Hocks v. Jeremiah
759 P.2d 312 · Court of Appeals of Oregon · 1988
Facts
Robert Hocks (Hocks) met his sister, Jeremiah, at a restaurant and gave her four bearer bonds, stating he wanted to give them to her due to love, gratitude for her care of their mother, and a promise. He suggested she place them in a safety deposit box, saying everything in it would be hers. They jointly rented a box, each signing and retaining a key, with Hocks paying the rent. Jeremiah stated she preferred Hocks collect the interest, and he agreed, but said she could access them if needed. Hocks later told Jeremiah he added an "investment" diamond and, over the years, added 22 more bonds to the box. Jeremiah never accessed the box until after Hocks' death, and she asked him to leave notes indicating her interest to avoid future issues. Hocks placed two notes in the box, one bequeathing a diamond and another stating the box contents would belong to Jeremiah upon his death. Two days after Hocks' death, Jeremiah removed the contents.
Procedural history
Plaintiff appealed from a judgment after a trial to the court that dismissed her action for replevin and conversion against defendant Jeremiah. The trial court had agreed with the defendant's assertion that Hocks gave her the property before his death. This court reviewed the appeal and reversed in part and affirmed in part, remanding the case for further proceedings.
Issue
Did Hocks make a valid inter vivos gift of the bonds and diamond to Jeremiah, requiring a present transfer of possession and absolute dominion with the intent to make a present gift?
Holding
The court affirmed the trial court's finding that Hocks made a valid inter vivos gift of the initial four bonds. However, the court reversed the trial court's finding regarding the remaining bonds and the diamond, concluding there was insufficient evidence to establish a valid inter vivos gift for those items.
Rule
To establish an inter vivos gift, the donor must make an actual or symbolic delivery of the property to the donee by transferring possession and absolute dominion over the property, accompanied by a manifested intention to make a present gift. This must be proven by clear and convincing evidence, meaning the evidence is free from confusion, intelligible, distinct, and the truth of the facts asserted is highly probable. A gift intended to take effect in the future or only after the donor's death is ineffective unless executed with the formalities of a will. While a joint lease of a safety deposit box can sometimes constitute delivery, it is insufficient if the donor retains access, pays for the box, uses it frequently, collects income, lists contents as assets, and the donee does not access it or believes their interest is future.
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