Summary
explaining that gift presumption may be rebutted by later admissions of parties
Summary of this case from Estate of Russick v. KoenigOpinion
Decided October 20th, 1930.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, who filed the following opinion:
"In 1929, Elizabeth Bertolino, who is the mother of the defendant Anna Damario, was living separate and apart from her husband. At or about that date a deed was made from one Thomas Baker to Anna then Bertolino, the daughter, conveying the premises known as 223 Steven street, in Camden, New Jersey. The consideration for that conveyance was $1,100, which with the expenses amounted to $1,225. The complainant says that she furnished all of this consideration money except the sum of $800, which was paid by a mortgage given by the present defendant to a building and loan association for the amount. Complainant insists that this was not in the nature of a gift, but the conveyance was made because she was not living with her husband, and that in case of a desire to sell, or mortgage, as was done thereafter, it would be necessary to have her husband join if the title was taken in her name, and that to avoid that difficulty, title was taken in her daughter. There is some testimony that the entire amount of this consideration, $425, consideration and expenses, was not paid by the complainant, but that the defendant Anna, together with her husband, paid some parts of it. The prayer is that the property shall be reconveyed to the mother.
"The rule in this state is well settled that when a parent procures real estate to be conveyed to his or her child, the parent paying the consideration, a presumption arises that he or she intends to settle the property on the child, and while such presumption may be rebutted by circumstances precedent to the transaction or contemporaneous therewith so as to form part of the res gestae, it cannot be rebutted by circumstances other than admissions of the parties, subsequent thereto, and the proof offered to accomplish such rebuttal must be certain, definite, reliable and convincing, and leave no reasonable doubt of the intention of the parties.
"The legal situation is, therefore, that this was a gift by the mother to the daughter of such amount of the consideration as she, the mother, advanced. Now, considering this case by the rule I have just stated, I am satisfied the complainant has not overcome this presumption and that she must, therefore, fail in this case. The presumption is that it was a gift, and I find that the parties do not overcome that presumption.
"The result is that I will advise a decree dismissing the bill."
Mr. Thomas G. Tuso, for the appellant.
Mr. Edmund H. Reeves, for the respondents.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Ingersoll.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal — None.