Kolc v. Krystyniak, 40311

Decision Date28 April 1976
Docket NumberNo. 40311,40311
Citation196 Neb. 16,241 N.W.2d 348
PartiesJulia KOLC, Appellant, v. Ann KRYSTYNIAK et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

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

2. The undue influence which will void a deed (gift) is an unlawful and fraudulent influence which controls the will of the donor. The affection, confidence, and gratitude of a parent to a child which inspires a gift is a natural and lawful influence and will not render it voidable unless such influence has been so used as to confuse the judgment and control the will of the donor.

3. In an appeal in an equity action, the statute requires this court, in determining questions of fact, to reach an independent conclusion without reference to the findings of the District Court. However, if there is an irreconcilable conflict in a material issue, this court will, in determining the weight of the evidence of witnesses who appeared in court to testify, consider the fact that the trial court observed them and their manner of testifying.

J. Michael Fitzgerald, Matthews, Kelley, Cannon & Carpenter, P.C., Omaha, for appellant.

Alfred A. Fiedler, Fiedler & Fiedler, Omaha, for appellees.

Heard before SPENCER, BOSLAUGH and McCOWN, JJ., and COLWELL and KELLY, District Judges.

KELLY, District Judge.

This action was commenced in the District Court for Douglas County, Nebraska, on the 23rd day of August 1973. The plaintiff prayed for an accounting for funds held in joint tenancy with her daughter, one of the defendants herein. The plaintiff further prayed that the funds held in trust for her by defendant be returned to the plaintiff. The defendant in answering the petition of the plaintiff herein, admitted the receipt of certain funds and savings accounts on behalf of the plaintiff. The defendant argues a gift, made to her, of a portion of the funds and that she paid the balance of the funds to an escrow agent, pending the trial herein.

There is little dispute over the facts as surrounding this case. The facts show that the plaintiff was 79 years of age on the date of trial. She was the mother of 7 children. The plaintiff's husband died in 1958, and from that time until 1973, a period of 15 years, the plaintiff lived with a married daughter, Ann Krystyniak and her family. Af the time of death of the plaintiff's husband, she became the sole owner of three savings accounts which had been held in the name of her husband and herself as joint tenants with rights of survivorship. Immediately after the death of plaintiff's husband, a second name was added to the savings accounts as a joint tenant, that being Jerry Kolc, a son. At the insistence of Jerry Kolc, the defendant's name was substituted as a joint tenant with the plaintiff on the three savings accounts.

On August 19, 1971, the funds of one savings account, having a balance of $12,301.71, was transferred to a separate account owned by defendant and her husband. Although there were withdrawals from the other accounts, these sums were later placed in escrow and the only amount in controversy in this law suit was the aforementioned account, transferred to the defendant and her husband.

This action was brought in the name of the plaintiff. However, the plaintiff was not mentally competent to testify at the time of trial and could not remember many things wich transpired. The defendant claimed the above account as a gift from her mother to her. The intention to make this gift was corroborated by testimony of a daughter of the defendant and the defendant's husband.

During the 15 years that the plaintiff lived in the home of the defendant, the defendant and her family provided not only a home, food, and clothing, but most of the love and affection that plaintiff received. Plaintiff received a small Social Security check and a very small pension check, which her husband had earned during his lifetime. The trial court found the amount in controversy was a valid gift to the defendant; rendered judgment in that amount for the defendant; and ordered the balance of the money held be paid to a conservator for the plaintiff. Plaintiff appeals.

This court has previously held that to make a valid and effective gift inter vivos, there must be an intention to transfer title to the property, and a delivery by the...

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8 cases
  • Davis v. Cunningham
    • United States
    • Nebraska Supreme Court
    • April 28, 1976
  • Craig v. Kile
    • United States
    • Nebraska Supreme Court
    • January 14, 1983
    ...but undue influence as established in the law. In Saathoff, supra at 799, 295 N.W.2d at 295, quoting from the case of Kolc v. Krystyniak, 196 Neb. 16, 241 N.W.2d 348 (1976), we said: " '[The] undue influence which will void a ... (gift) is an unlawful and fraudulent influence which controls......
  • McDonald v. McDonald, 42940
    • United States
    • Nebraska Supreme Court
    • October 31, 1980
    ...which makes a conveyance unlawful but undue influence as established in the law. In that regard, quoting from Kolc v. Krystyniak, 196 Neb. 16, 241 N.W.2d 348 (1976), we said in Saathoff, 206 Neb. at 799, 295 N.W.2d at 295: " '(The) undue influence which will void a ... (gift) is an unlawful......
  • Bishop v. Hotovy
    • United States
    • Nebraska Supreme Court
    • May 2, 1986
    ...position in this case is that he seeks to equate influence with undue influence. They are not the same. In Kolc v. Krystyniak, 196 Neb. 16, 19, 241 N.W.2d 348, 350 (1976), we said: "[The] undue influence which will void a ... (gift) is an unlawful and fraudulent influence which controls the......
  • Request a trial to view additional results

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