the law with regard to donative intent and delivery. 38 C.J.S. 'Gifts' § 53, p. 838.
One affirmatively asserting a gift inter vivos usually has the burden of proving it including all the elements essential to its validity. In order that the owner of property may not be circumvented by fraud, alleged gifts inter vivos are viewed by the courts with caution, and to sustain them, the evidence must be clear and convincing, which means something more than a mere preponderance of the evidence. McNabb v. Fisher, supra; 38 C.J.S. 'Gifts' § 67 et seq., p. 869.
An alleged donee's mere possession of a policy of insurance is not of itself sufficient to establish a gift thereof. 38 C.J.S. 'Gifts' § 67(b), p. 878.
At trial plaintiff proved he was the owner of the policy in suit. The defendant testified that plaintiff gave her the policy when it arrived by mail from the Insurance Company at his home shortly after September 1, 1955. She said he told her that the policy was hers, that she should keep it with her things, and under no circumstances was she to give it up. Her testimony was somewhat weakened on cross-examination when she agreed that plaintiff wanted her to have the policy in case anything happened to him.
Plaintiff categorically denied that he gave the policy to defendant. His testimony was somewhat weakened when he also said he could not remember giving it to her.
Fred Schlanger, a brother, visited plaintiff about November 1, 1955, just before plaintiff entered the hospital for surgery. He testified
that he heard plaintiff say he had made provision for defendant: 'I have left her a policy. I want her to be well provided for.' He admitted he could not recall the exact words. This witness also testified that on a subsequent visit he found the policy in a pigeonhole in plaintiff's desk in his den and observed that defendant was named as beneficiary therein. Defendant testified that she kept the policy in plaintiff's locked filing cabinet with her jewelry.
The foregoing is the sum of the direct evidence bearing on the plaintiff's donative intent and delivery. With respect to both issues it is simply oath against oath.
Plaintiff's declaration to his brother adds very little. Having been made in the hospital just prior to a serious operation, it has testamentary implications and is ambiguous; it is as consistent with his having designated the defendant a beneficiary of the proceeds of the policy after plaintiff's death, as with his having made a gift of the policy itself; and it is more consistent with his having made a gift causa mortis of the policy to her than with a gift inter vivos.
The evidence of delivery is not clear. Defendant says plaintiff handed her the policy and told her to keep it with her things in his filing cabinet, which she did. Plaintiff had the only key to the file which he gave to defendant when he went to the hospital. Fred Schlanger's testimony that he found the policy in a pigeonhole in plaintiff's desk tends to negative a complete delivery or surrender of all control. Defendant took the policy with her when she was discharged and moved out while plaintiff was in the hospital. At that time she was in control of plaintiff's home and had access to his filing cabinet and desk.
Applying the principles stated, it is the opinion of the court that defendant had the burden of proving the gift, and that she failed to meet it. We think that the evidence with regard to the essential elements of donative intent and surrender of all control of the policy does not preponderate in favor of defendant and is far from being clear and convincing as is required.
Defendant in her brief argues that she is entitled to judgment 'on the theory of a contract between the plaintiff and defendant wherein the plaintiff was to, and did, name the defendant as beneficiary of the policy in consideration of her continuing in his employ'. Defendant did not testify directly that any such contract was entered into; on the contrary, her testimony was directed toward establishing a gift. Insofar as appears, the plaintiff voluntarily designated defendant as beneficiary and without her knowledge; she did not even know of his intention until after the change had been accomplished, which was long after the contract of employment had been entered into. Nowhere does it appear that plaintiff agreed with defendant to name her an irrevocable beneficiary; instead he specifically retained the right to change the beneficiary. All that plaintiff did was to give defendant a hope or expectation of the proceeds of the policy if she survived him.
Conclusions of Law
1. The court has jurisdiction of the parties and the subject matter.
2. It being undisputed that plaintiff was the owner of the policy, the burden was upon defendant to prove by clear and convincing evidence every essential element of a valid gift inter vivos.
3. The defendant failed to meet her burden of proof to establish a gift inter vivos.
4. The burden was upon defendant to prove by a fair preponderance of the evidence a promise to transfer title to the policy as an inducement to or in consideration of her remaining as plaintiff's housekeeper.
5. The defendant failed to meet her burden of proving a promise to transfer title to the policy to her.
6. The defendant failed to prove that plaintiff agreed to name her an irrevocable beneficiary of the policy as an inducement to or in consideration of her remaining as plaintiff's housekeeper.
7. The plaintiff is the present owner of life insurance policy No. N679,486 issued by Aetna Life Insurance Company, and he is entitled to its possession.
8. An order should be entered directing the Clerk of Court to deliver said policy to the plaintiff.