostwick has given me a pension, and I want her to think so, and on my death it ceases.”

These, in the main, are the facts testified to in each suit by the brother of the defendant, the defendant himself being incapable, by reason of section 858 of the Revised Statutes of the United States (U., S. Comp. St. 1901, p. 659], of testifying in his own behalf.

In the case against Charles Beaumont, there was some additional testimony in corroboration of that given by his brother John. The custodian of the vault of the Lincoln Safe Deposit Company testified that he knew Lucius in his lifetime, and that when he applied to him for a box in the safe deposit vault, Lucius told him, as explaining why he wanted it, of his gift from Mrs. Bostwick, and that he was going to present $25,000 to each of his brothers; that he spoke-of it as an "absolute" or "outright" gift, and that he wanted to bring them there to sign for the box that he was about to rent. He also told him that he had provided for his wife, and how he had done so, and witness testified that he provided him, at his request, with a box of dimensions just sufficient to hold the two packages of bonds. Other minor facts and incidents were testified to by this witness, or were otherwise in evidence, which arguably corroborate the story of the brothers as to the gift of the bonds; but it is unnecessary to recite them here. The testimony of this witness (Carter) is criticised by counsel for defendant in error, as being confused and inconsistent with itself, and therefore unreliable. A careful examination, however, of this testimony, as it appears in the record, only discloses the fact that, upon crossexamination, the witness failed to appreciate the distinction between a gift outright of the bonds, and a gift to take effect at the death of the donor. This confusion does not seem to have been other than what was to be expected in the mind of a layman, subjected to a cross-examination on a distinction between gifts inter vivos and those which are intended to be testamentary in their character. His corroboration, however, of the testimony of the brothers, that Lucius intended in some way to give them these bonds, and had provided a box in a safe deposit vault, of which he gave them the key and in which they were to be deposited, is full and unequivocal. None of the witnesses were contradicted, discredited or impeached, otherwise than by the suggestion of the improbability of their story, in view of what was called the common experience of human nature under such circumstances, and the assignments of error raise a question as to the propriety of some

one or more of such suggestions as dealt with by the learned judge of the court below in his charge to the jury.

In both of these cases, there was a verdict for the plaintiff, a motion for a new trial, which was refused, and a judgment entered in pursuance of the verdict. In the case against Charles Beaumont, there are twenty-six assignments of error. We shall only discuss those which we think controlling and upon which our judgment is rested. In both cases, there was a motion that the court should charge the jury that, under all the evidence, their verdict should be for the defendant. Notwithstanding the fact that the testimony on behalf of the defendants was uncontradicted and unimpeached, we do not think, after a careful examination of the whole testimony, as disclosed in the record, that the court erred in refusing to so charge. It was for the jury to determine the weight of the evidence, and where there is any bona fide ground upon which it is assailed, the credibility of the testimony. There was also some question, which the court thought right to submit to the jury, touching the character of the control over the bonds conferred by Lucius on his brothers at the time of the alleged gift. We are not disposed to say that such a question should not have been submitted, though the manner of its submission may be open' to criticism.

Turning to the record in the case against Charles Beaumont, we find twenty-six assignments of error. In the view we take, however, it is only necessary to now consider the 18th and 19th assignments. They are as follows:

"Eighteenth.-Because the court instructed the jury as follows: 'I have said to you and I again repeat that, if the testimony as to what took place in that little room leaves you in any uncertainty of mind, then you have the right to look at the subsequent conduct of the parties, and see if it is consistent with a gift on October 25, 1901 ; and I refer, therefore, to the fact that Mr. Carter says that Lucius came from Butler on one occasion and told him he was living on these coupons which came from the bonds he had given to his brothers.'”

"Nineteenth.--Because the court instructed the jury as follows:

"Well, furthermore, it appears that Lucius came from Butler on one occasion at least and went to the box and took some coupons out. What was his object? What did that act indicate or suggest? Did he reserve in himself a power and control over the bonds that were in that box? Did he reserve in himself the right to go there and cut off coupons from the bonds? If he did, then he reserved a control over the bonds and did not give up all control over them and consequently did not make a gift.'”

The underlying question of these assignments is, what are the essentials required by the law to constitute a valid gift of personal property inter vivos, in a case like the present? Undoubtedly, there must be shown an intention to give; that is, an expressed purpose to divest the donor of title in and ownership of the thing given, carried into effect and evidenced by a delivery of possession to the donee, and acceptance by him. It, of course, inheres in the conception of the possession essential to a completed gift, that the donee should have such control, and such control only, of the subject matter of the gift, as is consistent with the ownership purported to be transferred to him. What shall constitute the essential delivery, possession or control, must depend always on the circumstances of each case and the environment

of the parties. Where delivery of the property has once been made and possession transferred, the gift is irrevocable, and is not affected by the fact that the donee immediately thereafter comes into the physical possession and control of the property, without any retransfer of the ownership by the donee. Corle v. Monkhouse, 50 N. J. Eq. 537, 546, 25 Atl. 157; Matthews v. Hoagland, 48 N. J. Eq. 455, 485, 21 Atl. 1054. This being so, we see no reason why a gift should not be affected by a condition requiring temporary or partial control of the the thing given by the donor, where the intention to transfer the ownership is made clear, and a possession commensurate with that ownership conferred upon the donee.

In Industrial Trust Co. v. Scanlan, 58 Atl. 786, 26 R. I. 228, decided in 1904, it appears that one Patrick Scanlan went to the bank and asked if a deposit could be made payable there to him or his brother, Dennis, so that if either of them should die, it would then be payable to the survivor. The treasurer of the bank explained to him that in that way either could draw it if he had the book. Subsequently Patrick opened the account in the names of himself and brother, Dennis Scanlan, payable to either or the survivor of them, and Dennis, though not present at the time, went soon after to the bank and signed the signature book. Patrick gave the book to Dennis on the day of transfer, saying that it was his, to do as he pleased with, and that he could draw the whole or any part as he wished. Dennis continued to have possession of the book, except on twc occasions when Patrick made withdrawals of different sums for his own use, returning the book after the withdrawals to Dennis. The court held it clear, that a gift from Patrick to Dennis was both intended and completed. In the course of its opinion, the court says:

"The argument against the vesting of a joint title in a donee is that, be cause the donor can defeat the gift by drawing the deposit, control of the deposit is thereby retained, and so the gift is not absolute and complete. To this, it may be replied that the donee has the same power, if he has possession of the book. Both parties cannot hold the book at the same time, and the mere fact that one has possession of it, ought not to be conclusive against the rights of the other.

Some cases go so far as to hold that the entry on the book of joint title, is self-operative, and that delivery of the book is not necessary (McElroy v. Natl. Sav. Bk., 8 App. Div. 192, 40 N. Y. Supp. 310), and that the retention of the right to draw the money deposited, does not affect the validity of the gift (Dennin v. Hilton [N. J. Eq.) 50 Atl. 600)."

It is true that, in the case just cited, the book, possession of which was necessary to enable either of the joint depositors to draw the money, had been delivered by the donor to his brother, but that, delivery once being made, completed the gift of the joint ownership intended by Patrick to Dennis, and thereafter, it mattered not who had possession of the book. The gift was complete by the expressed intention of Patrick and the delivery of the book and its having been returned by Dennis to Patrick without intention to retransfer his joint ownership, did not affect the validity of the gift, the Supreme Court saying, by Mr. Chief Justice Stiness :-"There can be no doubt that the owner of personal property has the right to give it away in whole or in part. Consequently, he can give a joint ownership to another." The court,

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