Christiansen v. Rumsey

• Decision Date: 23 June 1967
• Docket Number: No. 9929,9929
• Citation: Christiansen v. Rumsey, 429 P.2d 416, 91 Idaho 684 (Idaho 1967)
• Parties: O. D. CHRISTIANSEN, Administrator of the Estate of Orion Christiansen and Norma Christiansen, Deceased, Plaintiff-Respondent, v. William F. RUMSEY and Elaine Rumsey, husband and wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 416

429 P.2d 416

91 Idaho 684

O. D. CHRISTIANSEN, Administrator of the Estate of Orion Christiansen and Norma Christiansen, Deceased, Plaintiff-Respondent, v.William F. RUMSEY and Elaine Rumsey, husband and wife, Defendants-Appellants.

No. 9929.

Supreme Court of Idaho.

June 23, 1967.

Ralph H. Jones, Jr., John R. Black, and Jedd Owens, Pocatello, for appellants.

F. M. Bistline, Pocatello, for appellee.

McQUADE, Justice.

Appellants William F. and Elaine Rumsey, husband and wife, contracted the purchase of a house located in Downey, Idaho, from Orion and Norma Christiansen, husband and wife, under a contract dated March 28, 1963, which requires monthly payments of seventy dollars, due on the first day of each month.The contract contains an acceleration clause by which unpaid principal and accrued interest become due on demand after sixth days notice of default in payment of any installment.

Orion and Norma Christiansen died apparently on the same day, sometime in June 1965, from causes not appearing in the record.On August 16, 1965, respondentO. D. Christiansen, as administrator of their estates, brought the present action for the balance due under the contract as of April 15, 1965, alleging that appellants had defaulted in all payments due since sometime before April 15, 1965, and that more than sixth days notice of dafault had been given them.Appellants' answer admitted that the contract contained a default acceleration clause, but denied that they were in default.Appellants affirmatively alleged that Orion and Norma Christiansen before their deaths had made a gift to them of the debt representing the balance due.

Respondent moved for summary judgment, and at a hearing on the motion, appellants introduced as their only defensive document an affidavit of appellant-husband, in which he stated,

'* * * that the defendants(appellants) continued to make payments under the terms of the contract of purchase up until June, 1965; that at the time of the last payment in June, 1965, the said Orion L. Christiansen, deceased, informed the defendant(appellant-hunband?) that if anything happened to him the described property should be considered fully paid and absolute conveyance and transfer made to the defendants, William F. and Elaine Rumsey, husband and wife; that thereafter on the following day the said Orion L. Christansen, and Norma L. Christiansen died; that any balance due under the contract of purchase was considered by the defendants and the plaintiffs, deceased, as fully paid in the nature of a gift.'

In this state of the record, the trial judge granted summary judgment for respondent, and, in a memorandum decision, stated his reasons as follows:

'The Court feels that there is no issue of material fact for submission to a jury and that under the law and the facts before the Court, the Court deemed the proposed cancellation of debt to take place upon death to be an attempted testamenory disposition which can only be accomplished by a Will formal or nuncupative and under the facts before the Court, it could only be nuncupative and the requirements of a nuncupative will have not been complied with.'

This is an appeal from that judgment.

Regarding the alleged gift's insufficiency as a nuncupative will, the trial court was clearly correct since the record, including appellant-husband's affidavit on summary judgment and appellants' answer, does not suggest that the testamentary words were reduced to writing within thirty days of their utterance as required by I.C. § 15-234, nor that witnesses were present and Orion Christiansen was knowingly in extremis when he attempted the gift.SeeCannon v. Seyboldt, 55 Idaho 796, 48 P.2d 406(1935);see alsoCoffin v. Hyde, 35 Idaho 247, 205 P. 736(1922).Appellants contend, nevertheless, that the record in this action presents two issues of material fact, either of which precludes the entry of summary judgment: first, whether Orion Christiansen made an effective gift to appellants to the debt; secondly, whether appellants were in default prior to the deaths of Orion and Norma Christiansen.

A necessary element of an enforceable gift, be it inter vivos or causa mortis, is present donative intent, that is the giver's purpose or motive to transfer immediately to the donee dominion over the object given.Zimmerman v. Fawkes, 70 Idaho 389, 219 P.2d 951(1950)(inter vivos and causa mortis)seeBoston Ins. Co. v. Beckett, 91 Idaho 220, 419 P.2d 475(1966)(inter vivos);Gray v. Gray, 78 Idaho 439, 304 P.2d 650(1956)(inter vivos);Coffin v. Hyde, supra(causa mortis).

An effective gift inter vivos 'must be absolute and irrevocable without reference to taking effect at...