Marans v. Newland

• Citation: 141 Mont. 32,374 P.2d 721
• Decision Date: 10 October 1962
• Docket Number: No. 10251,10251
• Parties: Sylvia MARANS, Plaintiff and Respondent, v. John NEWLAND and Elmer Mester, as Executors of the Estate of Emil Marans, Deceased, Defendants and Respondents, Howard Marans and Donalee Marans Lessuk, Defendants and Appellants, J. F. Reid, E. J. Byrne and W. J. Winters, as members of and constituting the State Board of Equalization of the State of Montana, Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 721

374 P.2d 721

141 Mont. 32

Sylvia MARANS, Plaintiff and Respondent, v. John NEWLAND and Elmer Mester, as Executors of the Estate of

Emil Marans, Deceased, Defendants and

Respondents,

Howard Marans and Donalee Marans Lessuk, Defendants and

Appellants,

J. F. Reid, E. J. Byrne and W. J. Winters, as members of and

constituting the State Board of Equalization of

the State of Montana, Defendants and

Respondents.

No. 10251.

Supreme Court of Montana.

Submitted Nov. 6, 1961.

Decided Sept. 14, 1962.

Rehearing Denied Oct. 10, 1962.

Francis P. Kelly (argued orally), Poore, Poore & McKenzie and Robert A. Poore (argued orally), Butte, for appellant.

Corette, Smith & Dean, Meyer & Meyer, Butte, Sidney O. Smith (argued orally), Helena, Kendrick Smith (argued orally), Butte, for respondent.

JAMES T. HARRISON, Chief Justice.

This is a declaratory judgment action brought by Sylvia Marans as plaintiff against the executors of her deceased husband's estate, his two children by a prior marriage, and the State Board of Equalization. From the judgment entered the two children have appealed.

Emil Marans, the deceased husband, in his lifetime operated a store in Butte, Montana. He had been previously married and his first wife died in 1947. They were the parents of two children, Donalee, born July 18, 1932, and Howard, born May 14, 1936. In 1949 Marans married Sylvia, the plaintiff in this cause. Between 1949 and 1958 Marans purchased stock in various corporations from his own funds and title was taken as to some stocks in the names of Marans and his son Howard as joint tenants with the right of survivorship; others in the names of Marans and his daughter Donalee as joint tenants with the right of survivorship; others in the names of Marans and both of his children as joint tenants with the right of survivorship; some in the names of Donalee and Howard as tenants in common; and some in the name of Howard alone.

Emil Marans died testate on September 21, 1958, and his will was admitted to probate. Except for certain bequests his estate was divided equally between his widow, the plaintiff, and his children, one-third to each. Thereafter Sylvia renounced her rights under the will, and then filed this declaratory judgment action seeking to have the stocks in the ownerships as before mentioned included in the residuary estate of her late husband. Following a trial before the court, sitting without a jury, the court held, with certain exceptions not here pertinent, that the stocks belonged to Emil Marans at the time of his death and became part of his estate.

The children prosecute this appeal and specify that the law and evidence will not support the findings and conclusions of the court that as to the jointly issued stocks there was no transfer of ownership from Marans to his children as joint tenants with himself, with right of survivorship and not as tenants in common; and that the court was in error in so concluding. Secondly, that as to the stocks issued in the name of the son and those in the names of the son and daughter as tenants in common, that the law and evidence do not support the finding and conclusion of the court that there was no gift, delivery and transfer of ownership from Marans to his children, the registered owners of the stocks.

Turning then to the stocks issued in the names of Marans and his children as joint tenants with the right of survivorship and not as tenants in common. Joint tenancy is recognized under our law by section 67-308, R.C.M.1947, which reads:

'A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants.'

This court fully discussed the incidents of joint tenancy in Hennigh v. Hennigh, 131 Mont. 372, 377, 309 P.2d 1022, 1025, and therein we stated:

'After adoption of present sections 67-307 and 67-308, R.C.M.1947, in 1895, all the incidents of joint tenancy that existed under the common law unless in derogation of these enactments would come into force. These incidents at common law were a single estate in property, real or personal, owned by two or more persons, under one instrument or act of the parties, an equal right in all to share in the enjoyment during their lives, and on the death of a joint tenant, the property descends to the survivor or survivors and at length to the last survivor.'

As provided in section 67-1706, R.C.M.1947:

'A gift is a transfer of personal property, made voluntarily, and without consideration.'

And under section 67-1707, R.C.M.1947:

'A verbal gift is not valid unless the means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee.'

It is the contention of the respondent that there has been no delivery, accompanying intent, or acceptance by the donee to constitute a gift inter vivos under our law.

It appears therefore that a review of Montana authorities should be had and we will briefly discuss the various cases which have arisen concerning gifts.

In the early case of Leyson v. Davis, 17 Mont. 220, 294, 42 P. 775, 796, 31 L.R.A. 429, decided in 1895, this court made an observation which we feel justified in repeating:

'* * * we believe in adhering to the rule that, where a party claims by way of a donation causa mortis, he should make out a strong case. It is therefore the duty of the court to give particular heed to every fact and circumstance in the testimony, being very careful to avoid any conclusion not fully sustained by credible evidence. On the other hand, there is a cardinal principle never to be lost sight of, namely, that the law permits a man to make gifts in apprehension of his death; and if he has done so in due manner, while in full possession of his senses, and with deliberation and intent to bestow his personal property upon another, it would be a fearful injustice to nullify that intent, and take away the property from the person justly entitled thereto.' (Emphasis supplied.)

In O'Neil v. O'Neil, 43 Mont. 505, 511, 117 P. 889, 890, in referring to the statute, then section 4635, Rev.Codes 1907, now section 67-1706, R.C.M.1947, this court observed:

'* * * to constitute a gift inter vivos, within the statute, the donor must voluntarily deliver the subject of the gift to the donee with the present intention to vest the legal title in the donee, who must accept it. The essential elements are, therefore, the delivery, the accompanying intent, and acceptance by the donee. Such a gift is made without condition, and becomes at once irrevocable.'

In Clary v. Fleming, 60 Mont. 246, 250-252, 198 P. 546, 547, our court laid down the rule with regard to transfers between persons in confidential relation, in these words:

'* * * if the property is purchased by one with his own money, and the title is placed by him in another to whom he stands in a confidential relation, such as husband, wife, parent, child, or such other relation that one may naturally have a claim upon the bounty of the other, then the presumption is that the conveyance is made as a gift. Taylor v. Miles, 19 Or. 550, 25 Pac. 143; Hamilton v. Hubbard, 134 Cal. 603, 65 Pac. 321, 66 Pac. 860, 51 Am.Dec. note 754, 755; Whitten v. Whitten, 70 W.Va. 422, 74 S.E. 237, 39 L.R.A. (N.S.) [1026] 1028, Ann.Cas.1915D, 647. See, also, numerous citations in Lafayette Street Church Society of Buffalo v. Norton, 202 N.Y. 379, 95 N.E. 819, 39 L.R.A. (N.S.) 906. The Supreme Court of Oregon, in the case of Taylor v. Miles, supra, considering a similar question, uses this language: 'But the presumption that the party paying for the property intended it for his own benefit applies only when the transaction is between strangers, where there is no natural or legal obligation resting on the purchaser to pay the consideration for another. When the purchaser takes the conveyance in the name of his wife, the sale [rule?] is reversed, and equity raises the presumption that the purchase and conveyance was intended to be an advancement or gift. 'Whenever,' says Mr. Pomeroy, 'the real purchaser--the one who pays the price--is under a legal or even a moral obligation to maintain the person in whose name the purchase is made, equity raises the presumption that the purchase is intended as an advancement or gift, and no trust results.' 2 Pom.Eq.Jur., par. 1039.'

'The Supreme Court of California, from which state our statute was taken, in the case of Hamilton v. Hubbard, supra, has given a similar construction to the statute in the following language: 'Ordinarily, indeed, where a conveyance is made to one, and the consideration paid by another, a trust is 'presumed' in favor of the latter. Civ.Code, Sec. 853. But this presumption arises only in transactions between 'strangers to each other' (1 Perry [on], Trusts, Sec. 126), and is not indulged where the conveyance is to the 'wife or child, or other person, for whom (the person paying the consideration) is under some natural, moral, or legal obligation to provide.' In such cases the presumption is 'that the purchase and conveyance were intended to be an advancement for the nominal purchaser.' 1 Perry, [on] Trusts, Sec. 143; Hill, [on], Trustees, 97, and note. The transaction was therefore a gift to Mrs. Hamilton, and, under the express provisions of the Code, her separate property. Civ.Code, Sec. 162.' There are some California cases holding that in certain instances this statute is applicable to dealings between husband and wife, parent and child, but in each of those cases there appears a breach of confidence or trust whereby a trust ex maleficio results; but we are unable to find any case in which a resulting trust is presumed when a husband voluntarily takes the title in the name of his wife and there has been no breach of faith on her...