Simer v. Flatt

• Decision Date: 26 November 1918
• Docket Number: 9481.
• Citation: 177 P. 545,74 Okla. 140,1918 OK 665
• Parties: SIMER v. FLATT.
• Court: Oklahoma Supreme Court

177 P. 545

74 Okla. 140, 1918 OK 665

SIMER v. FLATT.

No. 9481.

Supreme Court of Oklahoma

November 26, 1918

Rehearing Denied Jan. 13, 1919.

Syllabus by the Court.

An assignment of an interest in an estate containing the provision, "This is done with the provision that said part of the estate be used for the sole purpose of paying board, room rent and tuition in the Mary Kendall College for Girls at Tulsa, Oklahoma, and in case said money of said estate is not used for the purposes above stated, it is to revert back to said Eunice Duncan," is a conditional gift, and not a sale of the interest of the donor in the estate.

A conditional gift may be revoked by the donor any time after the condition is broken, provided the property has not been delivered.

Where the donor revokes a conditional gift because of a breach of the condition, such donor is entitled to recover the property donated, provided the same has not been delivered.

Commissioners' Opinion, Division No. 3.

Error from District Court, Love County; W. F. Freeman, Judge.

Proceeding by J. A. Simer, administrator of M. L. Mitchell, deceased for distribution and settlement, opposed by Eunice Duncan and from the order of the county court J. G. Flatt, guardian etc., appealed, and from the judgment of the district court the administrator brings error. Reversed and remanded, with directions.

H. A. Stanley, of Ardmore, for plaintiff in error.

SPRINGER C.

This was an action in probate arising on an order of final settlement and distribution.

On the 25th day of December, 1915, M. L. Mitchell died in Love county, leaving an estate of approximately $1,500 and as his heirs, two daughters, Eunice Duncan, a married woman, and Belva Mitchell, a minor.

It was the desire of Mrs. Duncan to give the greater portion of her share of the estate to her sister for the purpose of giving her the advantage of an education.

J. A. Simer was duly appointed administrator, and for the purpose of beneficially assisting her sister to educate herself, on January 1, 1916, Eunice Duncan and her husband, H. E. Duncan, executed the following instrument:

"To J. A. Simer, and to Whom Else This May Concern:

Jan. 1, 1916.

This is to certify that Eunice Duncan and her husband, H. E. Duncan, assign and bequeath all their interest and title in the late M. L. Mitchell estate at Simon, Love county, Oklahoma, to Belva Mitchell, except two hundred dollars, $200. This is done with the provision that said part of the estate be used for the sole purpose of paying board, room rent and tuition in the Mary Kendall College for Girls at Tulsa, Oklahoma, and in case said money for said estate is not used for the purpose above stated it is to revert back to said Eunice Duncan. It is further desired by the said Eunice Duncan that Judge Hays, judge of the county court at Marietta, Love county, Oklahoma, act as guardian for the said Belva Mitchell and in case he cannot serve he appoint some one whom he chooses.

Mrs. Eunice Duncan.

H. E. Duncan."

"Witnesses:

E. A. Gassaway.

A. J. Newell."

And on the 3d day of January she executed another instrument to the same effect. These two instruments were filed and made a part of the record of the proceedings in administration. After the execution of these two instruments, and before the delivery of the money under them, Belva Mitchell was married, such marriage having been celebrated about the 1st of August, 1916. The record discloses that Belva Mitchell was in school only a few months after the 1st of January, 1916, and that since her marriage she has refused to attend school or to do anything on her part which would entitle her to the conditional gift. It is shown by the final account of the administrator that he received a total of $1,568.96, and that he had paid a total of $795.57, and had on hand at the time of this hearing, $773.39. In his final report he prayed that he might make distribution of the estate as follows: $420 to Belva Mitchell, and $273 to Eunice Duncan, which, together with the amount previously paid her of $147, would make approximately $420 to each of the heirs. To this proceeding Eunice Duncan filed her objection, based upon a revocation theretofore made. The court heard the matter, and ordered the administrator to make the distribution of the estate as prayed for in his final account.

From the order of the county court Belva Mitchell appealed...