Tomayko v. Carson

¶1Dissenting Opinion by

¶2Under the testimony adduced, the jury’s verdict established that the decedent declared upon a number of relevant occasions in the last year of his life that he had given to Alex Tomayko, the claimant, the Coca-1 Oola stock here in controversy. The majority opinion discards the donor’s declarations in such regard as being “too loose and vague” and states that “. . . there is insufficient evidence establishing with necessary preciseness just when, where or under what circumstances such declarations were made . . . .” On the contrary, I suggest that the testimony does do just that and with particularity. Reference need be made to no more than

¶3*387the testimony of James Nacearato, one of the three witnesses to the declarations.1

¶4*388What the decedent told Naccarato was not mere idle or even casual talk. Naccarato was considering taking a steady job with the Coca-Cola Bottling Company of Charleroi and wanted some assurance as to the prospective permanency of the employment. He had worked for the Pittsburgh Steel Company for fourteen years and, before changing positions, he wanted, as his testimony discloses and the circumstances authenticate, some indication of security; he didn’t want merely to lose his seniority rights with the steel company. It was in such relation that Swearingen told him that he had given his stock in the Coca-Cola Bottling Company of Charleroi to Alex (Tomayko) and that as long as Naccarato got along with Alex he would be secure in his position. The first time Swearingen told Naccarato that he had given Alex the stock was in the spring of 1947 and the last time was in March 1948, shortly before Naccarato accepted employment with the Charleroi company. Swearingen died three months later, on June 24, 1948. The decedent’s like declarations, as testified to by the other two witnesses, were not earlier than 1947. The significance of the time of their utterance will appear later.

¶5The testimony amply supports a finding that the decedent had declared his completed gift to Alex. The jury accredited the witnesses thereto, as was its right, and the trial judge who saw and heard them approved the finding. To ignore the factual implications of the *389jury’s verdict is an unwarranted judicial invasion of the appropriate fact-finding function. In reviewing the record now before us, we should therefore start with the established fact that the decedent declared at relevant times in 1947 and 1948 that he had given to Alex his stock in the Coca-Cola Bottling Company of Charleroi which was in a safe deposit box to which Alex had a key.

¶6The rule has long been recognized and applied in this State that declarations by a donor that he has already consummated his gift imply as a matter of law, and are therefore competent evidence of the fact, that delivery and every other essential to the creation of a valid gift were performed.

¶7In a well considered opinion by Judge Penrose for the Orphans’ Court of Philadelphia County in 1880 in Malone’s Estate, 8 W.N.C. 179, 182, it was held that “. . . the delivery may be proved by the declarations of the donor, just as the gift itself may be; and when the donor declares that he had given at a previous time, and that the donee had then become the owner, it is implied that delivery, and indeed every other formality necessary to create a complete gift, had taken place. The law always presumes knowledge of its requirements.” The learned jurist further stated (pp. 181-182) that “It is clearly shown by the American authorities, if not also by the English, that any act on the part of the owner of a chose in action, showing not only a present intention to transfer, but that he regarded himself as having carried such intention into effect, is sufficient, and that no written evidence of the transaction is required.” This court affirmed per curiam (sub nom. Malone’s Appeal, 38 Legal Intelligencer 303) “. . . on the opinion of the learned Judge of the court below . . . .”

¶8The Malone case has since been quoted from with approval a number of times and has never been de*390parted from or qualified: see Kulp v. March, 181 Pa. 627, 633 et seq., 37 A. 913; Leitch v. Diamond National Panic of Pittsburgh, 234 Pa. 557, 567, 83 A. 416; Sherman v. Stoner, 78 Pa. Superior Ct. 189, 193.

¶9In Leadenham’s Estate, 289 Pa. 216, 222, 137 A. 247, “. . . seven well-known residents of Franklin, friends of the doctor [donor], testified to conversations in which he said, in effect, that he had given Mrs. Austin the stock certificates and placed them in a box in the Franklin Trust Company’s vault, which he had rented for her” (Emphasis supplied). This court held that the question of a gift of the stock was for the jury. Indeed, a mere implication by an alleged donor that a gift has been executed is sufficient to make the meaning of the donor’s words a matter for the jury’s interpretation on the issue of a gift: see Jacques v. Fourthman, 137 Pa. 428, 432, 20 A. 802, There the following questions were asked and answered, — “What did the decedent mean when he said ‘Julia, where are those notes I gave you?’ Did he mean that he had given them to [her] ? Certainly, the court cannot say, as a matter of law, that he did not. The word used was entirely appropriate to express the fact of a gift. The actual meaning of the declarant must be determined by the jury, and if they decided that a gift was meant, could they not lawfully do so?” .

¶10Nor is the integrity of an executed gift impaired in the slightest degree by the fact that the donor has access to the safe deposit box where the gift property is kept or, if shares of stock, that they continue to stand in his name. In Pyewell's Estate, 334 Pa. 154, 160, 5 A. 2d 123, Chief Justice (then Justice) Drew said for this court, “Since the gifts of the property in question were fully executed by the donor, neither the fact that she [the donor] had access to the safe where the property was kept nor her subsequent receipt of dividends on this stock would invalidate the transaction: Kauf*391mann’s Estate, 281 Pa. 519; Chapple’s Estate, [332 Pa. 168, 2 A. 2d 719].... once the transaction is completed it is not necessary that the donee retain the property in her possession: 28 C. J. 641.” See also Packer v. Clemson, 269 Pa. 1, 3, 112 A. 107, where the gift stock continued to stand in the name of the donor throughout his life and on which he received the dividends during that time.

¶11The majority seek to distinguish the cases cited in support of the gift by saying that “ ... in each instance there was additional evidence [beyond the donor’s declarations] of delivery or of surrounding circumstances reflecting a delivery.” The fact is that in no instance does it appear that the donor’s declaration of an already completed gift was not of itself sufficient to carry the case to the jury. Especially, in the Malone case, it is implicit in Judge Penrose’s opinion that, without the independent evidence of delivery, there mentioned, the donor’s verbal acknowledgment of his executed gift was sufficient to take the case to the jury on the question of gift. The case of Wohleber’s Estate, 320 Pa. 83, 181 A. 479, which the majority cite is not presently germane. No one disputes that “A joint lease of a safe deposit box is not of itself sufficient to establish joint ownership of securities found therein which originally belonged to one of the lessees.” But, on the other hand, the fact that both Swearingen and Alex had rightful access to the deposit box, wherein the stock was located, does not operate to divest Alex of his right to the securities by virtue of the proven gift: see Pyewell’s Estate, supra.

¶12As against the finding of an executed gift, which the declarations of the donor support, the defendants point to the fact that, although the decedent by his last will of February 23, 1944, had bequeathed his stock in the Coca-Cola Bottling Company of Charleroi to Tomay*392ko,2 by a codicil of August 10, 1946, be revoked that bequest and in lieu thereof directed his executors to give the Coca-Cola Company of Pennsylvania first opportunity to buy the stock at its fair and reasonable value. The evidence clearly shows that this testamentary change was made not because of any desire on Swearingen’s part, but actually contrary to his wishes, at the urgent insistence (veritably a demand) of the Coca-Cola Company of Pennsylvania to which the Charleroi company was beholden for its distributing franchise. In fact, the attorney for the Pennsylvania company (or the parent Coca-Cola Company of Delaware) prepared a draft of the change in Swearingen’s will with respect to his stock in the Charleroi company, which the Pennsylvania company required, and intended to come to Charleroi to have the codicil “re-written and the will re-executed so that they would have the right to buy the stock.” Swearingen, fearful of losing his distributing franchise if he continued to refuse to make the change in his will required by the licensing company, gave in to its demand and executed the codicil. But, he contemporaneously confided to a friend that “Alex would be taken care of.” And, it is undisputed that his kindly feeling and attitude toward Tomayko never underwent any change but endured undiminished to the day of the decedent’s death. A significant thing is that the declarations of the decedent, as testified to, that he had given Alex the stock (which he was at liberty to do despite the codicil) were all made subsequent to the execution of the codicil of 1946 and its republication of February 16, 1947. It cannot, therefore, be said as a matter of law, on the basis of *393tbe testamentary writings, that the decedent did not in his lifetime give Tomayko the stock as he acknowledged he had. The question of the gift was still a matter for the jury to resolve.

¶13I fail to understand how the trial court can possibly be convicted of error for refusing the defendants’ motion for judgment n.o.v. Accordingly, I dissent.