Platts v. Platts, 9713

• Decision Date: 22 January 1959
• Docket Number: No. 9713,9713
• Citation: 134 Mont. 474,334 P.2d 722
• Parties: Nettie M. PLATTS, as Administratrix of the Estate of T. S. Platts, deceased, Plaintiff and Respondent, v. William PLATTS and Alice V. Platts, Defendants and Appellants.
• Court: Montana Supreme Court

Page 722

334 P.2d 722

134 Mont. 474

Nettie M. PLATTS, as Administratrix of the Estate of T. S Platts, deceased, Plaintiff and Respondent, v. William PLATTS and Alice V. Platts, Defendants and Appellants.

No. 9713.

Supreme Court of Montana.

Jan. 22, 1959.

Merritt N. Warden, Kalispell, argued orally for appellants.

Walchi, Korn & Warden, Kalispell, for appellants.

Rockwood & Sykes, Grant Bakewell, Kalispell, for respondent.

Grant Bakewell, and Robert C. Sykes, argued orally for respondent.

CASTLES, Justice.

The defendants appeal from a judgment entered against them on findings of fact and conclusions of law. Plaintiff, Nettie M. Platts, the respondent, suing as the administratrix of T. S. Platts, deceased, asserts the deceased's ownership of certain Flathead County ranch lands by a $20,450 cash down payment on a $60,450, four percent, $2,500 annual payment contract for deed. She also asserts deceased's purchase of some $5,000 worth of livestock and equipment for the ranch. Plaintiff prays that a trust be impressed for the benefit of deceased's estate on the ranch real property in an amount to be determined by the court, and on all of this $5,000 in personal property. Whether the trust is to be impressed as a constructive trust springing from fraud or as a resulting trust raised as a legal presumption, and the amount thereof, is left unclear in the pleadings.

The case was heard, proposed findings of fact and conclusions of law, with briefs, were submitted by both sides and the matter was taken under advisement. Later, the court reopened the case, heard additional testimony and, thereafter, on its own findings and conclusions, ordered judgment entered for plaintiff decreeing that, to the extent of the cash down payment, defendants hole the purchase contract as trustees for the estate of T. S. Platts, and ordering that defendants surrender to the plaintiff administratrix whatever of the personal property was in their possession and that defendants pay to plaintiff the reasonable value of whatever was not.

Respondent administratrix is the widow of T. S. Platts. She and the deceased's two adult sons by a prior marriage are the heirs at law. Deceased died intestate. The land and chattels in dispute are a substantial portion but not all of the T. S. Platts estate. The disputed personal property is a portion of the ranch livestock and equipment, all bought separately after the land was acquired, and all owned or claimed as owned by defendants.

Defendant appellants are William and Alice V. Platts, husband and wife, a son and daughter-in-law of deceased T. S. Platts. Neil Platts, the other son and heir is not a party. However, he testified for plaintiff and stands to gain materially if plaintiff is sustained.

Defendant appellants are the sole record ranch contract purchasers and have always been in possession. They deny fraud, deny agreement to conceal or defraud, deny trust and claim by gift from deceased. The contract sellers, who retain all title to the ranch lands, likewise are not made parties.

Throughout, defendants' counsel has earnestly contended that no cause of action has been pled. Additionally, he predicates error under R.C.M.1947, § 93-401-27, subd. 4 (deadman's statute) by admission of deceased's purported declarations against his interest in real property. The district court's earlier rulings sustaining defendants' general demurrers to plaintiff's first two complaints and rejecting plaintiff's first testimony of deadman's declarations, when challenged as incompetent, tend to sustain the specifications of error urged by defendants' counsel on appeal. Later rulings, sustaining the second amended complaint and admitting these purported declarations of the deceased, upon which a resulting trust is raised by the trial court, are the basis for the errors specified on appeal.

The testimony shows that neither deceased nor his widow ever resided on the disputed premises. About a year before his death, deceased located the property as suitable for his children, the defendants, signed the earnest money receipt, made a $1,000 earnest money deposit to hold the property against other prospective buyers, and including the earnest money, advanced the $20,450 down payment. After the purchase he counseled in management, paid for some improvements and added the livestock and equipment in dispute. All this is admitted.

Deceased was of advanced age. Plaintiff is a second wife, with whom deceased was in bitter marital discord during the two years and ten months that elapsed between their marriage and his death. Neither had filed for divorce.

A summary of plaintiff's testimony offered to confirm the fraud and to raise the resulting trust is that deceased had said (1) he was buying a ranch, or had said (2) he and his defendant son were buying a ranch, or had said (3) he and this son were going to operate the ranch together, also that deceased had said (4) he was putting the ranch in his son, defendant William Platts' name to cover up, and that deceased had said (5) he was putting the ranch in this defendant's name temporarily until deceased could get rid of his wife, she being the widow, now suing as administratrix, alleging fraud and praying for a trust. These are declarations certainly against the interest of the wife and other son but hardly against the interest of the deceased.

The testimony as to buying a ranch was given by casual acquaintances, and is of no great probative value. What ranch, where, when, and what details are unspecified. None of this testimony is inconsistent with gift. Testimony as to intention to cover up comes from a former partner who on cross-examination admitted he had appropriated some of deceased's favorite outdoor equipment and had returned it only on the demand of deceased's defendant son.

Testimony as to the cover-up pending deceased's getting rid of his wife comes only from Neil Platts, the other son. It narrates the proposed cover-up as a future plan on a future purchase and is given by a witness, who gains materially if a trust is impressed.

Against this testimony we find the attorney who prepared the sale contract representing the sellers, and these sellers all testifying that the purchasers were William and Alice V. Platts, the defendants, and no others. The sellers and their attorney are not interested, were not impeached and were the persons most concerned with being sure who was actually purchasing the property. For them it was a matter not a later inheritance but an immediate necessity for careful scrivening and of sound business. Other testimony indicates the deceased clearly recognized that his age had become such he could expect little future advantage from owning a ranch.

As stated, only the defendant appellants executed the ranch sale contract as purchasers. They immediately moved to the ranch, stocked it with machinery and livestock at their own expense, have themselves operated it since, have paid all insurance and taxes and have made the annual ranch purchase payments. Their position is that they are the sole purchasers and owners and that whatever was contributed to the purchase price by deceased or added to their equipment and livestock was contributed and was added as a gift by deceased out of deceased's bounty and in his appreciation of defendant's loyalty to him.

Testimony as to past family dealings spans a period of two decades and principally reflects a post mortem dispute between an intestate's children and a recent second wife. It is inconclusive and confusing. But at least one undisputed item does suggest deceased's attitude toward defendants: it was deceased's son, defendant William Platts, to whom deceased entrusted joint access to deceased's safety deposit box, and it was this son's wife, defendant Alice V. Platts, a nurse, who faithfully tended deceased during his last illness.

In summary, nothing in the record establishes that the gift claimed by the defendant appellants was not intended as claimed; nothing in the record confirms that any fraud was attempted in any agreement with defendants, as alleged by the plaintiff respondent.

As a consequence, under statutes, we have a rebuttable presumption of a resulting trust (disregarding the allegation of fraud, which suggests a constructive trust) contradicted by an overriding presumption, under decisions, of a gift. R.C.M.1947, §§ 86-103, 86-203, 86-210; McQuay v. McQuay, 81 Mont. 311, 263 P. 683; Lewis v. Bowman, 113 Mont. 68, 121 P.2d 162. Trusts may be raised only on evidence which is clear, convincing and practically free from doubt. McQuay v. McQuay, supra; Lewis v. Bowman, supra.

We are considering an appeal in equity. This requires that we review 'all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same,' unless new trial or further hearing be ordered in the court below. R.C.M.1947, § 93-216. Emphasis added. Bond v. Birk, 126 Mont. 250, 264, 265, 247 P.2d 199; Bradbury v. Nagelhus, 132 Mont. 417, 319 P.2d 503.

The cause is pleaded in two counts, the first alleging a trust as to the realty, the second as to the personalty. To meet the specifications of error we must (1) determine whether or not a cause of action has been stated, in doing which we must also discover the theory of plaintiff's action, (2) decide the competency of the testimony offered as deceased's declarations against interest and whether it is admissible hearsay under the deadman's or the res gestce rules, and (3) raise or refuse to raise a resulting trust. If the trust alleged by plaintiff fails, the gift alleged by defendants stands.

(1) Theory of plaintiff's action.

As earlier writers have remarked in similar appears, we find it 'difficult to conclude * * * what particular theory of recovery plaintiff's attorney had in mind.' Lynch v. Herrig, 32...