Robertson v. Robertson

• Decision Date: 19 December 1905
• Citation: 40 So. 104,147 Ala. 311
• Parties: ROBERTSON v. ROBERTSON ET AL.
• Court: Alabama Supreme Court

40 So. 104

147 Ala. 311

ROBERTSON v. ROBERTSON ET AL.

Supreme Court of Alabama

December 19, 1905

Rehearing Denied Jan. 30, 1906.

Appeal from Chancery Court, Fayette County; John C. Carmichael Chancellor.

"To be officially reported."

Suit by Lou Robertson, administratrix of Walter S. Robertson deceased, against F. M. Robertson and others. From a decree for defendants, complainant appeals. Affirmed.

This was a bill filed by Lou Robertson, as the administratrix of the estate of Walter S. Robertson, deceased, alleging that she was the wife of said Robertson, and that during his lifetime he was the owner of six Alabama bonds in the sum of $1,000 each; alleging, further, that F. M. Robertson was in the possession of these bonds, and on demand had refused to deliver same to her, as the administratrix, or as the wife of said decedent, but claimed to hold them under an instrument creating him trustee for certain persons named in an instrument giving the bond to him as trustee, and purporting to have been executed by the decedent in his lifetime. The bill further alleges that at the time of the execution of such instrument, after expressly denying its execution by the decedent, the decedent was in a low state of health and very much under the influence of his older brother, said F. M Robertson, and also alleges other facts tending to show undue influence on the part of decedent's brother. The bill also alleges a dissent by the wife from the instrument which is alleged to be the will of the decedent, and alleges in the alternative that the instrument which is set out in the bill was intended to be a gift, and that the gift was never completed in the lifetime of the decedent. The instrument was in words and figures as follows: "State of Alabama. Fayette County: Whereas, I, Walter S. Robertson, am the owner of six Alabama state bonds hereinafter described, and on account of the love and affection I have for my sisters, I desire to give said bonds to them to be theirs from this day subject only to my right to receive and enjoy the interest arising therefrom so long as I shall live. Now to carry out my purpose, and to vest immediately in my sisters hereinafter named the property, title and ownership in said bonds, subject to my right to receive and enjoy the interest as aforesaid, I do hereby assign, set over, transfer and deliver (the manual delivery being now made) to my brother F. M. Robertson, as trustee, said six bonds which are described as follows: [Here follows a description of the bonds.] Upon each of which bonds I have signed and delivered a transfer, leaving the transferee blank to be filled as hereinafter directed. These bonds said F. M. Robertson is to hold and keep in his custody as trustee all my three sisters hereinafter named. He is to receive the interest thereon as it falls due and pay the same over to me or to permit me to receive such interest as long as I shall live. Immediately upon my death, said trust is to cease, and said F. M. Robertson is hereby directed and required at once to deliver to my sister, Mrs. M. S. Sanford the two bonds first above mentioned. He shall deliver to my sister, Mrs. Hawkins the two bonds whose transfer numbers are given as No. 2,403 and 2,404. He shall deliver to my sister, Mrs. Robertson the two bonds bearing transfer numbers 2,405 and 2,406. And further to carry out the said purpose more fully, he is hereby directed and required to fill the blank on each of said bonds already signed by me with the names of the respective parties to whom said bonds are given that the proper registration may be made upon the proper records and new bonds may be issued to my sisters. And it is distinctly understood that it is the purpose to vest the ownership of said bond in my said sisters from this time, and the only reason for not making the transfer and delivery now to them, is to reserve to myself the enjoyment of the interest as aforesaid. In the event my brother F. M. Robertson shall die before I do, then and in such event my brother T. H. Robertson shall take said bonds and perform all acts and duties and have all the powers herein conferred upon or required of said F. M. Robertson."

J. J. Ray and J. H. Bankhead, for appellant.

George A. Evins, for appellees.

ANDERSON J.

"A gift of personal property, made with intent that it shall take effect immediately and irrevocably, and fully executed by complete and unconditional delivery, is good and valid as a gift inter vivos, although at the time the donor is in extremis, and dies soon after. Moreover, a gift made in anticipation of death, but not conditioned upon that event is a gift inter vivos, and not a gift causa mortis." 14 Am. & Eng. Ency. Law, 1014;...