Osius v. Dingell

• Decision Date: 11 May 1965
• Docket Number: No. 27,27
• Citation: 375 Mich. 605,134 N.W.2d 657
• Parties: Mary G. OSIUS, Plaintiff and Appellee, v. Louis F. DINGELL, Helen J. Dingell and Robert E. Childs, as Guardian ad Litem of David Dingell, a Minor, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 657

134 N.W.2d 657

375 Mich. 605

Mary G. OSIUS, Plaintiff and Appellee, v. Louis F. DINGELL, Helen J. Dingell and Robert E. Childs, as Guardian ad Litem of David Dingell, a Minor Defendants and Appellants.

No. 27.

Supreme Court of Michigan.

May 11, 1965.

Piggins, Balmer, Grigsby, Skillman & Erickson, Detroit, for appellee.

Robert E. Childs, Detroit, for defendants and appellants.

Before the Entire Bench.

SMITH, Justice.

Defendants appeal from a judgment restoring 200 shares of Toledo Edison stock to plaintiff as sole owner. Previously, plaintiff had purchased the stock and registered it in her name and that of Louis F. Dingell and Helen J. Dingell 'as joint tenants with right of survivorship and not as tenants in common.' Defendants Louis F. and Helen J. Dingell are the parents of David Dingell, a minor. Plaintiff is not related to either defendant by blood or by marriage.

At the time of trial in 1963, plaintiff, a widow since 1933, was around 90 years of age and resided in a home for the aged. After serving in the Dingell home for several years as 'baby sitter' to David, plaintiff purchased in 1956, with her own money, the stock and had it registered in joint names as set out above. Two stock certificates representing 200 shares were handed to Mr. Dingell by Mrs. Osius. There was no consideration passing between the Dingells and plaintiff, Mrs. Osius; the transaction was intended primarily for the benefit of young David, more specifically his college education. It is the nature of the transaction that is in question. Was it a completely executed gift inter vivos as appellants contend? Or was it a parol trust with right to revoke, as plaintiff contends?

The trial court found that Mrs. Osius 'intended to create a trust with the defendants Mr. and Mrs. Dingell as trustees and the intervening defendant David as beneficiary of said trust.' The trial court concluded that 'there can be no question the plaintiff created an oral trust when she gave the defendants Mr. and Mrs. Dingell the specific and undisputed instructions concerning a corpus of the trust, namely, use it for David's education at her death, retaining for herself the dividends during her lifetime.' (Emphasis supplied.) There is no dispute about the dividends. By arrangement of the parties, Mrs. Osius has received all dividends and has had exclusive use of same.

The transaction deserves even closer scrutiny, particularly the testimony as to conversations between Mrs. Osius and the Dingells around the time Mrs. Osius handed the stock certificates to Mr. Dingell. In response to a question about a brief conversation had with Mr. Dingell about a week prior to handing Dingell the stock certificates, Mrs. Osius had this to say:

'Well, I went up to him where he was sitting in the chair, and I said, 'I have stock', and that I am having--I have stock and that it will be for David after my death, but I am to have that, and sometime I may need it myself, but I am to have that stock in my one name whenever I want it, and I said, 'Do you understand?'

'He said, 'Yes'--excuse me--he said, 'Oh, yes, oh, yes,' and smiled when I told him about the stock.

'I said, 'But that is mine until my death." (Emphasis supplied.)

Mrs. Osius testified further that about a week later these events transpired in the Dingell home:

'A. Well, I held the stock in my hand and I said, 'Here is the stock.' I didn't say--I didn't give it to him, and I held it in my hand, and I said, 'Here is the stock.'

'I said, 'now, you promise, you understand that belongs to me' that I am to have that while I am living. After my death it is to go for David's education, and Mr. Dingell said yes, but he didn't--He said, 'Oh, yes,' but he didn't say 'Oh, yes, oh, yes' like he did the first time and smiling, and he just said it.

'Q. On this occasion you have [sic] the stock certificate with you; is that right?

'A. I had it with me and not until he promised that he understood that that was to be mine that I released it from my hand. I just handed it to him.' (Emphasis supplied.)

While the Dingells had possession of the stock certificates, Mrs. Osius received the dividends therefrom. There were no other conversations about the stock until 5 years later in 1961. At this time, Mrs. Osius contacted Mr. Dingell and they discussed the desire of Mrs. Osius to sell the stock and purchase other stock with a higher dividend yield, Mrs. Osius explaining that she needed additional money for medical expenses. Mr. Dingell refused to surrender the stock certificates, but did offer to give Mrs. Osius periodic amounts which would serve to compensate for the low yield of the stock.

Mr. Dingell's testimony about conversations had with Mrs. Osius in 1956 differs from hers. He says that she expressed a desire to make 'a gift' of the shares. He testified as follows:

'She said she wanted to give me everything needed in honoring of these shares to make sure no matter whatever happened to her David would have a college education.'

Likewise, Mr. Dingell's recollections of the 1961 conversation with Mrs. Osius differed, but only slightly. He said that she expressed a desire to sell the stock and reinvest in a mutual fund which had a higher yield. In addition, Dingell testified as follows:

'She did at that time realize that I had to have my name on that stock and my wife would have to have her name on the stock so that the stock would be able to be converted to Wellington Fund stock.'

Sometime after this conversation in the summer of 1961, plaintiff consulted counsel who wrote a letter to defendants demanding the stock certificates; upon refusal by defendants, suit was instituted by the filing of a bill of complaint on November 17, 1961. From a judgment entered October 25, 1963, defendants have appealed. Review in this Court is de novo.

It may be stated generally that the three elements necessary to constitute a valid gift are these: (1) that the donor must possess the intent to pass gratuitously title to the donee; (2) that actual or constructive delivery be made; and (3) that the donee accept the gift. Buell v. Orion State Bank, 327 Mich. 43, 41 N.W.2d 472. It is essential that title pass to the donee. Taylor v. Burdick, 320 Mich. 25, 30 N.W.2d 418. As to delivery, it must be unconditional and it may be either actual of constructive; the property may be given to the donee or to someone for him. In re Herbert's Estate, 311 Mich. 608, 19 N.W.2d 115. Such delivery must place the property within the dominion and control of the donee. In re Herbert's Estate, supra. This means that a gift inter vivos must be fully consummated during the lifetime of the donor and must invest ownership in the donee beyond the power of recall by the donor. Lumberg v. Commonwealth Bank ich. 566, 295 N.W. 266. As to acceptance, it is said that the donee is presumed to have accepted the gift where such is beneficial. Buell v. Orion State Bank, supra.

The crucial question here is one of fact. What did Mrs. Osius intend? To make a gift of the stock or to create a trust with right of revocation? The trial judge who saw and heard the witnesses found as follows: 'It is readily apparent to the Court,' he wrote, 'Mrs. Osius, the plaintiff, intended to create a trust with the defendants Mr. and Mrs. Dingell as trustees and the intervening defendant David as beneficiary of said trust.'

Cases involving equity jurisdiction are reviewed in this Court de novo, but ordinarily the Court will not reverse the lower court where there is evidence and testimony to support the finding of the lower court unless justice demands, or the evidence clearly preponderates the other way. Primarily, this is because the trial court is in better position to determine the credibility of witnesses by observing their conduct and demeanor in court, an opportunity which the reviewing court on appeal obviously does not have. Mousseau v. Walker, 356 Mich. 373, 97 N.W.2d 110; Lopez v. Lazaros, 369 Mich, 477, 120 N.W.2d 209.

The trial court found that a trust was intended and not a gift inter vivos. We do not reverse because justice does not require it, nor does the evidence clearly preponderate in the opposite direction. If anything, the evidence amply sustains the trial court's finding and also, concordantly, justice requires affirmance. The evidence sustains the finding that, among other things, Mrs. Osius lacked the donative intent sufficient to support a valid gift inter vivos. On this point, the objective facts support the subjective testimony of Mrs. Osius. She testified that she clearly explained to Mr. Dingell as she handed over the certificates her intent to reclaim or revoke if the need should arise. Supporting this testimony are the objective facts that she...