Juergens v. Redding

Clinton, J.,

dissenting.

I respectfully dissent. After having examined the record, I believe that the issue of whether there is a dispute of material fact turns upon the sufficiency of the facts attested to in the deposition of Dale Red-ding, defendant’s father, and the legal sufficiency of the affidavit of the defendant offered and received in evidence at the hearing on the motion. I believe the facts in those instruments are insufficient and I would affirm the judgment of the District Court.

Clara J. Cavett, whom I will hereafter refer to as Aunt Clara, was a resident of Bayard, Nebraska. Dale Redding, her nephew, and the defendant Paul Redding, son of Dale, farmed together in Texas on land owned by Paul. In July 1971, Aunt Clara visited Dale and Paul in Texas. With reference to *296the matter before us Dale testified in his deposition that on the occasion of that visit the following occurred: . . when we got down there she saw the farm land and the fish ponds and she said, T thought you were going to build a feed lot?’ And I said, ‘We were going to as soon as I see our way clear to finance it.’ And she said, T have some money that you can have.’ And I said, T wouldn’t take it unless you will forgive it in your will just like your brothers did in their wills.’ And she said, ‘That is fine, I want you to have it.’ ” He further testified that Aunt Clara told him: “. . . that she had these bonds that had more interest due on them than the bonds cost originally and she didn’t want to cash the bonds and give the money to Paul because she would have to pay the income tax on the earned interest. And I said, ‘That is simple. Paul has had several years of financial setbacks here and he could handle the interest real well in a loss carry back or whatever you do in income taxes.’ And I said, ‘Don’t take my word for it ask somebody that knows. Ask your lawyer when you get home.’ ” He testified there was no conversation about promissory notes on that occasion and that after Aunt Clara returned home she advised Dale that she had been informed that whoever cashed the bonds would have to pay the income tax on the interest from the bonds when cashed.

Later Aunt Clara caused Paul’s name to be placed on the bonds as coowner with her and they were sent to Paul in Texas in two groups in care of a Production Credit Association which delivered them to Paul, who cashed them and used the money.

In December of 1971 Dale visited Aunt Clara in Bayard. In Dale’s deposition inquiry was made as to conversations with Aunt Clara at that time. He responded: “She was concerned about gift tax and again I told her about my father being so unhappy with his gift tax having paid it and wished that he hadn’t done it that way and wished that he would *297have left it in his estate. And I suggested the possibility that if we would issue her notes that she could have in her file and then if the Internal Revenue Service or estate people, whoever checks, ever checked, well, she could say, ‘Here are the notes. I didn’t have to declare it as a gift. The notes are to be forgiven in the will. So, it carries it over to my death.’ And she thought it was a good idea. So that is what she did.” Dale, on his return to Texas, directed Paul to make and deliver the notes and testified: “I told him that I insisted that she forgive it in her will.” On November 30, 1971, Paul wrote Aunt Clara a letter which said: ‘‘Thank you very much for the use of the proceeds of the bonds.” (It is to be here noted that this is the evidence, not as the majority opinion implies that he was thanking Aunt Clara for a gift.) He then in the letter went on to advise Aunt Clara of the amounts of principal and interest in each group of bonds.

The affidavit of the defendant Paul Redding is in part as follows: ‘‘During the middle of July, 1971 my Aunt Clara Cavett visited me at my home and at our farm near Kamay, Texas. She had talked with Dale Redding, my father, and myself in reference to helping us build a feed lot we wanted to construct on my land. From conversations I had with her at that time, she offered to give, either myself or my father, U. S. Savings Bonds which she said she didn’t need and didn’t want to pay the Income Tax on the accrued interest. At this time promissory notes for repayment to her were not mentioned. The transaction was to be a gift, and the only question was to whom, either myself or my father. She had stated ‘she wanted to at least help in some way’.”

Aunt Clara died in April 1973, leaving a will made a few days before her death which was admitted to probate, which revoked former wills, and which did not forgive any indebtedness. There was evidence to show that in September 1972 Aunt Clara had made *298a will in which she forgave “any balances remaining due’’ on notes of Paul Redding and certain other named persons.

As the majority opinion notes, there is a good deal of other evidence in the record which would be material and relevant on the burden of persuasion if the case were to be tried on the merits. However, the basic question is whether the testimony of Dale and Paul above recited is sufficient to support a finding of donative intent on the part of Aunt Clara in connection with the delivery of the bonds, thus raising a disputed material question of fact so as to entitle the defendant to a trial on the issue of whether there was any consideration given for the promissory notes.

The essential elements of an inter vivos gift of personal property are (1) donative intent on the part of the giver, (2) delivery by the donor, and (3) acceptance by the donee. In re Estate of Scott, 148 Neb. 182, 26 N. W. 2d 799. The evidence of donative intent must be clear and unmistakable and inconsistent with any other theory. Hild v. Hild, 135 Neb. 896, 284 N. W. 730; In re Estate of Sternecker, 136 Neb. 813, 287 N. W. 659; Ralston v. Marget, 138 Neb. 358, 293 N. W. 124; In re Estate of Scott, supra; Dunbier v. Stanton, 170 Neb. 541, 103 N. W. 2d 797. It is clear in this case that title to the bonds was effectively transferred by change of ownership in accordance with government regulations applicable thereto and acceptance and cashing of the bonds by Paul. The disputed issue here is donative intent.

The testimony of Dale, the substance of which was that the money would not be accepted unless Aunt Clara would forgive the debt in her will and that she agreed thereto is completely inconsistent with any donative intent on the part of Aunt Clara. A debt can be forgiven. Such language is not applicable to a completed gift.

Dale’s affidavit does not with specificity contra-*299diet Dale’s testimony as to the nature of the contemplated transaction. He says: From, conversations I had with her at that time (July 1971 in Texas) she offered .... The transaction was to be a gift . . . .” (Emphasis supplied.) These are statements of conclusions. They do not set forth facts which would be admissible in evidence.

Section 25-1334, R. R. S. 1943, provides in part: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’’

In applying this statute in Eden v. Klaas, 165 Neb. 323, 85 N. W. 2d 643, we said, referring to 3 Barron and Holtzoff, Federal Practice and Procedure, and the federal rule comparable to section 25-1334, R. R. S. 1943: “ ‘Under this provision, therefore, statements in affidavits as to opinion, belief, or conclusions of law are of no effect. The same is true of summaries of facts or arguments, and of statements which would be inadmissible in evidence * * *,’ ” and “ ‘Hence we have often held that mere formal denials or general allegations which do not show the facts in detail and with precision are insufficient to prevent the award of summary judgment.’ ”

The purpose of summary judgment is to pierce allegations of the pleadings and to show that controlling facts are clear and that no genuine issue of fact remains for trial. Johnson v. Evers, 195 Neb. 426, 238 N. W. 2d 474. Motion for summary judgment may be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Johnson v. Evers, supra.

The defendant having not shown in the manner required by statute that a genuine issue of fact existed on the claimed defense of no consideration, I would affirm the judgment of the District Court.