32 S.E.2d 550 | Ga. Ct. App. | 1944
Where a husband delivers to his wife, for love and affection, his own uncertified check, payable to her, and drawn against his general deposit account in the bank, the check does not operate as an assignment of any part of the funds standing to his credit as a depositor of the *861 bank; and the check is revocable by the donor at any time before its presentation to the bank for payment, and is revoked by his death.
The defendants demurred to the petition on the following grounds: "1. Because the petition as amended does not state a cause of action against these defendants. 2. Because the petition as amended seeks to declare upon an alleged gift, which the allegations thereof show was never consummated." The court sustained the demurrer and dismissed the petition, and that judgment is assigned as error. The controlling question here is: Under the allegations of the petition was the $5000 check revoked because of the failure to cash the check before the death of plaintiff's husband? "As in the case of a note, the gift of the donor's own check is but the promise of a gift and does not amount to a completed gift until payment or acceptance by the drawee. As shown infra § 60, at any time prior thereto, the donor may revoke it by stopping payment, and it is ipso facto revoked by the death of the donor. The gift of a check becomes complete when, in the donor's lifetime, it is paid, certified, or accepted by the drawee, or negotiated for value to a third person." 38 C. J. S. 842, § 55. And in 24 Am.Jur. 779, § 95, it is stated: "The rule in most jurisdictions appears to be settled that the donor's check, prior to acceptance or payment by the bank, is not the subject of a valid gift either inter vivos or causa mortis. The difficulty with respect to a gift of the donor's check, if the check does not operate as an assignment, is that the mere delivery of the check to the donee or to some other person for him does not place the gift beyond the donor's power of revocation, prior to payment or acceptance. Moreover, there is the further consideration, if the check does not operate as an assignment, that the death of the drawer works a revocation of the check, so that where the check is intended as a gift causa mortis and the donor dies before payment or acceptance, the death revokes the gift. Thus, the death of the drawer effects a revocation of the alleged gift of a check not presented for payment until after such death."
Section 189 of the negotiable instruments law reads: "A check *863 of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check." And in Brannan's Negotiable Instruments Law (6th ed.), pp. 1165-1169, it is said: "This section [189] has changed the law in those states in which a check had been held to be an assignment pro tanto of the funds of the drawer in the drawee bank. Therefore, the administrator of the drawer can recover from the holder the amount of a check collected from the bank after the drawer's death. . . Where a depositor issues a check against his general deposit account, such check is not an equitable assignment of the fund standing to the credit of the depositor, even where the depositor made the deposit for the purpose of paying the check. . . Before the negotiable instruments law, the question whether a check was an assignment of any part of the drawer's deposit had been considered by the courts, both with respect to the rights of the holder against the drawee and the rights of the holder against the drawer or the latter's creditors or estate, and there had been differences of opinion on both questions. Before the statute, the weight of authority was that a check was not an assignment in either respect. The purpose of the uniform negotiable instruments law was to abrogate this conflict, and when the statute declares that a check of itself does not operate as an assignment, to say that it does so operate in any case is to declare the exact opposite of the statute. . . This section [189] is applicable to a check for the whole of the drawer's deposit, and the delivery of such a check as a gift did not constitute an assignment of the drawer's funds and was revoked by the death of the donor before collection."
In Basket v. Hassel,
In Throgmorton v. Grigsby's Adm'r,
In Foxworthy v. Adams,
In Zehner v. Zehner's Estate,
In Burrows v. Burrows,
In Martin v. Martin,
We could cite many other cases to the same effect, and it clearly appears that the great weight of authority in our sister States supports the foregoing rulings. However, able counsel for the plaintiff in error contend that the ruling is otherwise in this State, because of the language employed in sections 48-101 and 48-103 of our Code. Those sections read: "To constitute a valid gift, there shall be the intention to give by the donor, acceptance by the donee, and delivery of the article given or some act accepted by the law in lieu thereof. Actual manual delivery shall not be essential to the validity of a gift. Any act which shall indicate a renunciation of dominion by the donor, and the transfer of dominion to the donee, shall be a constructive delivery." In our opinion the wording of those sections has not changed the pre-existing law of Georgia. InHarrell v. Nicholson,
It is true that in Elders v. Griner,
In MacIntire v. Raskin
The plaintiff in the instant case fails to allege that her husband had any deposit of money in the First State Bank when the check was presented to it for payment, or when the check was presented to the defendants for payment, or at any other time. Assuming, however, that such a deposit existed when the check was delivered to her, the petition fails to allege that the deposit was a special one; and "a deposit is presumed to be general in the absence of an agreement to the contrary." Code, § 12-303. Moreover, the petition, properly construed (most strongly against the pleader), shows that the deposit, if any, was a general one. Furthermore, the petition, so construed, clearly shows that the plaintiff never had possession or control of any portion of her husband's funds in the bank, or any dominion over it, either actually or constructively. In our opinion, the sustaining of the general demurrer to the petition was not error.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.