Snyder v. Snyder

Grant, J.

(after stating the facts). 1. The circuit judge saw the witnesses, whose testimony in regard to the alleged incompetency of Mrs. Snyder is in direct conflict. Neither of the defendants testified. Perhaps their testimony would have been of little avail on the question of her mental condition, on account of the bitter feeling existing between complainants and defendants. We are not able to say that the preponderance of evidence is with the complainants upon this question, as well as upon the question of undue influence, and are constrained, -therefore, to sustain the finding of the circuit judge.

*661 2. We cannot, however, concur with him that the assignment of the mortgage and the note by Mrs. Snyder to defendant Thomas was a gift inter vivos. It is not claimed that Thomas paid a valuable consideration. The record is barren of any evidence explaining the circumstances of the assignment, or tending to show any gift to him. A disinterested witness, whose testimony is unimpeached by anything in the record, testified that Mrs. Snyder once said to him, “They say I have signed away that mortgage, but I never knew I didand that defendant Benjamin also ‘ ‘ told him that his mother told me the same thing. ” Benjamin does not deny this. The notary who took the acknowledgment is the sole witness called to prove the assignment. He has no recollection whatever of its execution, and the sole knowledge he has is the fact that his name appeal's to the acknowledgment, as well as a witness. The other witness to the assignment was not called. The silence of Benjamin and Thomas is significant, and is very conclusive that they are .acting in concert. Mrs. Snyder was then 76 years old, and ignorant. She had already given a power of attorney to Thomas to manage her business. He was evidently her adviser and manager, and stood in very confidential relations with her. The duty, therefore, devolved upon him to explain the circumstances of that transaction, and to show its bonafides. He kept silent when he should have spoken. The law does not permit him, under such circumstances, to retain this property.

It was not a gift inter vivos under the allegation in the defendants’ answer, which is the sole reference upon the record to a gift. The allegation reads thus:

“That, soon after the sale of said lands to the said Benjamin F. Snyder by their mother, she caused to be prepared and executed said assignment, and then said to the said Thomas C. Snyder that she desired him to accept the same upon the following terms and conditions: That all moneys paid on such note and mortgage during the life ■of said mother should be paid over to her for her own use, *662 and that whatever sum should remain unpaid at her death, if any, should be the property of said Thomas C. Snyder. That she further said that she did this because of the fact that the said Thomas C. Snyder had paid off two mortgages on said land from money earned by him in the army, and that in consideration of that fact she desired him to have what property she had, if any, at her death.”'

This allegation was specifically denied in the replication. No testimony was offered to support it. It appears to be the sole basis for the finding of the court below that this was a gift inter vivos. To constitute a valid gift inter vivos, it must take effect at once, and pass entirely beyond the control of the donor. The retaining of any control in the hands of the donor over the subject of the gift renders it invalid. Thornt. Gifts, § 76; Holmes v. McDonald, 119 Mich. 563 ( 78 N. W. 647 , 75 Am. St. Rep. 430 ),— where we held that the jus disponendi must be placed beyond the power of the donor to recall. See, also, 14 Am. & Eng. Enc. Law (2d Ed.), 1014 et seq. Under defendant Thomas’ own statement in his answer, his mother retained the entire control over this gift, and had the right to retain as her own all sums that Benjamin paid to her or to Thomas during her lifetime. She could collect and use the entire amount. It follows that this assignment must be held void.

3. No administrator has been appointed over the estate of Mrs. Snyder, and it is insisted that the administrator is the only person who can test the validity of the assignment. We cannot concur in this view. The equity court is the proper forum in which to test the validity of the deed, mortgage, and assignment. Having obtained jurisdiction, it will retain it for the purpose of deciding all questions in controversy.

The decree is affirmed as to defendant Benjamin, reversed as to Thomas, the assignment set aside and held for naught, and the cause remanded, with permission to the complainants to procure the appointment of an administrator, make him a party to the suit, and the mort *663 gage turned over to him for foreclosure. The complainants will recover costs of both courts as to defendant Thomas.

Hooker, C. J., Moore and Montgomery, JJ., concurred.