performance of her marital duties. Rather, she maintains that it was a gift; that there was an understanding that she should keep what she saved so long as she continued the necessary operations of the house.
The court finds that there was no gift of the household savings to Mrs. Hardy. To constitute a valid gift, the courts have held, three essential elements must be shown: (1) delivery, (2) intent to make a gift, and (3) absolute disposition of the subject matter of the gift. There is here no dispute as to delivery. The plaintiff denies having made a gift to the defendant wife. The latter's testimony in this regard was most equivocal. The plaintiff asserts that, until he discovered, in 1961, his wife's stock portfolio, he had no knowledge that there were any such savings. There was no showing of intent to make a gift. The court recognizes that such household allowances generally comprehend expenditures by the wife for personal needs such as clothes, entertainment and transportation. Such expenses are within the obligation of the husband to support and maintain his wife. Acquiescence in these expenditures does not indicate an acquiescence in the use of such funds for the creation of a portfolio of securities for the wife's sole account. To hold otherwise would be to invite disruptive influences in the home. As for the third element, there was likewise no showing of an absolute disposition of any part of the money advanced by the plaintiff to the defendant. See Murray v. Gadsden, 91 U.S.App.D.C. 38, 197 F.2d 194, 33 A.L.R.2d 554. Our Court of Appeals has specifically held that where a party contends that the property in question was a gift, the burden is on the donee to show the donor's intent to make a gift. Harrington v. Emmerman, 88 U.S.App.D.C. 23, 27, 186 F.2d 757, citing Myers v. Tschiffely, 64 App.D.C. 17, 19, 73 F.2d 657.
The court finds that Mrs. Hardy did in fact appropriate certain household funds, and commingle them with her own funds which were invested in stocks and bonds. It is therefore necessary to endeavor to determine the amount so appropriated. The evidence in this regard is sparse and fragmentary. The plaintiff sought to show that, from the year 1948 to 1958, he gave his wife an allowance of approximately $ 125 per week, and that from the time of the dismissal of the maid Mrs. Hardy invested the $ 35 per week thus saved. The court rejects this theory as too speculative. First, the plaintiff's payments were not consistently $ 125, but varied as to time and amount. Second, there is no proof that Mrs. Hardy invested the entire amount saved by virtue of the dismissal of the maid. She testified that she did not invest $ 35 per week; that she did not remember how much she saved; that it was never regular, but that she would 'get a little ahead and then try to do something with it.' There is no evidence as to what the actual household expenses were; whether such expenses rose following the dismissal of the maid; or whether Mrs. Hardy's reasonable personal expenses rose during this period. There is evidence as to the cost of living for a family of two as averaged from government statistics, but these figures can have practically no relevance to a family living in a luxurious neighborhood in a large house.
Under these circumstances, to what formula may the court resort in order to do equity to both of the parties? The only practical method available, under the evidence, by which to determine the amount of household funds appropriated by defendant wife is to deduct, from the total value of Mrs. Hardy's portfolio as of October 30, 1964, contributions made by her from her personal savings and a legacy from her mother. This would appear to be a reasonable method of ascertaining the amount to be declared subject to a trust in favor of the plaintiff. The record shows that as of 1964 the securities held by defendant wife in her own account aggregated $ 20,000 to $ 25,000. There is no proof that the defendant's account was ever greater than its present value. The record further shows that the defendant wife had $ 7,000 of her own money coming from Victory Bonds and the net figure of $ 3,000 coming to her through the estate of her mother, which she invested in her security account. The court concludes that, from the securities account of defendant wife with Ferris & Company on the date of this opinion (as opposed to the testimony of a value of $ 20,000 to $ 25,000), there should be deducted the $ 10,000 which the court finds to be her personal contribution to the portfolio. This makes no allowance for dividends which may have been realized on her contribution to the portfolio. Where one mixes trust funds with his own the whole is to be treated as trust property, except so far as he may be able to distinguish what is his. Bird v. Stein, 258 F.2d 168, 177 (5th Cir., 1958). Defendant has failed to make a showing as to what were the earnings on her part of the securities acquired.
The court therefore finds for the plaintiff as to Count 3. The account of the defendant wife with Ferris & Company will be impressed with a trust in favor of the plaintiff, as of October 30, 1964. Defendant wife will be required to execute the necessary documents to carry into effect the foregoing conclusions.
The plaintiff has prayed for an accounting, and has elected to try all issues, including that of an accounting, before the court. The record before the court permits of no further accounting. Plaintiff has failed to show that defendant wife appropriated any funds from the household account other than those reflected in her personal securities account. The application of the simple mathematical formula which plaintiff attempts to use (i.e., multiplying the maid's weekly pay by the number of weeks in the period during which defendant wife substituted for her) is not supported by the evidence.
The court finds that the plaintiff did not, until January, 1961, have notice of defendant's use of a portion of the household funds for the purchase of securities for her sole and separate account; that suit to impress those securities with the trust was brought shortly thereafter; and that defendant has not been prejudiced by any delay in bringing action. The court therefore holds that the plaintiff's action is not barred by laches.
This memorandum may be used in lieu of findings of fact and conclusions of law.
In view of what has been hereinbefore set forth, it is, this 30th day of October, 1964,
Ordered that Counts 1, 2 and 4 be, and the same are hereby, dismissed, and further, that, as to Count 3, defendant wife's separate securities account with Ferris & Company be impressed as of this date with trust in favor of the plaintiff in accordance with the formula hereinbefore set forth, and further, that defendant wife execute such documents as may be necessary to carry into effect this order.
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