Brennan v. Carroll , 260 Minn. 521 ( 1961 )

Frank T. Gallagher, Justice.

Appeal from an order of the district court denying defendant’s motion for amended findings or for a new trial.

Plaintiff is the administrator of the estate of Earl E. Brennan who died on December 14, 1958, at the Veterans Administration Hospital in Minneapolis. Decedent left no wife or children but was survived by the plaintiff, who was his brother, and several sisters, including defendant, Evelyn B. Carroll, wife of Lynn B. Carroll,¹ Cecil Mc-Whinney, Phyllis Paul, and Bernice Kunz, as well as nieces and nephews.

Prior to 1956 decedent had been employed for a number of years at the Minneapolis Post Office, from which employment he retired on pension because of disability. It appears from the record that in December 1956 he learned that he had a throat cancer as the result of visits as an outpatient to the University of Minnesota Hospitals. On December 25, 1956, he was a guest at the home of Mr. and Mrs. Carroll. At that time it was suggested that he enter the Veterans Administration Hospital, which he did on December 28, 1956. He remained there until his death except for certain intervals. Plaintiff testified that on November 12, 1958, and for some time prior thereto, Earl was unable to talk but communicated by writing notes on a pad.

One of the basic questions in this case is whether there was a gift of certain .stocks and money in a savings account from decedent to defendant. As part of his evidence to show that there was not, plaintiff produced exhibits A, B, C, and D.² Defendant submitted exhibit 1.³

Other evidence submitted by defendant relating to the intent and retention of control of the property is the testimony of Lynn B. Carroll who testified as follows:

“Q. Now, when did you first become aware that Earl Brennan had transferred some property, or did you ever become aware that Earl Brennan transferred some property to your wife?

“A. Yes. That was a few days following Christmas, 1956.

“Q. You became aware of that fact?

“A. That’s right.

“Q. And how did you become aware of it?

“A. Because he came out and told her that he had — I was home at the time. He told her that he had transferred his stock to her, that he wanted her to have it because there had been some disagreeable things happened after the mother’s death, and he didn’t want that to happen again.

* * * * *

“Q. What did he say to you?

“A. Well, he said, T have given — I am going to give it to her,’ and then he told Evelyn that she would get a letter from Piper, Jaffray in a few days.

“Q. What did he say when you told him that he should put something in writing? I am not sure that you answered that specifically, Mr. Carroll.

“A. Well, he just said that he was going to give it to her and there wouldn’t be any argument about it.

* * * * *

“Q. Did you ask him a question?

“A. Yes. He could talk then.

“Q. Yes. What did you ask him? What did you say to him?

“A. I didn’t ask him a question. I said — he mentioned the fact that, well, the association of the family, and he went over a rather unpleasant event that he had with one of his sisters where the door had been slammed in his face, and he was — he was quite hurt over that. And then I told him, I said, ‘Earl, when and if you pass out,’ I said, ‘you are going to have an argument or there is going to be a question of that gift,’ and he said, T haven’t got anything. How can they question it?’

* * * * *

“Q. Do you remember any specific conversatións you had with him during that period of time pertaining to the stock or the assets that he had transferred to your wife?

“A. Well, I had — I continued to urge him to make some written acknowledgment of it and Ms attitude was, ‘Well, I haven’t anything; it’s hers.’ ”

Brace Bénnitt, associated with Piper, Jaffray & Hopwood, brokers, testified that he had acted as broker when certain stocks were purchased through his firm by Earl Brennan; that Earl purchased 200 shares of Minneapolis Gas Company common stock in April 1953, 100 shares of Mountain Fuel Supply Company m September 1953, 75 shares of American Water Works preferred stock in October 1953, 85 shares of Western Casualty & Surety Company common stock in January 1954, and 200 shares of Libby, McNeil & Libby common stock m December 1956. The American Water Works and Western Casualty stocks were sold in 1954 and 1956 respectively. The witness said that on December 28, 1956, there was a transfer of the remainmg stock to Evelyn B. Carroll and that at the time of the trial (January 1960) the account was not in the name of Earl E. Brennan but in the name of the defendant. On December 28, 1956, according to the witness, Brennan brought the securities to him and said that he wished to have them transferred to his sister’s account and on the reverse side of the certificates had so designated in his endorsement. Bennitt said that the certificates were delivered to the cashier in the broker’s office for transfer and Earl was given a receipt for them. When the securities came back from transfer shortly after the first of the year in 1957 Bennitt checked with defendant to ascertain whether she wished them mailed to her or held in the brokerage office in “safekeeping custodianship.” He said that defendant told him to hold them. The stocks were held in a custodial account for defendant by Piper, Jaffray & Hopwood and were still there at the time of the trial.

Mr. William A. Riek, auditor for the Marquette National Bank, testified that decedent opened a savings account in that bank on April 10, 1958; that the account was made in the name of Earl E. Brennan or Evelyn Carroll; that subsequent to that date and prior to Earl’s death, additions and withdrawals were made to and from the account but that no withdrawals were made by Evelyn and all additions were made by Earl; that on April 9, 1959, after plaintiff’s death, the account was closed by the withdrawal of the balance of $982.18 by the defendant, Evelyn B. Carroll.

Evelyn B. Carroll testified that she did not have possession of the joint bank account savings book until approximately July 1958. Plaintiff argues that this testimony is contradictory to her previous answers to interrogatories submitted by him. He contends that Evelyn never exercised any control or use of any kind of the joint bank account until her only and final withdrawal of funds on April 9, 1959.

The legal issue raised on appeal is whether the property in the hands of the defendant should be subject to a constructive trust for the benefit of the plaintiff as administrator of decedent’s estate.

It is the contention of the plaintiff that defendant has not sustained her burden of proof that the property herein was a gift to her.

The trial court found among other things:

(1) During December 1956 Earl made a number of outpatient visits to the University Hospitals and made tentative arrangements for an operation; during those visits he represented that he was unable to pay the expenses of an operation and it was suggested to him that he arrange to be admitted as a county patient; at that time Earl was able to pay for such operative expenses as he was then the owner of stock worth about $10,000 and money in excess of $3,000 and was also receiving certain pension checks at regular intervals.

(2) On December 28, 1956, Earl entered the Veterans Administration Hospital for care and treatment and remained there until his death except for a period of about a month in February and March 1957, a period of 6 months between April and October 1957, and a period of about 2>lA months between April and July 1958.

(3) On December 28, 1956, Earl took the stocks he owned to Piper, Jaffray & Hopwood where he saw Brace Bennitt, who had previously acted as his broker; that he advised Bennitt that he wished to have the stocks transferred to the account of defendant as he had designated by his endorsement; there was no conversation with Bennitt with reference to the purpose of his making the transfer and he did not express his intent in transferring the stock nor did he instruct Bennitt to deliver the certificates to the defendant. Subsequent to December 28, 1956, neither Piper, Jaffray & Hopwood nor Bennitt received any further instructions or request from Earl regarding the stocks; the stocks were never physically delivered to defendant and the certificates are still in the possession of Piper, Jaffray & Hopwood, and since December 28, 1956, certain dividends earned by the stocks haye been used for the purchase of additional stock in the name of Evelyn B. Carroll.

(4) Prior to April 10, 1958, Earl E. Brennan had a savings account with the Marquette National Bank and on that date he transferred the account to a joint account with defendant with right of survivorship; subsequent to April 10, and prior to his death, additions and withdrawals were made to and from the account but no withdrawals were made by defendant and all of the additions were of Earl’s money; and on April 9, 1959, the defendant closed the account by withdrawing the balance of $982.18.

(5) On or prior to October 10, 1957, Lynn Carroll prepared exhibit C and on that date and on several subsequent occasions he presented the exhibit to Earl and requested him to sign it but Earl failed and refused to do so and it was not signed at the time of. the latter’s death.

(6) After Earl entered the hospital on the last occasion exhibit C and two carbon copies were found in his apartment by plaintiff, who discussed its provisions with his sister, Cecil McWhinney, and her husband, David Lincoln McWhinney; during the last month of his lifetime Earl was unable to talk and during that period he would write out answers to questions asked of him and give written questions, instructions, or requests to persons with whom he had contact.

(7) On September 12, 1958, Earl was handed plaintiff’s exhibit B which contained a list and prices of stocks previously referred to and on it he wrote, “Are these the present prices?”

(8) On October 14, 1958, Mr. McWhinney visited Earl at the hospital and showed him a copy of plaintiffs exhibit C and in response to this and other subjects discussed, Earl wrote the words contained on plaintiffs exhibit D.

(9) On November 12, 1958, Earl signed and then delivered exhibit A to the plaintiff; after receiving said exhibit from Earl, plaintiff discussed it with Mr. and Mrs. McWhinney; and thereafter Mr. MeWhinney prepared defendant’s exhibit 1, a purported will which was later presented to Earl but was never signed or executed.

(10) The funeral bill of Earl remains unpaid but there are enough assets in the estate to care for this and other claims against the estate.

In its conclusions of law the court stated: (a) That the decedent did not make a gift to defendant of the corporate stocks and the money in the savings account; (b) that defendant Evelyn holds the proceeds of said savings account and the stocks as a constructive trustee for the benefit of Earl’s estate; (c) that the plaintiff did not establish his right of recovery under Minn. St. 525.391 pertaining to property fraudulently conveyed; and (d) that the defendant should pay and deliver to the plaintiff as administrator for the benefit of Earl’s estate the sum of $982.18 representing'the proceeds of the savings account and endorse and deliver to said plaintiff for the use and benefit of said estate the corporate stocks involved.

Defendant asserts that the trial court erred (a) in concluding that she had failed to sustain her burden of proof that the property referred to herein was a gift to her and that, therefore, a constructive trust resulted for the benefit of the plaintiff; (b) in finding that the corporate stock was not delivered to her; and (c) in admitting plaintiff’s exhibits A, B, C, and D.

She argues on appeal that all the necessary attributes of a valid and complete gift are reflected by the evidence in this case.

The general essentials of a gift are stated in 8 Dunnell, Dig. (3 ed.) § 4020, as follows:

“* * * The legal elements of a gift are (1) delivery, (2) intention to make a gift on the part of the donor, and (3) absolute disposition by him of the thing which he intends to give to another.”

Defendant contends that when Earl delivered the .stock certificates to the broker, and directed the transfer thereof to her, a completed gift had been accomplished. She claims this was especially so when the broker subsequently inquired of her as to the physical disposition of the gift and she directed that the certificates should remain in the possession of the broker in a custodial account in her name. It is her contention that all of this can be deduced from the testimony of the only impartial witness, Bennitt; that there was no evidence from Bennitt or any other witness that at the time of the delivery Earl expressed any intent other than to transfer title in the certificates to her; and that subsequent actions of Bennitt reflect his execution of that intent.

With respect to the joint bank account, defendant argues that the court’s conclusion is incomprehensible when it is realized that there is a presumption in her favor as donee of that gift, citing Dyste v. Farmers & Mechanics Savings Bank, 179 Minn. 430, 229 N. W. 865. In that case the court stated that the statute providing that a deposit in the name of two or more may be paid to the survivor or to the personal representative of such survivor creates a presumption that the fund belongs to the survivor.

Defendant further contends that the evidence is uncontradicted that at the time Earl made the gifts of the stocks and the joint bank account, complete and unqualified gifts were accomplished in accordance with the requisites of the law pertaining to gifts; that there is a presumption in her favor that the transfer of the joint bank account was a gift; and that the ¡plaintiff had the burden of proving a constructive trust. She also claims that there is no evidence in this case that at the time Earl made the gifts to her and prior thereto that he made or intended anything other than an absolute disposition of the gifts. She contends that plaintiff’s exhibits A, B, C, and D are all evidence of declarations of Earl made subsequent to the gifts and are therefore inadmissible.

It will serve no useful purpose to go into further discussion of the contrary claims of plaintiff and defendant except to say in summary that it is plaintiff’s position that the circumstances in this case, viewed in their entirety, indicate that the property held by the defendant is held in trust for the heirs of decedent. To the contrary defendant argues that no stretch of the imagination is sufficient, on the basis of the record and exhibits here, to permit a judicial determination that a constructive trust should be imposed.

With reference to the stocks, the trial court stated in its memorandum, made a part of its findings, that there was not sufficient delivery to meet statutory and case law requirements and that the weight of the evidence supported plaintiff’s claim that there was neither the intention on the part of Earl to make a gift nor an absolute disposition of it by him.

In considering defendant’s objections to the reception of plaintiff’s exhibits A, B, and D, it was the trial court’s opinion that they should be admitted over defendant’s objections that the dead man’s statute precluded. their reception. It cited as authority Chard v. Darlington, 243 Minn. 489, 500, 68 N. W. (2d) 405, 412, wherein this court said:

“Our statute (§ 595.04) does not forbid testimony of acts of. the decedent.”

See, also, Chadwick v. Cornish, 26 Minn. 28, 1 N. W. 55.

It was the court’s position that exhibit A was not a part of a conversation and D was admissible because Mr. McWhinney was not a party in interest.

In connection with the hearsay rule with reference to those exhibits, the court further stated:

“Defendant did not object to the reception of Plaintiff’s Exhibits A, B or D at the time of trial on the ground of hearsay. That objection appeared first in the memorandum filed by defendant after trial. However, the case was tried to the Court, the exhibits were received with reservations * *

An examination of the exhibits satisfies us that inasmuch as the case was tried by the court without a jury, and the exhibits were received with reservations, there was no reversible error under the facts and circumstances here.

We come now to the principal question on appeal and that is whether or not under the record here the evidence justified the trial court’s conclusions of law that Earl Brennan did not make a gift of the corporate stocks and moneys in the savings account to the defendant and that she holds the stocks and the proceeds of the savings account as a constructive trustee for the benefit of his estate.

With reference to the stocks, the Uniform Stock Transfer Act provides in Minn. St. 302.02:

“Title to a certificate and to the shares represented thereby can be transferred only:

“(1) By delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of shares represented thereby * *

In In re Declaration of Trust by Bush, 249 Minn. 36, 81 N. W. (2d) 615, 82 N. W. (2d) 221, this court held that a transfer of stock on the books of a corporation was not sufficient to transfer legal title where the alleged donor kept possession of the stock certificate.

We quoted there with approval from 1A Bogert, Trusts and Trustees, § 142, p. 13:

“The mere direction by the owner to the corporation to change the corporate records regarding ownership, followed by such change to the name of another, would seem to be inadequate proof of a gift, when not followed by delivery of the new certificate. The change of the corporation transfer books is not ordinarily necessary to a completed gift or conclusive evidence that a donation has occurred.”

In that case we adopted the rule that a bare transfer of stock on the books of a corporation and the issuance of a new certificate in the name of another as transferee, all at the request of the original stockholder, does not of itself pass the legal and equitable title to the stock to the transferee where the transferor takes and retains possession of the new certificate and does not in any manner make a delivery thereof to the transferee.

The Bush case differs from the case at bar in that the stockholder there turned in his certificate of stock and had a new one issued and recorded on the corporate books in the name of another as transferee but when this was done he had the new certificate delivered into his own hands and retained possession of it until the death of the recorded transferee.

In the instant case, as stated by the trial court in its memorandum:

“Here the problem is somewhat different because Earl Brennan did not, after December 28, 1956, keep physical possession of the stock. It is noted, however, that he did not give instructions for its delivery to Evelyn Carroll and that there was no expression of an intent except that of having the certificates issued in her name. It is also noted that during the lifetime of Earl, Mrs. Carroll took no steps to secure physical delivery of the certificates to her and, indeed, so far as it appears from the testimony, she has made no such an attempt to this date. It seems very doubtful that the requirements of delivery under Minnesota law have been complied with either as our law applies to gifts or as it applies to the transfer of stock. Of course, it was not necessary for Earl to have delivered the certificates in person. He could have asked Mr. Bennitt to deliver them or he could have instructed Mr. Bennitt to hold them for Mrs. Carroll. But he did neither, and even absent other facts in the case which indicate a contrary intent on his part, it does not- seem that there was such a delivery of the stock as the law contemplates.”

It might be argued, however, that when Earl came to the Carroll home a few days after Christmas in 1956 and told Evelyn, according to Lynn Carroll’s testimony, he had transferred the stocks to her and wanted her to have them, that was sufficient to complete the gift. It is observed, however, that this conversation did not supply the necessary legal requirements under the record here to constitute a gift of the stocks from Earl.

In fact, Mr. Carroll, an attorney himself, must have had some doubt in his own mind as to whether Earl had complied with all of the requirements necessary to make a gift of the stocks inasmuch as his testimony indicates that on different occasions he told Earl, in connection with the matter, that he should put something in writing.

In the record is also plaintiff’s exhibit C prepared sometime in October 1957 by Mr. Carroll purporting to be an unsigned memorandum from Earl to his sister Evelyn. That exhibit would indicate, for whatever it is worth, that some 10 months after Earl was supposed to have made the gift of the stocks to Evelyn on December 28, 1956, there was still some doubt in her husband’s mind that Earl had given Mrs. Carroll the stocks.

To offset the claim that Earl gave the stocks to Evelyn, we have plaintiff’s exhibit A dated November 12, 1958, written by Earl about a month before he died. It stated in part:

“* * * if we need money we will use all my my account & pensions as the come in. If more is necessary you and John arranged to get it from stock.”

Regarding the stocks, it is our opinion that there was evidence sufficient to justify the court’s conclusions that Earl Brennan did not make a gift of them to Evelyn so as to comply with the legal requirements as to delivery, intention to make a gift, and absolute disposition by him.

Referring to the savings account, the court said in its memorandum that the defendant had established as sufficient a delivery as the circumstances would permit; that she also established a prima facie case and is entitled to the benefit of a presumption from this showing that there was a gift, citing Minn. St. 48.30, and Dyste v. Farmers & Mechanics Savings Bank, 179 Minn. 430, 229 N. W. 865. The memorandum further stated, however:

“* * * But a rebuttable presumption disappears when there is evidence opposing it. ‘It ceases or is out of the case upon the introduction of evidence opposing it.’⁴ Dunnell’s Digest, Evidence, Sec. 3430, and cases cited. Here, defendant’s case rests entirely upon the presumption. Mrs. Carroll did not contribute anything to the account, she did not use the account for her own purposes until after decedent’s death, and except for the presumption created by our statute and our case law there is no evidence to support her claim of a gift. While the question is not entirely free from doubt, it is concluded that plaintiff’s evidence discussed above is sufficient to overcome the presumption, and that the essentials of a gift of the savings account have not been established.”

We hold that with reference to the savings account there was evidence to support the court’s determination that Earl Brennan did not make a gift of that money to the defendant.

Affirmed.

1 Lynn B. Carroll was originally named as a defendant but the court granted his motion to dismiss the action as to him when it appeared that he had no property in which plaintiff claimed an interest on behalf of the estate.

2 Exhibit A reads as follows: “Nov. 12 — 1958. John, you figure out the exact amt. Evelyn; if we need money we will use all my my account & pensions' as the come in. If more is necessary you and John arranged to get it from stock. You, will then distribed among the 5 brothers & sisters and the 10 nieces and nephews, evenly the balance. All division will be made in your name. But now — you and John find out the best way to do it. Please make it easy for me. Take over! Earl.”

Exhibit B, according to plaintiffs testimony, was prepared by him on September 24, 1958, at the office of Piper, Jaffray & Hopwood, brokers. It reads as follows: “200 Libbey, McNeil and Libbey — 72.51; 200 Mpls. Gas Co. — 29.6; 110 Mt. Fuel Supply Company; 20 Red Owl Stores— 46.5; (85) Are these the present prices? 12/31/56 Libbey, McNeil, Lib-bey — .” Plaintiff testified that the words, “Are these the present prices?” appearing on the exhibit were written by Earl at the hospital on September 28, 1958.

Exhibit C, prepared by Lynn B. Carroll in October 1957 but never signed by Earl, reads as follows: “To Evelyn Brennan Carroll: This is a memorandum of a gift of $3,000 which I gave you October 7, 1957, and which confirms the other free gift I gave you of the stock which I transferred to your name. I have wanted you to have these gifts for yourself alone, as you are the one beloved by me above all my other sisters and brothers. I make this memorandum so that if anything happens to me, there shall be no question as to the validity of these gifts, to you and it is proof of my free, sound and sincere wishes that you shall be the sole owner of said gifts.”

David Lincoln McWhinney, the husband of Cecil, testified that on October 14, 1958, he visited Earl at the hospital and showed him exhibit C. Plaintiffs exhibit D, he said, was then prepared in his presence by Earl. It reads as follows: “Cecil has been good about writing. You know I think I enjoy it as much as a visit. She explained about visiting a long time ago. You tell Cecil I had nothing to do with it. Lynn came bouncing in this hospital about six or eight months ago and handed me that. I just put it with the rest and intended to destroy it. They are his words. Read aloud. Cecil has been fine. Now, about Dr. Gamble or anyone. I can pay the fee, just so I don’t get in bad here. There is no preference, Cecil. Line can see how hard it is for me to write.”

3 Defendant’s exhibit 1 is a document prepared by David Lincoln Mc-Whinney purporting to be Earl’s will. According to McWhinney’s testimony it was prepared at plaintiff’s request after he showed McWhinney exhibit A. It was prepared sometime in November 1958 but never was signed by Earl. It reads in part as follows:

“First. I order and direct that all my just debts and funeral expenses be first paid out of any property of my estate by law subject to the payment thereof.

“Second. I give, devise and bequeeth to my five (5) brothers and sisters and my ten nieces and nephews, all equal distribution of the remainder of my estate consisting of stocks, bonds and cash including that held in trust by my sister Evelyn Carroll.”

4 The exact language in 7 Dunnell, Dig. (3 ed.) § 3430, is as follows: “It ceases or is out of the case upon the introduction of substantial proof to the contrary.”