Estate of Lucille R. Devlin, Deceased, C. Ronald Lambert, Executor - Page 10




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               direction to the committee, its bailiff, to deliver                    
               property or pay money to the donee.  It is precisely as                
               if a donor in his right mind tells his agent in                        
               possession of his money to pay a specified sum to the                  
               donee.  There is no gift until the money is turned                     
               over. [Id. at 833.]                                                    
              Finally, we disagree that, pursuant to Nebraska law, the                
         date that the gifts were completed should be related back to the             
         date that decedent's guardian-conservator conveyed the real                  
         property to C. Ronald Lambert and Charlotte Lambert as tenants in            
         common.  The Nebraska Supreme Court has defined a constructive               
         trust as:                                                                    
              “a relationship with respect to property subjecting the                 
              person by whom the title to the property is held to an                  
              equitable duty to convey it to another on the ground                    
              that his acquisition or retention of the property is                    
              wrongful and that he would be unjustly enriched if he                   
              were permitted to retain the property. * * *  [Fleury                   
              v. Chrisman, 264 N.W.2d 839, 842 (Neb. 1978), quoting                   
              Box v. Box, 21 N.W.2d 868, 869 (Neb. 1946); emphasis                    
              supplied.]                                                              
              We read Fleury as providing a constructive trust in the                 
         property conveyed, not property the transferee has not received,             
         i.e., in the instant case, decedent's other property that had not            
         been conveyed.  Moreover, we are not convinced, based on the                 
         record in the instant case, that C. Ronald Lambert, as decedent's            
         guardian-conservator, wrongfully conveyed the real property to               
         himself and his wife.  Nonetheless, assuming arguendo that C.                
         Ronald Lambert was unjustly enriched by that conveyance, the                 
         proper remedy would have been to reconvey the transferred real               







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