Hillman v. Young

• Decision Date: 21 January 1913
• Citation: 129 P. 124,64 Or. 73
• Parties: HILLMAN et al. v. YOUNG et al.
• Court: Oregon Supreme Court

129 P. 124

64 Or. 73

HILLMAN et al. v. YOUNG et al.

Supreme Court of Oregon

January 21, 1913

On rehearing. Modified and affirmed.

For former opinion, see 127 P. 793.

BURNETT, J.

In an opinion by Mr. Justice Moore reported in 127 P. 793, we affirmed a decision by the circuit court in favor of the plaintiff. In an able petition for a rehearing the counsel for the defendant discussed two questions: First, the rights of the heirs to maintain this suit; and, second, whether or not there was sufficient delivery of the personal property in question as a gift to establish title in the defendant Jones. It is proposed to treat these in their inverse order.

Considering the transaction in the light of the law about donatio causa mortis in addition to what has already been said by this court on that subject as reported in the opinion referred to it is proper to note the pleadings of the defendants Young and Jones in that respect. They allege "That-Samuel E. Hillman, deceased, came to the residence of the defendant W. Franklin Jones about February 12, 1909 for the purpose of making it his permanent home during the remainder of his natural life, and the said Samuel E Hillman, being desirous that the defendant W. Franklin Jones should receive any portion of his estate which should remain after his death, duly assigned and transferred to the defendant J.P. Young as trustee the promissory notes mentioned in the complaint, and also duly assigned and transferred in writing a mortgage securing the same to the said J.P. Young and instructed the said J.P. Young to collect the proceeds thereof so far as the same should belong to the said Samuel E. Hillman, and pay them over to the said W Franklin Jones as they should be needed, and at the death of the said Samuel E. Hillman, if any portion thereof remained in the hands of said J.P. Young, trustee, he should deliver the same to W. Franklin Jones, except such sum as should be necessary to pay him a reasonable compensation for his services as such trustee." This allegation falls short of pleading a donatio causa mortis, because it does not say that it was made in contemplation of the death of the donor, neither does it aver delivery of the property to the defendant Jones or to any one for him. On its face this portion of the answer makes the ultimate interest of the defendant Jones merely conditional because he is only to receive what may be left of the proceeds of the property after Mr. Young had managed and disposed of it according to the directions of the donor and had paid himself a reasonable compensation for his services.

Further answering the argument for a donatio causa mortis, although in our judgment the averment does not support such a gift, it is manifest upon the face of this pleading that Young was to act as the agent and according to the instructions of Hillman, and not according to the directions, or for the interests, of Jones, except incidentally. These features fairly distinguish this case from that of Deneff v. Helms, 42 Or. 161, 70 P. 390. In that case the donor was dangerously afflicted in his last illness. He had $2,000 on deposit in a bank and $200 in the possession of an individual. His private depositary and an officer of the bank were at his bedside, and he there indorsed to the defendant Helms his certificate of deposit in the bank, and directed its officer to pay the fund to the defendant. He gave the same directions to his individual bailee. On the same day these directions were carried into effect, and the defendant reduced both sums of money to his own possession. The donor died the following day. He had revoked all previous agencies employed in the custody of his money, and expressly directed the same to be paid at once to the donee. In the present case the former agency of Young was continued with directions to manage the property in his possession as before, and expend possibly all of it during the lifetime of the donor on condition that, if anything remained, he was to pay it to the defendant Jones. The transaction was simply a perpetuation of the former relationship between Young and Hillman, and, of course, as an agency terminated at the death of the latter. Nothing remains to be said on the subject of donatio causa mortis, the law of which is so clearly pointed out in the opinion of Mr. Justice Moore.

The defendants endeavor to reach the same result of conferring title upon Jones by pleading a contract made by him with the decedent after the latter had come to live with Jones whereby the latter was to take care of Hillman during his life, in consideration of which Hillman was to convey the property to Young for management substantially as before stated. It will be noted, however, in this connection, as found by the court, that Young by virtue of his authority as agent had previous to this time made a contract with Jones for the performance of substantially the same service mentioned in the defendant's answer, but without any condition making Jones the residuary beneficiary, and that this contract was unknown to Hillman. Having agreed to do the very things which he promised in the contract alleged, the renewed stipulation of Jones to perform the identical services would not constitute any consideration sufficient to support the agreement averred which in turn would not operate to transfer any property from Hillman to Jones. Concerning the indorsement of the notes to Young, it is sufficient to say that equity, regarding the substance rather than the mere form, will hold that the effect of the indorsement was not to pass the absolute title to the...