Larkin v. McCabe, 32881.
| Decision Date | 11 July 1941 |
| Docket Number | No. 32886.,No. 32881.,32881.,32886. |
| Citation | 299 N.W. 649,211 Minn. 11 |
| Parties | LARKIN et al. v. McCABE (two cases). |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Lars O. Rue, Judge.
Action by Lulu M. Larkin and Mildred K. Rowe against James Roscoe McCabe to recover bonds, to establish that defendant held title to a farm in trust for each of the plaintiffs as to an undivided one-fifth portion, and for an accounting. From the judgment, Mildred K. Rowe and James Roscoe McCabe appeal.
Judgment reversed on the appeal of Mildred K. Rowe, and affirmed on the appeal of James Roscoe McCabe with directions to enter judgment in accordance with opinion.
James E. O'Brien, Leo P. McNally, and Clyde W. Fiddes, all of Minneapolis (Amasa E. Wheeler, of Duluth, of counsel), for Mildred K. Rowe and Lulu M. Larkin.
Fletcher, Dorsey, Barker, Colman & Barber and W. F. Marquart, all of Minneapolis, for James Roscoe McCabe.
Plaintiffs are sisters. Defendant is their brother. There are two other sisters, Etta Jane Irvine and Jessie P. McClintock. All are the children of James McCabe by his first wife. McCabe died on January 15, 1936.
Each plaintiff sues to recover a $10,000 McCabe Bros. Grain Company, Ltd., Gold Bond alleged to have been given her by the decedent and wrongfully withheld from her by defendant, who came into possession of the bonds under a claimed subsequent gift by the father to him; to establish that the defendant holds title to a farm in North Dakota in trust for each of them as to an undivided one-fifth portion, and for an accounting. The court below held that Mrs. Larkin was entitled to recover the bond which she claimed; that the plaintiff Rowe was not entitled to recover the bond which she claimed; that the trust be decreed in the land (to which defendant consented); that defendant was entitled to recover the money advanced by him on account of the farm with interest, and to a lien on the farm for the amount of the recovery and that he was not entitled to recover for personal services rendered managing and looking after the farm.
Plaintiff Rowe appeals from the judgment so far as it denies her recovery of the bond and allows defendant interest on the money advanced by him. Defendant appeals from the judgment so far as it adjudges that plaintiff Larkin is entitled to recover her bond and that he is not entitled to recover for his services.
McCabe was a man of advanced age and considerable means. He and his children had a strong affection for each other. The testimony was that this feeling included the "in-laws." His repeated statements reveal that he had a fixed intention to divide his property among his children. He had practically accomplished this purpose during his lifetime. The children appreciated his generosity, which was restrained only by the advice of those with whom he consulted.
In 1925 McCabe conveyed to his children a 655-acre farm in North Dakota subject to a $19,500 mortgage and accumulated interest. The farm had been the family home and there was no little family sentiment concerning it.
In February, 1933, he called Mrs. Irvine and Mrs. Larkin in conference at his office for the purpose of dividing his remaining property among his children. He then had five $10,000 bonds of McCabe Bros. Grain Company, Ltd., and stock in that and other corporations. He outlined to his daughters his plan of distribution. He intended to give defendant, who is referred to as Roscoe and Rox, more stock in the McCabe companies than the girls. He had an envelope for each child containing the securities he intended to give them. The stock certificates had been made out in the names of the children. The record does not show what securities he gave Roscoe. He gave each daughter 100 shares of McCabe Bros. Grain Company, Ltd., preferred stock, 36 shares of the McCabe Bros. Company stock, and 100 shares of International Elevator Company stock. He also had a $10,000 bond for each daughter.
He intended to retain the income from the securities during his lifetime. After some discussion in which Mrs. Irvine and Mrs. Larkin expressed profuse appreciation of their father's generous gifts, they advised him to keep the bonds for the reason that he might need them for his own support. Accordingly, he decided to distribute the other securities and keep the bonds.
Slips were then made out to be attached to the stock certificates and signed by each donee by the terms of which the donee agreed to turn over to Mr. McCabe any dividends paid on the stock "while he lives." Mrs. Irvine and Mrs. Larkin signed the slips for their stock certificates then and there. Mrs. Irvine testified that she took her stocks with her and placed them in her and her husband's safety deposit box, where they have since remained. She also testified that a few days afterwards she accompanied her father to Duluth, where he delivered Mrs. Rowe's stocks to her.
The intention to distribute the bonds persisted in Mr. McCabe's mind. During the months following he conferred with his son-in-law, George D. McClintock, a lawyer of good reputation and ability, about gifts of the bonds. McClintock's testimony is that he advised McCabe "that he should be careful to make a delivery to someone of those bonds if he was contemplating making a gift."
Still actuated by the intention to make gifts to his daughters of the bonds, McCabe went to McClintock's office some time in June, 1933. He had with him four large envelopes, one for each daughter, in the upper left hand corner of which was written the list of securities the envelope contained. The list included the stocks given to the daughters which have been mentioned and a $10,000 bond, giving the number.
McCabe stated either that he had given or that he was giving the securities to his daughters. He handed the envelopes containing the securities for plaintiffs and Mrs. Irvine to McClintock and asked him if he would keep the envelopes and the securities therein contained for said daughters. McClintock took the envelopes containing the securities and told him that he would keep them for the daughters. McCabe assigned reasons for not delivering the securities to Mrs. Rowe and Mrs. Irvine, but not Mrs McClintock. He said that he feared Mrs. Irvine might spend the proceeds on her son "Jim" and that Mrs. Rowe would dissipate the proceeds of hers. He said that he was going to deliver Mrs. Larkin's securities to her since he knew that she would "hang on" to them.
He advised McClintock at the time that he desired to have during his lifetime the income from the bonds and the dividends on the stocks. Then, in McCabe's presence, McClintock wrote on Mrs. Rowe's envelope, "I am holding the above for Mildred McCabe Rowe for safekeeping," and signed it "George D. McClintock." He wrote a similar inscription on the envelopes for Mrs. Irvine and Mrs. McClintock and signed them. He and Mr. McCabe went to McClintock's safety deposit box, where the envelopes containing the securities were deposited. McCabe had no access to the box. Later McCabe went to Mrs. Larkin's home where he personally delivered her securities to her.
Before delivery, McClintock checked the contents of each envelope. Those for Mrs. Rowe and Mrs. Irvine were correct as to listing and contents. There were some errors in the stock certificate numbers listed on the envelopes for Mrs. Larkin and Mrs. McClintock, which McClintock corrected. There was no error as to any bond number.
About one month afterwards, on July 19, 1933, McCabe again went to McClintock's office and said that he would like "to leave" Mrs. Irvine's and Mrs. Rowe's bonds at the McCabe Bros. office. Thereupon McClintock gave him the entire contents of the envelopes containing their securities. He made and signed an endorsement on the envelopes to that effect under date of "7/19/33." Mrs. Larkin returned her bond, but not the stocks, to her father. Later Mrs. McClintock returned her bond to her father in the presence of her husband.
McCabe put the bonds in the vault in the office of the McCabe Bros. Company. Defendant by reason of his connection with the company had access to the vault and to the bonds.
When the father came to get Mrs. McClintock's bond there was some discussion about preparing some documents to show the gifts. Pursuant to the father's suggestion, McClintock sent a letter to defendant on October 20, 1933, enclosing a form of legend to be endorsed on the envelope containing the bonds and of receipt to be furnished to each daughter. The letter recites the gifts to Mrs. McClintock and the other daughters; that the father reserved the income from the bonds during his life; that "the gift itself was completed by delivery and acceptance"; that it was the father's desire that defendant hold the bonds during his lifetime, clip the coupons, apply the same to his use, and "upon his death they be redelivered by you to the owner thereof"; that the father suggested the preparation of the form of legend to be endorsed on each envelope "so as to properly identify the same as the property of the one to whom the gift has been made"; that the procedure pursued was a proper one, since the only essential thing to the making of a valid gift was that there be delivery and acceptance by the donee; that "that has been accomplished in this instance"; and that all that remained to be done was to keep such records that defendant "may readily prove that the gift, delivery and acceptance actually occurred and the time thereof," to the end that there should be no contradictory circumstances whereby the father's actual intention might be defeated by subsequent creditors or others. The latter suggested that defendant show it to his father and if it did not correctly set forth the matter as he wanted it to advise McClintock.
Defendant received the letter and showed it to his father, for whom an extra copy was enclosed. Neither of them...
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