282 S.W. 555 | Ky. Ct. App. | 1926
Affirming.
On August 24, 1917, Louisa Fields, who was then about 89 years of age, deposited with the appellee and defendant below, Perry County State Bank, $369.69, and took from it a time deposit certificate duly signed by its cashier, which, omitting date and signature, reads: "This certifies that Louisa Fields has deposited with this bank exactly three hundred sixty-nine dollars and sixty-nine cents, payable in current funds on or after six months after date on the return of this certificate properly endorsed with interest at the rate of 4% per cent per annum from date of this certificate. This bank may require 30 days' notice of the time when payment of this certificate will be required. Not subject to check." On December 1, the same year she deposited with the same bank $164.67. On September 20, 1918, she made another deposit of $352.51, and on August 6, 1920, she made one of $465.50, and at each time took exactly the same tenor of certificate with the exception of the amounts and dates. She had several children who were married and living to themselves, but she had reared from infancy a grandson and a granddaughter, both of whom were the children of a living son, Robert Fields. They lived with her as members of her family a great number of years and stayed at her house and assisted her in its management and in conducting her affairs a considerable portion of the time after they ceased to be members of her immediate family. On July 1, 1922, she became ill and from that time until her death, which occurred on December 10 the same year, she was confined to her bed. On August 21 before her death, according to the undisputed proof in the case, she endorsed in blank all four of the before mentioned certificates by writing her name on the back of each of them by making her mark, and each Of those endorsements was witnessed by her grandson, Robert Fields, Jr., and by his sister, her granddaughter, *26 both of whom she had reared as above stated, and she then delivered each of them to the grandson, and said at the time that she had never given him anything for his many kindnesses toward her and services rendered by him and gave the certificates to him as an inter vivos gift. He presented them to the bank as so endorsed and witnessed, and it paid to him the face value of each, with interest at 4% from their respective dates.
The appellant and plaintiff below, Albert Williams qualified as the administrator of Mrs. Fields, who died intestate, and he made demand on the bank for the amount of the certificates and interest, which it declined to pay, and he afterwards filed this action against it seeking judgment against it for the aggregate amount of all four of the certificates and alleged in his petition that his intestate "was an aged and decrepit woman and unable to get out and transact business of any kind until she died soon thereafter, and now avers that each and all of the transactions of said bank in diverting said sums of money from the credit of Louisa Fields and placing the same to the credit of Robert Fields, was without consideration paid her or with her knowledge or consent, and was illegal and void, and a fraud upon the right of Louisa Fields," and that on or about August 20 the above four deposit certificates "were taken by someone from her possession, as he is informed, and believes-one, Robert Fields, Jr., who against the will and without the consent of Louisa Fields, either by stealth or trespass, and without consideration paid Louisa Fields, and against the will and without the consent of Louisa Fields, took the same from her possession and carried them to the Perry County State Bank, when on August 20, 1922, the Perry County State Bank then being operated by a president, cashier and directors, without any authority and against the will and consent of Louisa Fields, took and placed the four above mentioned sums of money, and the interest thereon from the dates of the deposits and sums above mentioned, to the credit of Robert Fields, Jr., and paid him the money for same," and that plaintiff's intestate did not learn of such facts before her death. A demurrer filed to the petition was overruled, and the answer denied the alleged grounds of recovery. The action was brought in equity and the proof was taken by depositions, and upon final submission the court dismissed the petition, to reverse which plaintiff prosecutes this appeal. *27
Counsel on both sides, as it appears to us, misconceives the applicable law of the case. Strenuous arguments are made by each of them of the question as to whether the certificates were or not negotiable paper at the time the bank paid them to Robert Fields. Counsel for plaintiff contends that they were not, while defendants' counsel contends to the contrary. But it is not pointed out to us, nor are we able to see wherein that question has any bearing upon the case. The certificates were not transferred to the bank who was their payor, but, at most, were only endorsed by the payee by endorsing her name in blank on the back thereof and were paid to the holder by the payor on presentation, which, as we interpret the certificates, was exactly in conformity with their express terms, since it is stated in each of them that they will be paid together with accumulated interest "on the return of this certificate properly endorsed." It was known by everyone that Mrs. Fields was illiterate and could not write and signed her name by mark. The certificates were so endorsed and duly witnessed, and the only question presenting itself to the bank, when their payment was demanded by the one holding them as so endorsed, was whether the endorsement was actually made. If it was, it was sufficient to pass title to the holder, as was held by us in the cases of Wettlaufer v. Baxter,
The court necessarily found that the decedent actually made the endorsements and delivered the certificates to her grandson, and that at the time she knew what she was doing; or it found that the prima facie case made *29 by the endorsement was not overcome by any proof introduced by plaintiff. We think the record affirmatively establishes both propositions, but whether so or not, the court correctly held that defendant under the proof in the record was legally authorized to pay the certificates to Robert Fields under the circumstances and conditions it did in this case, and that neither Mrs. Fields, if living nor plaintiff as her administrator could question such payment under the proven facts as against the bank.
Wherefore, the judgment is affirmed.