91 P. 658 | Cal. Ct. App. | 1907
Plaintiff, as administrator, brought the action for the recovery of $5,170, claiming that it belongs to *145 said estate, and that the defendant unlawfully collected and embezzled said amount after the death of said George Ludwig. The defense is that the money was given to defendant by the said George Ludwig sometime previous to his death. The issue is squarely presented by the pleadings, as follows: The complaint alleges:
"That thereafter, to wit, January 29th, 1903, the said George Ludwig, without any consideration therefor and for the purpose that the said indebtedness due to him from the Sacramento Bank aforesaid and represented by said pass-book 22,603 aforesaid might be drawn and collected therefrom and held in trust by the said defendant for his use and benefit, gave to the said defendant a power of attorney of which the following is a copy: 'Sacramento, Jan. 29, 1903. I hereby authorize the Sacramento Bank to pay to Caroline Ludwig any money standing to my credit as a deposit in said bank, represented by pass-book No. 22,603.' "
Signed " 'George Ludwig.' "
Defendant denies this allegation and avers "that said George Ludwig, on the 29th day of January, 1903, executed and delivered to Caroline Ludwig, this defendant, for good and valuable consideration, an order, assignment, and transfer to defendant, absolutely and without any reservation, all the sums of money coming to said George Ludwig from, or standing to his credit in said Sacramento Bank as a deposit in said bank in his name and as represented by pass-book No. 22,603, in words and figures as follows, to wit." Then follows the order hereinbefore set out. It is also averred in the answer that "the control and possession of said pass-book No. 22,603 was also delivered to this defendant by said George Ludwig."
A distinction of importance is recognized in some of the decisions between a gift resting in parol and one made effective by virtue of a written instrument. InDriscoll v. Driscoll,
The rule as to verbal gifts is provided in section
Mrs. Caroline Ludwig testified as follows: "I knew George Ludwig for 39 years. He was my brother in law and lived on our ranch nine miles from Auburn; prior to July 29, 1902, I had a talk with him about the disposition of his money; he wanted to give me the money, and he did give it to me; he gave me the bank-book and an order for the money; when he gave it to me he told me to keep it; he told me he give me all the money he has got, and I shall keep it for myself; he said about the money represented by those books — he told me to keep them and if I wanted some money to go and get it, and any time he wanted money he come to me and get some; he gave me another order afterwards; when he gave that order he said to me, he gave me the order; he give me the books and he told me to keep the money. I brought the books to the bank and I gave them to A. L. Smith, and he kept them in the bank. I have drawn money out of the bank on Mr. George Ludwig's account; whenever he told me he wanted money I *148 drew it; if I had money in my pocket I went out and gave it to him without drawing it; I gave him all the money he wanted and everything he wanted; he simply gave me that money in the bank and wanted me to keep it because we worked together and earnedit together and he said it isn't more than right, because he didn't want to go through court."
J. M. Henderson, cashier of the Sacramento Bank, among other things, said: "The order of July 29, 1902, stands filed among the records of the bank as received on July 30, 1902; it authorized the bank to pay to Caroline Ludwig any money standing to the credit of George Ludwig represented by passbook 136 and the order of January 29, 1903, authorized the bank to pay to Caroline Ludwig, represented by pass-book No. 22,603; and it was upon the strength of these orders that we recognized the subsequent orders of Caroline Ludwig dated March 12, 1904."
It is not contested that the whole amount in question is shown as a credit in said pass-book 22,603. Of course, it may be that Mrs. Ludwig did not tell the truth, but as there is nothing inherently improbable in her statements, and as the trial judge accepted them as true and based the findings upon her testimony and that of the other witnesses, we are not at liberty to discredit her testimony, but we must construe all the evidence so as to uphold rather than overthrow the judgment of the lower court. The record thus discloses every element of a gift. The deceased expressed clearly and unequivocally his intention that the defendant should have as her own the money immediately, and since the property was not in his possession, he did all that the statute and decisions require, he gave her the means whereby she could reduce the property to her possession, to wit, the order upon the bank where the money was deposited. The elements necessary to the validity of a giftinter vivos have been specifically stated as follows: 1. The donor must be competent to contract. 2. There must be freedom of will. 3. The gift must be complete, with nothing left undone. 4. The property must be delivered by the donor and accepted by the donee. 5. The gift must go into immediate and absolute effect. (Mercantile Safe Deposit Co. v. Huntington, 89 Hun, 465, [35 N.Y. Supp. 390]; Matthews v. Hoagland,
Reduced to simpler form, it is held that a gift must bevoluntary, gratuitous and absolute. (Williamson v. Johnson,
It is claimed that the view of the lower court is opposed to certain decisions of the supreme court, but it is apparent that the facts in those cases are dissimilar to those before us, as will be disclosed by a brief reference to them. InZeller v. Jordan,
In Hart v. Ketchum,
In Knight v. Tripp,
In Vance v. Smith,
In Denigan v. Hibernia etc. Society,
In Pullen v. Placer County Bank,
In Noble v. Garden,
The decision in Basket v. Hassell,
As an illustration of transactions upheld as valid gifts we may refer to Vandor v. Roach,
The only other point worthy of notice relates to alleged erroneous rulings of the court upon objections to certain evidence. We do not deem it necessary to refer to them specifically. We have examined them all and we find no prejudicial error.
The cause appears to have been justly decided, and the order denying the motion for a new trial is affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 26, 1907.