40 Ala. 421 | Ala. | 1867
The main question presented on this record is, whether the court below erred in refusing to decree in favor of the appellant a balance of over fifteen thousand dollars paid by his intestate on the debts of Robert H„ Jones, deceased. And this may be solved by the discussion and decision of two other questions : 1st, was the payment of the debts of Robert H. Jones, deceased, by appellant’s intestate, under the facts and the law, a gift to the distributees of the estate of said Robert H.; or, 2d, was such payment a valid waiver of the right of appellant’s intestate to be subrogated to the rights of the respective creditors, or to claim a credit for the amount paid them on a settlement of the estate ?
In the case of Sims v. Sims’ Adm’r, (8 Porter, 449,) the court held, that delivery of possession is an essential ingredient in a gift of personal property, but that a change of possession is not indispensable; and the court was cautious to say, that it was not called upon to determine “what facts or circumstances would, in law,, amount to a delivery of personal property, so as to consummate a gift.” There is no difficulty in stating facts which would constitute'a valid gift of personal property; but no one, perhaps, can lay down any general or universal rule on the subject, which can solve without a doubt or difficulty every case that may arise in the current of human affairs.
The case of Sims v. Sims’ Adm’r came before this court again, (2 Ala. Rep. 117,) and Chief-Justice Collier, in announcing the opinion of the court, changes the phraseology used in the former opinion, and says, “that it is essential to a parol gift of a chattel that there should be an actual delivery of the thing”; and Ormond,, J., who delivered the
In the case of Durett v. Seawell, (2 Ala. R. 669,) Collier, C. J., again uses the terms “actually delivered” in the same connection. In the case of Pope v. Randolph, (13 Ala. 221,) Dargan, J., in the opinion of the court, uses this language : “If the donor parts with the possession of the chattel itself, for the purposes of the gift, it is sufficient; for this is the only delivery that can be made of the subject of the gift.” This was said in reference to a gift of the hire or use of slaves. It is also said that, “to divest the title of the donor, he must deliver possession of the chattel to the donee, or some one for the donee”; thus, in language and spirit, following the opinions of Ormond, J., supra.
In the case of Jones, adm’r, v. Dyer and Wife, (16 Ala. 224,) Collier, C. J., says, in delivering the opinion of the court, “that it is indispensable to a parol gift of a chattel that there should be an actual delivery of the thing,” following his former opinions; but he impliedly qualifies the rule thus broadly laid down, by saying, “To constitute an effectual delivery, the donor must part with the dominion of the thing, in favor of the donee.”
In the case of Stallings v. Finch, (25 Ala. 522,) Goldthwaite, J., in delivering the opinion of the court, says : “It is indispensable to the validity of a parol gift of a chattel, that the owner should part with his dominion over it.”
In the case of Gillespie’s Adm’r v. Burleson, (28 Ala. 551,) Walker, J., in announcing the opinion of the court, says: 5 While delivery is a necessary constituent of a parol gift,
The word delivery is more comprehensive than the terms “actual delivery.” A delivery may be actual, or it may be constructive, or symbolical; and we see no reason why the constructive delivery of a chattel or chose in action, accompanied with appropriate words of conveyance by way of a gift, would not be effectual to pass the title to the donee, where the donor parts with his dominion over the thing thus delivered.
In the case of Carradine v. Collins, (7 S. & M. 428,) that learned jurist, Chief-Justice Sharkey, in delivering the opinion of the court, says: “As between donor and donee, the gift of a chattel is incomplete without delivery, or some act equivalent to delivery, if at the time the thing be susceptible of transmission. "We do not say that actual delivery is necessary; it may be constructive, or symbolical; * * * delivery, actual or constructive, is necessary.” — 10 John. R. 294; 1 N. & McC.. 224, 592; 4 B. Mon. 535.
After a careful consideration of the many eases decided, and authors who have written upon this subject, we conceive that the true rule maybe thus stated: delivery, actual or constructive, is essential to the validity or consummation of a parol gift of a chattel; and where the delivery is constructive, it must clearly appear that the donor has parted with his dominion over the thing, in order to pass the title to the donee and effectuate the gift.
The two leading adjudications brought to our attention by counsel, as applicable to the facts of this ease, as to the mode or nature of the delivery of personal property essential to the consummation of a parol gift, are to be found in 10 John. R. 294, and 4 B. Mon. 535.
In the former case it appears, that a father bought a lottery-ticket, and wrote the name of his daughter on it, and afterward it drew a prize of five thousand dollars, which was paid to the father; soon after the prize was drawn, he said “that the ticket did not belong to him — that he had given it to his daughter ”; and this he said at various times. At one time it was said in the family, that the daughter ought to divide with the other children, and the
In the latter case, a father was surety on a note for two of his natural sons. He repeatedly expressed much solicitude for their welfare, and his intention to “ give them, a start ”• — to assist them in their pecuniary affairs. The father afterward voluntarily paid the note; he was not even requested to pay the same by the creditor. He had an ample estate, and had a wife by whom he had several children ; but said that his natural children felt as near to him as his legitimate ones ; that he intended to die without a will, and on that account intended to help them during his life, as they would receive no portion of his estate after his death. Shortly after the payment of the note, he spoke of it as a gift to them, and said he intended to give them five
If these cases are to be taken and held as a proper application of the general rule on the subject of the delivery essential to the consummation of a parol gift of a chattel or a chose in action, they appear to us as persuasive, if not conclusive, to show the correctness of the decree of the probate court on this question, looking to all the facts contained in this record. Appellant’s intestate, from the evidence, obviously intended to give the money he paid on the debts of his intestate, and not the debts themselves, or the evidence of them; and the declarations of Doctor Jones, as proved by the witnesses McKellar, Woolley, Charles O. Jones, and Doctor Blevins, show that the money was to be paid for the benefit of, and as a gift to the widow and children of Robert H. Jones, deceased; and certainly toas so paid, if the declarations of Doctor Jones, on his death-bed, to his sister-in-law, referred to the facts proved by the witnesses, and were uttered in good faith, and in a sound con
It is repugnant to the policy of the law to permit a trustee to pay or buy a debt which is payable out of the trust funds in his possession, and to hold as an assignee, with the right to assign it to another. Such a transaction would not only be violative of sound policy and principle, but would be subversive of the divine invocation, “ lead us not into temptation.” After payment by the trustee, the original debt must be treated as functus officio, unless for the purposes above indicated ; and if any action is maintainable, at law or in equity, i't must be for the money so paid, and not on the original debt.
The reason of the rule is apparent, and it should be strictly enforced for the protection of the rights of all persons interested in the trust funds; and especially where minors alone may be interested, who are incapable of having such transactions investigated while recent and susceptible-of exposure. When, therefore, the administrator paid the debts of the intestate, they became, ipso facto, extin
But a trustee, who pays off a debt chargeable upon the trust funds, out of his own means, may, for a sufficient consideration, waive his right to be subrogated to the status of the creditor, orto claim it as a credit on a settlement of the trust. In our opinion, it is clear from the proof that Dr. Jones did not give, or intend to give, the original debts paid by him, or, in other words, the evidence of those debts, to the widow and children of his intestate. But it is equally clear that Dr. Jones, for the love and affection he had for his brother’s widow and children, waived his right to claim the money paid on said debts, and the evidence of said debts, as credits against the estate on a settlement thereof; and it is very perceptible how this would (as he frequently said) be “for the benefit of the widow and children.” He, at least, placed himself in the situation of one who voluntarily pays the debt of another for the benefit of the debtor. It is true that the widow and children were not the debtors; but they were the persons who were the ultimate owners of the fund or property upon which the debts were chargeable, and the persons to be benefited by such payment; and the affection he bore them was the evident and manifest consideration for the waiver.
The facts satisfy us that he intended, and that he executed his intention, to pay the debts of his intestate in Confederate treasury-notes, for the benefit of the persons who alone could be benefited thereby; and that he intended to, and did, waive his right to be substituted to the rights of the creditors, or to claim the payment of the debts so paid as credits on a settlement of his administration of the estate.
As to the debts formerly due to Mrs. Bachel Jones from Bobert H. Jones, and which constitute a large part of the balance claimed by the appellant as administrator of John H. Jones deceased, as shown in the record, we have this to say, if those debts were never in fact, or in consideration of law, paid by John H. Jones to Mrs. Jones, then they should not have been allowed as credits on the settlement; and if they were so paid by him, we are satisfied -that they were paid in Confederate money, and therefore come within the influence of the principles applicable to other debts so paid, as hereinbefore announced. The evidence satisfies us that they were so paid by Dr. Jones, and that he or his estate is responsible to Mrs. Jones. Her evidence seems to us conclusive on this point.
In every view, therefore, we take of the main question in this cause, we are of opinion that the court below did not commit any error of which appellant can complain.
In the case of Pinckard’s Distributees v. Pinckard’s Adm’r, (24 Ala. 250,) it appears, at least inferentially, that the fees of counsel claimed as a credit were not paid, and the court allowed the credit; and the case of Bendall’s Distributees v. Bendall’s Adm’r, supra, is the only authority cited to sustain the allowance. But, in the latter case, it appears from the record that the fees had been paid by the administrator ; and it is therefore no authority to support an allowance for counsel fees which have not been paid. It is an authority in point, to show that an administrator is entitled to counsel for his own protection in the rightful discharge of the duties of his trust, and that the trust fund is chargeable with fair and reasonable fees when paid by him.
When an administrator who is an attorney, performs professional services for the estate, not within the scope of his duties as administrator, and which were necessary and proper, he may very properly call upon the court to make an allowance for such services, as he is not allowed to contract with himself, and cannot properly receipt to himself. This is an exception to the general rule above stated.
To allow an administrator a credit for professional or other services rendered by others for the estate, or himself as its representative, without having paid the person rendering them, or, at least, obtained a receipt therefor, would be opening a door to fraud and imposition, which the law is studious and careful in keeping closed to every temptation or opportunity to make any profit out of the trust for himself or others. If the law were otherwise, an administrator might obtain a credit for the value of services rendered the estate by others, and never pay the parties entitled; or if any thing, such portion as he might see proper to pay, or as he had contracted to pay before the credit was actually allowed, thereby giving him the advantage of any excess
Having disposed of the assignments of error argued by counsel, it only remains for us to say, that there is no error in the record of which appellant can complain, and the decree of the probate court is affirmed.