Rabourn v. Sternecker (In re Sternecker's Estate), 30666.

• Court: Supreme Court of Nebraska
• Writing for the Court: SIMMONS
• Citation: 287 N.W. 659,136 Neb. 813
• Parties: IN RE STERNECKER'S ESTATE. RABOURN v. STERNECKER.
• Docket Number: No. 30666.,30666.
• Decision Date: 29 September 1939

136 Neb. 813
287 N.W. 659

IN RE STERNECKER'S ESTATE.
RABOURN
v.
STERNECKER.

No. 30666.

Supreme Court of Nebraska.

Sept. 29, 1939.

Syllabus by the Court.

“One of the essential elements of a gift is the intention to make it. A clear and unmistakable intention on the part of the donor to make a gift of his property is an essential element of the gift, and this contention must be inconsistent with any other theory.” The person asserting it (a gift) “must prove all the essential elements by clear, direct, positive, express and unambiguous evidence.” Hild v. Hild, 135 Neb. 896, 284 N.W. 730.

Appeal from District Court, Howard County; Clements, Judge.

Proceeding in the matter of the estate of Clara Sternecker, deceased, wherein Lillian Rabourn filed objections to the final report of Charles Sternecker, administrator, alleging that he had not reported or accounted for certain building and loan stock allegedly belonging to Clara Sternecker, deceased, wherein Clara M. Sternecker was made a party. From a decree of the district court affirming a decree of the county court in favor of Lillian Rabourn, Clara M. Sternecker appeals.

Decree affirmed.

R. A. Haggart, of St. Paul, and Davis & Vogeltanz, of Ord, for appellant.

T. T. Bell, of St. Paul, and Prince & Prince, Frank E. Landis, all of Grand Island, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

SIMMONS, Chief Justice.

This is an action brought to determine the ownership of certain shares of building and loan stock. Clara Sternecker died intestate in January, 1937. Probate proceedings were had in her estate, and her son, Charles, was appointed administrator. He filed his final report and petition for distribution, showing, among other things, that the heirs at law were Charles Sternecker (the administrator) and Joseph Sternecker, sons of the deceased, and Lillian

[287 N.W. 660]

Leth Rabourn, a granddaughter of the deceased, each of whom inherited an undivided one-third interest in the property of the deceased.

Lillian Rabourn, hereinafter referred to as the plaintiff, filed objections to the final report, alleging that the administrator had not reported, nor accounted for, certain building and loan stock belonging to the deceased. To that objection, the administrator answered that the deceased was not the owner of any building and loan stock at the time of her death; that all of the stock in which deceased was interested “was by her direction issued to her and various other persons, or the survivor of them;” that said stock became the property of the survivors, and “that said transactions were made at various times over a period of about ten years, the exact dates of each transaction, and all other details of which are not known to your administrator.” (Italics ours.)

The administrator subsequently amended his answer and alleged that when he filed his original answer he did not have complete information regarding the stock; that he had since made an investigation and found that two certificates of stock, totaling $1,400, in a Lincoln company, were issued to “Clara Sternecker, Clara M. Sternecker, or survivor,” that eleven certificates in an Ord company, totaling $3,750, were issued to “Mrs. Clara Sternecker, Clara M. Sternecker, either one or the survivor,” and that one certificate for $500 in the Ord company was issued to “Mrs. Clara Sternecker, Chas. Sternecker, either of them or the survivor.” This last certificate was issued in 1923, the two Lincoln company certificates were dated in 1927 and 1929, and the remainder of the certificates were issued between September, 1930, and January 1, 1933. He further stated that certain certificates were issued to the deceased and her son, Joseph, or the survivor, “the details of which is not known to your administrator.”

The plaintiff then filed additional objections charging that for 35 years Charles was in full charge of his mother's business; that beginning in July, 1935, he was her legal guardian; that it was the intent of the deceased that said stock should pass to the three heirs in equal shares; that Charles took advantage of his control over his mother's property, her age and mental condition; disregarded his mother's wishes and directions and fraudulently had the stock issued and carried in the name of Clara M. Sternecker, the daughter of Charles; that all of the money invested in said stock was the money of deceased; that after his mother's death Charles delivered the stock to the others named in the certificates and that the certificates are assets of the estate and should be accounted for as such.

Clara M. Sternecker was made a party, and, in a joint answer with her father, denied the allegations of the objections except such as had been admitted in the answer of Charles.

The issues as made were tried to the county court, and a decree entered finding that the stock belonged to the estate. The matter was appealed, tried to the district court, and the decree of the county court was affirmed. Clara M. Sternecker...