Sinclair v. Travis , 231 N.C. 345 ( 1950 )

57 S.E.2d 394 (1950) 231 N.C. 345

SINCLAIR
v.
TRAVIS et al.

No. 600.

Supreme Court of North Carolina.

February 3, 1950.

Malone & Malone, Louisburg, W. D. Sabiston, Jr., Carthage, for plaintiff appellant.

Spence & Boyette, Carthage, for defendants appellees.

WINBORNE, Justice.

While there are extensive allegations of fact in support of the position taken by defendants in this action, the evidence pivots around the letter of March 28, 1938, from N. A. Sinclair, plaintiff's deceased husband, and testator, to his daughter, the defendant Mrs. Effie S. Travis. Hence, decision on this appeal is determinable, in the main, upon proper construction as to the meaning of this letter. Defendants allege and contend that the defendants, Ruth Travis and Dorothy Travis, granddaughters of N. A. Sinclair, are the owners of the two notes on which this action is based—for that the letter created (1) a gift inter vivos from N. A. Sinclair to them; or (2) a trust in said notes for the benefit of them; or (3) an enforceable contract to devise said notes to them.

Plaintiff, on this appeal, challenges these contentions in this Court by assignments based on exception to denial by the trial court of her request for instructed verdict in her favor on the issue as to ownership of the notes, and on exceptions to peremptory charge of the court on which verdict was returned, and judgment entered.

The subject of gifts inter vivos has been under consideration, and treated by this Court, and pertinent authorities cited and assembled, in several recent decisions, among which are these: Cartwright v. Coppersmith, 222 N.C. 573, 24 S.E.2d 246, and Buffaloe v. Barnes, 226 N.C. 313, 38 S.E.2d 222; petition to rehear in the latter case being denied in written statement 226 N.C. 778, 39 S.E.2d 599.

In the latter case, Buffaloe v. Barnes, preferred stock in a corporation was the subject of the alleged gift inter vivos. Devin, J., writing the opinion for this Court, summarizes the law in this manner [226 N.C. 313, 38 S.E.2d 225]: "To constitute a gift there must be an intention to give, and the intention must be consummated by a delivery of, and loss of dominion over, the property given, on the part of the donor. Jones v. Fullbright, 197 N.C. 274, 148 S.E. 229; Nannie v. Pollard, 205 N.C. 362, 171 S.E. 341. To complete a gift inter vivos there must be first the intention to give and then the delivery ``as it is the inflexible rule that there can be no gift of either (inter vivos or causa mortis) without the intention to give and the delivery.' Newman v. Bost, 122 N.C. 524, 29 S.E. 848, 849; Bynum v. Fidelity Bank, 221 N.C. 101, 19 S.E.2d 121. ``In order to be a valid gift of personal property inter vivos there must be an actual or constructive delivery with the present intent to pass the title.' Parker v. Mott, 181 N.C. 435, 107 S. E. 500, 501, 25 A.L.R. 637. Donative intent is an essential element. 24 A.J. 738, 770. To constitute delivery of shares of stock as the consummation of a valid gift inter vivos the donor must divest himself of all right and title to the stock and of all dominion over it. Phillips v. Plastridge, 107 Vt. 267, 179 A. 157, 99 A.L.R. 1074; Payne v. Tobacco Trading Corp., 179 Va. 156, 18 S.E.2d 281; Pomerantz v. Pomerantz, 179 Md. 436, 19 A.2d 713. There must be an intention to make a present gift accompanied by a delivery of the thing given or the means of obtaining it. Payne v. Tobacco Trading Corp., supra; and Pomerantz v. Pomerantz, supra. It cannot be made to take effect in the future. Askew v. Matthews, 175 N.C. 187, 95 S.E. 163. The transaction must show a completely executed transfer to the donee of the present right of property and the possession. Thomas v. Houston, 181 N.C. 91, 106 S.E. 466. Doubts must be resolved against the gift. Figuers v. Sherrell, 181 Tenn. 87, 178 S.W.2d 629, 152 A.L.R. 420."

In Cartwright v. Coppersmith, supra, negotiable notes, such as those involved in the present action, were the subject in litigation. Mrs. Whitehurst alleged that she was the sole owner of the notes by virtue of endorsement and delivery to her by Sarah E. Elliott the payee named therein in her lifetime. There was evidence that the notes were endorsed to Mrs. Whitehurst without recourse under signature of Sarah E. Elliott, but there was none on them after death of Sarah E. Elliott. This Court, in opinion also by Devin, J., stated [222 N.C. 573, 24 S.E.2d 248]: "Whether the transaction which constituted the basis of the appellant's case be regarded as the assignment of a negotiable instrument (C.S. § 3010 [now G.S. § 25-35]), or a gift inter vivos, in order to vest the title to the notes in Mrs. Whitehurst it must have been completed by delivery, actual or constructive, and the burden was upon her to show this. * * * to show not only the endorsement of the notes by Sarah E. Elliott, but also that the intention to give or assign them to her was completed by delivery, actual or constructive." Then the opinion goes on: "It is provided by C.S. § 3010 (G.S. now § 25-35) that if a negotiable instrument is made payable to order (as were these notes) the transfer from one person to another is ``by the indorsement of the holder, and completed by delivery.' To constitute delivery there must be a parting with the possession and with power and control over it by the maker or endorser for the benefit of the payee or endorsee. To constitute delivery it must be put out of possession of the endorser. Barnes v. Aycock, 219 N.C. 360, 13 S.E.2d 611. An actual delivery, however, is not essential, and a constructive delivery will be held sufficient if made with the intention of transferring the title, but there must be some unequivocal act, more than the mere expression of an intention or desire." And then the Court states this as the general rule: "``While it is not indispensable that there should have been an actual manual transfer of the instrument from the maker to the payee, yet, to constitute a delivery, it must appear that the maker in some way evinced an intention to make it an enforceable obligation against himself, according to its terms, by surrendering control over it and intentionally placing it under the power of the payee or of some third person for his use.'" And the Court reiterates that "An intention to give is not a gift"; that "without delivery the gift is but a promise to give, and being without consideration is not obligatory, and may be revoked at will."

Applying these principles to the case in hand, the letter fails to show facts sufficient to constitute a gift inter vivos. The language used fails to show an intention to give, and then the delivery which are elements essential to the making of a gift inter vivos. Rather, the language used is more of testamentary character,—and being in the handwriting of N. A. Sinclair, nothing else appearing, it might have taken effect as a codicil to his will. But, as such, it was subject to be revoked (1) by the affirmative written declaration of N. A. Sinclair and, in his will which was probated, he did revoke all other wills and testaments theretofore made by him, and (2) by operation of law, upon the subsequent marriage of the testator, G.S. § 31-6, and he subsequently married.

Now, as to the second contention, that a trust in the notes for the benefit of the granddaughters was created: "An express trust", as defined in Wescott v. First & Citizens Nat. Bank, 227 N.C. 39, 40 S.E. 2d 461, 462, is a "``fiduciary relationship with respect to property, subjecting the person by whom the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.' * * * The term signifies the relationship resulting from the equitable ownership of property in one person entitling him to certain duties on the part of another person holding the legal title. * * * To constitute this relationship there must be a transfer of the title by the donor or settlor for the benefit of another. * * * The gift must be executed rather than executory upon a contingency." See also Annotation 96 A.L.R. 383 on subject "May unconsummated intention to make a gift of personal property be made effective as a voluntary trust".

Applying these principles to the language of the letter of N. A. Sinclair, in the light of attending circumstances, the essentials of an express trust are lacking—just as are the essential elements of a gift inter vivos.

As to the third contention, that is, that the letter, under the attending circumstances, created an enforceable agreement by N. A. Sinclair to give the notes to his grandchildren, careful consideration of the facts of record fails to support this contention. It is contended that N. A. Sinclair in his letter, made an offer which was accepted by Mrs. Travis, and complied with by her in signing the note of $1,270 and returning same to him in conformity with his letter. In this connection, appellants challenge the competency of the testimony of Mrs. Travis to the effect that she signed the $1,270 note "because of that letter", and that she would not have signed it, but for the letter. Passing but not deciding the question, the legal effect of this testimony, in the face of her written agreement, set forth in the deed of trust which she admits she executed to R. H. Dye, Trustee, as security for the first note, fails to alter such agreement. She there agreed "that the payment as well of said indebtedness as of such other indebtedness as may be incurred by her to him (that is, to N. A. Sinclair) within three years from this date (that is, 26 January, 1937), to be evidenced by her bonds to his order with a notation thereon indicating this security * * * the entire indebtedness not exceeding the principal sum of five thousand ($5000.00) dollars, shall be secured by a conveyance of lands hereinafter described". And the letter indicates that N. A. Sinclair had loaned to her $1,270 within the period stated, and it is admitted of record that the note is for that amount, and bears upon its face the notation that it is "secured by deed of trust to R. H. Dye". It would seem apparent that in signing the note Mrs. Travis was doing only what she had agreed and was obligated to do long before the letter was written. And it is generally held that "a promise to perform an act which such promisor is already bound to perform is insufficient consideration for a promise by the adverse party". 12 Am.Jur. 607, Contracts Section 113. Thus there is here no new consideration, and no new agreement.

Hence, we hold that, on this record, defendants have failed to show ownership of the notes, and plaintiff was entitled to the instruction requested on the issue of ownership, and is entitled to judgment in accordance with this opinion.

Reversed.