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Show MARCH 25, 1970 WEDNESDAY, THE DAILY RECORD " FINANCING SI'A TFMENTS Lester to 1W L Young, Crandall Ave, sle Offica Church LDS car Cr Uh; sic to Louisa Miller, 522 Pueblo, Tel EraP Cr Un; car hh gds Robert hh gds Orlie D Runkles, 2975 to Fid Ind Cr; hh gds S L Darlene Osquthorpe, 3230 Emigration Canyon, sic to S L Tel Emp Cr Un; Piano Howard Mart ell dvale G 10895 Lowe, W A Meat car tractor TV Richard to Naccarato, Cutters Local 537 1- K -5- 4th sic to W, Meat Beverly Manor Inc of Temple Gardens, 9th E, sic to United Medical Leas; Pearce Music, 253 & 2nd S, LD Heater Music; sects rec lc Wallace Hills A Wright Jr, sic to Lockhart; furn 475 N E Young, 2996 S Lockhart; fum equip FVed M to E S Joe 31&3 Lee Ben Stettnisch, Fin; 750 September 13, 1963 George A. Sims (signature) 9th S, W Following this was a typewritten list of the stocks delivered to the defendant. hh gds Temple, & sic sic Stansbury Sales, 529 to Capital Goods Supp)- Jim Morehouse dba Jims Canyon View 6719 Wasatch Elvd, sic to flat Cash 7& Reg; mach Harold L Jones, 2892 S 200 Fin; hh gds E Ind Town Ronald St Pierre, 754 3, sic 4th Ave, sic to Western States Thrift; hh gds Riverton to Robert to Sandoval, 4734 W Caplan St, Kearns to Lincoln Fin; hh gds C Rasmussen, 3429 Walker 5k; Camper S 3570 E, sic A sic Gary A Jones, 931 E Laird Ave, sle to Peoples Fin; hh gds to Centory Equip, 4375 Century Dr, sic Case Cr; Irv to J I In The Supreme Court Of The State Of Utah G. F.x Gran; SimEstate ol Cit iM l A Si. deceased Plait. I. If .,!.! Ainu-ill!- ! 11 . V No. 1169 FILED March 20 . 1970 . Mitchell M. ft In-urg- e ii Defendant took the stock certificates and placed them in the pocket of a raincoat at his place of business. But he did not have them transferred into his name until he was advised to do so after learning that there had been appointed a guardian for George Sims in April of 1965. It is also true that the defendant never claimed the dividends from the stocks because he said that he wanted Mr. Sims to have them during his lifetime. to Bradshaw, 1660 Spring In, sic Louie Sims, 143 Girard St, Ben Fin; hh gds In appreciation of the friendship and assistance of Mitchell George the past many years, I have given the following shares to be transferred his request. Park St, sic Jade P DsGraw, 264 Trail era ma , Murray Fid Ind Cr; hh gds Dr, to Lockhart; equlD fum W, Shultz, Terraoor Corp to Riley, 9758 S I65O Ford Mtr Cr; Camper L Roland Horrocks, 38 Layton Av) to MFT; cons gds 8th E, sic to L F 3300 S, sic to Richard J Archuleta, 1741 Independence Blvd, sic to Lockhart; equip fum .ore W Garth Walter, 2937 Evergreen Ave, MFT; cons gds C 5135 S, Kearns W Fin; hh gds Ben sic 2995 S, Wilbur James Woodruff, 5344 Charlotte Ave, Kearns to Lockhart; hh gds Fed Cr Uh; hh gds Arthur Catmull, 4401 2015 Fin; hh gds sic to 41 S to Ben Orlie Frig L Fortier, A W Gregson Ave Carlos David Tafoya, 38 3rd Ave, Mito City Fin; hh gds S 1300 W, S Anderson, 1083 Calif Ave, sic to Cutters Local 537 Fed Cr Un; ears E Two years later, September 13, 1963, George Sims came into the defendant's store and wanted to talk to him privately. They went out to Mr. Sims' car where he explained to Mitchell George that he was in the process of arranging disposition of his property by his will, and that he wanted Mitchell George to have the shares of stock here in question. He endorsed them and delivered them to the deTendant, together with a note, which upon disputed evidence was found to be in the handwriting of George A. Sims, stating: Granger to Fid Ind Cr; hh gds Jordan to Meat Cutters Local 537 Fed Cr Un; Mathewson, 312 C sic to Fid Ind Cr; hh gds Against the foregoing factual background we turn our attention to the controlling issue, in this case: whether there was a valid gift of the stocks in question to the defendant Mitchell George. are quite in accord with the proposition of law advocated by the the initial burden as to the prima facie proof of a gift, and also that plaintiff: of the burden ultimate persuasion in the case, rests upon the defendant, as We further agree with the general rule that one so the claiming donee. a from must so demonstrate by clear and convincing another claiming gift and is this evidence; especially so when the claimed donor is deceased. However, in this case there is a preliminary issue, with respect to which the burden of proof is reversed, and rests upon the plaintiff here. It relates to the competency of the plaintiff's father. George A. Sims. This is so because there is a presumption of competency; and the burden of proving incompetency We is upon the one who asserts it. It is to be acknowledged that there is testimony which may well be regarded as casting some doubt upon the competency of George A. Sims; and that this finds corroboration in the fact that about a year and a half after the delivery of the stock certificates to the defendant, a guardian was appointed for him on the ground that he cuuld no longer properly manage his affairs. However, in opposition tc those facts there is also competent credible evidence from disinterested witnesses to the contrary: that George A. Sims had always been an intelligent and shrewd businessman; that during the years 1963 and 1964, after the time the gift was made, he still possessed those qualities. This includes affirmation of those facts in the testimony of his stockbroker. Walter L. Roche, concerning rational discussions about stock transaction, and the testimony of Dr. Krehl Smith, relating tc conversation-- about the latter's desire to purchase the Sims home. It is our opinion thn there is ample credible evidence to complement the presumption of competency and thus to provide a substantial basis for the Ending thit George A. Sims was competent when he made the gift to the defendant. Proceeding upon the premise that the evidence justifies the finding that George Sim; was competent, a brief recapitulation of the evidence as it relates to the other issue demonstrates clearly that what was done and said between the parties justifies the conclusion that there was a valid gift. The endorsement and delivery of the stock certificates to the defendant, together with the note expressing donative intent are sufficient to establish ihe completed gift and its acceptance; and this is not necessarily negated by the fac: that the defendant did no! transfer the stocks or rake the dividends. The certificates were given into hi? possession and he did accept and retain them, rather than to refuse them as he had the previous proffer. After they were given to him he was free to do with them as he chose. . fendrini ai.it Re ;put,-let.- D L. M. Cumnur.gs, Clerk CROCKF. 1 1 ChiH.; i!: . ol his lather. George A. the Sims, seeks tn rivni'r ihout $45,000 worth ol corporate locks which were given to him by the father the defendant. M;n hell George. hi..of !n contention that there was no valid support prior to his death gift the plaintiff charges that his fuller. George A. Sims, was incompetent at the time he delivered the stocks to the defendant, and that they were obtained by fraud, duress and undue influence practiced upon him. A jury found the issues for the defendant. Upon this appeal plaintiff argues that the jury failed to give proper weight and consideration to the evidence and to the court's instructions as tc the requirements necessary to make out a valid gift; and particularly, the requirement as to the mental capacity of the donor. G. Gr-ir.- Sims t 1 ul cxt-.r.lu- r - The jury's finding valid gift may also have been considered e 1 Sim- - lied .! Sal: Lake City in I9n7 at the age of 86. During his entire l.fe: urn- he had been involved as a managing officer of the Salt Lake Transfer C.ompanv a family enterprise which had been A Affirmed. Costs to defendant (respondent). WE CONCUR: founded by his fatln r. in the early there had been extended litigaof the in the which members tion family sued company and obtained a t $.? 55.000 m February of lunL" At that time George judgment in extesA. Sims had a one-fif- l. interest in the company, winch was optioned to his son, plaintiff Giant Swim All of the decedent's assets totaled around a third of a million dollars Tlw stocks in question as a gift to the defendant were worth about $10. 000 when delivered to defendant Mitchell George in September. 196 i. P.H-O'- of a by them as being more reasonable if they believed, as the evidence provides a basis for believing, that there were reason; best known to George A. Sims himself why because of the long-timspecial friendship he to have the privilege of giving part of his property to the defendwanted ant instead of keeping it all until his death. On the basis of the whole evidence we see no reason to disagree with the conclusion: that it was clear and convincing that such was his intention and desire, which he carried out by making a valid gift of the stocks in question to the defendant Mitchell George. Pursuant to the traditional rule of review, we survey the evidence in the light favorable to the mrv's findings. Genrge PAGE FOUR s E. R. Callister, Jr., Justice R. L. Tuckett, Justice Defendants r hid owned and operated a m.fi-r- mr.ery store 1: T.r.i!:ri-to next door C.ompany. George A. Sims was in there most every day and was friendly with the George family. He took a special interest in Mitchell George from the time he was a little boy, often taking him along for the ride on trips in connection with the business. The friendship continued and matured as Mitchell George took over the management of the store for his mother after the death of his father. There is evidence that they were good friends both business and socially. ami that Mitchell George reciprocated t lit- friendship of Mr. Sim in ir.imerou? ways: giving of a blood transfusion to Mr. Sims' first wife, helping with, funeral arrangements for members of the family; was a guest in the Sims home on occasions such as weddings birthdays. Christmas. Thnnksgiv irg and family gatherings. The evidence also indicates that in appreciation of this friendship and companionship George Sims in the year 1961 bar! offered the defendant stock in the Utah Power Sr Light Company which was then worth over $100,000; but that the then Mrs. Sims (a second nod late - , marriage) had made a remark from which Mitchell Cenrje - o A. H. Ellett, Justice r 1 stating, refused the gift. o- - .ij lion in the I thit his imly, and Henriod, J. , does nut participate herein. Larson v. Evans, Utah 2d 101, 364 P. 2d 1088. 2. Bullough v. Sims, 16 Utah 2d 304, 400 P.2d 20. 3. Jones v. Cook, 118 Utah 652, 223 P. 2d 423. 4. Lovett v. Continental Bank & Trust Co., 4 Utah 2d 76, 286 P. 2d 1065. 5. See Hfichkiss v. Ctfc,109 P. 2d 134, 1 53 Kan. 156; 38C.J.S. 857, and cases there cited n. 75. 6. In re Swan's Estate, 4 Utah 2d 277, 291 P. 2d 682; In re Richard's Estate, 1. 1 Utah 2d 106, 297 P.2d 542. 7. See Jean v. Jean, 207 Cal. 115, 277 I1'. 313;99A.L.R. 1077, 23 A. L. R. 2d 1071; that acceptance of a gift which is beneficial to the donee is presumed, see In re Halt's Estate, 16 Cal. 2d 807, 108 P.2d 401. 8. Field v. Morrison, 50 C.App. 2d 585, 123 P.2d 603. 9. Thatcher v. Merriam, 121 Utah 191, 240 P. 2d 266; Lynch v. Lynch, 124 C.App. 454, 12 P. 2d 741. 5 |