13 F.2d 805 | 8th Cir. | 1926
L. P. Ratterman, as administrator of the estate of Wilhelmina W. Thompson, deceased, filed a bill in equity against Mrs. C. M. Lodge, wherein he prayed for a deeree adjudging certain promissory notes and mortgages in the possession of Mrs. Lodge to be the property of such estate, and for an order impounding such notes and mortgages pending a determination of the suit. The answer in effect set up that the notes and mortgages were the property of Mrs. Lodge by virtue of a gift inter vivos from Miss Thompson to Mrs. Lodge. The cause was referred to a master.
The evidence adduced before the master showed substantially the following facts:
Mrs. Lodge and Miss Thompson were sisters. The former resided at Des Moines, Iowa, and the latter during her lifetime at Cincinnati, Ohio. They were the last surviv
In the month of February, 1923, Miss Thompson stated to Mrs. Alice J. Schooler, Mrs. Wilma Blakeley, and Mrs. D. R. Stewart: “I want my sister Kate (Mrs. Lodge) to have all that I have got, because there are only just the two of us.” Mrs. Schooler testified that Miss Thompson made substantially that statement on several occasions in the spring of 1923.
The master made findings of fact and conclusions of law sustaining the gift. . Exceptions were filed to the report of the master. The trial court overruled these exceptions, and affirmed the findings of fact and conclusions of law made by the master. A decree was entered for the defendant, and plaintiff appealed.
The assignments of error may be treated under one proposition, namely, that the evidence was insufficient to support the findings of the master, confirmed by the court, that there was a gift inter vivos.
To constitute such a gift there must have been a clear and unmistakable intention on the part of Miss Thompson, the donor, to make a present gift of the notes and mortgages to Mrs. Lodge, the donee, and such gift must have been fully executed by the actual, •constructive, or symbolical'delivery of such notes and mortgages to Mrs. Lodge. Allen-West Commission Co. v. Grumbles (C. C. A. 8) 129 F. 287, 290, 63 C. C. A. 401; Beaumont v. Beaumont (C. C. A. 3) 152 F. 55, 58, 81 C. C. A. 251; note 25 A. L. R. 642; 12 R. C. L. pp. 930-936, §§ 9-12; Id. p. 941, § 18; 28 C. J. pp. 626-638, §§ 15-26.
At the time of the transaction in question, the title to the notes and mortgages was in the trust company. At the instruction of Miss Thompson, the assignments were made out to Mrs. Lodge. The notes and mortgages and the instruments of assignment were all retained by the trust company. In order to complete the transfer of title from the trust company, a delivery was necessary. 8 C. J. p. 346, § 524; 3 R. C. L. p. 967, § 175. There can be no doubt that such a delivery took place. It was clearly the intention of all the interested parties that title should pass from the trust company. We believe the fact that the assignments ran to Mrs. Lodge-and the surrounding circumstances compel the conclusion that the delivery was to the trust company as the agent of Mrs. Lodge, and that the legal title to the notes and mortgages passed by virtue of that transaction to Mrs. Lodge. The equitable title also passed to Mrs. Lodge, unless it was the intent of the parties that she was to hold the notes and mortgages as trustee for Miss Thompson. There is nothing on the face of the instru
The fact that the interest collected by the trust company on the notes was to be paid to Miss Thompson during her lifetime did not prevent the transaction from constituting a valid gift inter vivos. Where there has been an absolute and completed gift of personal property, the reservation by the donor to himself during his lifetime of the earnings of such property, such as interest on notes or dividends on stock, will not defeat the gift. Tucker v. Tucker, 138 Iowa, 344, 116 N. W. 119, 121; Greene v. Tulane, 52 N. J. Eq. 169, 28 A. 9, 11; McNally v. McAndrew, 98 Wis. 62, 73 N. W. 315; Calkins v. Equitable B. & L. Ass’n, 126 Cal. 531, 59 P. 30; Jones v. Nicholas, 151 Iowa, 362, 130 N. W. 125, 128; Pyle v. East, 173 Iowa, 165, 155 N. W. 283, 285, 3 A. L. R. 885; Grant Trust & Savings Co. v. Tucker, 49 Ind. App. 345, 96 N. E. 487, 489; Shepard v. Shepard, 164 Mich. 183, 129 N. W. 201, 208; Seavey v. Seavey, 30 Ill. App. 625; Robertson v. Robertson, 147 Ala. 311, 40 So. 104, 3 L. R. A. (N. S.) 774, 10 Ann. Cas. 1051; Beaumont v. Beaumont, supra; note 3 A. L. R. 902, at page 906. It will be noted that the reservation of interest in the instant ease was not a condition imposed by Miss Thompson, the donor, but was at the request of Mrs. Lodge, and in no wise indicated an intent upon the part of Miss Thompson to retain dominion and control over the property.
The fact that the trust company was to hold the securities until the death of Miss Thompson did not render the gift invalid. The fair and reasonable conclusion from the evidence is that the securities were left with the bank for the convenience of the parties, in order that the trust company might collect the interest and remit the same to Miss Thompson, rather than for the purpose of retaining any control or dominion over the property in Miss Thompson. The delivery of the subject-matter of a gift inter vivos may be to a third person with instructions to deliver it to the donee on the donor’s death, provided the donor parts with all control over' the property, reserves no right to recall it, and intends thereby a final disposition of the property. Pyle v. East, supra; Greene v. Tulane, supra; Grant Trust & Savings Co. v. Tucker, supra; Hagerman v. Wigent, 108 Mich. 192, 65 N. W. 756; Woolley v. Taylor, 45 Utah, 227, 144 P. 1094; Innes v. Potter, 130 Minn. 320, 153 N. W. 604, 3 A. L. R. 896; note 3 A. L. R. 902.
We therefore conclude that the evidence supports the findings and conclusions of the master that Miss Thompson intended to give the notes and mortgages to Mrs. Lodge, and that her intention to make this gift was effectually executed by Miss Thompson causing the assignments to be made out in the name of Mrs. Lodge, her heirs, successors, and assigns, and by the delivery of the instruments to the trust company as the agent of Mrs. Lodge.
It follows that the decree appealed from should be and it is affirmed.