Opinion
Mitchell Benedict, III, Denver, for defendant-appellee Beverly J. Staley.
Bradley, Campbell & Carney, Victor F. Boog, Golden, for plaintiff-appellant.
Charles T. Flett, Arvada, for defendant-appellee Betty L. Purdy.
COYTE, Judge.
Robert R. Marshall, Jr., as executor of the estate of his father, Robert R. Marshall, Sr., filed suit to recover a note transferred and delivered by decedent to defendants, Beverly J. Staley and Betty L. Purdy, the step-daughters of decedent. Trial was to the court, which found that the defendants were the owners of the note, either by a valid assignment for good and valuable consideration or by a gift made by decedent to the two step-daughters, and entered judgment for the defendants.
The executor appeals, contending that the evidence does not support the findings of the trial court that the decedent intended to assign the promissory note to defendants and the further finding that the assignment was supported by valuable consideration. Plaintiff also contends that the court erred in allowing the two step-daughters to testify during the trial and further erred in allowing a witness to testify regarding statements allegedly made to her by the decedent. We disagree with the executor's contentions and affirm the judgment.
The decedent was the owner of the note, and, in 1968, in order to become eligible for a Veteran's Administration pension, he executed an assignment of it to the defendants. In accordance with the assignment, the maker made the monthly payments to the defendants. While decedent lived, the payments were deposited into his account. Thereafter, defendants retained the monthly payments on the note.
The executor claims that there was no consideration for the assignment of the note. We disagree. The record reveals that there was a very close family relationship between the decedent and the defendants. The love and affection between them, as shown by the record, was sufficient consideration to support the assignment of the note from decedent to defendants. Dawley v. Dawley's Estate, 60 Colo. 73, 152 P. 1171.
The fact that decedent was at least partially motivated to make the assignment by his desire to obtain veteran's benefits does not invalidate the assignment. The motives which prompted the assignor to make the transfer are immaterial if the assignment is otherwise valid. 6 Am.Jur.2d Assignments s 4.
The record also supports the findings of the trial court that the nature of the transaction resembled a gift. In Bunnell v. Iverson, 147 Colo. 552, 364 P.2d 385, the court stated:
'It is fundamental that in order to constitute a valid gift, there must be: First, a clear and unequivocal intent on the part of the donor to make a gift and, Secondly, delivery of the subject matter or other action on the part of the donor and Donee which effectively divests the former and invests the latter with title or property in the Res.'
In the instant case, the intent of decedent is shown by the fact that he executed the assignment, and also by the testimony of a witness who stated that the decedent understood that he was giving up all of his right, title and interest to the note and that he could not get it back unless the defendants wanted to give it to him. Another witness testified that decedent had told her that he wanted the girls to have the note. While the defendants deposited the proceeds of the note to the decedent's account during his lifetime, there is no evidence that they had any obligation to do so. As far as the record discloses, the deposit of such funds was an entirely voluntary act by the defendants. Since plaintiff was suing as an executor, he contends that defendants, by virtue of C.R.S.1963, 154--1--2, (dead man's statute), should have been barred from testifying in the case We disagree. The executor introduced the depositions of defendants into evidence and, by the introduction of those depositions, he waived the right to object to the testimony of the defendants under the provisions of the above statute. Warren v. Adams, 19 Colo. 515, 36 P. 604; See Stender v. Cunningham, 123 Colo. 5, 225 P.2d 52.
A witness testified as to statements of decedent concerning decedent's assignment of the note to defendants. On the grounds that such testimony was hearsay, appellant contends that its admission was error. The testimony was admissible under the exception to the hearsay rule which allows declarations against interest to be admitted into evidence. In re Estate of Granberry, 30 Colo.App. 590, 498 P.2d 960.
Judgment affirmed.
SILVERSTEIN, C.J., and KELLY, J., concur.