Dermody v. Dermody

Blake, J.

(dissenting in part) — Mere intention to give is not sufficient to effectuate a gift. The donor must relinquish all dominion and control over the subject matter whether it be real or personal property. This the deceased did not do either with respect to the real estate or the certificates of stock.

Where one buys property with his own funds and takes title in the name of another, the presumption is that a resulting trust is created, unless title to the property is taken in the name of wife or child or one to whom the purchaser stands in loco parentis, for whom he is under moral or legal obligation to provide. But, unless such relationship does exist, no presumption of gift arises. Adley v. Pletcher, 55 Wash. 82, 104 Pac. 167; 1 Perry on Trusts (7th ed.), § 143; 3 Pomeroy’s Equity Jurisprudence (4th ed.), § 1039. Certainly, the evidence in this case does not warrant the conclusion that the deceased either stood in loco parentis to respondent or that he (deceased) was under any moral or legal obligation to provide for him. Consequently, no presumption of gift arose simply because deceased took title in respondent’s name.

Laying the presumption aside, the evidence shows nothing more than an intention to give. This without delivery of and relinquishment of dominion and control over the property is insufficient to effectuate a gift. Respondent was *596merely holder of the legal title as trustee for Cunningham. Under the admitted facts, there can be no question that the latter, during his lifetime, could have compelled a conveyance to himself or to any grantee he might have designated. In so far as the judgment establishes a gift of the real estate, I think it should be reversed.

Simpson, C. J., and Millard, J., concur with Blake, J.