{
  "id": 8658597,
  "name": "E. H. KELLY, Guardian of Lucy Grimm, v. THOMAS MANESS and wife, MAGGIE",
  "name_abbreviation": "Kelly v. Maness",
  "decision_date": "1898-11-15",
  "docket_number": "",
  "first_page": "236",
  "last_page": "238",
  "citations": [
    {
      "type": "official",
      "cite": "123 N.C. 236"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "122 N. C., 524",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8660427
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/122/0524-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T16:57:12.442116+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "E. H. KELLY, Guardian of Lucy Grimm, v. THOMAS MANESS and wife, MAGGIE."
    ],
    "opinions": [
      {
        "text": "Furches, J.:\nThis action is for the possession of certain articles of personal property. The plaintiff claims them as the property of her ward, Lucy G-rimm, widow of Lewis Grimm, and now a lunatic. The defendant claims that, her father, Lewis G-rimm, who was the husband of Lucy Grimm, during his lifetime gave them to her.\nThe plaintiff claims that this was the property of Lewis Grimm at the time of his death, except the sewing machine, which the plaintiff says belonged to Lucy, before her marriage with Lewis. The other property claimed by plaintiff, except the sewing machine was laid off and assigned to the widow Lucy, as a part of her year\u2019s support.\nThe Court left it to the jury to say, ' from the evidence whether the sewing machine belonged to Lucy or not, and there is no exception to his Honor\u2019s charge as to this.\nThere was evidence tending to show that Lewis had given the other property to the defendant Maggie, who is his daughter. That he had told Maggie if she would take the calf and raise it, she might have it; that he had after this said he had given it to Maggie and that he would not take it from her. But the evidence was that the calf remained with the other stock of Lewis, was fed and pastured with them, until it was grown, and had remained there until after the death of Lewis and was laid off to the widow as a part of her year\u2019s support.\nThe other articles were bed-room furniture, bought by Lewis, put in the bed chamber of Maggie, which he said he had fitted up for her, and frequently spoke of it as Maggie\u2019s. That he bought it and gave it to her.\nAs we see no evidence of a delivery as to the cow, we would not disturb the verdict and judgment as to her, nor as to the sewing machine, if there was no error as to the other property (the bed-room furniture).\nBut we said in Newman v. Bost, 122 N. C., 524, that two things are necessary to constitute a gift \u2014 the intention to give and a delivery, actual or constructive. And, these are facts to be 'found by the jury where there is evidence tending to establish them. And that where the donor, in that case, bought a set of bed-room furniture, put it in plaintiff\u2019s room, and always after that spoke of it as hers, this was sufficient evidence of a delivery to sustain a finding by the jury that it was her property. Under the authority of this case we are of the opinion that the question as to the title to this property, under proper instructions as to what it takes to constitute a gift, should have been submitted to the jury; and that it was error for the Court to instruct the jury \u201cthat if they believed the evidence they should find this issue in favor of the plaintiff.\u201d\nFor this error there must be a new trial.\nNew trial.",
        "type": "majority",
        "author": "Furches, J.:"
      }
    ],
    "attorneys": [
      "Mr. W. C. Douglass, for defendants (appellants).",
      "Messrs. Black & Aclams, for plaintiff."
    ],
    "corrections": "",
    "head_matter": "E. H. KELLY, Guardian of Lucy Grimm, v. THOMAS MANESS and wife, MAGGIE.\n(Decided November 15, 1898.)\nGift, Delivery of.\nThere must'be an intention to give and a delivery, actual or constructive, to constitute a gift \u2014 and these are facts to be passed upon by a jury.\nClaim and delivery, tried before Allen, J., at April Term, 1898. of Superior Court of Moore County.\nThe property claimed, a cow and some bed-room furniture, had been the property of Lewis Grimm, husband of Lucy Grimm, lunatic ward of plaintiff and father of defendant Maggie Maness. He had died intestate, and the property had been included in a year\u2019s allowance to the widow, and was sued for by her guardian. The defendant Maggie claimed the property as a gift from her father, Lewis Grimm.\nAs to the cow, there was evidence tending to show that her father had said that he had given it to Maggie, when a calf, and that he was not going to take it away from her. The cow was raised on the place and fed by him.\nAs to the furniture, there was evidence that her father had said he bought it for Maggie and had placed it in her chamber.\nHis Honor charged the jury, that if they believed the evidence, they should find that the plaintiff was the owner and entitled to the possession.\nDefendants excepted.\nVerdict and judgment for plaintiff, and defendant appealed.\nMr. W. C. Douglass, for defendants (appellants).\nMessrs. Black & Aclams, for plaintiff."
  },
  "file_name": "0236-01",
  "first_page_order": 262,
  "last_page_order": 264
}