Patterson v. Greensboro Loan & Trust Co.

Ho ice, J. Tbe authorities in tbis State are in full support of tbe position contended for by defendant, that in order to a valid gift of personal projierty there must, be an actual or constructive delivery with tbe present intent to pass tbe title. Gross v. Smith, 132 N. C., 604; Duckworth v. Orr, 126 N. C., 674; Wilson v. Featherston, 122 N. C., 747; Newman v. Bost, 122 N. C., 524; Medlock v. Powell, 96 N. C., 499; Adams v. Hayes, 24 N. C., 361. Tbe Court is of opinion, however, that without any impairment of tbe principle recognized and sustained in these cases, there áre facts in evidence from which delivery could be properly inferred by tbe jury. From tbe testimony of tbe principal witness it appeared that Delia A. Patterson is tbe daughter of Roxie Patterson and tbe granddaughter of William Collins; -that William Collins died on 6 April, 1907, and that tbe wife *15 of 'William Collins, grandmother of Lelia, died about eighteen years ago; that the grandmother of Lelia had given Roxie Patterson a trunk for Lelia, and that the trunk was always called and used as Lelia’s, and remained in an upstairs room in the Collins home until after the death of the grandmother; that in the summer after the birth of Lelia, while Roxie Patterson and child were on a visit to the grandparents, the mother showed the grandfather a $5 gold-piece which she said.Judge Armfield had given to her for the child, whereupon the grandfather remarked, “Well, we will keep that up. I will keep that up. I expect to give her $5 in gold every 22d of the month for her birthday.” He then and there began the practice of putting into the child’s trunk $5 in gold every month, and after the death of the grandmother the trunk was brought down into his room. On several visits of the mother she saw the grandfather put $5 in gold into it when the monthly birthday of Lelia happened at the time. Some of Lelia’s things were in the trunk, that is to say, shoes, little hose, dresses, and things of that kind.” Lelia’s pet name was Hon, and in the grandfather’s last illness he said to his daughter: “There’s Hon’s trunk; I want you to move it; you may move this trunk now, if you want to, or you can wait and move it after I am dead.” The trunk was not then removed, and after his death it was opened and the sum of $1,050 in gold was found therein. There is no evidence that the trunk contained anything of value belonging to the deceased, that is, there was no other money in gold, nor were there any valuable papers. . True, there is a case in our reports, Brewer v. Harvy, 72 N. C., 176, where a father standing on his piazza with his wife and child, a girl 12 years of age, pointed to a colt some distance off and said to the child, “That is yours; I give it to you,” and in another ease a colt on the father’s farm, was always recognized by and spoken of as his son’s colt and the father had told the son he might have the colt if he would raise it. In both, the Court held there was not a valid gift for lack of proper delivery; but in both, it will be noted, there was no possession or control of the property given to the alleged donee or to any *16 one for him. In our ease the money was from time to time put by the intestate in the trunk recognized as the child’s trunk, and in the last illness of the donor he said to the child’s mother, the trunk being present: “There’s Hon’s trunk; I want you to move it; you may move it now, if you want to, or you can wait and move it after I am dead.” On this testimony we think his Honor correctly ruled that the question of delivery was for the jury. The case comes rather within the principle applied in Newman v. Bost, supra, in which it was held: “Where the articles are present and are capable of actual manual delivery, such delivery must be made in order to constitute a gift inter vivos or causa mortis; but where the intention of the donor to make the gift plainly appeárs and the articles intended to be given are not present, or, if present, are incapable of manual delivery, effect will be given to a constructive delivery.” There is no error, and the judgment for plaintiff must be affirmed. No error.