| Iowa | Oct 21, 1909
It appears without conflict in the evidence that William Hirst, during his lifetime, purchased from William Abegg, his banker, who is now administrator of his estate, a note and mortgage of one McMillen for $2,862, and that by the direction of Hirst this note and mortgage were by Abegg formally assigned “to William and Jane Hirst.” The money paid for the note and mortgage
It is not contended that the wife, as survivor, became entitled to the entire interest in the note and mortgage. By our statute (Code, Section 2923) -a conveyance of real-estate to two or more in their own right creates a tenancy in common, unless a contrary intent is expressed. Whether this rule should be applied .also to transfers- of personal property we have no occasion now to determine. The sufficiency of the acts of the owner of personal property, who expresses an intention to make a gift thereof, to show a consummation of such gift so as to pass present title has often been the subject of controversy in this and in other courts, but there are peculiarities of this case which take it out of the rules usually announced as determining the consummation of the gift. The note and mortgage, although procured with the money of William Hirst, were by his direction assigned to himself and wife, and this assignment indicated, we think, an intention that his wife should have in her own right an interest therein. Had the assignment-been to the wife, accompanied by delivery to a trustee to hold for the wife until her husband’s death, collecting the
The general rule announced by the eases is that, where something remains to be done in carrying out the donor’s intent, no matter how unequivocal the intent itself may be, the gift is not complete; for so' long as the contemplated action is not taken, it is to be presumed that the donor intends to retain the title. But here nothing remained for him to do. The assignment was absolute and unconditional. He, as one of the joint assignees, was entitled to the possession of the instruments. His possession thereof was not in any way inconsistent with the complete vesting of title to an one-half interest' in his wife, for delivery to either one in pursuance of the assignment was a complete execution of such assignment. Erom the time of the delivery to him of the instruments the transaction vesting title thereto in common in himself and wife was complete. The title of his wife’s half interest did not come to her through him, but came to her directly by his procurement from the assignor. There was no occasion for him to deliver the instrument to his wife in order to perfect a transfer of such interests as she acquired directly from the assignor by the assignment. The delivery by the assignor to complete the assignment was sufficient. McElroy v. Albany Sav. Bk., 8 A.D. 46" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/mcelroy-v-albany-savings-bank-5180850?utm_source=webapp" opinion_id="5180850">8 App. Div. 46 (40 N. Y. Supp. 422); Sanford v. Sanford, 45 N.Y. 723" court="NY" date_filed="1871-06-05" href="https://app.midpage.ai/document/sanford-v--sanford-3616203?utm_source=webapp" opinion_id="3616203">45 N. Y. 723. The case of In re Brown's Estate, 113
We reach the conclusion that the court erred in holding that an one-half interest in the note and mortgage did not vest in Jane Hirst, and in sustaining the objection to the administrator’s report, in which William Hirst’s estate was credited with only one-half of the amount of the note and mortgage. — B ev ersed.