Ratterman v. Lodge

Decision Date18 May 1926
Docket NumberNo. 7135.,7135.
PartiesRATTERMAN v. LODGE.
CourtU.S. Court of Appeals — Eighth Circuit

Carson L. Taylor, of Des Moines, Iowa (John N. Hughes and W. J. O'Brien, both of Des Moines, Iowa, on the brief), for appellant.

Chauncey A. Weaver, of Des Moines, Iowa, for appellee.

Before SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

L. F. Ratterman, as administrator of the estate of Wilhelmina W. Thompson, deceased, filed a bill in equity against Mrs. C. M. Lodge, wherein he prayed for a decree adjudging certain promissory notes and mortgages in the possession of Mrs. Lodge to be the property of such estate, and for an order impounding such notes and mortgages pending a determination of the suit. The answer in effect set up that the notes and mortgages were the property of Mrs. Lodge by virtue of a gift inter vivos from Miss Thompson to Mrs. Lodge. The cause was referred to a master.

The evidence adduced before the master showed substantially the following facts:

Mrs. Lodge and Miss Thompson were sisters. The former resided at Des Moines, Iowa, and the latter during her lifetime at Cincinnati, Ohio. They were the last survivors of a family of twelve children, consisting of nine sisters and three brothers. Miss Thompson visited with Mrs. Lodge at Des Moines from August 26 until the latter part of October, 1922. About September 1, 1922, Mrs. Lodge and Miss Thompson went to the office of the treasurer of the Iowa Loan & Trust Company, and Miss Thompson discussed with George W. Gray, treasurer of the trust company, the purchase of certain notes and mortgages from the trust company. On or about September 7, 1922, the two sisters again went to the office of the trust company. They talked the matter over between themselves, and finally went to the counter and said to Mr. Gray that they believed they would take the notes and mortgages. Mrs. Lodge said to Miss Thompson: "Do just as you please about it." Gray then inquired in whose name the assignments should be made out, and Miss Thompson said: "Well, make them out in the name of Mrs. Lodge." Mrs. Lodge then said: "Well, I will not take any of the interest." Gray then instructed the clerk to make the assignments out in the name of Mrs. Lodge, and to make a notation that the interest was to be remitted to Miss Thompson. Miss Thompson paid for the securities by two certificates of deposit. The notes were indorsed by the trust company in blank. The assignments were made out in the following form: "For value received, the Iowa Loan & Trust Company * * * does hereby sell, assign, and convey to Mrs. C. M. Lodge, heirs, successors, and assigns, a certain mortgage here followed a particular description of the mortgage, as well all its rights and title in and to the premises in said mortgage above described; the notes, to secure which said mortgage was given, having been transferred to said assignee by indorsement. * * *" They were duly executed by the trust company. The notes, mortgages, and assignments were retained in the possession of the trust company. The trust company collected the interest and remitted it to Miss Thompson during her lifetime. Shortly after the death of Miss Thompson, Mrs. Lodge called at the office of the trust company and asked for the notes, mortgages, and assignments, and Mr. Gray delivered them to Mrs. Lodge. Gray testified without objection: "That was my understanding as to what Miss Thompson wanted done" at her death. "They were to be turned over to her sister. I got that impression from my talk with Mrs. Lodge and Miss Thompson. That was the understanding that I had, and proceeded on that understanding."

In the month of February, 1923, Miss Thompson stated to Mrs. Alice J. Schooler, Mrs. Wilma Blakeley, and Mrs. D. R. Stewart: "I want my sister Kate (Mrs. Lodge) to have all that I have got, because there are only just the two of us." Mrs. Schooler testified that Miss Thompson made substantially that statement on several occasions in the spring of 1923.

The master made findings of fact and conclusions of law sustaining the gift. Exceptions were filed to the report of the master. The trial court overruled these exceptions, and affirmed the findings of fact and conclusions of law made by the master. A decree was entered for the defendant, and plaintiff appealed.

The assignments of error may be treated under one proposition, namely, that the evidence was insufficient to support the findings of the master, confirmed by the court, that there was a gift inter vivos.

To constitute such a gift there must have been a clear and unmistakable intention on the part of Miss Thompson, the donor, to make a present gift of the notes and mortgages to Mrs. Lodge, the donee, and such gift must have been fully executed by the actual, constructive, or symbolical delivery of such notes and mortgages to Mrs. Lodge. Allen-West Commission Co. v. Grumbles (C. C. A. 8) 129 F. 287, 290, 63 C. C. A. 401; Beaumont v. Beaumont (C. C. A. 3) 152 F. 55, 58, 81 C. C. A. 251; note 25 A. L. R. 642; 12 R. C. L. pp. 930-936, §§ 9-12; Id. p. 941, § 18; 28 C. J. pp. 626-638, §§ 15-26.

At the time of the transaction in question, the title to the notes and mortgages was in the trust company. At the instruction of Miss Thompson, the assignments were made out to Mrs. Lodge. The notes and mortgages and the instruments of assignment were all retained by the trust company. In order to complete the transfer of title from the trust company, a delivery was necessary. 8 C. J. p. 346, § 524; 3 R. C. L. p. 967, § 175. There can be no doubt that such a delivery took place. It was clearly the intention of all the interested parties that title should pass from the...

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