In re Vanicek's Estate

• Decision Date: 02 February 1945
• Docket Number: 31845.
• Citation: 17 N.W.2d 477,145 Neb. 531
• Parties: In re VANICEK'S ESTATE. POSPISHIL et al. v. KEMP et al. (VANICEK et al., Interveners).
• Court: Nebraska Supreme Court

17 N.W.2d 477

145 Neb. 531

In re VANICEK'S ESTATE.

POSPISHIL et al. v. KEMP et al. (VANICEK et al., Interveners).

No. 31845.

Supreme Court of Nebraska

February 2, 1945

Syllabus by the Court.

1. When a proper objection has once been made to the admission of testimony and overruled, it is unnecessary for counsel to repeat this same objection to further testimony of the same nature by the same witness in order to save the error, if any, in the ruling of the court whereby such testimony was received.

2. If a witness testifying to a gift inter vivos is a creditable witness, and there is no evidence in opposition thereto, it then becomes a question of the sufficiency of the evidence rather than the weight of the evidence.

3. Postal savings certificates may be the subject of a valid gift inter vivos, and the transaction is completed by the voluntary transfer of possession, even though they are nonnegotiable and nontransferable.

4. The final judgment of a court of competent jurisdiction adjudicating the right of any person to any sum deposited in a postal savings depository, shall be accepted as conclusive of the title thereto, and is a full discharge of the United States from the claim of any other person to the same.

5. The legal inference arising from a gift inter vivos from a father to a child is that such transfer is a natural one, and less evidence is required to establish such a gift than to a stranger.

6. To make a valid and effective gift inter vivos, there must be an intention to transfer title to the property, as well as a delivery by the donor and an acceptance by the donee.

7. It is generally held that the transfer inter vivos should be sustained if all the facts and circumstances show the desire and the act completed, whatever may have been the method adopted.

Coufal & Shaw, of David City, for appellants.

Lloyd L. Pospishil, W. B. Sadilek, Edward Asche, and Wm. H Roether, all of Schuyler, for appellees.

Before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, and WENKE, JJ.

PAINE Justice.

This is an appeal from the district court for Colfax county in proceedings for the final settlement of the account of the executors of the estate of Joseph Vanicek. A daughter claims ownership, for herself and her two sisters, of five postal savings certificates as a gift from her father. The district court denied her claim, and held that said certificates were a part of the estate. From such finding the three sisters as claimants appeal.

The six errors relied upon for reversal may be summarized as follows: That the court erred in determining that the postal savings certificates were the property of the estate of Joseph Vanicek, and in directing their conversion into cash, and distribution thereof as a part of his personal estate; that the court erred in holding that the postal savings certificates are not subject to transfer by a gift inter vivos; that the court erred in reversing its ruling excluding evidence of daughter's conversation with her deceased father, which was previously admitted; 'The court erred in the decision that a gift inter vivos may not be proved by circumstantial evidence, ruling the gift must be established by direct evidence.' 'The court erred in its determination that the standard of the quantum of proof in a gift from parent to child, when no fraud or undue influence is shown, is the same as in a gift between strangers where fraud or undue influence is proved.' 'The court erred in holding the evidence is insufficient to establish the gift inter vivos.' 'The court erred in its general finding that none of the evidence as to gift and delivery given by Mamie Vanicek was admissible.'

The record in this case discloses that Joseph Vanicek, a retired farmer, living alone in his own home in Schuyler, died testate on April 27, 1941. His estate consisted of farm lands, this house in town, and personal property, all having a value of about $25,000. The farm lands were divided between the two sons, and the three daughters were given the house in town and each a cash bequest of $2,000. In case the personal property failed to pay such legacies, the same were to be a lien on the farm land.

The only contest in this case is in reference to the ownership of five postal savings certificates, of the face amount of $2,200.

The testator's wife died in 1922, after which his youngest daughter, Mamie, continued to keep house for him until she married Elmer Kunkle February 24, 1927, and moved to a home about two blocks away, but continued to visit him daily, bringing him food, and with another sister assisted in doing housework for the father.

The son Joseph had lived in Oregon since 1935. The son Rudolph lived on his mother-in-law's farm, nine miles northeast of Schuyler, and visited his father only occasionally. The oldest daughter, Anna Kemp, lived in Schuyler, and did regular washing for her father every two weeks for 75 cents. Carrie Strnad, the third daughter, lived in the country, did not drive a car herself, and could not visit her father as often as the other daughters, until his cancer took a serious turn, when she came more frequently.

In the case at bar, there is no dispute that after the death of the father the postal savings certificates were in the possession of his daughter Mamie, nor that she had received them from her father at his home, when she was there doing up his work on the evening of February 24, 1941.

She reached home about 6 o'clock and laid the postal savings certificates in the cedar chest in her bedroom. After 9 o'clock, when her husband came home from work, she testified, she 'made a comment it was our wedding anniversary and I told him dad had give us the postal savings for three of us girls. * * *

'Q. And what did he say? A. He asked to see them because he had never seen postal savings.

'Q. What was done then, if anything. A. I went in the bedroom and brought them out and handed them to him while he was sitting on the day bed.

'Q. That is to say, you handed him these postal savings certificates and the envelope which encloses them and which this litigation is about, is that right? A. Yes.'

There is evidence to the effect that, at a conference in the county court on May 22, 1941, William H. Roether, who was at that time an attorney for Joseph F. Vanicek, but is not now connected with the case, asked generally of the heirs sitting in the courtroom what the assets consisted of, and various notes were mentioned, and he then asked about postal savings, and testified: 'Mamie Kunkle sat in one of the rear seats back of where I sat and stated 'Those are mine'.'

Elmer Kunkle testified as to what happened at his home that evening after 9 o'clock when he got home. 'Q. What then was done by you or Mrs. Kunkle? A. Well, my wife went in the bedroom and she got those postal savings and handed them to me in an envelope and I opened them up, looked at them and handed them to her.'

Attempt was made to prove the details of the delivery by the father to his daughter Mamie of the envelope containing these certificates at his home on the evening of February 24, 1941, and the trial judge permitted her to testify that her father handed her the envelope containing the postal savings certificates, although objection to the question and motion to strike out the answer were seasonably made, as follows:

'Q. And the envelope in which the certificates were contained has been offered in evidence. Now did you see this envelope and these certificates in your father's hands at any time in his home on this afternoon when you were at the sink? A. Yes, when he handed them to me.

'Mr. Asche: Objected to and move that the answer be stricken for the reason that it is detailing a transaction had with a deceased person in a controversy involving a matter in which this witness has a direct legal interest and for which reason this witness is incompetent to testify.

'The Court: Overruled.'

The trial court, after having the case under advisement for something over a year, decided that the answer above, stating the delivery of the certificates to the daughter by the father, was as much a transaction as detailing a conversation with the deceased father would be, and therefore that it should be stricken out. In this the trial court was correct.

Section 25-1141, R.S.1943, reads as follows: 'Where an objection has once been made to the admission of testimony and overruled by the court it shall be unnecessary to repeat the same objection to further testimony of the same nature by the same witness in order to save the error, if any, in the ruling of the court whereby such testimony was received.' It has been so held in Zediker v. State, 114 Neb. 292, 207 N.W. 168.

If the question relates to the same identical transaction or conversation, and calls for testimony of the same nature, it is not necessary that the objection be repeated to save the error for the appellate court. Triplett v. Western Public Service Co., 129 Neb. 799, 263 N.W. 229.

Anna Kemp, a sister of Mamie Kunkle, who came frequently to help Mamie do the work, testified that Mamie told her that their father had given her the postal savings certificates for the three girls, also that Mamie stated in the county court, in answer to Mr. Roether's question, that 'she had the postal savings for us three girls.'

Joseph Kemp son-in-law of the testator, and who is named as one of the executors, asked Lloyd L. Pospishil, an attorney, to draw the will. He found testator seated at a round table, with papers around him, and he stated that he wanted to make his will. Mr. and Mrs. Kemp went out in the kitchen and the door was closed, and he then proceeded with the execution of the will. Testator told of all his real estate, money in the bank,...