Succession of Quinn

ODOM, Justice. Mrs. Delia Quinn, widow of John Joseph Owens, died on March 23, 1933, leaving a last. will by which she appointed Joseph J.0 Ferguson executor. The will was probated, the appointment of the executor was confirmed, and an inventory was subsequently made by a notary. It seems that the executor had been informed that, in addition to the real estate owned by the deceased, she had a considerable sum of money, probably as much as $3,000, in her safety deposit box in one of the banks in the city. After listing the various properties of the deceased,' tlie notary, in company with the heirs and the attorney, went to the bank, and, in the presence of all parties interested, opened the safety deposit box, but found no money therein. Subsequently the notary was informed by an official of the bank that on March 3, 20 days before Mrs. Owens died, two of her daughters, Mrs. Duvernay and Mrs. Covalt, had been permitted to open the safety deposit box; Mrs. Duvernay having joint access to it with her mother, as per arrangements made at the time the box was rented. This knowledge having been conveyed to the executor, he visited Mrs. Duvernay and inquired of her specifically whether she and her sister had extracted from the box any money or other articles of value whatever. The executor was told that nothing had been extracted from the box. The executor, not being satisfied, ruled Mrs. Duvernay and Mrs. Covalt to show cause why they should not either return the money to the succession or be charged with the amount thereof against that portion of the succession coming to them under the will. In answer to the rule, Mrs. Duvernay and Mrs. Covalt admitted that ‘ they had extracted from the box $2,700 in currency, carried the same to their mother at her home, where she was then ill, and alleged that their mother had -then and there made a manual gift to them of the money, giving to each one-half thereof. They therefore claim the money by virtue of the alleged manual gift made by their mother. After hearing on the rule the trial judge held that defendants had failed to prove the alleged manual gift and ordered them to restore the $2,700 to the succession, and, in the alternative, that they be charged with the amount. From this ruling Mrs.. Duvernay and Mrs. Covalt prosecute this appeal. This case was not orally argued, but was submitted on briefs to be filed. Appellant has not filed brief, and we are therefore not informed as to the ground on which counsel rely for a' reversal. We have, however, carefully read the testimony adduced on the trial of the rule, and are convinced that the judgment appealed from is correct. Mrs. Duvernay and Mrs. Covalt, as well as Mrs. Airey, a daughter of Mrs. *731 Duvernay, testified positively that on March 3, previous to the death of Mrs. Owens on March 23, she made the manual gift. Mrs. Duvernay and Mrs. Covalt testified that on the morning of that day, their mother instructed them to go to the bank, get the money, and bring it to her. They further testified that 'their mother told them that she wanted the money brought to her in order that she might give it to them, and that they brought it to their mother in two separate envelopes, $1,350 in each envelope, and that their mother took the envelopes, looked into 'them, and asked if the amount had been equally divided, and that- on being informed that it had, their mother handed the envelopes back to them, stating that she wanted them to have the money. Mrs. Duvernay and Mrs. Covalt called as their witness Mrs. Kate Blackwell, who testified that Mrs. Owens had on March 2 specially requested her to be present on the following day, because at that time she was going to instruct her two daughters to get the money, bring it to her, and that she was going to give it to them. Mrs. Blackwell testified that she was in the bedroom with Mrs. Owens on March 3 when the two daughters left the house to go to the bank, and that she was present when they returned. She further testified that the daughters brought a package from the bank, which they handed to Mrs. Owens, who immediately placed it under her pillow. She stated that she had no information as to what the package contained, and did not see Mrs. Owens make the alleged gift.' According to her testimony, she left the room immediately after the package was handed to Mrs., Owens, and went into an adjoining room to get a cup of coffee. It is strange that she left the room at the very time she .was supposed to witness the gift. The testimony of t.hese witnesses' is greatly weakened, if not completely broken down, by other testimony in the record. Mr. Ferguson, the executor, testified that on March 5, two days after Mrs. Duvernay and Mrs. Covalt say their mother had made this manual gift, Mrs. Owens sent for him and told him that she had appointed him executor of her last will, and that at that time she had a considerable sum of money in her safety deposit box at the bank, and that she wanted him to use that money to pay her taxes, which amounted to about $900, and to improve some eight or nine pieces of rental property which she owned in the city of New Orleans, from which she had been receiving revenue. He stated that Mrs. Owens further told him that she thought it would be best for the heirs that he take the money and improve the property so that it would produce revenue. Mr. Williams, attorney for the executor, and a personal friend of the deceased, testified that Mrs. Owens had sent for him and asked him to prepare her last will. This was only a short time prior to her death. He testified that Mrs. Owens told him that she had withdrawn her savings from the bank and had placed them in a safety deposit box because under conditions which then prevailed she was afraid the banks might close, leaving her with *733 no available cash with which to pay taxes and other necessary expenses. Mr. Paul E. Chasez, a notary, made the inventory. He testified that after listing other properties belonging to the succession, he went to the bank, and in the presence of Mrs. Duvernay and Mrs. Covalt and the other heirs, opened the bank box and found nothing therein except a certified copy of the will and a promissory note held by the deceased. He testified that he then and there asked Mrs. Duvernay and Mrs. Covalt if they knew anything about the cash which was supposed to be found in the box, and they informed him that they did not. He testified further that due to the fact that he had been informed that Mrs. Owens had withdrawn a considerable sum of money from the bank a short time prior to her death, and that there was no money found in the bank box, he then proceeded to the residence occupied by the deceased at the time of her death to make a search for the money. He testified that he there met Mrs. Duvernay, and again questioned her closely regarding this cash and whether or not she or her sister had extracted it from the box, and that Mrs. Duvernay told him that she knew nothing whatever about the money, but that she had taken a package from the box at the suggestion of her mother, had given the package to her mother while she was in bed, and had no knowledge as to what became of the package or its contents. The testamentary executor testified that having been informed that Mrs. Duvernay and Mrs. Covalt had opened the box on March 3, he visited Mrs. Duvernay at her home on Canal street and again interrogated her with reference to this money, and that she positively denied any knowledge whatever of the contents of the box. This was before the rule was filed, in answer to which these sisters admitted that they had taken the money out. In addition to the above testimony adduced by the executor on the trial of the rule, Mrs. Mamie Quinn, wife of Mrs. Owen’s nephew, who had been employed as an attendant of the deceased during her last illness, testified positively that she was at the bedside of Mrs. Owens during the entire day of March 3, and that whereas Mrs. Duvernay and Mrs. Covalt did leave the residence during the day and return, yet she is positive that Mrs. Owens did not make the manual gift. She said she was present in the bedroom during the entire time that Mrs. Duvernay and Mrs. Covalt were there. In addition to her testimony Mrs. Milliet testified that she was present during the entire time Mrs. Duyernay and Mrs. Covalt were in the room and that there was no manual gift made. Under the showing made by the executor we think the judgment appealed from is correct. It is therefore affirmed.