Johnson v. Omaha Loan & Bldg. Ass'n
| Citation | 257 N.W. 370,128 Neb. 37 |
| Decision Date | 27 November 1934 |
| Docket Number | No. 28982.,28982. |
| Court | Supreme Court of Nebraska |
| Parties | JOHNSON v. OMAHA LOAN & BUILDING ASS'N. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. To constitute a valid gift inter vivos there must be an intention to give, coupled with a completed, irrevocable gift, property delivered and title passed beyond the control and dominion of the donor.
2. Any party so placed in a litigation that he is called upon to defend that which he obtained from a deceased person and to make the defense which the deceased might have made if living may be said to represent the deceased person within the contemplation of section 20-1202, Comp. St. 1929.
Appeal from District Court, Douglas County; Hastings, Judge.
Action by May Holtman Johnson against the Omaha Loan & Building Association, wherein Alice A. Holtman was required to interplead. From an adverse judgment, plaintiff appeals.
Affirmed.
John W. Cooper, of Omaha, for appellant.
Sidney W. Smith, James E. Rait, and L. McDonald, all of Omaha, for appellees.
Heard before ROSE, GOOD, EBERLY, DAY, and PAINE, JJ., and LESLIE and RYAN, District Judges.
This is an action brought by May Holtman Johnson as plaintiff against Omaha Loan & Building Association, a corporation, defendant, seeking to recover a certificate of the capital stock of the defendant, known as C-34553, being a certificate for twenty-five shares of capital stock of the value of $200 each. The defendant filed a motion and affidavit for interpleader, in which it alleged that Alice A. Holtman also claimed to be the owner of said certificate and pass-book by inheritance from Dr. A. A. Holtman, deceased, and had made demand upon the defendant for the same; that defendant is ready to place to the credit of the plaintiff or Alice A. Holtman, as the court may direct, the full value of said certificate and pass-book, and, upon surrender of said certificate and pass-book No. C-34553, to issue and deliver to either of said persons as the court may direct a new certificate and new pass-book representing the full value thereof. The court thereupon made an order requiring Alice A. Holtman to appear and interplead on or before February 20, 1933, and maintain or relinquish her claim against the defendant in respect to said certificate and pass-book. Alice A. Holtman filed her answer alleging that she was the owner by inheritance of said certificate and pass-book. For convenience she will be referred to in this opinion as the defendant. Her answer further alleged that the property represented by said certificate and pass-book was accumulated by Dr. A. A. Holtman during his lifetime; that he at all times remained the owner thereof and made deposits and withdrawals to said account; that, although he used the name May Holtman at one time with reference to said account, he did not give the pass-book or any right, title or interest in said account to the plaintiff, but, on the contrary, exercised exclusive dominion over said property at all times as his own; that this interpleaded defendant is the widow and residuary legatee of said Dr. A. A. Holtman and is the owner of said certificate and pass-book. A reply was filed by plaintiff, specifically denying the allegations of said answer.
Dr. A. A. Holtman was a practicing physician and surgeon in Omaha and accumulated a substantial estate. He died testate on October 10, 1926, and his will was probated in Douglas county. In his will be bequeathed $20,000 to his brother and two sisters and left the residue of his estate to his widow. The plaintiff, May Holtman Johnson, is one of the two sisters and the defendant Alice A. Holtman is the widow. Dr. Holtman invested his funds largely in building and loan association stocks and this litigation grows out of the certificate described in plaintiff's petition. On August 20, 1921, Dr. Holtman subscribed for twenty-five shares of stock in the Omaha Loan & Building Association and deposited $609.73 and received a certificate or pass-book No. C-34553, which was issued to him in his own name. He made other deposits on August 22 and August 25, and on September 1, 1921, there had been deposited and credited on said certificate the sum of $1,100.73. On September 1, 1921, he assigned the certificate to May Holtman, the plaintiff in this action. At the same time he had a reassignment blank made out for signature, reassigning the certificate to himself. On December 20, 1921, this reassignment appears to have been returned to the Omaha Loan & Building Association, bearing the name “May Holtman.” It appears from the record that this name was written by the defendant Alice A. Holtman on the reassignment at the request of Dr. A. A. Holtman. Dr. Holtman continued makingdeposits in this account until November 3, 1925, when the total deposits reached $5,000 and the stock became matured. From then on he drew the dividends regularly up to the time of his death.
The record discloses that Dr. Holtman also carried accounts with the Conservative Savings & Loan Association. These were handled in much the same manner during the year 1921, except that he used the words “special” or “agent” after the name “May Holtman” in...
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