Wood v. Wood

• Decision Date: 28 June 1935
• Docket Number: 5601
• Citation: 49 P.2d 416,87 Utah 394
• Court: Utah Supreme Court
• Parties: WOOD v. WOOD et al

49 P.2d 416

87 Utah 394

WOOD v. WOOD et al

No.5601

Supreme Court of Utah

June 28, 1935

Rehearing denied September 25, 1935.

Appeal from District Court, Third District, Salt Lake County; James H. Wolfe, Judge.

Action by Joseph Wood against Jennie Wood and another. Judgment for plaintiff, and defendants appeal.

REVERSED, and cause remanded, with directions.

Ingebretsen Ray, Rawlins & Christensen, of Salt Lake City, for appellants.

Wm. A Hilton, of Salt Lake City, for respondent.

LARSON, District Judge. ELIAS HANSEN, C. J., and FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur. WOLFE, J., being disqualified did not participate.

OPINION

LARSON, District Judge.

This is an appeal from the district court of Salt Lake county, Utah. The record discloses that in October, 1908, James Piediscalzzi, and the defendant Jennie Wood were married in Italy and came to this country, where they assumed and went by the name of James Wood and Jennie Wood. Four children were born to them; namely, Joseph Wood, who is the plaintiff in this action, Mary Wood, Sam Wood, and Josephine Wood. They came to Salt Lake City in 1917, and Mrs. Wood operated a small grocery and lunch counter near the West High School. In 1919 the Woods were divorced; the father getting the custody of the boys and the mother the girls. Mrs. Wood, with the girls, remained in Salt Lake City operating the store, and in 1921 Mr. Wood with the boys settled in Madison, Wis. By January, 1925, Mrs. Wood had accumulated $ 17,000 part of which was on savings deposit with Walker Bros., Bankers, now the defendant Walker Bank & Trust Company, and the balance was hidden in a china closet in her home. In February, 1925, Mrs. Wood became seriously ill and feared she was going to die. She sent word to her former husband, James Wood, at Madison, Wis., to come and bring the boys. The day after their arrival in Salt Lake City she was taken to a hospital. James Wood, the former husband, found the $ 12,000 hidden in the house and put it in a safety deposit box in the Walker Bank & Trust Company in his name. A day or two later he talked with Mrs. Jennie Wood at the hospital, and she told him to get the money from the china closet and give it to the children in case she died. In March she was removed from the hospital, still sick. On the way home Mr. Wood took her to the bank and she drew out the $ 5,000 on deposit and placed it in the deposit box, to prevent difficulty in his getting it from the bank for the children if she died. She was still sick and despairing of recovery. A little later, James Wood, leaving the boys to visit with their mother and taking the daughter Mary with him, took the money from the deposit box without Mrs. Wood's knowledge and returned to Wisconsin, where he deposited $ 16,000 in a bank in the name of the children by himself as guardian. In April Mrs. Wood, discovering that the money was missing from the box, opened up a $ 10 savings account in the Walker Bank, in the name of each child by herself as guardian, and went to Wisconsin to get the $ 17,000 James Wood had taken with him. After some argument, he drew from the bank there the $ 16,000 and returned it to her. She gave him $ 2,000 for his own use and returned to Salt Lake City with the $ 14,000, which she deposited in the four accounts she had opened up in the names of the children by herself as guardian, $ 4,000 each in the accounts in the names of Joseph, Sam, and Josephine, by herself as guardian, and $ 2,000 in the account of Mary by herself as guardian. The interest as it accrued was added to the accounts, and sometimes withdrawals were made from each account by her, but the accounts grew steadily. In 1927 she drew out the entire account in the name of Mary Wood and deposited it in a new account in the name of "Jennie Wood." This was after Mary had married against her mother's wishes. In September, 1933, the son, Joseph Wood, became twenty-one years of age, and immediately made demand upon his mother and upon the bank for the money shown in the account in the name of "Joseph Wood, by Jennie Wood, guardian," and, both demands being refused, he commenced this action against his mother, Jennie Wood, and the Walker Bank & Trust Company, to obtain the money. The cause was tried before the court and a jury, a verdict was returned for the plaintiff, which verdict is general in form, and upon which verdict the court entered a judgment for plaintiff. Defendants assign error and bring the cause here for review.

There are but two questions before us for review: (1) Can a valid gift, inter vivos, be made to a minor with an acceptance of the gift by the minor, and without complete surrender of possession and control by the donor? (2) Is the evidence sufficient to sustain a finding that such gift was made by Jennie Wood to Joseph Wood when the account was opened in the Walker Bank?

It is plaintiff's (respondent's) position that, when Jennie Wood opened the account in Walker Bros.' bank in the name of "Joseph Wood, by Jennie Wood, guardian," that constituted a gift inter vivos, in praesenti, and that the mother was merely a guardian in control of the account for his benefit until he attained his majority, when the control of the guardian ceased by operation of law. Defendant Jennie Wood contends that the money was always hers; that no gift was made; that the account was opened so that, when she died, and upon Joseph attaining his majority, any money remaining in the account would go to Joseph without the formality of probate.

The law with respect to gifts inter vivos was stated by this court in the case of Holman v. Deseret Savings Bank, 41 Utah 340, 124 P. 765, 766, as follows:

"Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. To constitute such a gift, the donor must be divested of, and the donee invested with, the right of property in the subject matter of the gift. It must be absolute, irrevocable, without any reference to its taking place at some future period. The donor must deliver the property, and part with all present and future dominion over it."

And again in Christensen v. Ogden State Bank, 75 Utah 478, 286 P. 638, 643, this court said:

"There are, however, some essentials to a valid gift of a savings deposit account which are recognized by all courts and text writers. Thus, before any right to a savings deposit account can be said to pass from a donor to a donee, there must be a donative intention. The donor must intend that either the legal or the equitable title to the fund shall pass to the donee. The intention must be that some title to the account shall pass during the life of the donor, otherwise the gift must fail unless the requirements of the law as to testamentary disposition of property have been complied with. It is also uniformly held that a mere intention to make a gift to take effect during the life of the donor is not sufficient to pass any title either legal or equitable. There must be some act performed by the donor which indicates his intention to vest in the donee some right to the property during the life of the donor. The courts are not in accord as to what acts are necessary for a donor to perform in order that his intention shall be given effect."

"Gifts inter vivos have no reference to the future, and go into immediate and absolute effect, and a gift of property to take effect at some future date, or at the death of the donor is void. Such a transaction amounts only to a promise to make a gift in the future, and, being without consideration, cannot be enforced." 28 C. J. 647, § 42.

The rule is thus stated in 28 C. J. 624, § 10:

"There is a clearly defined and well recognized difference between a gift inter vivos and a declaration of trust. To constitute a gift inter vivos, the donor must part with the possession and control, and delivery is essential, while in a declaration of trust the legal title may be retained by the donor, or transferred to a third person and only the equitable title vests in the cestui que trust."

Respondent does not seriously dispute these tests, but contends that, when the donee is a minor, there need be no word or act of acceptance, if the gift is beneficial and not burdensome; that the law presumes an acceptance, or, as some courts say, "the law accepts it for them." McKinnon v. First National Bank, 77 Fla. 777, 82 So. 748, 6 A. L. R. 111; Copeland v. Summers, 138 Ind. 219, 35 N.E. 514, 37 N.E. 971; De Levillian v. Evans, 39 Cal. 120. And with this rule of law, that an acceptance of a beneficial gift will be presumed in favor of a minor, we agree; that is, where a minor claims property as a gift, which is beneficial and not burdensome to him, he need not prove an acceptance of the gift by word or deed, prior to his present demand. The law relieves him from the necessity of proving a formal acceptance of the gift, due to his minority, his inexperience, and the limitations on competency to contract freely. If there was a gift, made or tendered or intended, by Jennie Wood in making the deposits in the account involved in this action, it is immaterial whether the record shows an act of acceptance thereof by plaintiff at the time the deposit was made and the account opened. If the gift was made or tendered, the law will presume that it was accepted by the minor.

It is not claimed that the record shows or establishes an outright gift and delivery of possession and control to Joseph Wood of the money or deposit or account by the defendant Jennie Wood. If it did so, this case could not be here. It is contended by respondent (plaintiff) that the record shows that, when Jennie Wood made the deposits in the account in the bank in the name of "Joseph Wood, by Jennie Wood, guardian," she...