Estate of Fiksdal, Matter of, 15062

• Decision Date: 17 March 1986
• Docket Number: No. 15062,15062
• Parties: In the Matter of the ESTATE OF J.R. FIKSDAL, a/k/a Johan Richmond Fiksdal, Deceased. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 133

388 N.W.2d 133

In the Matter of the ESTATE OF J.R. FIKSDAL, a/k/a Johan

Richmond Fiksdal, Deceased.

No. 15062.

Supreme Court of South Dakota.

Considered on Briefs March 17, 1986.

Decided May 21, 1986.

Leon J. Vander Linden, Webster, for appellant Security Bank.

Duane C. Anderson, Christopherson, Bailin & Anderson, Sioux Falls, for appellee Borghild Fiksdal; John C. Peters, Hartford, Conn., on brief.

SABERS, Justice.

Decedent's children and his executor appeal from the trial court's judgment that decedent made an inter vivos gift of his coin collection to his wife. We reverse.

Statement of Facts

Johan Richmond Fiksdal (Fiksdal), owned a furniture store and funeral parlor in Webster, South Dakota. He was an avid hunter and collector, and had among his possessions valuable coin, stamp, gun, and Indian artifact collections.

In the fall of 1975 and prior to their marriage, Fiksdal discussed his coin collection with Borghild Peters (Borghild). According to her testimony, he stated, "If you marry me, all of this will be yours," in reference to several pieces of silver and the coin collection.

On April 19, 1976, Fiksdal and Borghild were married. Earlier that same day they entered into a Prenuptial Agreement. The agreement stated that whatever property the parties brought into their marriage would remain their separate property. The agreement also contained a provision which reserved the right of each spouse to make gifts to each other. This provision states in part:

4. Transfers between the Parties.

Notwithstanding the provisions of this Agreement, each Party shall have the right to transfer or convey to the other any property or interest therein which may be lawfully conveyed or transferred during his or her lifetime or by will or otherwise upon death, and neither Party intends by this Agreement to limit or restrict in any way the right and power to receive any such transfer or conveyance from the other.

Fiksdal executed his Last Will and Testament on June 17, 1971. Included therein was the bequest of his coin collection, as well as his other collections, to the four children of his first marriage. On the day of his marriage to Borghild, Fiksdal executed a codicil to his will which reaffirmed it in all respects.

Within a month after the marriage, Fiksdal moved into Borghild's house. He brought the various collections with him. The coin collection remained there until his death. The coin collection was valued at between one quarter to one-third of a million dollars.

Fiksdal died on December 8, 1984. He left Borghild approximately $160,000 in the form of bonds, C.D.s, and a joint checking account. The Security Bank and Trust Company of Webster, was appointed Executor of Fiksdal's estate on January 9, 1985. In an effort to assemble the total assets of the Fiksdal estate, the executor requested Borghild to turn over the above referenced collections which were in her possession. She refused.

Thereafter, the executor and the Fiksdal children obtained an order which required Borghild to show cause why the collections should not be inventoried with the other assets of the estate. She responded that the coin collection was given to her by the decedent prior to his death, and was thus, not a part of the Fiksdal estate. Borghild stipulated, however, that she was only making a claim to the coin collection and not for the stamp collection, gun collection, or the Indian artifacts.

A hearing was held on May 8, 1985. The trial court entered Findings of Fact, Conclusions of Law, and a Judgment on June 5, 1985, which awarded the coin collection to Borghild and held that the Fiksdal estate had no claim to it.

Issue

DID THE WIFE PROVE EVERY ELEMENT OF THE GIFT OF THE COIN COLLECTION BY CLEAR AND CONVINCING EVIDENCE?

The trial court did not specifically enunciate the standard of proof it used to decide this case. There is a rebuttable presumption that the trial court applied the appropriate standard of proof. See: 5 Am.Jur.2d, Appeal and Error Sec. 704, at 149 (1962).

In Medin v. Brookfield, 66 S.D. 209, 281 N.W. 97 (1938), the mortgagors claimed that a satisfaction executed by the mortgagee, (who was deceased at the time of trial), was intended as a gift to them. The executor for the mortgagee's estate argued that the satisfaction was never intended as a gift, but intended to assist the defendants in procuring Home Owner Loan Corporation Bonds which the mortgagee had consented to accept in satisfaction of the note and mortgage. However, the bonds were never given in discharge of the debt. The trial court held for the mortgagee's estate.

The note and mortgage were neither cancelled nor surrendered, but retained by the mortgagee during his lifetime. Moreover, during the interval of the several months between the time of the alleged gift of the mortgage debt to the defendants, and the death of the donor [mortgagee], the defendants made no claim of a gift. Id. 66 S.D. at 213, 281 N.W. at 99. To that end, the Medin court stated:

It is a general rule that when a claim of a gift is not asserted until after the death of the alleged donor, the evidence must be clear and convincing of every element requisite to constitute a gift.

Id. The Medin court further found that the defendant's claim of a gift was inconsistent with the course of conduct on the part of the parties concerned. Id. 66 S.D. at 214, 281 N.W. at 99.

The trial court found that Fiksdal made a valid inter vivos gift of his coin collection to Borghild. The scope of this court's review is limited to whether the trial court's findings are clearly erroneous. Vaughn v. Eggleston, 334 N.W.2d 870 (S.D.1983).

In Owen v. Owen, 351 N.W.2d 139 (S.D.1984), we set forth the essential elements of a gift as: intent, delivery, and acceptance. Id. at 142; Bunt v. Fairbanks, 81 S.D. 255, 258, 134 N.W.2d 1, 2 (1965). The donor's intent must be shown in order to determine that a gift has been made. Id. Thus, "[a] gift is a transfer of personal property, made voluntarily, and without consideration." SDCL 43-36-1.

The trial court found that Fiksdal fulfilled the "delivery" element when he moved into Borghild's house after their marriage and brought the coin collection with him. However, the evidence shows that at the same time Fiksdal also moved his stamp, gun, and Indian artifact collections into Borghild's house. Borghild stipulated that she made no claim to the guns, stamps, and Indian artifacts. It appears, therefore, that Fiksdal's act of moving the coin collection into Borghild's house is, in and of itself, inconclusive to satisfy the "delivery" requirement.

In Bunt, supra, the husband, without his wife's knowledge, withdrew funds from their joint checking account and purchased stock with it. He had the stock issued in joint tenancy between himself and his daughter, and he also retained possession of the stock certificate. After his death, the wife sought to quiet title in the stock on her own behalf. The trial court held that the husband had made a valid inter vivos gift to his daughter.

In Bunt, we stated that "[a] gift is without consideration, and for that reason fails as a contract until executed. Delivery is the adrenaline that makes it a contract executed." Id. 81 S.D. at 258, 134 N.W.2d at 2-3. The fact that the stock certificate was issued in joint tenancy was a key factor in Bunt. Thus, even though the husband retained possession of the certificate, we found that he surrendered exclusive possession and control over it when he placed ownership in the daughter and himself. Id. 81 S.D. at 258-259, 134 N.W.2d at 3.

"The delivery of a gift may be either actual or constructive, depending upon the circumstances under which the gift is made." Id. 81 S.D. at 259, 134 N.W.2d at 3. Bunt affirmed the trial court's finding of a constructive delivery based on the fact that each cotenant has an equal right to possession, that physical possession of the stock certificate could not be maintained by both parties simultaneously, and because the law contemplates that possession by one cotenant is possession for both. Id.

By contrast, there is no written documentation in the instant case to indicate that Fiksdal relinquished exclusive possession and control over the coin collection when he "delivered" it to Borghild's house after their marriage. On the contrary, the record reflects that the coin collection continued to be Fiksdal's most prized possession, that he worked on it daily, and that he remained actively involved with the collection until his death. The evidence also shows that Fiksdal traded coins from his collection, sold off duplicates when necessary, and otherwise attended to all matters concerned with the collection.

There was testimony to the effect that Fiksdal was an astute businessman and meticulous record keeper. At the hearing, Fiksdal's son referred to the coin collection as his father's "essence." Based on the foregoing, a question is raised as to why Fiksdal did not reduce to writing the fact that he made a gift of this magnitude to his wife. Borghild argues that her late husband never told anyone that he had given her the coin collection, nor memorialized it in any fashion, because he did not want to invoke the criticism of his children. However, the children were unaware of the amount of money Fiksdal intended to leave Borghild while he was still living, because the evidence was locked away in a safety deposit box. ¹ The executor argues that in keeping with his habit of accurate record keeping and in view of the importance of his coin collection, Fiksdal could have resolved all dispute by writing down the fact that he had gifted the coin collection to his wife. He then could have stored this information in a similar manner to ensure the necessary confidentiality until his death.

The trial court further found pursuant to paragraph 4 of the Prenuptial Agreement, that Fiksdal retained the capacity to make gifts to his wife and that she retained...