125 Neb. 185 | Neb. | 1933
This is an action brought by W. H. Kennedy, administrator of the estate of Anna C. Johnson, deceased, to set aside a deed, and asking to be awarded the possession of, or accounting for, certain property which belonged to Anna C. Johnson in her lifetime. He is also joined in this demand by Anna Jarl and Elna Wennberg, interveners.
The appellee, N. E. Nelson, claims the .estate as trustee under the terms of a gift made by said deceased prior to her death. In this position he is joined by the Bethphage Inner Mission and the Christian Orphans’ Home as interveners and appellees. The trial court found for appellees and the plaintiff and interveners have appealed.
On March 5, 1929, Anna C. Johnson was ill; she was of the age of eighty-five years and apparently developing an attack of pneumonia. Being advised that her illness was critical, she, for the purpose of making the arrangements which she desired as to her property, sent for Mr. G. L. Godfrey, an attorney and friend, who came to her home
“Know all men by these presents that I have deeded this day to N. E. Nelson my home place by warranty deed and delivered to G. L. Godfrey to be delivered to N. E. Nelson after my death. I have also assigned and transferred to the said N. E. Nelson a note for Four Thousand Dollars ($4,000), dated Sept. 9th, 1924, and due in one year, signed by Oscar M. Nelson and N. E. Nelson. I also authorize and empower N. E. Nelson to collect any and all certificates of deposit in any and all banks payable to me, and also to collect any and all notes payable to me and signed by any persons whomsoever.
“In consideration of the foregoing the said N. E. Nelson is to sell and convert as soon as conveniently may be, without sacrifice and pay One Thousand crowns to my niece, Anna, the only one there, and the remainder of Two Thousand Dollars to Missions in Sweden, well known to N. E. Nelson and Five Hundred Dollars each to the four children of my sister, Kate or Mrs. N. E. Nelson.
“After my funeral expenses and debts are paid, whatever remains he is to distribute to the Bethphage Mission near Axtel and Orphans’ Home near Holdrege.
“Witness: G. L. Godfrey.
“Anna C. Johnson.”
The transactions took place in a room at the bedside of Mrs. Johnson. When they were concluded Mr. Godfrey gathered up the documents, taking with him the deed, the
There is some allegation in the pleadings that the deceased was of unsound mind and not capable of understanding the transactions and the nature or extent of her property or what was being done with it, but the evidence is to the contrary and conclusively shows that at the time the deceased was of sound mind and capable of understanding the transaction.
The appellants base their contention for reversal upon the following propositions: (1) That there was no intention on the part of the donor to make a present gift of the property; (2) that there was no sufficient delivery on the part of the donor to make the transaction a valid gift causa mortis; (3) the gift was revoked by the subsequent recovery of Mrs. Johnson; (4) the title to the real estate did not pass under the deed of March 5.
In Tyrrell v. Judson, 112 Neb. 393, it was held: “A person having property may give the same in his lifetime directly to the donee, or by any suitable declaration to a third person for the use of the donee, authorizing such person to make delivery of the subject of the gift after the donor’s death.”
On the second proposition presented, that there was no sufficient delivery on the part of the donor to make the transaction a valid gift causa mortis, it is argued that G. L. Godfrey was the agent of the donor and that delivery of the papers to him with instructions to deliver them to Nelson after the donor’s death was insufficient to constitute a gift causa mortis. It may be admitted that if Godfrey was the agent of the donor then delivery to him would not constitute a gift, but there is no evidence of any agency between the donor and Godfrey. She parted with all possession and dominion over the papers. The person to whom the delivery is made is presumed, in the absence of a contrary showing, to be the trustee of the donee. Varley v. Sims, 100 Minn. 331.
It is also argued that because the notes were, by oversight, left in the possession of the donor after the assignment and delivery to Godfrey, the gift was ineffectual. “It is not necessary that the donee should retain the property in his possession after delivery to him. The subsequent possession by the donor, while it may in some cases tend to throw suspicion upon the transaction as being in fraud of creditors, and calls for an explanation, is not necessarily incompatible with the donee’s dominion over the property, and will not necessarily operate to make the gift ineffectual.” 28 C. J. 641. See Garrison v. Union Trust Co., 164 Mich. 345; In re Estate of La Grange, 191 Ia. 129.
As to the third proposition, that the gift was revoked by the subsequent recovery of Mrs. Johnson, the facts are that this lady, eighty-five years of age, was ill; she was thought by her physician to be developing an attack of pneumonia, and this brought about the transaction which is under consideration. Her illness continued and she was attended by a nurse for approximately four weeks; became somewhat convalescent; was removed to her brother’s home, where she continued apparently, during a short time, to be on the road to recovery so far as to enable her to be out of bed at intervals, but within approximately two months after the onset of this attack she died. The evidence discloses that she died of the same illness which she had at the time of the transaction in question. In view of the completeness of the transactions, her advanced age and the character of her illness, we do not think it can be said that there was such a recovery as would operate to revoke the gift.
We therefore conclude that, under the facts in this case and under the terms of the written instrument, there was a valid gift causa mortis. The deceased knew what she wanted to do with her property. She secured competent advice, she adopted the method that was suggested to her, and her intent and purpose were clear.
The judgment of the district court is
Affirmed.