Thatcher v. Merriam, 7689

• Decision Date: 29 January 1952
• Docket Number: No. 7689,7689
• Citation: 240 P.2d 266,121 Utah 191
• Parties: THATCHER et al. v. MERRIAM et al.
• Court: Utah Supreme Court

Page 266

240 P.2d 266

121 Utah 191

THATCHER et al. v. MERRIAM et al.

No. 7689.

Supreme Court of Utah.

Jan. 29, 1952.

Evans, Neslen, Mangum & Morris, and Elliott W. Evans, all of Salt Lake City, for appellant.

Van Cott, Bagley, Cornwall & McCarthy, W. Q. Van Cott, Grant H. Bagley, and Clifford L. Ashton, all of Salt Lake City, for respondents.

HOYT, District Judge.

In this case the administrator and heirs of Joseph F. Livingston, deceased, sue to have declared void an instrument entitled 'Assignment' by which Joseph F. Livingston, in consideration of live and affection purported to give and assign a certain promissory note, together with a deed of trust and a chattel mortgage securing payment of same, to his three sisters, subject to certain terms and conditions set out in the assignment. The instrument of assignment was delivered by Livingston personally in his lifetime at the home of one of the assignees in the presence of all three of them. The promissory note, deed of trust and a certified copy of the chattel mortgage (the original being filed with the county recorder) remained in Livingston's possession until his death, which occurred nineteen days after he delivered the assignment to the three sisters. The promissory note referred to was for the principal sum of $70,476.92 and was a renewal of a previous note given at the time the deed of trust and chattel mortgage were executed. The whole amount of the renewal note remained owing at the time of Livingston's death. The material parts of the instrument of assignment are as follows:

'Assignment

'In consideration of the love and affection which I hold for the assignees herein, I, Joseph F. Livingston, of Salt Lake City, Salt Lake County, State of Utah, hereby give and assign fifty (50%) per cent of the following described property to my sister, Isabelle Mirriam, of Manti, Utah, twenty-five (25%) per cent of the following described property to my sister, Lillian Robertson, of Fountain Green, Utah, and twenty-five (25%) per cent of the following described property to my sister, Ellen Cook, of Salt Lake City, Utah, subject to the terms and conditions hereinafter set forth, said property being more particularly described as follows:

'One Deed of Trust covering 5,260 acres of real property * * * in which instrument one Loren Dewayne Mirriam conveyed said property in trust to the undersigned, Joseph F. Livingston, to secure the payment of his promissory note made payable to the undersigned, upon which there was a balance due as of November 1st, 1947, of the sum of $70,476.92, which promissory note said Deed of Trust secures.

together with said promissory note, which the undersigned hereby assigns to the assignees herein in the percentages herein reserved unto them, provided, however, that the undersigned assignor hereby reserves unto himself during his lifetime all amounts becoming due on the principal of said promissory note and all amounts in excess of the amounts periodically becoming due thereon which the maker thereof under the terms of said note may choose to pay on said principal during the lifetime of the assignor herein; the interest on said principal amount to be paid as said interest shall accrue, to the assignees herein in the percentages hereinabove reserved, i. e. 50% of said interest accruing to be paid to said Isabelle Mirriam, 25% of said interest accruing to be paid to said Lillian Robertson, and 25% of said interest accruing to be paid to said Ellen Cook, the undersigned hereby authorizing the maker of said note and mortgage to make payment of the amounts herein assigned to the persons named in the percentages herein mentioned; [Then follows a similar recital with reference to a chattel mortgage given to secure the same note.]

'In Witness Whereof, I have hereunto set my hand at Salt Lake City, Utah, this 27th day of March, 1948.

'/s/ Joseph F. Livingston

'Signed in the Presence of:

'/s/ A. S. Anderson. * * *'

The instrument bears a notary's certificate of acknowledgment but the evidence shows that the assignor did not appear before the notary to acknowledge it.

The plaintiffs (appellants herein) contend (1) That by the language of the assignment Joseph F. Livingston retained such dominion and control over the subject matter of the attempted gift, or at least as to the installments of principal, that the assignment was inoperative; (2) That, since the promissory note was not endorsed, and the note, deed of trust and chattel mortgage were retained in Livingston's possession until his death, there was no transfer of ownership of the note or security; (3) That the court erroneously received in evidence a deposition of one of the defendants in violation of the so-called dead man statute, Section 104-49-2 (3) U.C.A.1943.

With reference to point No. 3, it is claimed by plaintiff that the defendant, Isabelle Merriam, was disqualified to testify by reason of the so-called dead man statute, and that the court erred in receiving in evidence her deposition relative to transactions had with Livingston in his lifetime. In answer to this the defendants assert that there was ample evidence without the testimony of Mrs. Merriam to prove delivery of the assignment to which she testified and that, if the court erred in receiving the deposition, the error was harmless. We think the record shows defendants' contention to be correct as to there being ample evidence, without the testimony of Isabelle Merriam, to support the finding of the trial court that there was a delivery of the assignment. We therefore hold that the error, if conceded, was insufficient to constitute any ground for reversal, the case having been tried without a jury.

As to plaintiffs' first point, the language of the assignment, including the reservation clause, is free from ambiguity and recites a clear and unequivocal intention on the part of Livingston to make a present gift to his sisters of the interest becoming due on the note in his lifetime and of whatever principal remained owing at the time of his death. Does the fact that the reservation gave him the right to receive principal installments becoming due during his lifetime together with 'all amounts in excess of the amounts periodically becoming due thereon which the maker thereof under the terms of said note may choose to pay on said principal during the lifetime of the assignor' require the court to defeat the expressed intention of the donor? We think it does not. We do not agree with counsel for plaintiffs that this constituted a reservation of complete dominion over the principal of the gift. It is true that the maker of the note might, at his option, pay the entire principal in the lifetime of the payee and thereby defeat the gift, but that contingency was not within Mr. Livingston's control. He could not force payment prior to maturity of the respective installments and it was not within his power to prolong his sojourn in mortality so as to make certain of receiving the installments of principal as they respectively became due. The further argument of plaintiffs that, insofar as the principal was concerned, it was an attempt to make a gift effective upon death of the donor and was thereby invalid because of the statutes relating to testamentary disposition of property is in our opinion without merit. There was a clearly expressed present gift of such part of the principal as did not become due and was not paid during the lifetime of the donor. The ...