Osius v. Dingell
134 N.W.2d 657
Mich.
1965
Check Treatment
Smith, J.

Defendants appeal from a judgment restoring 200 shares of Toledo Edison stock to plaintiff as sole owner. Previously, plaintiff had purchased the stock and registered it in her name and that of Louis F. Dingell and Helen J. Dingell “as. joint tenants with right of survivorship and not as tenants in common.” Defendants Louis F. and Helen J. Dingell are the parents of David Dingell, a minor. Plaintiff is not related to either defendant by blood or by marriage.

At the time of trial in 1963, plaintiff, a widow since 1933, was around 90 years of age and resided in a home for the aged. After serving in the Dingell home for several years as “baby sitter” to David, plaintiff purchased in 1956, with her own money, the stock and had it registered in joint names as set out above. Two stock certificates representing 200 shares were handed to Mr. Dingell by Mrs. Osius. There was no consideration passing between the Dingells and plaintiff, Mrs. Osius; the transaction was intended primarily for the benefit of young David, more specifically his college education. It is the nature of the transaction that is in question. Was it a completely executed gift inter vivos as appellants contend? Or was it a parol trust with right to revoke, as plaintiff contends?

The trial court found that Mrs. Osius “intended to create a trust with the defendants Mr. and Mrs. Dingell as trustees and the intervening defendant David as beneficiary of said trust.” The trial court concluded that “there can be no question the plaintiff created an oral trust when she gave the defendants Mr. and Mrs. Dingell the specific and undisputed instructions concerning a corpus of the trust, namely, use it for David’s education at her death, retaining for herself the dividends during her lifetime.” (Emphasis supplied.) There is no dispute about the dividends. By arrangement of the parties, Mrs. Osius has received all dividends and has had exclusive use of same.

The transaction deserves even closer scrutiny, particularly the testimony as to conversations between Mrs. Osius and the Dingells around the time Mrs. Osius handed the stock certificates to Mr. Dingell. In response to a question about a brief conversation had with Mr. Dingell about a week prior to handing Dingell the stock certificates, Mrs. Osius had this to say:

“Well, I went up to him where he was sitting in the chair, and I said, T have stock’, and that I am having — I have stock and that it will be for David after my death, but I am to have that, and sometime I may need it myself, but 1 am to have that stoclc in my own name whenever I want it, and I said, ‘Do you understand?’
“He said, ‘Yes’ — excuse me - — he said, ‘Oh, yes, oh, yes,’ and smiled when I told him about the stock.
“I said, ‘But that is mine until my death.’ ” (Emphasis supplied.)

Mrs. Osius testified further that about a week later these events transpired in the Dingell home:

“A. Well, I held the stock in my hand and I said, ‘Here is the stock.’ I didn’t say — I didn’t give it to him, and I held it in my hand, and I said, ‘Here is the stock.’
“I said, ‘Now, you promise, you understand that belongs to me’ that I am to have that while I am living. After my death it is to go for David’s education, and Mr. Dingell said yes, but he didn’t — He said, ‘Oh, yes’, but he didn’t say ‘Oh, yes, oh, yes’ like he did the first time and smiling, and he just said it.
“Q. On this occasion you have [sic] the stock certificate with you; is that right?
“A. I had it with me and not until he promised that he understood that that was to be mine that I released it from my hand. I just handed it to him.” (Emphasis supplied.)

While the Dingells had possession of the stock certificates, Mrs. Osius received the dividends therefrom. There were no other conversations aboiit the stock until 5 years later in 1961. At this time, Mrs. Osius contacted Mr. Dingell and they discussed the desire of Mrs. Osius to sell the stock and purchase other stock -with a higher dividend yield, Mrs. Osius explaining that she needed additional money for medical expenses. Mr. Dingell refused to surrender the stock certificates, but did offer to give Mrs. Osius periodic amounts which would serve to compensate for the low yield of the stock.

Mr. Dingell’s testimony about conversations had with Mrs. Osius in 1956 differs from hers. He says that she expressed a desire to make “a gift” of the shares. He testified as follows:

“She said she wanted to give me everything needed in honoring of these shares to make sure, no matter whatever happened to her, David would have a college education.”

Likewise, Mr. Dingell’s recollections of the 1961 conversation with Mrs. Osius differed, but only slightly. He said that she expressed a desire to sell the stock and reinvest in a mutual fund which had a higher yield. In addition, Dingell testified as follows:

“She did at that time realize that I had to have my name on that stock and my wife would have to have her name on the stock so that the stock would be able to be converted to Wellington Fund stock.”

Sometime after this conversation in the summer of 1961, plaintiff consulted counsel who wrote a letter to defendants demanding the stock certificates; upon refusal by defendants, suit was instituted by the filing of a bill of complaint on November 17, 1961. From a judgment entered October 25, 1963, defendants have appealed. Review in this Court is de novo,

It may be stated generally that the three elements necessary to constitute a valid gift are these: (1) that the donor must possess the intent to pass gratuitously title to the donee; (2) that actual or constructive delivery be made; and (3) that the donee accept the gift. Buell v. Orion State Bank, 327 Mich 43. It is essential that title pass to the donee. Taylor v. Burdick, 320 Mich 25. As to delivery, it must be unconditional and it may be either actual or constructive; the property may be given to the donee or to someone for him. In re Herbert’s Estate, 311 Mich 608. Such delivery must place the property within the dominion and control of the donee. In re Herbert’s Estate, supra. This means that a gift inter vivos must be fully consummated during the lifetime of the donor and must invest ownership in the donee beyond the power of recall by the donor. Lumberg v. Commonwealth Bank, 295 Mich 566. As to acceptance, it is said that the donee is presumed to have accepted the gift where such is beneficial. Buell v. Orion State Bank, supra.

The crucial question here is one of fact. What did Mrs. Osius intend? To make a gift of the stock or to create a trust with right of revocation? The trial judge who saw and heard the witnesses found as follows: “It is readily apparent to the Court,” he wrote, “Mrs. Osius, the plaintiff, intended to create a trust with the defendants Mr. and Mrs. Dingell as trustees and the intervening defendant David as beneficiary of said trust.”

Cases involving equity jurisdiction are reviewed in this Court de novo, but ordinarily the Court will not reverse the lower court where there is evidence and testimony to support the finding of the lower court unless justice demands, or the evidence clearly preponderates the other way. Primarily, this is because the trial court is in better position to deter mine the credibility of witnesses by observing their conduct and demeanor in court, an opportunity which the reviewing court on appeal obviously does not have. Mousseau v. Walker, 356 Mich 373; Lopez v. Lazaros, 369 Mich 477.

The trial court found that a trust was intended and not a gift inter vivos. "We do not reverse because justice does not require it, nor does the evidence clearly preponderate in the opposite direction. If anything, the evidence amply sustains the trial court’s finding and also, concordantly, justice requires affirmance. The evidence sustains the finding that, among other things, Mrs. Osius lacked the donative intent sufficient to support a valid gift inter vivos. On this point, the objective facts support the subjective testimony of Mrs. Osius. She testified ■ that she clearly explained to Mr. Dingell as she .handed over the certificates her intent to reclaim or revoke if the need should arise. Supporting this testimony are the objective facts that she registered the stock not in the name of David or of his parents, as she might have done, but in the names of herself and the parents as joint tenants. Also, plaintiff Osius arranged to receive all dividends. Defendants dispute the tenor of the conversation and also point to the fact that plaintiff turned over the stock certificates to Mr. Dingell. The handing over of stock certificates to Mr. Dingell by Mrs. Osius is not decisive of the gift issue, in view of other relevant facts such as the legal estate created and the announced purpose of the transaction, including the right of revocation retained by Mrs. Osius. Viewing all the evidence, we conclude that the trial court’s finding should not be disturbed because we cannot say that the evidence clearly preponderates in favor of defendants’ claim of gift, proof of donative intent being especially lacking.-

We turn now to the trust issue which, by general allegations in the complaint and answer made thereto, was also litigated below. Part of the law pertaining to express trusts is the rule that a valid trust in personalty may be created by parol. Economy v. Roberts, 274 Mich 484. To establish a trust of personalty, parol evidence must be clear and satisfactory and find some support in the surrounding circumstances and conduct of the parties. Harmon v. Harmon, 303 Mich 513. In determining whether a parol trust exists, the facts of the case must be examined in the light of general principles of the law relating to trusts. Economy v. Roberts, supra. It is a general principle of trust law that a trust is created only if the settlor manifests an intention to create a trust, and it is essential that there be an explicit declaration of trust accompanied by a transfer of property to one for the benefit of another. Harmon v. Harmon, supra, and Pierowich v. Metropolitan Life Insurance Company, 282 Mich 118.

In this case, Mrs. Osius had the shares registered in her name and that of Mr. and Mrs. Dingell for the beneficial use of David. Here was a valid transfer of stock to trustees for the use and benefit of another. Purpose of the trust was to provide for the future education of David, a child then of tender years. The owner of property may thus create a trust not only by transferring the property to another person as trustee, but also by declaring himself trustee or one of the trustees. 1 Scott on Trusts (2d ed), § 57.6, p 475. But Mrs. Osius expressly reserved income from the trust property for her life and also was found to have reserved the right to revoke the trust. 1 Is this valid?

In answer, we may say that a long line of cases holds that the owner of property may declare himself trustee to pay the income to himself during his life and subject thereto upon trust for another person. And where there is also the power of revocation such a trust is not necessarily testamentary. 1 Scott on Trusts (2d ed), § 57.6, p 475, and cases cited thereunder. Intent and purpose may be gleaned from all the facts and circumstances, and where after careful scrutiny the court finds the trust not purely testamentary and not in contravention of public policy, it will be upheld. Goodrich v. City National Bank & Trust Company of Battle Creek, 270 Mich 222; Rose v. Union Guardian Trust Company, 300 Mich 73. In the Goodrich Case, the settlor, by express trust instrument, reserved a life income for himself and the right to use or dispose of the corpus, including the right to revoke the trust, in whole or in part. In examining the trust instrument, together with the facts and circumstances surrounding it, this Court upheld the trust. The beneficiaries were found to have taken a vested interest immediately and the powers reserved by the settlor were interpreted as “conditions subsequent, upon the happening of which vested interests would have become divested.” In other words, as to this point the Court found that the disposition was not testamentary which, if so, would have voided the arrangement, there being no compliance with the statute of wills. In the instant case, we find the facts to be analogous and thereby reach the same conclusion as to validity of the trust.

Here, Mrs. Osius had the corpus (shares) registered iii her name and that of Mr. and Mrs. Dingell as trustees for the beneficial enjoyment..of David. Legal title was taken by the trustees and equitable title vested immediately in David subject to divestment on occurrence of tbe condition subsequent: revocation-by the settlor during her lifetime. That she retained the right or power to revoke during her lifetime did not make this a testamentary disposition under the decision in the Goodrich, Case. We conclude as in Goodrich that “The testimony is not convincing that Johnson’s [settlor’s] sole purpose was to make a testamentary disposition.” In the instant ease, we think it significant that Mrs. Osius chose the type of transaction as appears here. She did not constitute of herself a trustee alone, as appears in many purely testamentary dispositions, but in effect appointed herself trustee along with the parents of David.

It is also important to analyze the testimony of Mrs. Osius in light of other circumstances. It is true that she expressed the intent and purpose of providing for David’s education after her death. But in view of her advancing years plus the understanding of the parties that she was providing not for David’s present education but his college education in the future, her death was referable to her right to revoke rather than to the time when David’s interest might become vested. David would have had the same interest if Mrs. Osius had died without exercising her right to revoke as he did when Mrs. Osius had the trust created in 1956, namely, a vested interest. Therefore, reservation of the right to revoke did not make the disposition testamentary. This is the legal effect of what transpired.

In all such cases, the intent of the settlor is a crucial question especially where a parol trust is created. Thompson v. Stehle, 367 Mich 284. If the transaction was legally valid as we have just concluded, the final question is whether or not the trial judge’s findings of fact as to whether Mrs. Osius intended to create this type of trust is supported by the evidence. In view of the rule of review already stated, we cannot say that the evidence preponderates in the opposite direction. As clearly indicated above by our extended discussion of the facts, we are satisfied that the evidence amply supports his findings.

Judgment is affirmed. Costs to appellee.

T. M. Kavanagh, C. J., and Dethmers, Kelly, Black, Souris, O’Hara, and Adams, JJ., concurred.

Notes

1

The trial judge did not state specifically that he found as a fact that plaintiff had reserved the right to revoke hut it is necessarily implied from one of his holdings and also from the relief accorded plaintiff. '