10 N.W.2d 708 | Neb. | 1943
This controversy arises by reason of a provision in a deed by Charles and Emma L. Stinton to their son-in-law and daughter, Clyde K. Ewart and Vallia F. Ewart, which among other considerations requires the grantees to pay $10,000 to three other children of the Stintons a year after the death of the survivor of the Stintons. An attempt was made later by the Stintons and Ewarts to cancel this $10,-000 provision by an amendment to the deed. The claim of certain of the defendants is that the $10,000 provision amounted to a completed gift inter vivos which could not be canceled while plaintiff and other of the defendants claim that it was not a completed gift. The district court found that the $10,000 provision amounted to a completed gift inter vivos and plaintiff and part of the defendants appeal.
It is necessary in order to give an understanding of the matter that a much more detailed statement be made of the facts. They are not in serious dispute and are as follows : On and prior to April 19, 1922, Charles Stinton and Emma L. Stinton, as husband and wife, were the owners as tenants in common of a 160-acre farm in Fillmore county, Nebraska. The Stintons were parents of the following children, to wit: Vern L. Stinton, son; Ethel L. Stinton, now
The grantees were to pay as part of the consideration for the deed the sum of $550 on March 1, 1923, and a like sum on March 1 annually thereafter to the grantors of said deed, and in case of the death of one of the grantors to the survivor ; and said grantees were to pay the taxes on said real estate for the year 1922 and all subsequent years.
Said deed further provided that the grantees of said deed were to pay $10,000 “ *• * * one year from the date of the death of the surviving grantor herein, with interest at the rate of five and one-half per cent. (5%%) from date of said death until date of payment. Said payment to be made unto Vern L. Stinton, of Ubero, Montana, Ethel L. Stinton, of Ryegate, Montana, and Elva A. Archer, of Ryegate, Montana, share and share alike; provided that should any of the three last mentioned persons depart this life, leaving no heirs of his or her body surviving, that his or her share of Ten Thousand and no/100 ($10,000) Dollars shall lapse and shall be divided share and share alike among the survivor, or survivors and grantee Vallia F. Ewart or their respective heirs, administrators, or assigns.”
That on said date of April 19, 1922, the same date the deed was executed and delivered, the said Charles Stinton, executed a last will and testament whereby he bequeathed and devised all of his other property; that he made three codicils to said last will and testament on the following subsequent dates, to wit: April 10, 1925, December 1, 1934, and January 5, 1935.
At the time of the execution of the deed heretofore mentioned Vern L. Stinton was indebted to his father, Charles Stinton, in the sum of $3,500.
Charles Stinton died May 17, 1940, and thereafter his last will and testament and several codicils thereto were duly admitted to probate in the county court of Fillmore county, Nebraska, and Ethel L. Stinton Jones was duly appointed executrix thereof and is now the duly appointed, qualified and acting executrix of said estate.
Emma L. Stinton, the widow of Charles Stinton, died October 8, 1940.
• Clyde K. Ewart and Vallia F. Ewart made the annual payments of $550 on March 1, 1923, and thereafter, and paid the 1922 and subsequent real estate taxes, as was provided in said deed.
Defendants, Clyde K. Ewart and Vallia F.-Ewart, have not paid said sum of $10,000 as provided in said deed.
Vern L. Stinton, son of the said Charles Stinton and Emma L. Stinton, died July 4, 1928, leaving him surviving, his widow, the defendant, Daisy Stinton Beeker; his daughter, the defendant, Laveeta Moore, thirty-five years of age; and an infant son, Allen Stinton, who died April 5, 1929, at the age of ten years.
Elva A. Archer, daughter of the said Charles Stinton and Emma L. Stinton, died August 5, 1934, leaving her surviving three sons, the defendants, Harold Dean Archer, Paul Augustus Archer, of legal age, and Gerald Eugene Archer, who is a minor.
Another fact considered of importance by some of.the
The deed of April 19, 1922, further provided that the grantees shall keep the buildings, appurtenances and improvements in as good repair as they now are during the period above set forth, and “As a part of the consideration of this conveyance, it is stipulated and agreed that if the grantees shall fail or neglect to promptly pay the annual payments hereinbefore stated or fail to pay the taxes at or before the maturity, or should cause or permit the buildings, appurtenances, and improvements to become out of repair, or to be neglected or damaged so as to materially decrease the value of the security herein, then and in that event, the grantors or those who may be entitled to rights hereunder shall have the right to foreclose the agreement embodied herein, and sell the premises described in the form and manner provided by law for the foreclosure of mortgages, and out of the proceeds be paid a sum sufficient to satisfy the obligations herein set forth, whether the same
The original deed was executed by Mr. and Mrs. Stinton only, the “Amendment to Deed” by Mr. and Mrs. Stinton and the grantees Mr. and Mrs. Ewart.
This case as will be noticed from the statement of facts presents the question of the validity of the amendment to the deed in so far as it affects the rights of the named beneficiaries to the $10,000, which in turn depends upon whether or not the provisions for their benefit in the deed giving them this $10,000 was a valid and completed gift inter vivos as of the date of the deed. The district court held that it was a valid gift and that the subsequent attempt to modify it by the amendment and codicil referred to were ineffectual and the correctness of this holding is the question now presented to this court.
Many cases involving gifts inter vivos have been before the courts and the general principles are, we think, quite well established. The difficulty is in applying them to various sets of facts. Appellants call attention in their brief to the four elements that must concur to make a valid gift inter vivos, to wit: 1. Intention to give; 2. Delivery; 3. End of dominion of donor, and 4. Creation of dominion of donee. Madison Trust Co. v. Skogstrom, 222 Wis. 585, 269 N. W. 249.
One of the difficult questions in 'this case has to do with the question of delivery. Manual delivery of certain species of property cannot be made and the trend of modern decisions is to permit a symbolic or constructive delivery where the circumstances of the case require it. 28 C. J. 636. In Dinslage v. Stratman, 105 Neb. 274, 180 N. W. 81, a son owed his mother $1,400 on open account. His mother in her lifetime directed him to pay $1,000 of this to her granddaughter, the daughter of another son. The payment was not made in the lifetime of the mother. The court held this to be a valid delivery. “Hence, she (the mother, Mrs. Stratman) did everything in June, 1915, that was in her power to divest herself of the title to the chose in action,
“In such a case, the stipulation that actual enjoyment' of the gift is to be deferred until the donor’s death only marks the time when enjoyment begins, and is not a 'condition, since the donor’s death is inevitable.”
In In re Estate of Dayton, 121 Neb. 402, 237 N. W. 303, Dr. Dayton of Lincoln, had purchased 10 bonds in the sum of $1,000 each, registered them in the name of a nurse for a long time in his employ. He kept the bonds In his own safety deposit box for his convenience in collecting the interest thereon so long as he lived; he had stated to witnesses that the bonds were a gift to the nurse. Held that a complete delivery of the bonds to the nurse had been effected.
In Novak v. Reeson, 110 Neb. 229, 193 N. W. 348, it is held: “Where a father, In making a loan of $4,000 to one of his sons, required said son to execute four notes in the sum of $1,000 each, payable to each of his four daughters, which said notes the father delivered to another son, with directions to hold said notes, collect the interest thereon and pay same to father during his lifetime, and at his death to deliver the notes to each of the daughters named therein, held a complete and irrevocable gift of the notes to the daughters.”
In Snyder v. Snyder, 131 Mich. 658, 92 N. W. 353, it is held as indicated by the second paragraph of the syllabus: “Where one assigns a mortgage to another on an understanding that moneys collected on the mortgage during the assignor’s life shall be paid to her, and that any balance
In Hild v. Hild, 135 Neb. 896, 284 N. W. 730, the following rules applicable to gifts inter vivos are set forth in the opinion:
“A clear and unmistakable intention on the part of the donor to make a gift of his property is an essential element of the gift * * * .”
“ * * =i= the person asserting 'it (a gift) must prove all essential elements by clear, direct, positive, express and unambiguous evidence.”
In Madison Trust Co. v. Skogstrom, supra, the general rules relating to gifts inter vivos are stated, but in that case the court found as a matter of fact that there was no delivery of the certificate which had been assigned to the claimant, “ * * * but, on the contrary, delivery was rather pointedly refused.” The alleged gift was in that case a trust certificate owned by one Crowley which respondent Skogstrom claimed he had given to her. Further discussing the question of delivery in the opinion it is said: “After the noting of the assignment by the Central Wisconsin Trust Company, Mr. Schenck left the certificate on the corner of his desk. * * * Mr. Ferris testified that when the certificate with the assignment on 'it was returned to Mr. Schenck’s desk, the suggestion was made that he turn it over to the respondent, to which Crowley replied, ‘Oh no. Oh no, I will keep that myself, I will take care of that.’ Before executing the assignment, he had told respondent that
In Ladman v. Farmers & Merchants Bank of Milligan, 130 Neb. 460, 265 N. W. 252, the general rules in regard to gifts are well stated, but since there seems to be little or no dispute about the general rules we will not restate them. The facts in that case clearly distinguish it from the instant case. The instrument under consideration in that case did not state the amount of the deposit which was the subject of the alleged gift, nor designate any particular amount which should go to any particular child, but left for future determination by some one, not designated, the amount that should be set up and belong to each child; the instrument also provided that the children should not be entitled to the money until after the mother’s death, and that the mother might use the funds deposited.
In Andersen v. Luikart, 127 Neb. 256, 255 N. W. 18, the general rules are again stated and there is a good review of the Nebraska cases in the opinion by Judge Good. The facts in that case are set forth in the following quotation from the opinion:
“In the instant case there is no gift, nor language showing a present intention to make a gift, by the plaintiff to his daughter. He did not communicate to her the fact that he had executed a release. He did not deliver the note or mortgage to her, but kept them in his possession and gave no direction to any one to deliver the note and mortgage to her. The release was executed evidently with the thought-in his mind that he might not live to return from his trip to Denmark, and, in that event, the release should operate. We think the evidence falls far short of being convincing that there was any intention on the part of plaintiff,to make a gift to his daughter. Moreover, long after this release was executed the daughter and her husband executed an extension agreement of the mortgage and note, recognizing their full liability for $5,000 and interest thereon.”
In Tucker v. Tucker, 138 Ia. 344, 116 N. W. 119, it was he6ld:
There is an excellent statement in the opinion of the principles governing cases of this kind, part of which we quote as follows:
“If the gift is absolute, the mere postponement of the enjoyment until the death of the donor is not material and will not defeat it. * * * In McNally v. McAndrew, 98 Wis. 62 (73 N. W. 315), a father indorsed an assignment on certain notes and the mortgages securing them, and gave them to his son with the understanding the donor was to have the interest on them so long as he lived; and subsequently the notes were returned to him to enable him to collect the interest and were found among his papers at his death. The court sustained the gift, and held the circumstances not to show a revocation. * * * The test seems to be whether any interest in the property itself has been retained, as distinguished from the mere use or enjoyment.”
Other cases were cited by both parties and have been examined, but a discussion of more of them would unduly extend this opinion. Besides the general rules are well established, each case depends on its own facts to which must be applied the established principles. To this task we will now devote attention. Taking up the deed of April 19, 1922, upon which the claims of appellees are founded we note first that there is an absolute and unconditional transfer of the farm, in question. Emkee v. Ashton, 139 Minn. 443, 166 N. W. 1079, is cited by appellants. There the parents conveyed the land to one son who was to pay them $200 and deliver them a dressed hog each year during the remainder of their lives and to pay certain sums ranging from $5 to $300 to other children of the grantors, all of ma
The direction to the grantees to pay the $10,000 to the three children of grantors is in positive and unequivocal terms. While the payment was to be postponed until one year after the death of the surviving grantor it comes under the rule laid down in Dinslage v. Stratman, supra, and other cases, which hold that the stipulation that actual enjoyment of the gift is to be deferred until the donor’s death only marks the time when enjoyment begins, and 'is not a condition, since the donor’s death is inevitable. While the direction to pay is not coupled with words actually giving-the $10,000 to the three children of grantors we think that there can be no doubt from reading the entire deed that the grantors meant the direction to pay to include a giving of the $10,000 to the three children referred to.
That the donors intended to give the donees dominion over the gift is further 'indicated by the fact that they were given the right to foreclose against the grantees for breach of any of the conditions of the deed. In the last paragraph before the date it is provided that should the granteés fail or neglect to pay the annual payments or comply with other provisions of the deed therein referred to not only the
There are other considerations that lead to the conclusion that a present and irrevocable gift was intended. In making the deed all parties undoubtedly considered that it amounted to a gift of $8,000 to the grantees and a gift of the $10,000 lien to the other three children of the grantors. It is not substantially different than if the grantees had given a mortgage of $10,000 to the donees with interest at 51/2 per cent, payable annually to the grantors. Now if the grantees had given a $10,000 mortgage to the donees with provision for payment to the grantors of the interest during their lifetime and the principal one year after their death it could hardly be successfully urged that such was not a gift to the donees. Yet the conditions of the deed are very similar to those of a mortgage providing as it does for the payment of the $550 (equivalent to interest) annually, the payment of taxes, the .keeping up of the improvements, and finally the provision in relation to foreclosure.
It seems to us therefore that all the elements of a gift inter vivos are satisfied, to wit: (1) Intention to give, which is indicated by the unequivocal direction to pay; (2) Delivery in about the only way that delivery could be made by putting the deed of record, notifying the donees (the evidence in regard to notice is rather vague, but sufficient to establish we think that these members of the family although living at a distance got notice that this provision had been made for them, and did not refuse it). Delivery was not dissimilar to that established in Dinslage v. Stratman, supra, In re Estate of Dayton, supra, and Novak v. Reeson, supra, and other cases. (3) End of dominion of donor. The only right reserved by the donors was to fore
All of the elements to make a valid gift inter vivos having concurred we find that the gift was valid and could not be canceled by the subsequent amendment to deed executed by grantors and grantees.
One other question remains. It is contended that the share of Vern L. Stinton who was killed on July 4, 1928, intestate, should be paid to his administrator. No administrator was ever appointed and it is not claimed that it is needed to pay his debts which by now have undoubtedly been outlawed or barred by the statute of non-claims. The meaning of the deed as implied from the language used and
There is a very interesting and instructive discussion in the briefs as to whether the provision in the deed for the donees is in the nature of a contract for their benefit as third persons. Inasmuch as we have held that' there was a valid gift inter vivos and this opinion is already quite long we will not discuss that question.
The judgment of the district court is therefore in all things affirmed.
Affirmed.