Lulu M. Larkin And Mildred K. Rowe
| Decision Date | 11 July 1941 |
| Docket Number | 32,881,32,886 |
| Citation | 299 N.W. 649,211 Minn. 11 |
| Parties | Lulu M. Larkin And Mildred K. Rowe v. James Roscoe Mccabe. |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by Lulu M. Larkin and Mildred K. Rowe to recover certain bonds claimed to have been given to them by their father and wrongfully withheld by defendant, their brother; to have it declared that defendant holds title to a portion of a farm in trust for plaintiffs and for an accounting.There were findings, Lars O. Rue Judge, for plaintiff Larkin and adverse to plaintiff Rowe as to the bonds, that the trust be decreed, and that defendant recover certain money advanced by him on account of the farm.From the judgment entered, plaintiff Rowe (No. 32,881) and defendant(No. 32,886) appealed.Reversed on plaintiff Rowe's appeal; affirmed on defendant's appeal with directions to enter judgment in accordance with opinion.
James E. O'Brien, Leo P. McNally, Clyde W. Fiddes, and Amasa E Wheeler, for appellantMildred K. Rowe and respondentLulu M Larkin.
Fletcher, Dorsey, Barker, Colman & Barber and W. F. Marquart, for appellantJames Roscoe McCabe.
The opinion of the court was delivered by: Peterson
Gift -- validity -- delivery to depository as trustee for beneficiaries.
1.Delivery of negotiable bonds to a depository for named beneficiaries in execution of the donor's intention to make gifts without designation of the capacity in which the depository receives the same is a valid delivery sufficient to complete the gifts, since the depository takes as a trustee for the beneficiaries.
Gift -- redelivery to donor not inconsistent with continued ownership by donees.
2.Where, as here, gifts have been executed so as to pass title to the donees, a return of the property to the donor for purposes not inconsistent with the continued ownership of the donees does not reinvest the donor with title.
Gift -- completed gift -- revocation by donor.
3.A completed gift cannot be revoked by the donor.
Gift -- validity -- reservation to donor of income for life.
4.A present gift reserving to the donor the income for life is a valid gift inter vivos although the enjoyment is postponed until the donor's death.
Gift -- time of delivery.
5.A direction to deliver at death of the donor definitely fixes the time of delivery.
Gift -- validity -- delivery by mentally competent donor and acceptance by donee.
6.Where a mentally competent donor delivers property to the donee with intention to make an absolute disposition and the donee accepts the same, there is a valid and complete gift.
Interest -- time from which payable.
7.Where, as here, the cotenant demanding interest has been in possession of land asserting title in himself and receiving the rents and profits, and a tender by his co-tenants of the amount due to him for expenditures made by him on account of the common property would be futile, such cotenant is entitled to interest on such expenditures only from the entry of judgment.
Tenancy in common -- compensation -- management by cotenant of common property.
8.Absent an agreement for compensation, a cotenant is not entitled to compensation for services rendered in managing, operating, or taking care of the common property.
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 1933he 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 C. 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 sometime 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....
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