110 Tenn. 288 | Tenn. | 1903
delivered the opinion of the Court.
The question presented in'this case is whether, upon thq facts alleged in the bill, a valid gift inter vivos was made of a sum of money, amounting to $586.54, from one George Volmer to the complainant, Rosina Balling. The chancellor sustained a demurrer interposed by the defendant, and dismissed complainant’s bill.
The material allegations of the bill are that on the twelfth day of May, 1890, the said George Yolmer opened an account with the defendant, Manhattan Savings Bank & Trust Company, which delivered to the
The bill then alleged that on the nineteenth day of January, 1895, the said George Volmer transferred and made actual delivery of said deposit books to complainant, at the same time saying to complainant that he was going away and wanted her to have the money to his credit in said Manhattan Savings Bank & Trust Company' as evidenced by said books, and that if he did not return he wanted complainant to understand that it was hers, and said books were delivered to her for the purpose of enabling her to collect the same in the event that he did not return.
It is then alleged that the said George Volmer did leave on said date, to wit, January 19, 1895,- and has never been heard from since; that neither the complainant, nor any other person in said city or county who
The bill further alleged that more than seven years had elapsed since Volmer left Memphis and Shelby county; that he has been continuously absent since then, and no information whatever in regard to him has been obtained; and complainant is advised that under these circumstances the law raises a presumption of the death of the said George Volmer, and that the transfer and delivery by him to complainant, more than seven years ago, of his deposit books, amounted to a gift of the money in bank to his credit evidenced by said books, and she is therefore legally entitled to the same.
It is further alleged that his failure to return after an absence of more than seven years raises the legal presumption that he will not return at all, and under the law' complainant is advised that she has been vested with an absolute title to the money credited to the account of George Volmer.
Three grounds of demurrer were assigned to the bill, to wit: (T) That the bill sets up title to certain moneys deposited with demurrant by George Volmer, upon the-allegation that he delivered to complainant his bank deposit book, and that he was going away and wanted her to have the money to his credit with demur-rant if he did not return, and this did not give the complainant any right or title to said money, for the reason
As already stated, the several demurrers were sustained, and complainant’s bill dismissed.
The cardinal inquiry arising under the first assignment is whether the alleged gift was complete and executed. It is argued that, under the allegations of the bill, Volmer retained dominion and control over it, and the right to repossess himself of said fund at any time; that, if there was a delivery of said deposit book to appellant, it was not a present and irrevocable gift. It is insisted the bill in effect admits that at any time, upon the return of Yolmer, he would have had the right to repossess himself of the books and the fund. It is insisted that complainant now seeks to have the absolute right to the fund adjudged to her upon the allegation of the nonreturn of Yolmer, and the presumption of death arising from seven years of unexplained absence.
In the case of Marshall v. Russell, 93 Tenn., 265, 25
In the case of Grover v. Grover, 24 Pick., 261, 85 Am. Dec., 319, it is said: “To constitute a donation inter vivos, there must be a gift absolute and irrevocable, without any reference to its taking effect at some future time. The donor must deliver the property, and part with all present and future dominion over it” — citing Dale v. Lincoln, 62 Ill., 22.
In Taylor v. Henry, 48 Md., 550, 30 Am. Rep., 486, it appeared that Joseph Henry deposited certain moneys in a savings bank, so that the account stood: “Joseph Henry — Margaret Taylor, and the survivor of them, subject to the order of either.” .Joseph Henry retained possession of the bank book, and after his death
In the case of Sheegog v. Perkins, 4 Baxt.,273, 281, the court said: “In order to make this gift complete, it must appear absolutely and beyond doubt that the donor intended to part-with his dominion over the property. If the intention to give ... be not clearly made out, it cannot be supported; and if, upon the facts, the matter he enveloped in doubt, that doubt must prevail against the hypothesis of the case.”
Now, it will he observed in all of the cases cited, the principle is distinctly recognized that, so long as' the donor retains control and dominion of the property, there is no gift inter vivos. In the present case the bill
It is not seriously contended that a gift causa mortis could be made to arise upon the facts stated in the bill, but the contention of complainant’s, counsel is that the facts make out a gift inter vivos.
We have carefully reviewed the elaborate extracts from authorities found in the complainant’s brief to sustain his contention, but are of opinion the principle announced in those cases is in harmony with the rule herein announced, and do not sustain the position of the complainant. It results that the decree of the chancellor must be affirmed.