Herman Juergens and Everett Anderson, Executors of the Last Will and Testament of Clara J. Cavett, deceased, appellees, v. Paul Redding, appellant, 198 Neb. 289

McCown, J. This is an action by the executors of the estate of Clara J. Cavett, deceased, for judgment on two promissory demand notes dated November 1 and November 30, 1971, in the total principal amount of $68,221.60, made by the defendant, Paul Redding. The defendant filed an answer in which he admitted the making of the notes and their delivery to the payee, Clara J. Cavett.

He further alleged that in November 1971, the decedent made a gift to him of two groups of United States Series E bonds, which he cashed at that time, which had a value of $42,069.60 and $26,152 respectively; that it was agreed that defendant would report and pay the income tax on the accumulated interest on those bonds; that defendant thereafter reported $30,721.60 as his own income; that after the gift had been made, the decedent, in December 1971, suggested that to avoid paying United States gift tax, the defendant should make two notes payable to decedent, and decedent would, in turn, make a will forgiving the notes upon death; and that accordingly the defendant prepared and executed the notes in January 1972, but backdated them to the date the respective groups of bonds were cashed.

Defendant also alleged that prior to the death of the decedent no request for payment of principal or interest was ever made by decedent, and that on or about September 23, 1972, the decedent did execute a will forgiving any balance due from defendant on the notes. The defendant alleged that because of these facts the bonds received by him were a gift and not a loan, and that nothing was owed on the promissory notes. Plaintiffs replied denying defendant’s allegations. Thereafter each party moved for

summary judgment, supporting the motions with affidavits, depositions, admissions, and answers to interrogatories. The District Court granted the motion of the plaintiffs, denied that of the defendant, and rendered judgment against defendant for the amount of the notes plus interest. The defendant has appealed contending that the showings made in the record establish that there was a genuine issue of material fact, and that he was entitled to a trial on the merits. Clara J. Cavett was a resident of Bayard, Nebraska.

Dale Redding, her nephew, and the defendant, Paul Redding, his son. farmed together in Texas on land owned by Paul. In July 1971, the decedent visited Dale and Paul in Texas. In Dale’s deposition he states that he told the decedent that he and Paul were going to build a feedlot as soon as they could see their way clear to finance it, and that she told him she had some money that he could have. He replied that he would not take it unless she would forgive it in her will like her brothers had done. Her response was: “That is fine.

I want you to have it.” At a later conversation the decedent told Dale that she had bonds which had accumulated interest on them, and that she did not want to cash the bonds and give the money because she would have to pay income tax on the earned interest. Dale suggested that she could give the bonds to Paul and let him pay any tax. Paul had a loss carryback and could absorb the interest income against that loss. He suggested that she check with her lawyer when she got home. There was no conversation about promissory notes.

After the decedent returned home to Nebraska, she advised Dale she had been informed that whoever cashed the bonds would have to pay the income tax on the accumulated interest. The decedent thereafter caused Paul’s name to be placed on the bonds as coowner with her, and sent the bonds to Paul in Texas in care of a production credit association. Paul received the first group of bonds on November 1, 1971, and cashed them on November 3, 1971, for the sum of $42,069.60. The second group of bonds were received and cashed by Paul on November 30, 1971, for the sum of $26,152.

On the same day Paul wrote to the decedent thanking her for the gifts and advising her of the purchase cost and interest amounts on both groups of bonds. The $30,721.60 interest was later reported by Paul on his 1971 income tax return and it was not reported by the decedent. Dale testified in his deposition that in December of 1971, he visited the decedent in Nebraska. At that time she was concerned about having to pay a gift tax on the bonds given to Paul.

Dale suggested that if notes were issued to her, then she could establish to the Internal Revenue Service that the gift was intended to be made at death if there was a provision in her will that the notes were to be forgiven. She agreed to do so. On his return to Texas, Dale directed Paul to make and deliver the notes and told him that the decedent would make a will forgiving the indebtedness, and that Paul would not have to repay the notes.

On January 12, 1972, Paul obtained two bank note forms, filled them out in accordance with the instructions from Dale, backdated them to the dates of receipt of the bonds, and executed the notes. On or shortly after January 12, 1972, he mailed the notes to the decedent. The decedent died in April 1973, leaving a will made a few days before her death, which was admitted to probate, which revoked former wills, and which did not forgive any indebtedness.

After her death, Dale and Paul discovered that in September 1972, the decedent had executed a previous will in which she forgave “any balances remaining due’’ on notes of Paul Redding and certain other named persons. Following their appointment as executors, the plaintiffs brought this action for the collection of the notes. Herman Juergens, as executor, made the following assertions in support of the motions for

summary judgment on the notes. He stated that around Christmas of 1972, the decedent told him that Paul had not paid interest on the notes, and that she was not going to give him his $3,000 Christmas gift until he did. In several other conversations, the decedent mentioned the fact that Paul had not paid any interest, and that she hoped he would pay the notes on time since they had been made at a very decent interest rate.

He also asserted that in a conversation with the decedent concerning her final will she had inquired if Juergens intended to pay his note due her, and also stated that she expected Paul to pay his. The worksheet for the decedent’s will, which Juergens wrote on her instructions, stated that the loan to Paul was to be included and the will itself made no mention of forgiving the notes. Juergens also asserted that the decedent was a good businesswoman and that when he had borrowed money from her, she had the note prepared and delivered to him for execution.

There is also evidence that after decedent’s death there was some discussion by Dale about using his share of the residue to pay Paul’s notes, and that after learning of the September 1972 will, he advised the attorney for the estate that he would not assign his share, nor would the notes be paid off. There is also evidence that the decedent came to live with Juergens in October 1972, because she was sick and needed someone to take care of her, and that during the time she lived with Juergens prior to her death, she received numerous X-ray treatments and took a substantial amount of prescription drugs.

There is a great deal of additional evidence in the record which would be material and relevant on the ultimate issue of fact as to whether the delivery of the bonds by the decedent to Paul was intended to be a gift or was intended to be a loan. Many other substantive issues of material fact which bear directly or indirectly on the ultimate issue are also in conflict. The ultimate issue and these issues, however, are for resolution by a fact finder and not for determination on a motion for

summary judgment. The moving party is not entitled to

summary judgment except where there exists no genuine issue as to any material fact and where under the facts he is entitled to judgment as a matter of law.

Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasonable doubt touching the existence of a material issue of fact must be resolved against the moving party. Barnes v. Milligan, 196 Neb. 50, 241 N. W. 2d 508. Where the ultimate inferences to be drawn from the facts are not clear, the inferences are not conclusively established, and it cannot be determined whether a party is entitled to judgment as a matter of law. Green v. Village of Terrytown, 189 Neb. 615, 204 N. W. 2d 152. The issue to be tried on a motion for

summary judgment is whether or not there is a genuine issue as to any material fact and not how that issue should be determined. In considering a motion for

summary judgment, the court should take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences which may reasonably be drawn from the evidence. If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits. Valentine Production Credit Assn. v. Spencer Foods, Inc., 196 Neb. 119, 241 N. W. 2d 541. The requirements to sustain a motion for

summary judgment are the same whether one party or both parties have moved for

summary judgment. Hiram Scott College v. Insurance Co. of North America, 187 Neb. 290, 188 N. W. 2d 688. On the basis of the record here, substantial material facts are in dispute and the ultimate inferences to be drawn from uncontroverted facts are far from clear and conclusive. The record fails to establish the plaintiffs’ right to judgment as a matter of law, and the facts and inferences are not subject to determination on a motion for

summary judgment. The judgment is reversed and the cause remanded to the District Court for further proceedings. Reversed and remanded for FURTHER PROCEEDINGS.