Shenandoah Valley Natl. Bank v. Lineburg

20 S.E.2d 541, 179 Va. 734, 1942 Va. LEXIS 270
CourtSupreme Court of Virginia
DecidedJune 8, 1942
DocketRecord No. 2535
StatusPublished
Cited by12 cases

This text of 20 S.E.2d 541 (Shenandoah Valley Natl. Bank v. Lineburg) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shenandoah Valley Natl. Bank v. Lineburg, 20 S.E.2d 541, 179 Va. 734, 1942 Va. LEXIS 270 (Va. 1942).

Opinion

Holt, J.,

delivered the opinion of the court.

On the 25th day of April, 1938, Mrs. Nora B. Omdorff died intestate in the city of Winchester, and on the 29th day of April, 1938, the Shenandoah Valley National Bank of Winchester qualified as administrator of her estate. Thereafter the administrator instituted this suit, its purpose being to ascertain who was the owner of a certain $1500 bond of date July 30, 1928, executed by W. R. Lineburg and Lorrie Bell Lineburg to Nora B. Omdorff and due one year after date. This bond was secured by a trust deed of even date, which conveyed as security to trustees certain real estate in the city of Winchester.

In its bill these statements appear: There was paid on the Lineburg note by William R. Lineburg $100 as of March 1, 1933, and by him $100 as of February 17, 1934, and nothing more either by way of principal or interest. Harold Fletcher, a grandson of decedent, is her sole heir and distributee and is the real party in interest in this suit. This Lineburg bond was not found among Mrs. Omdorff’s papers. There was, however, no concealment. Mr. Lineburg told Clarence H. Fletcher, father of Harold, on the day of Mrs. Orndorff’s funeral that they, the Lineburgs, had this bond. Thereafter this litigation was instituted.

The plaintiff in its bill said:

“That your complainant has been informed, and being informed believes and alleges that said bond forms part of the [736]*736estate of the said Nora B. Omdorff, and that said debt is still due and owing to the estate by the said W. R. Lineburg and Lorrie Bell Lineburg.”

Its prayer is that the property be sold and that the proceeds of sale be properly applied. The Lineburgs answered by way of plea and said:

“These defendants for plea to the said bill say that prior to the time of the filing of the said bill and prior to the date of the death of Nora B. Omdorff, the said Nora B. Omdorff, being then of sound mind, but in the peril of impending death, and having love and affection for the defendant William R. Lineburg and his wife, Lorrie Bell Line-burg, and recognizing a legal obligation to them for many services by them rendered unto her, gave to the defendant, William R. Lineburg, the bond mentioned and described in the complainant’s bill which said bond was by the decedent delivered at the time of the gift to the defendant, William R. Lineburg, endorsed in blank by the said decedent, with the express intention that the title to the said bond should pass immediately and unconditionally to the said defendant and that the said Nora B. Orndorff should then and there be divested of all right, title and interest therein, and the said bond was then and there accepted by the said William R. Lineburg and title did then and there vest in the said William R. Lineburg, and possession thereof from said time henceforth has been exclusively in the said William R. Line-burg.”

Nora B. Orndorff and her husband, Isaac B. Orndorff, lived in Winchester for many years. They had only one child, Lelia, who married Clarence Fletcher. She died in 1918, leaving surviving her husband and one son, Harold Fletcher. Isaac B. Omdorff died in 1927, testate, leaving his property to the bank as trustee in trust for his wife, it at her death to pass to her son, Harold.

William R. Lineburg is a nephew of Mrs. Omdorff. He and his wife bought a house in Winchester in 1928 and borrowed from Mrs. Omdorff $1500, secured by a trust deed on their home. Mrs. Omdorff hypothecated this note with [737]*737the bank on July 13, 1935, the indebtedness which it was deposited to secure, or that thereof still unpaid, was paid on September 3, 1936, and the bond returned to Mrs. Omdorff. She was operated on in a Winchester hospital in March, 1938, returned to her home still ill, developed gangrene and went back to the hospital for another operation on April 10, 1938. She died there on April 25, 1938. At the time of her death there was living in the house with her Mrs. Eleanor Davidson and her daughter, Cornelia Davidson. Mrs. Davidson went to the Orndorff home on March 2, 1938, and was followed shortly thereafter by her daughter.

It is the Lineburgs’ contention that on or about the first of April she gave to them this bond unconditionally. If there was an unconditional gift, the bond belongs to the Lineburgs; if it was not, it belongs to the intestate’s estate.

The cotut below, in its decree deciding this case, said:

“Upon the issue of fact, being of opinion that the clear weight of the evidence 'establishes that Nora B. Omdorff made a completed gift of the bond and deed of trust in the bill and proceedings described to the said William R. Lineburg and Lora Bell Lineburg by delivery thereof with the present intention to give the same to them, it is adjudged, ordered and decreed that the prayer of the bill that James P. Reardon, trustee, be ordered to sell the property therein described be denied and that the bill of complaint in this cause be, and the same hereby is, dismissed.”

The weight to be given to a chancellor’s decree where a cause has been submitted upon depositions, we have often had occasion to consider.

A late case on that subject is that of Lavenstein v. Plummer. The opinion in that cause was handed down on April 13, 1942, ante, page 469, 19 S. E. (2d) 696.

Chief Justice Campbell in First National Bank v. Weinburg, 165 Va. 433, 182 S. E. 250, thus states the law:

“While it is fundamental, as held by Chief Justice Prentis in Clevinger v. County School Board, 139 Va. 444, 124 S. E. 440, that this court cannot avoid the duty of weighing the evidence when its sufficiency is fairly challenged, [738]*738that doctrine does not relieve the complaining party of the burden of showing error. To raise a doubt is not sufficient. Absolute certainty is rarely attainable in court proceedings, especially where there is a conflict of evidence or the element of fraud is one of the paramount issues.”

Upon one who claims to be the donee of a gift rests the burden of proof. Grace v. Virginia Trust Company, 150 Va. 56, 142 S. E. 378. The chancellor below was of opinion, as we have seen, that this burden had been successfully borne.

Lineburg and his wife have both testified in detail as to when and where the gift was made. They say that it was unconditional and differ with each other as witnesses of an incident may be expected to differ who have not theretofore in conference reached a conclusion as to what their evidence would be.

It was while Mrs. Omdorff was gravely ill and a short time before she returned to the hospital for a second operation, where, as we have seen, she died. On that occasion Eleanor Davidson and her daughter, Cornelia, were present. These Davidson women were introduced as witnesses and in the main sustained the Lineburgs’ claim, although in affidavits previously given at the instance of Clarence Fletcher they said they knew nothing about the gift or transfer of the bonds.

Mr. Benham, a lawyer of the Winchester Bar, said that he discussed the matter with Dr. Powers and that Dr. Powers told him that he knew nothing about it.

Mr. Lockhart, a kinsman of the Fletchers, said that he was on one occasion in Dr. Powers’ office to consult him professionally and in the course of a casual conversation said to the doctor:

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20 S.E.2d 541, 179 Va. 734, 1942 Va. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shenandoah-valley-natl-bank-v-lineburg-va-1942.