ARIZONA TITLE GUARANTEE & TRUST CO.
[75 Ariz. 83] Shimmel, Hill & Hill, and Harry J. Cavanagh, of Phoenix, for appellant.
Harold R. Scoville, of Phoenix, for appellee.
UDALL, Chief Justice.
This is an appeal from a judgment determining that plaintiff-appellee is the owner and entitled to the possession of 16 one thousand dollar Casa Grande School District bonds. The Arizona Title Guarantee & Trust Company, defendant-appellant, brings this appeal individually and as Special Administrator of the Estate of Jesse O. Wagner, deceased. The parties will be designated as they appeared in the trial court.
The plaintiff is the daughter of Mrs. Alice R. Wagner and the stepdaughter of decedent, Jesse O. Wagner. The marriage of Alice R. Wagner and Jesse O. Wagner took place in 1940. Plaintiff, whose name was changed to Wagner at decedent's request, was then seventeen years old and in the last year of high school. Mrs. Wagner, before the marriage, was employed as assistant superintendent of a private hospital in Cleveland, Ohio, which enabled her to provide comfortably for herself and plaintiff. Decedent, who was a wealthy man, wanted to provide for Mrs. Wagner and plaintiff, and therefore at the time of the marriage had Mrs. Wagner give up her employment and give notice to tenants to vacate an apartment that was a source of income to her. After the marriage the family at first made their home in the apartment in Cleveland, Ohio; later upon Mr. Wagner's retirement from active business management they moved to Phoenix and established their legal residence in Arizona. Early in the year 1950 Mrs. Wagner instituted, in the superior court of Maricopa county, a suit for divorce against her husband. Mr. Wagner took his life on April 13, 1950.
The plaintiff, after becoming a member of the family of Mr. Wagner, was always [75 Ariz. 84] treated by her stepfather with the same love and affection as though she were his own flesh and blood. She became very much attached to him, reciprocating his love. One cannot read this record without being impressed that decedent considered he had a paternal duty to not only support the plaintiff but to make provision for her future financial security. At no time during Mr. Wagner's lifetime did the plaintiff ever have a banking account of her own. Even when she was in the armed forces as a nurse her monthly savings were sent to decedent and the money was deposited to the Jesse O. and Alice R. Wagner checking account. In other words, she used her stepfather as a banker and relied implicitly upon him for advice and counsel in financial matters. Incidentally, decedent Wagner was painstaking in keeping a current record of all his business transactions and the pertinent entires were admitted in evidence.
The bonds that are the subject of this suit were purchased by decedent on February 7, 1950, through the brokerage house
of Refsnes, Ely, Beck & Co. of Phoenix. They are bearer bonds and were found by the defendant, special administrator, in a safe-keeping box at the Westward Ho Hotel (where Mr. Wagner then resided) a few days after his tragic death. It appears to be conceded that these school district bonds were purchased with the proceeds of certain U. S. Government Bonds, series E, theretofore registered in the name of the plaintiff, Jeanne A. Wagner. These government bonds were endorsed, surrendered and cashed by plaintiff for $18,915 on February 1, 1950,--with other bonds owned by her mother--and the proceeds thereof are readily traceable into the special bank account of Mr. Wagner's upon which a check was drawn by him to pay for said district bonds.
At the outset it should be pointed out that the plaintiff does not assert ownership of the school district bonds in question on the theory of a gift of them to her by decedent. Rather, her right of ownership rests on the claim that such bonds were purchased by decedent as her agent from the proceeds of the U. S. Savings bonds that had been previously given to her as a gift from him.
The defendant assigns as error:
(1) the action of the trial court in admitting in evidence communications made to the witness Alice R. Wagner by decedent during the course of their marriage;
(2) the holding of the trial court that, as a matter of law, there was a valid gift by decedent J. O. Wagner, to the plaintiff; the contention being that without the testimony of Mrs. Wagner there was insufficient evidence to establish the elements of valid gift as to the savings bonds.
We shall discuss these points in the order named.
The case was tried to the court sitting without a jury. The trial court proceeded cautiously, the ruling at the beginning of [75 Ariz. 85] the trial being that it would hear the testimony of Mrs. Wagner subject to a motion to strike at the conclusion of the case. After all of the evidence was in the court overruled previous objections and admitted her evidence in its entirety.
The statute assertedly violated by this ruling is subsection 3 of Section 23-103, A.C.A.1939, which provides in part:
'A husband can not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any ...