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Westleigh v. Conger
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 134
Docket:	Oxf-00-60
on Briefs:	June 27, 2000
Decided:	July 12, 2000




	[¶1]  Lenora Conger appeals from the judgment of the Oxford County
Probate Court (Hanley, J.) concluding that the $34,000 entrusted to her by
the decedent, William Westleigh, was a bailment and not a gift.  On appeal
Conger contends (1) that the money given to her constituted an inter vivos
gift, and it was error for the court to determine otherwise; and (2) it was
error for the court to deny her request for additional findings of fact and
conclusions of law.  We affirm.
	[¶2]  The facts of the case are stated in the detailed opinion of the
Probate Court.  Because there is no transcript of the proceedings in the
Probate Court, we will assume that the facts found are adequately supported
in the record.  See Putnam v. Albee, 1999 ME 44, ¶ 10, 726 A.2d 217, 220.
	[¶3]  Lenora Conger is a niece of the decedent, the late William
Westleigh. She had assisted in caring for him in his declining years.  In
1996, Westleigh gave Conger $34,000 to keep in her safe deposit box. 
Westleigh told Conger that he was transferring the money to her because he
did not want others to know that he had this sum of money.  He also told
Conger she could use the money to take care of her parents' medical needs
and for other purposes.  Conger believed that the money should be retained
to cover Westleigh's medical needs and that it would always be available to
him if needed.  At the time of Westleigh's death in 1998, approximately
$27,000 of these funds remained.
	[¶4]  By William Westleigh's will, Conger was designated personal
representative of his estate.  The will did not address the funds transferred
to Conger.  George Westleigh, William Westleigh's brother, began asking
about the money shortly after William Westleigh died.  In response to his
inquiries, Conger contended that the $34,000 the decedent had given to
her constituted a gift and was therefore not a part of the decedent's estate. 
Subsequently, George Westleigh petitioned the Probate Court to remove
Conger as the personal representative of the estate and to impose a
constructive trust on the remaining funds in the safe deposit box because
they were a part of the decedent's estate.
	[¶5]  The court concluded that the transfer of funds from decedent
to Conger was not an inter vivos gift, but rather that it constituted a
bailment.  The effect of this ruling, although not stated in the Probate
Court's opinion, is that the funds become part of the estate for distribution
to the heirs. 
	[¶6]  Conger filed a motion requesting additional findings of fact and
conclusions of law.  Specifically, Conger asked for a finding that she had
qualified her response to a question about returning the money.  The court
denied the request, and this appeal followed.
	[¶7]  An effective inter vivos gift requires three elements: (1)
donative intent; (2) delivery with intent to surrender all present and future
dominion over the property; and (3) acceptance by the donee.  See Brackett
v. Larrivee, 562 A.2d 138, 139 (Me. 1989).  The person claiming an inter
vivos gift has the burden of showing that a gift was intended by clear and
convincing evidence.  See In re Estate of Cormier, 580 A.2d 157, 159 (Me.
1990).  Where an order of the Probate Court is challenged on appeal, "We
will defer to the trial court on its findings of fact unless clearly erroneous
and will conduct a de novo review of the court's application of the legal
doctrine to the facts."  Estate of Plummer, 666 A.2d 116, 118 (Me. 1995).
	[¶8]  The Probate Court concluded that Conger satisfied only two of
the three requirements necessary for there to be an effective inter vivos gift;
donative intent and acceptance by the donee.  On appeal, neither party
disputes the court's findings regarding these two elements.
	[¶9]  With respect to the remaining element, i.e., whether decedent
delivered the money with the intent to surrender all present and future
dominion over the property, see Brackett, 562 A.2d at 139, the court
concluded that Conger had not proven that the decedent possessed such
	[¶10]  After the court issued its order, Conger moved for the court
to make an additional finding of fact to include her "full" response to a
question from the bench asking whether she would have returned the
money to decedent if he had asked for it.  The court had found that Conger
testified that she would have returned the money if asked.  Conger
complained that the court included in its findings only her "first impression
response."  Conger asserted that she went on to state that she would have
questioned decedent regarding his intended use for the money before
responding to a request or demand for the money.
	[¶11]  The court acted within its discretion in denying Conger's
request for additional findings.  The court, as the factfinder, was free to
determine the credibility of the testimony offered, M.R. Civ. P. 52(a), and it
was not required to accept Conger's version of the facts on an issue
specifically addressed in its findings. 
	[¶12]  A different factfinder may have reached a different result
based on the evidence presented at the unreported hearing.  However,
Conger, as the party with the burden of proof, can prevail on a sufficiency of
the evidence challenge to a finding that her burden has not been met only if
she demonstrates that a contrary finding is compelled by the evidence.  See
Hughes Bros., Inc. v. A & M Contractors, Inc., 1999 ME 175, ¶ 2, 740 A.2d
996, 997; Schlear v. James Newspapers, Inc., 1998 ME 215, ¶ 3, 717 A.2d
917, 918.  The record does not compel such a conclusion in this case. 
Further, the Probate Court's opinion does not indicate any error of law in
applying its analysis to the facts it found.
	The entry is:
			Judgment affirmed.

Attorney for plaintiff: David C. Dow, Esq. Dow's Law Office, P.A. P O Box 349 Norway, ME 04268 Attorneys for defendant: Paul S. Bulger, Esq. Daniel R. Felkel, Esq. Troubh, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-5011