O'Brien v. Bank of Douglas

• Decision Date: 28 June 1915
• Docket Number: Civil 1451
• Parties: MARY M. O'BRIEN, Appellant, v. BANK OF DOUGLAS, Administrator of the Estate of JOHN McLEVY, Deceased, Appellee
• Court: Arizona Supreme Court

149 P. 747

17 Ariz. 203

MARY M. O'BRIEN, Appellant, v. BANK OF DOUGLAS, Administrator of the Estate of JOHN McLEVY, Deceased, Appellee

Civil No. 1451

Supreme Court of Arizona

June 28, 1915

APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge. Reversed and cause remanded with directions.

Mr. O Gibson, for Appellant.

Messrs Cass & Sames, for Appellee.

OPINION

ROSS, C. J.

John McLevy in his last illness, and just before he died, on January 18, 1913, at Douglas, Arizona, made disposition of certain post office department warrants and money orders amounting to $1,300 as follows: He indorsed all the orders and warrants to Mary M. O'Brien, the appellant; caused them to be put into an envelope, which was by his direction sealed and addressed to "Mrs. Mary M. O'Brien, Kansas City, Mo.," and delivered into the possession of Dr. O. O. Hammill, of Douglas, with instructions to Hammill to send them to Mrs. O'Brien "if he died." At the time this was done he told A. T. Kleinschmidt that he had owed Mrs. O'Brien a large sum for a long time, and that he wanted her to have this money if he died; that if he lived he would want to keep it for investments and make more with which to pay Mrs. O'Brien. Dr. Hammill took possession of the envelope with inclosures, and started inquires to locate and identify Mrs. O'Brien, and about March 6, 1913, he came into possession of facts that satisfied him that he had found the right person. On March 16th he wrote Mrs. O'Brien in part as follows:

"John McLevy told me of having borrowed a sum of money from you some years ago, and he always had it in mind to repay you in full . . . . He made some provision for you, and when his small estate is settled up you will receive quite a substantial amount of money which he left, and directed that I could see that you received. Mr. McLevy just previous to his death asked me to do this for him . . . . This was his dying request to me that I locate you and follow out his wishes . . . . "

The appellee, Bank of Douglas, was appointed administrator of McLevy's estate. Whether the warrants and money orders were voluntarily turned over to the administrator or by order of the court is not definitely shown by the record. Hammill died before the trial.

The appellant, as plaintiff, instituted an action of replevin, alleging absolute ownership of money orders and warrants, demand and wrongful detention. Appellee answered, denying all the allegations of the complaint. Upon the facts above set forth the court entered judgment against appellant, from which this appeal is taken.

The trial court took the view that the transaction was an attempted donatio mortis causa, and that it failed for a lack of execution, in that the warrants and money orders were not delivered or to be delivered until after McLevy died, that the donee had not accepted the gift, and that Hammill's agency died with McLevy, the donor, and that therefore the property remained a part of the estate of McLevy. We do not think the transaction was intended either as a gift inter vivos or causa mortis, and therefore the principles applied to such cases are inapplicable. We think the elements of a parol express trust are present in which McLevy was the trustor, Hammill the trustee, O'Brien the cestui que trust, and the subject of the trust was the warrants and the money orders. "No technical expressions are needed for the creation of an express trust. It is sufficient if the settler indicates an intention to create a trust, and points out with reasonable certainty: (a) The trust property; (b) the beneficiaries; and (c) the purpose of the trust." Underhill's Law of Trusts and Trustees, p. 14. The words "trust" and "trustee" are not necessary to create a trust. No set form of words are necessary. Taber v. Bailey, 22 Cal.App. 617, 135 P. 975. The declaration of trust in personalty is not required to be in writing under the common law, and there is no statute in this state requiring it. See note to Howard v. Marshall, 156 Ky. 20, 51 L.R.A. (N.S.) 1208, 160 S.W. 775; Witherington v. Herring, 140 N.C. 495, 6 Ann. Cas. 188, 53 S.E. 303.

The fact that, if McLevy had lived, he might have revoked the trust, is not sufficient to defeat it. Trusts often may be defeated by actual revocation, but the retention of power to revoke, does not make the transaction any the less a trust. As was said in Stone v. Hackett, 12 Gray (Mass.), 227: "A power of revocation is perfectly consistent with the creation of a valid trust. It does not in any degree affect the legal title to the property. That passes to the donee and remains vested for the purposes of the trust, notwithstanding...