Estate of Clampitt

THOMPSON (IRA F.), J.

This is an appeal from a decree settling and fixing the inheritance tax in the estate of Margaret M. Clampitt, deceased, at the sum of $54,830.64.

[503]

The basic reason for the appeal is the inclusion in the estate as property upon which the tax is computed, of certain properties which it is claimed by appellants passed by deeds executed by Margaret Clampitt in her lifetime to her two children. The contention of respondent is that title did not pass because there was no delivery of the deeds, there being absent from the act of handing the deeds to a third party an intent on the part of Margaret Clampitt, to divest herself of title. The trial court found that the deeds were not nor was an assignment of an oil lease delivered, and that they were made without a valuable or adequate consideration. The fundamental contention of.appellants is that these findings are not supported by the evidence, hence we are under the necessity of setting forth the testimony.

It appears that the husband of Margaret M. Clampitt and the father of Leah and Barbara Clampitt died September 26, 1919, leaving a will in which he left his estate one-third to his wife and one-third to each of the children with the proviso that the share of each child should be held in trust by the mother until the daughters should attain the age of twenty-one years. It transpired that all of the property was community and upon distribution the decree distributed four-sixths to the widow and one-sixth to each daughter. For several years prior to the execution of the deeds in question and with several persons, Mrs. Clampitt had discussed the distribution of her husband’s estate, saying that it did not carry out his intention, or to put it in words used by a witness, “that in her opinion Mr. Clampitt intended that the Clampitt estate should be divided equally between the two daughters and herself, and the decree of distribution didn’t follow out that intention for the reason the community property law interfered with his intention and she wanted to carry out that intention”. She talked to her attorney about it on different occasions and also to the manager of the E. A. Clampitt Co. and to the auditor, to the last of whom she said: “When I get ready to transfer I am going to telephone you.” In accordance with that statement she telephoned Mr. Frederick Hoereth some time in August, 1926, asking him to take certain old deeds, seventeen or eighteen in number, to the office of Mr. Prudhon, her attorney, for the purpose of having deeds drawn to