Opinion
No. 70-397 (Supreme Court No. 23944)
Decided December 22, 1970.
Interpleader action regarding savings account claimed by estate of decedent and by holder of passbook who alleged that she was recipient of inter vivos gift of the account by the decedent. From finding for the estate, appeal was taken.
Affirmed
1. WITNESSES — Conversations — Decedent — Holder of Passbook — Not Within Exceptions — Dead Man's Statutes. Testimony pertaining to alleged conversations between holder of passbook and decedent concerning the gift of the passbook does not fall within the exceptions provided for in the Dead Man's Statute, C.R.S. 1963, 154-1-2, and trial court's refusal to admit such testimony is affirmed.
2. GIFTS — Consummated Act — Not — Mere Intention — Letter — No Words — Present Assignment — Transfer — Future. An assignment or gift can be shown only by a consummated act and not simply by a statement of mere intention and letter by decedent stating that, "I wish to make * * * * [the account] * * * * a trust account for [claimant]," contains no words of present assignment or gift, but rather expresses a mere desire to transfer at some future time.
3. TRUSTS — Statute of Uses — If Applicable — Personalty — Written Trust Instrument — Necessary. Even if the Statute of Uses were applicable to personalty, which is doubtful, it would not apply to the instant case because some adequate written trust instrument must exist before the statute can operate to transfer trust property to a beneficiary, according to the terms of the trust.
4. GIFTS — Valid — Surrender of Control — Donor Resumes Control — Trespasser — Liable to Donee. In order to effect a valid gift inter vivos, the surrender of control and dominion by the donor must be such that if the donor resumes control of the property without the consent of the donee, he will become a trespasser and liable to the donee as such.
Error to the District Court of the City and County of Denver, Honorable Merle R. Knous, Judge.
Brenman, Ciancio, Rossman Baum, Martin Zerobnick, Fischer Wilmarth, for plaintiff in error.
John L. Griffith, Mary C. Griffith, Richard D. Gilson, for defendant in error Andrew Wysowatcky, Special Administrator of the Estate of Albert Lee Ritter, Deceased.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Albert Lee Ritter (Albert), who had a savings account with the Empire Savings and Loan Association during his lifetime, lived for some period of time immediately prior to his death in an eastern city as a tenant in the household of plaintiff, Mary E. Ritter (Mary), a relative by marriage and an eventual legatee under his will.
On February 9, 1965, a letter written by Mary and purportedly signed by Albert, was received by Empire. This letter stated as follows:
"I wish to make my account with Empire Savings and Loan Association a trust account for Mary E. Ritter."
On February 15, 1965, Empire replied to this letter informing the deceased that before it could add Mary's name to the account, it would require (1) his signature on an authorization form (enclosed with its letter); (2) his signature on both sides of a signature card (enclosed with its letter); and (3) return of his savings passbook. Albert died on February 14, 1965, however, before receiving this letter and the enclosures.
At some time prior to instigation of the instant lawsuit, Mary come into possession of the passbook. She asked that the transfer of Albert's account to her name be made in accordance with his request of February 9, 1965, which Empire refused to do on the grounds that the account had become an asset of Albert's estate. Mary then filed this action, which eventually resolved itself into one of interpleader wherein Empire deposited the balance of the account with the court, pending the court's determination of ownership of the account as between Mary and Albert's estate.
After trial, the court found that Albert's estate owned the account, principally on the basis that the letter of February 9th was not sufficient, in and of itself, to show an inter vivos gift of the account to Mary. At trial, Mary had attempted to testify to the making of such a gift, and to receipt of Albert's passbook because of such gift, but her testimony was objected to and was not admitted by the court.
Mary appeals on the grounds that (1) her testimony concerning the gift of the passbook to her should not have been excluded under our "Dead Man's Statute," the prohibitions in which, she argues, were not applicable to her in the instant case; (2) the letter of February 9, 1965, was sufficient to prove and inter vivos gift of the passbook, and the court erred in not so finding; and (3) the "Statute of Uses" was applicable to this fact situation and its proper application would have placed ownership of the account in Mary.
THE "DEAD MAN'S STATUTE"
C.R.S. 1963, 154-1-2, the Colorado "Dead Man's Statute," makes it very clear that no party with a direct interest in an event the subject of judicial proceedings, may testify on his own behalf if suing or defending against an adverse party who is an administrator, unless he qualifies under certain exceptions set forth in the statute.
[1] After a careful review of the record, we conclude that Mary's refused testimony did not fall within any of the exceptions provided for in the statute, and we accordingly affirm the trial court's refusal to allow her to testify regarding private conversations between her and the deceased and the unwitnessed transfer of Albert's passbook to her possession.
THE INTER VIVOS GIFT
[2] Although Mary argues to the contrary, the letter of February 9, 1965, contains no words of transfer or of present assignment or gift. The most that this letter indicates is a desire on Albert's part to transfer the account at some future time, which is not sufficient to show a present assignment or gift. Such an assignment or gift can be shown only by a consummated act and not simply by a statement of mere intention. Johnson v. Hilliard, 113 Colo. 548, 160 P.2d 386; Warner v. Burlington Federal Savings Loan Assoc., 114 Vt. 463, 49 A.2d 93.
Mary contends, however, that Nelson v. Spotts, 114 Colo. 72, 162 P.2d 224, is controlling in the instant case. We disagree.
In Nelson, supra, the decedent had in fact completed a transfer of title from joint tenancy to the sole name of the donee, on the books of the bank; had given the donee the key to the safe-deposit box in which the passbook was to be kept for the donee's benefit; and had told bank personnel, who were completely disinterested and competent witnesses, of his gift. Those circumstances are completely different from the instant case.
Accordingly, we cannot say as a matter of law that the trial court erred in refusing to consider the quoted portion of the letter of February 9, 1965, standing alone, as sufficient proof of an inter vivos gift.
THE STATUTE OF USES
[3] We concede that the Statute of Uses is in effect in Colorado, at least so far as concerns real estate. O'Reilly v. Balkwill, 133 Colo. 474, 297 P.2d 263. Mary contends, however, that Nelson, supra; First National Bank of Aurora v. Mulich, 83 Colo. 518, 266 P. 1110; Coxwell v. Forster, 136 Colo. 44, 314 P.2d 302; Johnson, supra; and Falbo v. United States National Bank, 116 Colo. 508, 181 P.2d 1020; extend this statute to cover personal property. Even if the statute were applicable to personalty, which we doubt, (See 1 A. SCOTT, THE LAW OF TRUSTS, § 68 (3d ed.)) it would still not apply to the facts in the instant case because some adequate written trust instrument must exist before the Statute of Uses can operate to transfer any property in trust to a beneficiary, according to the terms of the trust. 1 SCOTT, supra, § 68.2.
The letter of February 9th falls far short of this requirement. Albert executed no trust agreement, conveyed no property in trust, and performed no act which would change the status or title of his individual savings account. To the contrary, all that he did was to express a desire to make a transfer at a future time.
[4] In order to create the type of transfer sought by Mary, it would have been necessary for Albert to have acted in a fashion similar to that set forth in Johnson, supra, in which the court stated:
"The surrender of the dominion of control, in order to effect a valid gift inter vivos, includes the parting of possession and relinquishment of all control, both present and future, of the property to the extent that it is beyond the power of the donor to recall it. The surrender of control and dominion must be such that if the donor resumes control of the property without the consent of the donee, he will become a trespasser and liable to the donee as such."
The record does not indicate that Albert performed any acts during his lifetime which would cause him to lose sole ownership of his savings account.
Judgment affirmed.
JUDGE DWYER and JUDGE DUFFORD concur.