Hocks v. Jeremiah

92 Or. App. 549, 759 P.2d 312 (1988)



An action for replevin requires proof that the defendant holds property that rightfully belongs to the plaintiff. It is a defense that the defendant acquired the property as a gift. The rules for the establishment of an inter vivos gift are strict. Every element must be shown by clear and convincing evidence. "Clear and convincing" means that the evidence is free from confusion, fully intelligible, and distinct and that the truth of the facts asserted is highly probable. Proof of a gift requires a showing that the donor made an actual or symbolic delivery of the property to the donee by the transfer of possession and absolute dominion over the property, accompanied by a manifested intention to make a present gift. A gift to take effect in the future is ineffective. If no present interest is created at the time of delivery, there is only a gratuitous promise to make a gift in the future. If no interest is created until after the donor's death, the transaction is testamentary and ineffective, unless it is executed with the formalities required for a will. 


The will beneficiary brought an action against decedent's sister for replevin and conversion of personal property, much of which was kept in a safety deposit box jointly leased by decedent and the sister. The sister asserted that decedent gave the property at issue to the sister before his death. Included were four bonds that decedent handed to the sister and a diamond. The trial court dismissed the beneficiary's action on the ground that the decedent had made an inter vivos gift of the property at issue to the sister. The case was appealed.


Was the court's dismissal proper?




The court reversed the trial court's judgment dismissing the will beneficiary's action. The case was remanded for proceedings not inconsistent with the court's opinion. As to the property other than the first four bonds at issue, the evidence was insufficient to enable the trial court to find that the decedent had made an inter vivos gift. The evidence was insufficient to support a finding that decedent had transferred possession and absolute dominion over the other property. Even if in some circumstances the joint leased safety deposit box was sufficient to constitute delivery by the transfer of possession and control, it was not sufficient in the instant case.

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