233 Mo. 460 | Mo. | 1911
The plaintiff instituted this suit against the defendant, in the circuit court of Jackson county, by filing the following petition therein, to-wit:
“The plaintiff says that she is the owner of and entitled to the immediate possession of certain promissory notes or bonds, secured by mortgages or deeds of trust, and of the value of the amounts thereof as follows:
“Note or bond, $500', dated January 14, 1903, payable three years after date at the office of Harrison & Son, Kansas City, Missouri, bearing seven per cent interest; maker, Fritz Dolde; secured by a mortgage or deed of trust on lot forty-seven Brighton Park, an addition to Kansas City, Jackson county, Missouri.”
Then follows fifteen other allegations, describing fifteen other notes and deeds of trust, differing from the foregoing only in the dates, the amounts, rates of interest, when payable, the makers, and the description of the -land. Continuing, the petition states:
“The plaintiff says that said promissory notes or bonds and the mortgages or deeds of trust securing the same are in possession of the defendant; that the defendant, although possession thereof has been duly demanded by plaintiff, refuses to deliver the possession thereof to the plaintiff and wrongfully detains the same from the plaintiff; that all of said promissory notes or bonds have interest accruing thereon as appears by the terms thereof.
“Wherefore, plaintiff prays judgment against the defendant that the defendant be ordered to deliver the possession of. said promissory notes or bonds, and
“Second Count.
“The plaintiff says that on or about the 25th day of September, 1906, the plaintiff was the owner of four thousand four hundred and ninety-five dollars in current moneys, then in a safety deposit vault of the Kansas City Safety Deposit Company, in Kansas City, Jackson count}7-, Missouri, and on or about said date defendant took possession thereof; that thereafter the plaintiff demanded possession thereof from the defendant and the defendant refused to deliver the same to the plaintiff but wrongfully converted same and has deprived the plaintiff thereof.
“Wherefore, plaintiff prays judgment against the defendant for four thousand,- four hundred and ninety-five dollars, with interest at six per cent from the date of the commencement of this action and for costs of suit.”
The answer was as follows:
“Defendant, for answer, denies each and every allegation of plaintiff’s petition. Wherefore, he demands judgment with his costs.
“Further answering, defendant says that John Medley died on the 20th day of September, 1906; that on the 25th day of September, 1906, he, defendant, was duly appointed administrator of the estate of said John Medley, and on the 26th day of September, 1906, he duly qualified as such administrator; that said John Medley, when he died, was the owner of the notes described in the petition as well as the sum of $4495- in money; that prior to the commencement of this suit, he,' as such administrator, took possession of said notes and money; that said notes and money belong to defendant as such administrator, and that he has
The reply was as follows:
“For reply to the answer of the defendant, the plaintiff says that she denies that said John Medley, when he died, was the owner of the notes described in the petition, as well as the sum of $4495 in money. And plaintiff herein prays judgment as in her petition.”
A trial was had before the court and jury, which resulted in a verdict and judgment for the plaintiff, as prayed.
In due time a motion for a new trial was filed, which was by the court sustained, ‘ ‘ for the reason that the plaintiff is not entitled to recover,” and plaintiff excepted and appealed the cause to this court, the amount involved being about $14,000 or $15,000'.
Plaintiff’s claim is predicated upon an alleged donatio mortis causa.
The plaintiff’s evidence tended to show the following facts:
John Medley, the alleged donor, a Frenchman by birth, a bachelor of about seventy-five years of age, lived for about sixteen years and died in.the home of the plaintiff. Her husband' was a carpenter, and they resided in Armourdale, Kansas. Medley was a man of some education in his own tongue, but his knowledge of English was imperfect, and was a good business man. By industry and frugality he accumulated sufficient of this world’s goods to support him comfortably during his latter years. He paid the plaintiff for his room and breakfast the sum of five dollars a week. He had no relatives except a brother, who resided in the State of Pennsylvania, from whom he had become estranged, and had no communication with him for some thirty-five years. The brother was also a bachelor, and was four or- five years younger. There was evidence tending’ to show that Medley had bitter feel
The defendant for a number of years prior to Medley’s death had been his agent, looking after his property, lending'his money and collecting his interest.
About the year 1903, Medley rented a box in the Safe Deposit Company of Kansas City, in Kansas City, Missouri, in which he usually kept his money, papers and other valuables, and they were there at the time of his death, which occurred September 20', 1906, except $3750 worth of securities, which at the time.of his death were in the hands of defendant for collection.
The defendant was duly appointed by the probate court of Jackson county, Missouri, administrator of the estate of Medley, shortly after his death. He qualified as such, and took possession of the property which is
There was bnt one witness who was present and testified to the alleged gift of the property in question by Mr. Medley to the plaintiff, and that was Edwin Foley, a son of the plaintiff; and since this suit depends largely upon his testimony, we deem it advisable to copy liberally therefrom.
He was called as a witness for plaintiff, and testified as follows:
Direct Examination by Mr. Guthrie:
“Q. Your name is Edwin Foley? A. Yes, sir. Q. You are the oldest of the two Foley boys? A. Yes, sir. My mother is Mrs. Elizabeth Foley. I knew Mr. John Medley who lived at our house sixteen years. Q. Were you present at a transaction between your mother and Mr. Medley a few days before he died in which some keys were transferred? A. Yes, sir. Q. What day in the week, if you remember, did this transaction occur? A. On the 14th. Q. About what time in the day? A. It was about two o’clock. Q. How long long after that was it that Mr. Medley died? A. Well, it was the following Thursday. Q. Where did this transaction occur, Edwin? A. In his room. Q. In your mother’s home? A. Yes, sir. Q. How did you happen to be in the room at the time the transaction occurred? A. He. called me in. Q. What did he call you for? A. He told me to bring the paper in, the morning paper. Q. Now after you came into this room did you give him this paper? A. Yes, sir. Q. How long or how shortly after that did this transaction occur between him and your mother? A. Right then. Q. What was your mother doing at the time? A. She was preparing some medicine for him. Q. Hid he give her anything? A. Yes, sir. Q. What
Cross-Examination by Mr. Tichenor:
“Q. Mr. Foley, how old are you? A. Eighteen years old. Q. At the time Mr. Medley died what were you doing? A. I was working. Q. You were a clerk in a confectinery store? A. Yes, sir. Q. How many, at that time, were in your father’s family. You have a father, have you? A. Yes, sir. Q. And you have a sister? A. Yes, sir. Q. Is she older than you? A. Yes, sir. Q. ■ She was home there at that time, wasn’t she? A. No, sir. Q. She was living, I mean, at home? A. Yes, sir. Q. Where was she working? A. John Taylor’s. Q. Then you have a brother still
‘ ‘ The Court: Do you understand the question, Edwin? (Question read by reporter.) Witness makes no response.
“Q. Well, let’s drop that. We will pass on. Now, you say you had this deposition in your hands for several days. Since when, did you say Thursday? A. Yes, sir. Q. Well, now, don’t you remember anything that it contains? What did you get it for? What was it given to you for? A. Well, I read it over is all. Q. You read it over to see what you said on that occasion, didn’t you? A. Yes, sir. Q. Now, do you recollect that you stated that conversation that you say took place between your mother and Mr. Medley at the time she got-those keys — do you recollect that you stated it twiqe differently in this deposition? A. That in there I stated it twice different? Q. Yes? A. No, sir. Q. You remember stating it twice, this conversation, in this deposition, don’t you? A. Yes, sir. Q. Do you. think it is just the same? A. I don’t know as it is just the same. Q. Now, here is what you say the second time here. Here is the deposition, Mr. Foley, the one I showed you and the one you signed. Just read that. You can read, can’t you? A. Yes, sir. Q. Yes, I want you to read the answer to that question. A. ‘Mrs. Foley, here is the keys to the safety deposit box; I give them to you and all the money there is in there I give to you, and Johnnie’s money is there, too.’- Q. Well, now, was that the conversation that you heard there? A. I don’t know whether it is exactly or not. Q. Oh, I know, but in the first question you answered there, the first time you detailed this conversation you say that everything that was in that box was hers, now in this one you say the
“The Court: Do you understand the question, Edwin? A. Yes, sir.
“The Court: Well, can you answer it? (Question read by the reporter) — ■
“Q. Well, he can say he can’t-answer it.
“The Court: Answer the question, Edwin.
“ (Question again read by the reporter.)
“The Court: Do you know what• statement he is talking about? A. Yes, sir.
“The Court: Well, then, answer the question; why did you make that statement? A. I don’t know.
“The Court: He says he don’t know.”
Re-Direct Examination by Mr. Guthrie:
“Q. You say that you were over to see Gen. Boyle and talked to him two or three times? A. Yes, sir. Q. Did he, in talking with you, go back through the long period of years and try to find out all you knew about Mr. Medley? A. No, sir. Q. That is, did he talk to you about other things than this money proposition? Did he go into what Mr. Medley had promised you or promised to do for you and your mother and things like that? A. Yes, sir.”
Mr. Guthrie: ' “We make no question about the rules produced being on the back of the receipt issued, but we object to them as being incompetent, irrelevant and immaterial and as not controlling a donor in making a gift of the contents of the box; that is, that a rule of the kind' offered would not prevent his making the transfer in the manner claimed, and therefore it does not tend to defeat the transfer.”
Mr. Tichenor: “We offer this blank receipt and the rules on the back thereof in evidence.”
Said blank receipt is as follows:
$........ No.......'..
SAFE DEPOSIT COMPANY OF KANSAS CITY.
American Bank Building.
' Kansas City, Mo.,................190.
Received of...............'................................... .........................................................Dollars, for rent of Safe No. ....... in the Vaults of Company, for the term of ........ months, expiring the.........day of.........190.....
Accepted, subject to the Rules and Regulations prescribed by the Company, which are printed on the back of this receipt.
Manager.
Office Hours: From 9 a. m. to 4:30 p. m.
Sundays and Public Holidays excepted.
Close on Saturdays 2 p. m.
On the back of said receipt is the following:
RULES AND REGULATIONS.
By which Renter will be Governed.
1. Satisfactory reference must he given upon application for safe.
2. No person other than the Renter or approved deputy named in the the books of the Company, or legal representative! (in case of the death, insolvency, or other disability of the Renter) shall have access to the safe, except as hereinafter expre'ssly stipulated.
3. On surrender of any safe the keys or combination must he returned to the Company.
4. The cost of replacing a lost key or combination shall be paid AT ONCE by the Renter.
5. The Company reserves the right to terminate, at any time, the renting and possession of the safe, upon notice to the address of, or otherwise delivered to the Renter; or, if absent, to the deputy designated upon the books, or to any other legal representative, and upon the surrender of the keys to the safe and the removal of its contents, a pro rata proportion of the rent received will be refunded.
6. All rents are payable in advance.
7. In case the lease of a safe is not renewed within six months after expiration of any renewal thereof, the Company reserves tha right, and is hereby further authorized, to open the safe at the expense of the Renter.”
1 ‘ Q. Mr. Foley, who were present at the time you say this conversation took place there when your mother got those keys. A. Who was present? Q. Yes? A. My mother and I. Q. Anybody else? A. Well, Mr. Medley. Q. Just you three? A. Yes, sir.”
In order to clear up some of the seeming contradictory statements of the witness, Edwin Foley, plaintiff, called S. H. Whisner as a witness, who testified that he was the notary and stenographer who. took Edwin Foley’s deposition in this case; that he took the deposition in shorthand; that his notes showed Edwin testified that Mr. Medley said: “Mrs. Foley, here are the keys to my safety deposit box,” and that by mistake he transcribed the word “box” as “boxes.” That counsel for appellant requested him to examine his notes, and by doing so he discovered the mistake.
Mamie Foley, a daughter of plaintiff, was' called as a witness, and testified substantially as follows, regarding the alleged gift:
“Q. Now, that was Friday? (The day on which the alleged gift was made.) A. Yes, sir. Q. Did you see Mr. Medley that evening? A. I did, yes, sir. Q. Did you see him on Saturday? A. Yes, sir. Q. What time Saturday did you see see him? A. I saw him Saturday morning. Q. Where? A. In his room. Q. Did you see him Saturday evening again? A. Yes, sir. Q. Did you have any conversation with him? A. Yes, sir. Q. When was it on Saturday evening? A. Well, after I returned from work. Q. Tell what you did? A. Well, when I came home from work, why, I came in and asked Mama how Mall was and she said she thought he was very sick.
“The Court: That was Saturday evening? A. This was Saturday evening, yes, sir.
“So I said, ‘I will go up and see how he is before leak’ Mama says, ‘ Take him up a cup of tea.’ I took
Mr. Medley was a great friend of Johnny, and they were always together. The latter was named for the former. He said he was going to set up Edwin and Johnny in business, the confectionery business, stating that he thought there was a great deal of profit in that business. With that idea in view he had selected a lot for that purpose in Armourdale, but never purchased it. Upon being urged by Mrs. Foley to purchase the lot, he said: “Well, if I don’t buy the lot now, I will leave plenty to buy it with.” That was during February before he died. The Sunday before Mr. Medley’s death, she telephoned for the defendant to come over, and told him Mr. Medley was quite sick. He came about nine o’clock p. m. Mr. Harrison was not in the habit of coming over to see Mr. Medley, but came occasionally to see him on business. Medley was never out of the house after that Sunday. That prior to Medley’s death she saw the keys to the safety box in the book ease, her attention was called to them.
On cross-examination she testified: That her mother acted as nurse for Mr. Medley whenever he was sick. He was a very delicate man and she nursed him right along whenever he was feeling badly. She gave him his medicines. He was in our home and had no friends to visit or advise him. “We were all just one.” That he taught her Latin and was a man of good education, and was also a good business man. He spoke of the Tilden will, and thought it was foolish to make wills. That he was sick several times during the last four years of his life. He was very delicate, and was confined to his bed several times during that period, but could not state the exact number of times, but probably a half dozen times, or more. During all those times the plaintiff nursed him. It was about September 1st when he was attacked with his last sickness. He died- on September 20th. She nursed him all that time. He gave her mother the keys to the safety box on Friday previous to his death. He was perfectly rational at the time he told witness that he had given the keys to her mother. He talked-freely with Mr. Harrison when he visited him on Sunday evening — he answered his questions. His mental condition was perfect when Mr. Harrison was there, he was not in a stupor, that was about nine o’clock. He was too weak to go into conversation, but his mind was perfectly clear, and would answer whatever questions were propounded to him. His mind was also clear on Monday.
“Q. And it was so on Tuesday? A. Well, he. was quite weak — from Monday on he was quite weak. The same on Wednesday, and would only say £Yes,’ or
Aklexta Long, a witness for plaintiff, on cross-examination, testified that she was a professional nurse and waited on John Medley during his last'illness from 2:30 o’clock p. m. Sunday until his death; and that during that time he was perfectly rational.
Maurice Alden, a witness for plaintiff, testified that he was appointed administrator of the estate of John Medley by the probate court of Wyandotte county, Kansas, and proceeded to administer the estate. “Q. At the time Mrs. Foley delivered these two keys to you, did she make any claim of any kind as to the right to retain the keys? A. Yes, sir. Q. What was that? A. She claimed to he the owner of the keys and the owner of the property in the box. Q. Did she say how she had become the owner? A. She said that Mr. Medley had given them to her. Q. How long after his death was it. that you had this talk with her? A. The talk was had with her, I think, September 22, 1906; that is the date of my letters of administration. My recollection is that I went down that same day. Mr. Medley, I believe, had died that same week.”
Cross-Examination by Mr. Tichenor:
“Q. You are a practicing lawyer, Mr. Alden? A. Yes, sir. Q. Now, when you went there to get those keys from her, what did she say that Medley said to her when she got those keys? A. We sat down in the parlor; I had ascertained that there was a safety deposit box somewhere, and I ascertained from her that she had the keys, and I asked her to give them to me, and she refused to do so, claiming that they belonged to her, and that the stuff in the box belonged to her, and I said, ‘Wlmt did Mr. Medley say when he gave them to you ? ’ and she replied that he called her to him
Re-Direct Examination by Mr. Guthrie-.
“Q. Now, do you know how that safe deposit company regularly transacted its business with its customers — that is, whether the renter or lessee of the box would have to get the custodian of the key, of the general key, to come and use that, in order to enable him, the box owner, to get in? A. Well, you ask me if I know; I was there on one-other occasioh in another matter, and the same procedure was gone through with; there were two keys; those are the only two times I was ever in that safety deposit place.” .
Direct-Examination by Mr. Guthrie:
“Q. What relation do you sustain to the Kansas City Safe Deposit Company? A. Assistant manager. That is, the Safe Deposit Company of Kansas City. Q. Did Mr. John Medley have a box rented in your vaults at the time of his death? A. He did. Q. Will you kindly now, in your own way, describe to the jury how that business is managed and how the boxes are controlled. A. Well, just what part of it? Q. Well, in the first place, these boxes are lock boxes arranged in tiers, intended for the preservation and care of valuable papers and valuable articles? A. Yes, sir. Q. And you rent them — your company rents them to people who want such places of security? A. Yes, sir. Q. Those boxes are kept inside of a locked vault, are they not? A. They are. Q. And an attendant admits the person applying, apparently entitled to apply, from the outside through the vault door into the vault where the boxes are? A. Yes, sir. Q. Then each of these boxes has a set of co-operating keys; the box owner, or lessee, has his keys, which, however, in case of loss could not be used to open the box, but in order to get in—
“Mr. Tichenor (interrupting): Hadn’t you better sift a little of this testimony from the witness? I would rather have him explain it than you.
“Q. Very well, when a man comes there, now, a box owner, to get into his box for any purpose, what course of procedure is gone through? A. Well, he first comes, of course, into a room; then we have a steel grill work that we don’t admit him to, unless we know him; he comes in to the door; he is admitted there possibly by the porter, or by the person in charge, and then, unless we know him to be a customer, he is not allowed to go into the vault; whenever he goes to
Cross-Examination by Mr. Tichenor:
“Q. Is there anything on that key — anything to indicate that it belongs’ to your company, so that if anyone would pick it up, they would know? A. No, sir. Q. Nothing to identify it as being a key to any box in your company? A. No, sir. Q. In your safety deposit vault? A. Yes, sir. Q. Now, is there anything else that is necessary to get into the vault — to get into the box? Is there any such thing as a password? A. Yes, sir. Q. Can you turn to the book here in this case? (Witness indicates upon book.) Q. Now, just tell the jury, if you please, about this pass-word, what is the object and purpose of it? A. It is to thoroughly identify the party. When a party — do you wish me to explain? Q. Yes. A. When a party comes in to rent a box, we show them the boxes, show
“Mr. Tichenor: I would like to introduce that in evidence.
“Q. No. 9221. What does that number mean ? A. It is the check number. It corresponds with the number of the receipt which was given to the customer. Q.
Re-Direct Examination by Mr. Guthrie:
“Q. Mr. Mitchell, a number of your customers have agents who transact their business for them regularly, do they not? A. How is that? (Question read by the Reporter.) A. . Tes, I should say so. Q. Take in this case, assuming, by way of ■ illustration, that Mr. Medley was a man of some means who loaned his money and took many securities and had an agent like Mr. Harrison who made those loans for him and collected the moneys as they came due, and collected the-interest coupons, and all that sort of thing, in many-of those cases the box owner who really owns what-is in the box executes this power of attorney té' his-agent and gives him one of the keys so", he can have access whenever it is necessary- in the transaction of his:
Re-cross examination by Mr. Tichenor:
“Q. Mr. Harrison couldn’t have gone in there unless he had brought the letters of administration, could he? A. Certainly not. Q. Even though you had known he had been his agent in making loans. A. Yes, sir. Q. Now, these receipts that yon give, there seems to be something torn off here. What is originally attached to that? A. The receipt gives- the date the box was rented— Q. (Interrupting) I know, but the receipt that is given to the renter, that is' attached to this stub, isn’t it? A. Yes, sir. Q. This receipt that Mr. Medley got was originally attached right to that stub? A. Yes, sir. Q. That I have read here in evidence? A. Yes, sir; you will find the instructions to the renter on the back of that receipt. Q. The instructions are just the same now as they were back in 1903, are they? A. Just the same; never been changed. ’ ’
Here the plaintiff rested her case, and thereupon counsel for defendant asked an instruction in the nature of a demurrer, telling the jury that their verdict must be for the defendant. This instruction was refused, and defendant duly excepted.
Defendant’s Evidence.
J. S. Harrison, the defendant, called as a witness in his own behalf, testified as follows:
“Q. Mr. Harrison, you are the defendant in this case? A. Yes, sir. Q. What interest have you in this property here sued for? A. Nothing, except as administrator. Q. How did it come in your hands? A. It came into my hands by my appointment as administrator. Q. After you had been appointed and qualified? A. Yes, sir. Q. Now, is there any of these notes that are sued for here — were any of them in your possession and not in the possession of the safe deposit company at the time Medley died? A. Yes, sir; four of them. Q. What were they? A. They were a note for $1000' given by St. John, a note given by Barnard for $1000, note for $1000 given by Alice Geary, and then one note of $750 given by the Phelpses. They were in my safe for some time before Mr. Medley’s death. Q. How came you in possession of those notes — to be in possession at the time of Medley’s death? A. They were left with me some time before his death,; it was his custom to bring the notes in there some time before the payment of interest ■ was due and leave them with me for the payment of interest. Q. How long was it before he died — was he over often to see you in Kansas City? A. Yes, he came most every week when he was at all- well; very few weeks elapsed? A. How long had you been his agent? A. Since 1871. Q. Since 1871? A. Yes, sir, 35 years. Q. How long was it before he died that you saw him over here? A. 1 can’t recall the time that he was over here; it may have been something over two weeks. Q. Something over two weeks? A. Yes, sir. Q. Well, now, did you go over to see him during, his last illness, if so, when did you first go there? A. I was called over there by one of the Foley family the evening of Saturday, the 15th of September. Q. What time did you go over there? A. Why, it was some time between eight and nine
• “The plaintiff took my deposition. I began domg business for-Mr. Medley in 1871, and continued to do so until his death. I kept all of his papers in my safe from 1871 to 1903, when he rented the safety vault box. I went over to see him during his last sickness because he was an old customer of mine, the oldest I had, and I knew him intimately for years, and we were mutual friends. I heard him speak of his brother once or twice durmg the years I knew him. Said they had been in business together in the oil fields of Pennsylvania, m an early day. The cooperage business. He was a quiet, reticent man and talked but little about his business. Never heard him talk of Foleys except as to one member. I heard him speak very frequently
“The first I ever heard of plaintiff’s claim to the property was on the day I went over there after Mr. Medley’s death, Friday. I did.not ask Mrs. Foley for the keys that day, not until after I had been appointed administrator. That was Monday following his death.
“Q. Well, now, did she know what those keys belonged to? A. I don’t think she had a conception of what a safety deposit box was, for I explained to her, and she said Mr. Medley had the keys. She did not know where the box was, or to what the keys belonged until I told her they were the keys to the safety deposit box, and that it was located in the same building with my office. I invited her to come over and be present when the box was opened. She came over. She wanted to be there because both of us suggested that there might be a will, and she said she would like to be there when it was opened. I notified her of the time and she came.”
On cross-examination:
“I asked plaintiff for the keys after I had been appointed administrator. She declined to give them to' me, and said she had ‘been advised to hold to the keys, ’ was her expression. I had a talk with Mr. Alden, the Kansas administrator, about the keys. He got them from her and I got them from him.
“Joseph Medley, the brother, learned of John’s death through letters written by Mr. Lorie, at my suggestion. I knew he was in the oil regions, so had letters written to several towns in that district, and received a reply from him from Titusville, Pennsylvania. I did not learn from Mr. Medley the address of his brother.
“Medley had but few social acquaintances. He was measurably firm in his opinions, but frequently I would bring him around to my way of thinking as to
“I went to Dr. Milner’s office, the attending physician, and with his and the Foleys’ consent, I had a trained nurse sent to wait upon Mr. Medley.
“Don’t think he had any debts.”
Joseph Medley on behalf of defendant, testified as follows: “Am a brother of John Medley, deceased. I had not seen him for thirty-six years. I live in Titus-ville, Pennsylvania, and have lived there ever since 1861. I last saw John in July,. 1870-, when he left Pennsylvania to come back to Missouri. Both of us had been in Missouri in 1869 — came out here to buy land and go into the stock business. We went to Pettis county, and had some trouble in getting the title straightened out. We paid five dollars an acre for a thirty days’ option on the land. The lawyer thought it would take two months to do that, so we went back to Pennsylvania. In about a month we heard from the lawyer and he said the title could never be fixed up, so brother came back here for the purpose of looking after other land; and after being here about a month he wrote me this letter.
“ ‘Sedalia, August 11, 1870.
“ ‘Dear Brother: I received your letter the 1 of Aug. Both no news, it must be'werey scaires. I and D. titus and Loucks are a going out to Saline County this week to louk at this land. Titus Payed five Dollars for the Refusal of this land for thirty days. He wants 80 acres of it. Loucks wants forty or Eithey acres of it and there it only 3201 acres of it all in one peiee and all viled land. The North east fence and the South east fence is Build or up so it would not tack
“ ‘yours truly, John Medley.’
“Q. At the time your brother came back here to Missouri with the Titus family in 1870 had there been any difficulty of any kind between you? A. No, sir, there never-was. Q. Did you owe him any money? A. No, sir. Q. Had there been any words or any feeling at all between you at that time? A. No, sir, there never was any hard feelings between us. Q. Did you try to locate your brother after he came out
Cross-examination by Mr. Boyle:
,“Q. Mr. Medley, was your brother older than you or younger. A. No, he was four years older than I was. Q. Your brother was a man who told the truth, was he not? He was a very truthful man? A. He was. Q. And a very just man, was he not? A. Yes, he was a just man. Q. A good man? A. He was a good man. Q. D'o you'know why your brother would tell others that you owed him money and that you hadn’t treated him right, if that was not true? Do you know why he would-do that, Mr. Medley? A. No, I wouldn’t know why, but I don’t believe he ever did. Q. You know Mr. Harrison here? Do .you know his administrator? A. Yes, I know him since. Q. Do you know why your brother would tell him you owed him some money and wouldn’t pay him? A. I can explain that to you probably. Q. I wish you would. A. We had bargained for two acres of land
Re-Direct Examination by Mr. Lorie:
“You wrote to me to attend to the tombstone? A. I wrote to you, and I didn’t come out here until about a week or ten days ago, ain’t it? Q. Yes, sir. A. That is the first time I have been here in this city. ’ ’
Re-Gross Examination by Mr. Boyle:
“You have been here now how long? A. Maybe a week or ten days; we came on Monday, I guess. Q. What have you been doing during that time? A. I have been boarding out here. Q. You haven’t stayed there all the time? A. No, sir. Q. Where have you
Re-Direct Examination by Mr. Lorie:
‘ ‘ Q. You told Mr. Harrison here you wanted him to take you over there and show you where your brother’s grave was, didn’t you? A. Yes, sir. Q. You also wrote to me that when you came out here you wanted to see about having your brother’s body moved to Pennsylvania, didn’t you. A_. I wrote out here if I could get his body, the first letter we wrote to, you, if I could have his body if I came out, whether he died of any contagious disease or not, and you said I could have his body; I told you I would come as soon as my health would permit me; I wasn’t able to come.”
Re-Gross Examination by Mr. Boyle:
“Q. Why didn’t your brother write to you? A. Well, that is one reason I can’t give you. Q. Why didn’t you write to him? A. Because I didn’t know where he was. Q. Your brother knew where you were, didn’t he? A. Well, I believe he did; certainly he did; because he left, and he knowed where he left me.”
George Tucker, in rebuttal, testified that he saw Medley during his last sickness and discussed some business matter, and that he seemed to be perfectly rational.
Dr. Milner, the attending physician, also testified, in rebuttal, that he thought Medley was rational during his last sickness.
OPINION.
I. Counsel for appellant have made no assignment of errors, save those mentioned in conhection with the points and authorities made and cited in their briefs.
It- is first insisted that the new trial was not granted because the verdict was against the weight of the evidence, but -on account of the insufficiency of the evidence.- We. are unable- to ascertain' from this record upon what that insistence is predicated. The order sustaining the motion for -a new trial contains no such recital, but upon the contrary it affirmatively appears therefrom that the new trial was granted ‘ ‘ for the reason that the plaintiff is not entitled to recover. ’ ’
The trial court might very well have concluded from the entire record that the verdict was against the weight of the evidence, as well as that the evidence ’ was insufficient to support the verdict. If from the former, then this court should not disturb that ruling, for the reason that the question of granting a new trial on account of the verdict being against the weight of the evidence should be exclusively exercised by the court trying the cause; and where the trial court is of the opinion that the verdict is not supported by the evidence or is against the weight of the evidence, it should never hesitate in exercising its power and grant the aggrieved party a new trial. [Reid v. Life Ins. Co., 58 Mo. 421; Loevenhart v. Railroad, 190 Mo. 342.]
The conclusion thus reached, if standing alone, would result in an affirmance of the order and judgment of the circuit court granting the respondent a new trial; but to stop here would leave undetermined
II. This brings us to the consideration of the real question raised by this controversy, and to be decided by this court, namely: what constitutes a valid donatio mortis' causa; and whether the evidence introduced by appellant comes up to the legal requirements necessary to establish such a gift by John Medley, the alleged donor, to Elizabeth Foley, the alleged donee?
I am unable to ascertain the exact period when this species of conveyance of personal property was first recognized by law. Its origin, however, is of great antiquity. Justinian embodied it in his Institutes, and it seems to have been in existence among the G-reeks at a much earlier date. However, whatever may have been its origin, or the date thereof, it is quite clear that we borrowed it from the English Common Law, and the English borrowed it from the Roman Civil Law. In order, therefore, to acquire a clear 'and full perspicuity of this gift and of the law governing the same, it is quite essential that we briefly, at least, review the civil and common law applicable to the subject, also the limitations that were placed upon it when we adopted the Common Law of England in this .country. Without such a review it would be absolutely impossible to reconcile or understand the apparent conflict of authority existing upon the subject.
Beginning on page 218 of Hammond’s Edition of Justinian’s Institutes, in a note,.it is said: ■
“1. A donation mortis causa is that which is ■made to meet the case of death, as when anything is given upon condition that, if any fatal accident be-' ■>■ falls the donor, the person to whom it is given shall have it as his own; but if the donor should survive, or if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given. These donations mortis causa' are now placed exactly on the footing of legacies. It was much doubted by the jurists whether they ought to be considered as a gift or as a legacy, partaking as they did in some respects of the nature of both; and some were of opinion that they belonged to the one head, and others that they belonged to the other. We have decided by a constitution that they shall be in almost every respect reckoned amongst legacies, and shall be made in accordance with the forms our constitution provides. In short, it is a donation mortis causa, when the donor wishes that the thing given should belong to himself rather than to the person to whom he gives it, and to that person rather than to his own heir. It is thus that, in Homer, Telemachus gives to Piraeus:
‘ ‘ ‘ Piraeus, for we know not how these things shall be, whether the proud suitors shall secretly slay me in the palace, and shall divide the goods of my father, I would that thou thyself shouldst have and enjoy these things rather than that any of those men should; but
Continuing on page 219, the author says:
“■There are two essential conditions of a donatio mortis caMsa\: it must be made with the view of meeting the case of death; and it must be made to take effect only if death occurs, ánd so as to be revocable at any time previous, and to fail if the recipient died before the giver. The donor might, however, at his pleasure, alter the character of the gift, making it irrevocable, but it was always dependent on the recipient outliving the donor.
“It might be made conditional upon death in two ways. The donor might say, I hand you over my liorse, but the gift is only to be complete if I die in this enterprise; or he might say, I give you my horse, if I survive this enterprise you are to give it me back. In the latter method, the delivery of the thing is made at once, subject to a conditional redelivery; in the former the delivery is made conditional. The donation might also be sometimes made conditional upon the death of a third person, as if a father promised to give to his daughter-in-law in case of the death of his son. All who could make a testament could make a valid donatio mortis catusa; and all who could receive under a testament could accept one. Every kind of thing could be given in this way. Justinian, in the constitution referred to in the text, required that a donatio mortis causa should be made in the presence of five witnesses.
“If the gift was made in the first of the two ways above mentioned, although there was delivery, yet the thing was only acquired on the death of the donor, and the donor not having ceased to be domimis could therefore, if he revoked the gift, bring a real action to reclaim the thing handed over. If the gift was made in the second way, the whole property passed at
“If the donor was insolvent at the time of his death, this was considered as an implied revocation of the gift. ’ ’
Even at that early date a distinction was drawn between this class of gifts and legacies. In the consideration of this distinction, it is stated in Moyle’s Comments on Justinian’s Definitions, page 222, note 1, that such gifts occupied a position “midway between legacies and gifts inter vivos. In that it consists in a present act of bounty, it differs from a legacy, which confers no right whatever on the legatee until the testator is dead, and his heir has accepted the inheritance. Here if the donee outlives the donor, the thing given never goes to the heirs at all. It differs from the latter in being absolutely perfected only-by the donor’s decease. The gift may be made so conditional in that event that the property in the gift does not pass to the donee until its occurrence. In the meanwhile he has only its use and enjoyment. Or the property may pass at once, subject to the understanding that it is to revert to the donor in case of his proving the better life. ’ ’
The foregoing quotations briefly outline the civil law as it existed under the Roman Empire prior to its adoption by the English government.
The early English courts in adopting the civil law were not uniform in their rulings upon this subject.
The clearest and most concise review of the conflict between the English cases which I have been able to find is found in the case of Leyson v. Davis, 17 Mont. 220, 31 L. R. A. 429. On page 443 Hunt, J., in speaking for the Supreme Court of Montana, said:
“Inasmuch as the appellant founds his discussion of the description and nature of donationes causa mortis upon Swinburne, who wrote in the latter part of the sixteenth century upon the civil law, we give that commentator’s definition: ‘ One, when the .giver is not terrified with fear of any present peril, but moved with a general consideration of man’s mortality, giveth anything. Another, when the giver, being-moved with imminent danger, doth so give that straightways it is made his to whom it is given. The third is when any being in peril of death doth give something, but not so that it shall presently be his that received it, but in case the giver do die.’ [Swinburne, Wills (Powell’s Ed., 1803), p. 54.] The earliest decisions, next after Swinburne’s text, to which we have accessible reference, begin with Drury v. Smith, 1 P. Wms. 405, where Lord Cooper, in 1817, held that, where a testator, in his last sickness, made a gift, and the possession was transmuted to his nephew, it must be upheld, because ‘he might in his lifetime, after the making- of his will, give away any part of his estate absolutely, and by the same reason might, notwithstanding the will, give away any part thereof conditionally, and this gift being so fully proved,’ was held to be a donatio mortis causa. That a delivery
“Advancing, next, to the time of Blackstone, that commentator treats this species of gift as ‘another death-bed disposition of property,’ and thus defines it: ‘And that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods (under which have been included bonds,
The great weight of authority in this country is against the definition given by Swinburne in his treatise upon the civil law, and is in harmony with that announced by Blacksto'ne, as will appear from the following quotations taken from the text-writers and adjudications.
Judge Story defines such a conveyance to be “a gift of personal property by a party who is in peril of death, upon condition that it shall presently belong to the donee in case the donor shall die, but not otherwise. To give it effect there must be a delivery of it by the donor, and it is subject to be defeated by his subsequent personal revocation, or by his recovery or escape from the impending peril of death. If no event happens which revokes it, the title of the donee is deemed to be directly derived from the donor in his lifetime, and therefore in no sense is it a testamentary act.” [Story, Eq. Jur., sec. 606.]
Judge Kent in treating of this gift says: “Gifts causa mortis have been a subject of very frequent and extensive discussion in the English courts of equity. Such gifts are conditional, like legacies; and it is essential to them that the donor make them in his last illness, or in contemplation and expectation of death; and with reference to their effect after his death, they are good, notwithstanding a previous will; and if he recovers, the gift becomes void. The apprehension of death may arise from infirmity or old' age, or from external and anticipated danger. The English law • on the subject of this species of gift is derived wholly from the civil law. Justinian was justly apprehensive of fraud in these gifts, and jealous of the abuse of them, and he required them to be executed in the presence of five witnesses. We have not adopted such precautions; though it has been truly declared that
At an early date the Supreme Court of Connecticut in defining such gifts' in the case of Raymond v. Sellick, 10 Conn. 484, said: “That species of donation is derived wholly from the civil law, and is where a person, in his last sickness, apprehending his dissolution near, delivers to another personal property, under which have been included bonds payable to the donor, and bank bills, to keep in case of the donor’s death. Three requisites are necessary to constitute a gift of this sort. (1) It must be made by the donor in contemplation of the conceived approach of death. (2) It must be given to take effect only in case the donor dies. (3) And there must be a delivery of the subject of the donation. It is essential that the condition of its not passing while the donor lives be included, otherwise it will be a donation of another kind, namely, a donatio inter vivos. It differs from the latter in several respects, in which it resembles a legacy. It is ambulatory, incomplete and revocable during the donor’s life. The revocation may be effected either by the recovery of the donor from his disorder, or by taking back the possession of the property. It can be made to the wife of the donor. On the other hand, it differs from a legacy in several particulars. The
Mr. Pomeroy in his excellent work on Equity Jurisprudence, after a careful and most exhaustive review of the authorities, defines these gifts as follows: “A gift absolute in form made by the donor in anticipation of his speedy death, and intended to take effect and operate as a transfer of the title upon, and only upon, the happening of the donor’s death. Between the time when the gift is made and the article donated is delivered, and the time when donor dies, the donation is wholly inchoate and conditional; the property remains in the donor, awaiting the time of hi's death, and passes to the donee when the death, in anticipation of which the gift was made, happens, unless the donation has in the meantime 'been revoked by the donor; the donee thus becomes a trustee for the donor, with respect to the article delivered into his possession, until the gift is made perfect by the donor’s death. The gift must be absolute, with the exception of the condition, inherent in its nature, depending upoq the donor’s death, as above described, and a delivery of the article donated is a necessary element; but it is subject to revocation by the act of the donor prior to death, and is completely revoked by the donor’s recovery from the sickness or escape from the danger in view of which it was made.” [3 Pom. Eq. Jur. (2 Ed.), sec. 1146.] See, also, 2 Beach, Mod. Eq. Jur. sec. 1061; Grymes v. Hone, 49 N. Y. 21; Michener v. Dale, 23 Pa. St. 63; Story, Eq. Jur. pp. 599, 604; 2 Schouler, Pers. Prop. secs. 135, 138; Thornton, Gifts, sec. 21; Croswell, Exrs. and Admrs. sec. 620.
Under this evidence there can be no doubt but what the appellant had the possession of the keys to Medley’s safety deposit box just after, if not before, his death; and since there is evidence tending to show* that Medley had given them to appellant during his lifetime, and that she accepted the same as symbolic delivery of all his money and effects contained therein, we will, for the purposes of this question concede that evidence to be true, but will reserve for future determination the second proposition, whether or not there was in fact a gift of the property made by Medley to the appellant.
Under that concession we are confronted with a delivery, and an acceptance of the keys by appellant at the time of their delivery, with the intention on the part of Medley to make a complete gift of the money and securities. Does that, in law, amount to a delivery of the money and securities contained in the box to appellant? The subject of the gift was money and promissory notes, secured by deeds of trust on various pieces of real estate situate in Kansas City, Missouri. There is no pretense that- there was a physical delivery of any of this, property to appellant or that any of the notes or deeds of trust were indorsed or assigned in writing, or that the safety deposit company, in whose vault the money and notes were deposited, was notified of the gift, or that it assented thereto. Upon that state of the record, the question materially presents itself, can the possession of money and promissory notes be so transferred and thus become the
Before passing to the consideration of the authorities of this country specially applicable to the ease at bar, it will not be out of place to suggest that the 'common law of England bearing upon this question was never in force in all of its provisions in any of the States of this country. In the consideration of this subject Mr. Justice McLígan, in Wheaton v. Peters, 33 U. S. 659, said: “No one will contend that the common law as it existed in England has ever been in force in all its provisions in any State of this Union. It was adopted so for only as its principles .were suited to the conditions of the Colonies; and from this circumstance we see that what is common law in one State is not so considered in another. The judicial decisions, the usages and customs of the respective States, must determine how far the common law has been introduced and sanctioned in each.”
In Commonwealth v. York, 9 Met. 93, Chief Justice Shaw said: “As this is an unwritten law, we must seek for the evidence of it in judicial records, precedents and decisions, and those digests, treatises and commentaries of learned and experienced men, which have acquired respect and confidence by long usage and general consent. If we consult English decisions made since the Revolution, it is not because they have any binding force as rules, but because they-are exxjositions of the rules and principles of the common law, by men of great experience and judgment in the knowledge and application of the same laws which we are seeking’ to expound. And if we read the digests
On aeonnt of the nature of the questions presented by this record, it will be more convenient, if not more orderly, to consider first the contentions of counsel for respondent; and after that we will consider the propositions presented by counsel for appellant.
As previously stated, counsel for respondent contend that the delivery of the keys to the safety deposit box by Medley to appellant, accompanied with the declaration that whatever there was in the box belonged to her, did not constitute a legal delivery to her of the contents thereof; and for that reason the alleged gift of the money and notes to appellant was illegal and void, and, consequently, the trial court properly granted him a new trial. Or, to state respondent’s position practically in the words of his counsel, it is as follows:
“That in order to make a gift of a bailment valid there must be notice of the gift given to the bailee, and an assent thereto by him, and without such notice there can be no constructive delivery; that a deposit 'of money or other valuables in the hands of a third person for safe-keeping gives the owner a mere right of action therefor, and that an assignment thereof in writing or some instrument equivalent thereto is necessary to perfect a delivery thereof, which assignment must be accepted by the third party; that no right of action- accrues against a bailee until after demand made upon him unless lie has converted, or negligently
The case of Ward v. Turner, 2 Ves. Sr. 430, is the most important case relied upon by counsel for respondent. As before indicated, this is the case'upon which is practically bottomed all the cases relied upon by counsel for respondent, and is the index to their true meaning; and for that reason we feel justified in quoting liberally therefrom. The name of the donor in that case was Fly and the donee was one Mosely. The case made by the plaintiff was this: “Pie was executor of Mosely, who was related to Fly by affinity, having married his aunt; that Fly had great obligations to Mosely, who took care of him in his infancy; and at his house Fly used to come from school, when it broke up; and afterward Mosely, who in the latter part of his life appeared to be in very mean circum
“There are two general questions. What is the weight and strength of the evidence M point of fact? Next, the result of that evidence in point of law, or the law arising on this-fact?
“As to the first, and'as to the conviction arising therefrom, there is, to be sure, very strong evidence on the part of the plaintiff of Fly’s general intention of bounty, which is not to be disputed; but as to evidence of the-particular gifts, I cannot help taking notice, that the declarations relied on by the plaintiff to prove them are all made to persons of extreme low degree, his porter, barber, etc. It is observable, also, that Fly was bred an attorney; had some property; some real estate; was a man of business; and must be presumed, from his profession and education, to know something of what the law required to make a will; and certainly it would be more easy for him to have made a will in writing, than to have taken all these several steps to give away these parts of his estate. It is, likewise, observable, that the behavior of Mosely, and Ms declarations after the death of Fly, are some impeachment and weakening of the plaintiff’s evidence ; for it is extraordinary, that, if he thought himself entitled, he should not insist upon these goods being Ms own instead of suffering them to be taken away and assisting therein. At the same time, if I was to ground my opinion upon any objection to the evidence in point of fact, I should not determine it, but send it to be tried; for this is as proper a case to be tried as any other. It is not insisted upon by the plaintiff as a testamentary cause; for if he was to insist on that, it would overturn Ms demand, as he has no probate; but is insisted on as a donation mortis
“The relief sought is founded upon these gifts being good donations mortis causa.
“First, as to any specific parts (if they may be so called) except the annuities. They are clearly not good (as I declared at the hearing), there being no pretense of any delivery in any shape whatever. They are so general, as, in my opinion, if they prove anything, prove an intent to make a nuncupative will of all his personal estate (this is, exclusive of annuities), saying Mosely, I give you all the plate and goods in this house, or, if I die, all are yours; but nothing was delivered. It is said, he had possession by living in the house, and did not want delivery; but he lived as a servant who had no possession; so that if a servant had them in custody, it would be a possession for his master. The other declarations are not only of the goods, but of all money and arrears of rent, and to extend almost to everything; consequently there is no ground to carry it so far; and it is impossible to support any of these gifts in prospect of death, as I have declared already.
“Next, as to the gift of this annuity. If the witnesses deserve credit, it is strong evidence of a general intent of bounty; but it rather turns against the plaintiff, for it shows a general intent to give the whole to Mosely, by making a nuncupative will or wills, at different times. If that was to be admitted to support these several gifts as so many donations mortis
“But notwithstanding this, several books in the civil law import the contrary; particularly Vinius in his Comment, lib. 2, tit. 7, sec. 1, numero 2; 1 Cobaruvius, rub. 3; and Voet on the Pandect, same chapter, num. 3 and num. 6, which passages show the different expression and opinions, some importing a delivery, others not. I have mentioned them to come at that which seems the distinction reconciling them all, according to what is laid down by Voet (num. 7), that they did not require an absolute delivery of possession to the. first or third kind of gift I have mentioned; but in the other case, where the property was to pass immediately, it was required; which is the meaning of the expression in Yoet, in mortis causa donatione dominium non transit sine traditions, and of that other expression in Yoet. With this distinction these passages in the civil law are properly reconciled. Though I know these donations mortis causa Could never come directly in question in the ecclesiastical court, they might collaterally; and on these two heads I inquired whether there have been any cases there upon this: viz., in suits .against an administrator on account of assets by the next of kin, where the administrator had insisted he could not administer such a part; because it was given mortis causa-, or if there is a will, in which there are specific legacies, and one of those legacies he had given in his life by way of donation mortis causa, there it might come in question in the ecclesiastical court; but I cannot find it has. The nearest case to it is Ousley v. Carroll, June, 1722, in the Prerogative Court before Dr. Bettesworth. There was left a writing in presence of three witnesses, not
“Another case is Miller v. Miller, 3 P. Will. 356; which is a very strong case, so far as that opinion goes, to require delivery; which case, I believe, was hinted at as inconsistent with my decree; but there is a great difference between delivery of a bond (which is a specialty, is itself the foundation óf the action, and destruction of which destroys the demand) and the
‘ ‘ The bill ought to be dismissed therefore without costs, as to the demand of these annuities, or any other part of the intestate’s estate by way of donation mortis causa.”
By here presenting the leading case relied upon by counsel for the other side, and upon which all the authorities cited by them are buttressed, the leading idea running through the authorities cited by both parties will be readily seen and better understood as they are considered. That ease is the case of Duffield v. Elwes, 1 Sim. & Stu. 243. That was an action where the defendant was possessed of a certain bond, covenanting to pay a certain sum of money, which was se-cured by a mortgage upon real estate to secure the money mentioned in the bond. He also had another mortgage calling for a larger sum. The second was dated November 3, 1820. It recited that $30,000 had been advanced upon the mortgage by Sir Sandys to the prior mortgagees, and further secured by a bond, and a'judgment recovered, and that the mortgagees had called in the money. It was witnessed, in consideration of the $30,000 advanced by Elwes to Sandys to pay off the mortgage, that the money and judgment were assigned, and certain realty was also conveyed by mortgage from Sandys to Elwes to secure the $30,-000. The latter, when on his death-bed and unable, to write, stated that he gave the bond and mortgage,
Upon that state of the record, the Vice-Chancellor held that the gift was not complete as a gift inter vivos. But upon appeal, in the House of Lords, Lord Eldon, after citing the authorities, observed: “Lord TIardwtcke is clearly of opinion that the delivery of a bond as a specialty would do ,• and if, then, the debt is well given by the delivery of the bond, the next question is, what are we to do with the other securities which are, or not, delivered over? In the present case the bond, the assignment, the covenant and all the deeds are delivered over in such manner that the representatives of the donor could not get at them; and the question is, whether, considering the difference between an absolute estate in land and a mortgage, the same principle does not apply in the case of -a mortgage as'in the case of a bond. Upon the whole, I am of opinion that the delivery of these securities is a good donatio mortis causa, as raising a trust by opération of law; and that, as so raising a trust by operation of law, they are not within the provisions of the Statute of Frauds.” [1 Dow. & C. 14.]
Practically all of the commentators, text-writers and leading courts of this country and of England recognize that ease as the turning point in the English law governing the transfer of property susceptible of delivery; and Lord Hard wickeds differentiation between the delivery of property and the delivery of the evidence thereof has practically lost its potency.
Under the light of those two leading cases (the-former expounding the Lord Hardwicke rule, and the latter the rule announced by Lord Eldon; we should be enabled to read as we run and understand the authorities cited by counsel for the respective parties.
As previously suggested, we will briefly consider
In the case of Thomas v. Thomas, 107 Mo. 459, the husband sold land and had the note for the purchase money made payable to and delivered to his wife, and at the same time the purchaser took back from the husband a contract by which he reserved the right to reconvey the land to the husband and have his note returned. After the death of the husband, the purchaser exercised his right under the contract and conveyed the land to the wife in consideration of the surrender of the note. The mother, brothers and sisters of the deceased brought a bill in equity against the wife to cancel the deed conveying the land to her, for the alleged reason that the deed was without consideration, and was made at a time when the husband was in extreme health, not expected to recover, and with the express agreement with the purchaser that if he recovered the land was to be reconveyed to him; and, if not, then he was to convey it to the plaintiff’s heirs-at-law. In passing upon that case, this court said:
“I. In order to constitute a valid gift of personal property, it is essential that it be delivered by the donor to the donee, or uome one for him, with the intention on the part of the donor to part with his right in and dominion over the subject of the gift, and that it be accepted by the donee, whose ownership must take effect immediately and absolutely, leaving nothing essential to he done in the future. [8 Ency. Law, 1313, and authorities cited; Spencer v. Vance, 57 Mo. 429.]
“II. It is the settled law in this State that gifts from husband to wife, where all the necessary conditions to their validity have been performed, will be upheld and enforced in equity. [Welch v. Welch, 63 Mo. 57; Botts v. Gooch, 97 Mo. 90.]
“The fact that the purchaser of the land from her husband took back from him a written agreement, by which he retained the right to convey the property and have his note returned to him, we do not think made the gift depend upon any future contingency by which it could have been defeated. It would have been more satisfactory, certainly, if the agreement had been before the court, or its contents more definitely given, but as Dr. Winkler made the deed to defendant, we must assume that the writing so directed, and that the husband retained no rights in either the note or contract, which could, thereafter, have been asserted by him.”
That case was clearly decided correctly, for the reason that the note was not only payable to the defendant, but there was an actual delivery of it to her also during the life of the husband, the donor.
In Allen-West Commission Co. v. Grumbles, 53 C. C. A. 401, the defendant owned one hundred and ten shares of stock in a corporation, and in May, 1899, he delivered a written assignment of his interest in the business to his wife, at which time he was out of debt. The defendant retained the possession of the certificates of stock, and voted them and received the dividends upon them until February, 1903, when he became heavily involved. He then transferred the stock to his wife by indorsing and delivering the certificates to her. In a suit by a creditor, challenging the validity of the transfer of the stock to defendant’s wife, it was held by the United States Circuit Court of
That case was also correctly decided, for the reason that the gift was invalid under both the Lord ITaedwicke and Lord Eldon rules; there being neither actual nor constructive ■ delivery of the certificates of-stocks, until after the defendant became insolvent.
In the case of Spencer v. Vance, 57 Mo. 427, this court held' that to constitute a valid parol gift of personal property, there must be a giving and an actual transfer by words, and not mere words that would only signify an intent to transfer in the future.
In Tomlinson v. Ellison, 104 Mo. 105, it was held a delivery of a gift cmsa mortis might be made to one person for the benefit of another. But a delivery by the donor to his agent of a document as evidence of title to certain promissory notes and money given by the donor to his brother to be placed among the donor’s other papers in the agent’s possession, without direction to delivér them to the donee, the instrument remaining in the agent’s hands, until after donor’s death, would not constitute a delivery of the notes and money to the donee, the brother. In that case, it should be observed, there was neither an actual delivery of the notes and money nor was there a delivery of the document which was designed as evidence of title to said notes and money. So that gift could not be maintained under either the Lord'Hard-wick® or Lord Eldon rule.
In School District v. Sheidley, 138 Mo. 672, it. was held, that the execution of a promissory note, whereby the maker promised at a future date to pay the district a certain sum of money, without consideration, with which to purchase a library, was not a valid gift, for the reason that it was essential to a voluntary
The case of In re Estate of Soulard, 141 Mo. 642, involved the validity of a gift evidenced by the following writing:
“St! Lonis, October 4, 1887.
“I, Harriet M. Sonlard, by the power vested in me by a general power of attorney dated January 23, 1885, and given to me by my husband, Henry O. Sonlard, on the above date, now by the power vested in me I hereby give to my two grandnieces, Edith M. and Harriet M. Frost, the following described notes, or any reinvestment of the principal of the same that may be hereafter made: One note made and payable by Asby A. Chouteau for the use of thirteen thousand dollars; one note made and payable by James A. Con-Ion for three thousand and five hundred dollars, and the sum of three thousand five hundred dollars out of two certain notes made and payable by Louise Ottenad, making in all the sum of twenty thousand dollars, share and share alike; that is to say, ten thousand dollars to the use of Edith M. Frost, and ten thousand to the use of Harriett M. Frost, reserving, however, for my own use during my life the income or interest from said notes, and restraining them from making any disposition of the principal of said notes during my life, and also reserving the.right to reinvest any money from the payments of these notes as to me may seem fit. ' “Henry G-. Soulard,
“By Harriet M. Sotjlard, Attorney in Faqt.”
The court held first, that the instrument did not create a valid gift, because the transaction was not an executed, absolute unconditional transfer of the,property, the donees taking no present unconditional title.
In the case of Trenholm v. Morgan, 28 S. C. 268, a memorandum disposing of certain personal property to different individuals, made by a testatrix after making her will, was called for by her on her death bed, and delivered to her sister with the request that it be carried out as her will. ' Most of 'the donees, as well as the articles mentioned in the memorandum, were not present at the time. In passing upon that question, the Supreme Court of South Carolina said:
“That brings us to the main question in the case. All the other exceptions charge error of fact- and of law on the part of the judge in denying the claim of the appellant to the Hazzard bond as a donatio causa mortis from the testatrix, Mrs. Trenholm. The law allows the owner of property to declare, in his lifetime, to whom his property shall go after his death; but, in order to avoid contention, this great privilege is carefully guarded. With inconsiderable exception, all such dispositions are required to be in writing, and signed by the donor in the presence of three subscribing witnesses; and if these formalities are not observed, such attempted dispositions are void. The law also gives to the owner of property another right, and that is to give it away- — donate it; and if it is personal property, he may do so verbally, always provided the gift is completed by delivery of the article at the time of the gift, and, if so, the donation is irrevocable. But the law recognizes still another mode of giving title to personal property, which, from the circumstances that the right is only accorded to one who is in anticipation of speedy death, is called a donatio causa mortis. Being half way between a testamentary gift, and one by a person in health, it partakes somewhat of the nature of both — of a testamentary provision, in going into complete operation only after.death; and that of an ordinary gift inter vivos, in that the delivery of the
The conclusion reached in that case was correct, because Mrs. Trenholm never intended to dispose of her property by way of gift, but expressly stated that she wanted the memorandum to be carried out as her will.
In Dunn v. German-American Bank, 109 Mo. 90, a short time prior to the death of Thomas A. Dunn he handed a certificate of deposit, executed by defendant, to his brother for safe-keeping, and requested him to see that the former’s children got the money in case
To the same effect are the following cases: Snowden v. Reid, 67 Md. 130; Schick v. Grote, 42 N. J. Eq. 352; Daniel v. Smith, 75 Cal. 548; Calvin v. Free, 66 Kas. l. c. 469, 470; Gammon Seminary v. Robbins, 128 Ind. 85; McMahon v. Bank, 67 Conn. 78; Giselman v. Starr, 106 Cal. 651.
Coming nearer to the point. In Hawn v. Stoler, 208 Pa. St. 610, Mrs. Little placed $595 in the hands of Mrs. Slentz for safe-keeping, and the latter turned it over to her husband, who deposited it in a bank in his own name. Mrs. Little was very sick, and died a few days later. Shortly before her death she said to Mr. Slentz, in answer to a question as to what she should do with the money: “You gave $300 to my sister, Mrs. Hawn.” Upon that state of facts 'the Supreme Court of Pennsylvania held that the transaction did not constitute a valid donatio causa mortis, for the reason that she could not make a valid gift by word of mouth without an assignment or some instrument equivalent thereto.
. In Castle v. Persons, 117 Fed. 835, the United’ States Circuit Court of Appeals for this circuit held that a verbal assignment of a chose in action as a gift caiosa mortis, not evidenced by any note or other writing, assented to by the debtor, who promised to pay the debt to the assignee, constituted a complete gift and effectually substituted the assignee as creditor.
In the case of Beak v. Beak, L. R. 13 Eq. 489, the delivery by the donor, in his last illness, of a check on his. bankers, accompanied by a delivery of
• In Pennington v. Gittings, 2 Gill & Johns. 208, it was held that certificates of stock could not by parol merely constitute the subject of a donatio inter vivos or a donatio mortis causa.
In Moore v. Moore, L. R. 18 Eq. 474, a husband two years before his death, gave to his wife a railway debenture subsequently converted into railway stock, which remained in his name, and on which the dividends were received by him, but paid to his wife. He gave the certificates to his wife, and they remained in her possession until he required them in order to replace a lost dividend warrant. While on his death-bed he handed the certificates to his wife, and said: ‘ ‘ These are yours,” and also gave her a deposit note: Held, that the gift of the stock failed as incomplete and co aid not be supported as a declaration of trust, the intention to make an immediate gift being inconsistent with a declaration of trust. Held, also, that railway stock could not be the subject of donatio mortis causa. Held, also, that the gift of the deposit note was a good donation mortis causa.
In Searle v. Law, 15 Simmons, 95, A .made a voluntary assignment of turnpike bonds and shares in companies to B, in trust for himself for life; and after his death, for his nephew. He delivered the bonds and shares to B, but 'did not observe the for-, malities required by the Turnpike Road Act,’and the deeds by which the companies were formed, to make the assignments effectual. Held, that on the death of A -no interest in either the bonds or the shares passed by the assignment, and that B ought to deliver- them to A’s executors.
The case of Beech v. Keep, 18 Beav. 285, is one oí the leading cases of England upon this subject, and is
“By an indenture of settlement, made on the marriage of Thomas Beech .and Sarah Griffin, and dated 22d of January, 1824, a sum of £1000’ consols (the lady’s fortune), which had been invested in the names of trustees, was to be held by them upon trust, for the separate use of the wife, and after the decease of either, in trust for the survivor for life, and after the decease of the survivor, in trust for the children of the marriage, failing whom, and in the absence of any appointment'of the wife (which happened), in trust for her next of kin. And the indenture contained a power, for the husband and wife, or the survivor, to appoint new trustees.
“The marriage took effect, and Mrs. Beech died in 1826; and, thereupon, subject to the life interest of the plaintiff, Mr. Beech, the ultimate limitation took effect, in favor of the defendant, Elizabeth Keep, the only sister and sole next of kin of Mrs. Beech.
“The two original trustees of the settlement having died, Mr. Beech, the plaintiff, appointed Samuel Griffin and William Keep trustees, and the fund was transferred into, and now stood in their names. Keep survived Griffin, and died in January, 1846. The defendant, his wife, was his sole legal personal representative. No transfer was made of the fund, but the defendant, as sole executrix of W. Keep, received the dividends and paid them to the plaintiff, Mr. Beech.
“By an indenture dated 4th of May, 1848, and made between the plaintiff, of. the-one part, and the defendant, of the other part, the defendant voluntarily assigned all her reversionary interest in the £1000 stock to the plaintiff, £to the end and intent that he might be and become present and absolute owner thereof.’ The plaintiff execnted a release of even date to the defendant of all claims.
.The opinion is short but to the point, and for that reason we will copy it in full.
“The law in these cases is most undoubtedly embarrassing, but I am of opinion, that, consistently with the principles on which I decided the late case of Bridge v. Bridge, 16 Beav. 315, it is impossible that I can come to any other conclusion than that to which I came in. that case, after a careful investigation of the authorities. Referring to my decision in that case, for the statement of the principles which govern questions of this description, it only remains for me to consider how they bear upon the facts of the present case, which are very simple. There is a sum of stock which was originally placed, and is still standing, in the names of two trustees, both of whom are dead, and the defendant is the legal personal representative, of the survivor, and is, therefore, the person in whom the fund is legally vested. The plaintiff Beech is entitled to a life interest in- the fund, and, subject thereto, the defendant is entitled thereto absolutely. In this state of things, the defendant executed a voluntary assignment of her reversionary interest to the plaintiff, which he is now seeking to enforce, and she refuses to complete.
“I cannot do better than read a portion of my judgment in Bridge v. Bridge, to which I still adhere:
“I pause here to consider how these observations apply to the present case.
“Supposing this were not the case of a reversionary interest, but that the stock had been the pres
“It is clear from the statements in the bill that some further act was considered by both parties to be necessary to carry into effect the intention of the defendant, and to give the plaintiff the absolute interest in the stock; but a quaiTel having ensued between the parties, an application was made to the defendant to execute a power of attorney to transfer the stock to the plaintiff, which she refused to do. It is this which makes a very material distinction between this case and that of Kekewich v. Manning, 1 De G. M. & G. 176. There (as I pointed out distinctly in Bridge
“I admit'that there is a very thin distinction between an assignment for the benefit of a volunteer and a declaration of trust in his favor, but it is one which is to be found to have been taken in all the cases. If the absolute owner of a fund says, ‘I hold this stock in trust for A. B,’ the trust is complete; but if there be only an assignment, a different relation exists between the parties, and it would be destroying the distinction between an assignment and a declaration of trust to say that an assignment, because it may create a trust, is to be considered the same as a declaration
In Scott v. Lauman, 104 Pa. St. 593, where A executed an assignment of a certificate of deposit to B by indorsement thereon, remarking to his attorney who drew' it, that he and B had been engaged in business together and had never had a settlement; that the attorney should take the indorsed certificate with him and keep it in his safe; that it was for B. The attorney retained the certificate until after A’s death, when he delivered it to B. The court held that it was invalid as a gift for want of delivery, and as a contract for want of consideration.
In Nutt v. Morse, 142 Mass. 1, the Supreme Court of Massachusetts held the following gift invalid for want of delivery thereof: “A deposited several sums of money in a savings bank, ‘in trust’ for certain relatives of his, and told each that he had done so, saying that he could control the money while he lived, but that it was theirs after his death. He gave the deposit-books into the possession of one of these persons, wrho had charge of A’s books and papers; and A drew the interest accruing on the several deposits. About a year before his death, A said that he should not make a will; that he had provided for these relatives by depositing money in the savings bank. The night before he died, A said to these persons, ‘When. I am gone, you take these books and transfer the money to your own names, and say nothing to nobody about it.’ [Syllabus.]
In Baltimore Brick Company v. Mali, 65 Md. 93, a father made an assignment under seal to his daugh
1st. That the assignment was imperfect without an actual transfer of the stock on the books of the corporation, and that equity could not make that good and enforcible as a gift inter vivos which was incomplete, and, therefore, not enforcible at law.
2d. That there was no element of trust in the case upon which the claim of the assignee could be supported.
3d. That if the father had declared that he held, or would thenceforth hold, the shares of stock in trust for his daughter, then perhaps equity would seize upon and enforce such trust for the benefit of the donee, although voluntarily created.
In Heath v. Portsmouth Saving Bank, 46 N. H. 78: “Where the plaintiff, at the time of making a deposit of money in a savings bank, accepted as the evidence thereof a book stating the deposit and containing this clause: ‘Depositors are alone responsible for the safe-keeping of the book, and the proper with
In Keepers v. Fidelity Title and Deposit Co., 56 N. J. L. 302, the plaintiff’s sister, on her death-bed, delivered to the plaintiff the key of a box, saying, “I give you the box and all it contains.” The box was in another room of the house, locked in a closet, the key of 'which was in possession of the plaintiff’s mother,, with whom the sister lived. The plaintiff lived elsewhere, and, during her sister’s life, made no attempt to take possession of the box. Held, that there was no such delivery of securities contained in the box as ia essential to a valid donatio mortis causa.
In the case of the Second National Bank v. Williams, 13 Mich. 282, where one in extremis drew his check upon the bank, with directions to the payee to defray the funeral expenses of the drawer out of it, and to pay the balance to his heirs, and the check was not accepted by the bank at the death of the drawer, it was held that the check did not operate as an assignment of the fund, and that the bank was not liable upon it to the payee; that no mere contract, liability or obligation of the donor can. be the subject of a gift causa mortis; and, therefore, that an unaccepted bank check, which, if not paid, merely creates a liability on the part of the drawer, is not valid as a gift by him causa mortis.
Mr. Schouler in his excellent work on Personal Property, volume 2, section 75, in discussing symbolical delivery of chattels, says: “Under suitable circumstances, too, the symbolical delivery of an incorporeal chattel or chattels might suffice; as in the case of transferring an attorney’s receipt where the instrument is filed in court and out of "the owner’s custody ; or by giving the key of a safe-deposit vault. But,
Judge Kent, in speaking of the delivery of the subject-matter of gifts, says:
“Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. Delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel or chose in action; and it is the same whether it be a gift inter vivos or causa mortis. Without actual delivery, the title does not pass. A mere intention, or naked promise to give, without some .act to pass the property, is not a gift. There exists the locus poenitentiae, so long as the gift is incomplete and left imperfect in the mode of making it; and a court of equity will not interfere and give effect to a gift left inchoate and imperfect. The necessity of delivery has been maintained .in every period of the English law. Donatio perficitur possessions accipientis, was one of its ancient maxims. The subject of the gift must be certain, and there must be the mutual consent and concurrent will of both parties. It is, nevertheless, hinted or assumed, in ancient and modern cases, that a gift of a chattel, by deed or writing, might do without delivery; for an assignment in writing would be tantamount to delivery. But in Cotteen v. Missing, a letter to executors, expressing a consent that a specific sum of money be given to a donee, was not á sufficient act in writing; and it was held not to be a gift of so much money in their hands, because the consent was not executed and carried into effect, and a further act was wanting in that case to pass the money. .The vice-chancellor held, that money paid into the hands of B, for the benefit of a third person, was countermandable, so long as it remained in the hands of B. A parol promise to pay money
“Delivery, in this, as in every other case, must be according to the nature of a thing. It must be an actual delivery,, so far as the subject is capable of delivery. It must be secundum suhjectam materiam. and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed. Therefore, where a donor expressed by letter his intention of relinquishing his share of an estate, and directed the preparation of a release of the personal estate, and he died before it was executed, it was held that his intention, not being perfected, did not amount to á gift.” [2 Kent’s Com. *438.]
Counsel fo^ respondent have cited many other authorities supporting the propositions under consideration, but it would serve no good purpose to further review them, for the reason that we have selected cases cited in their briefs bearing upon the various phases of the case presented, and a further review of the authorities would only be cumulative. In other words, those selected, we think, support the contention of counsel as to the essentials of a valid delivery of a gift causa mortis, and that it is useless to review other authorities along the same line.
In passing, however, we wish to add that the cases cited from this State by counsel for respondent are not in discord with those relied upon by counsel for appellant. But, as before stated, there are two well-defined lines of authorities bearing upon that subject;
Judge Story, after discussing the theory of the law, as contended for by counsel for respondent, regarding the delivery of the subject-matter of a gift causa mortis, says: “But it may admit of doubt whether the doctrine of these last cases can now, upon principle, be supported; for the ground upon which ■courts of equity now support donations mortis causa is not that a complete property in the thing must pass by the delivery, but that it must so far pass by the delivery of the instrument as to give á title to the donee to the assistance of a court of equity to make the donation complete. The doctrine no longer pre-vails that where a delivery will not execute a complete gift inter vivos it cannot create a donatio mortis causa, because it would not prevent the property from vesting in the executor; and as a court of equity will not inter vivos compel a party to complete his gift, so it will not compel the executor to complete the gift of his testator. On the contrary, the doctrine now established by the highest authority, is, as we have seen, that courts of equity do not consider the interest as completely vested in the donee, but treat the delivery of the instrument as creating a trust for the donee to be enforced in equity.” [1 Story’s Eq. Jur. (13 Ed.), sec. 607c, p. 614.]
In Wright v. Wright, 1 Cow. 598, the Supreme Court of New York held that a promissory note of the donor himself, executed in his last illness, and delivered by the maker to the donee, the payee, in con-' temptation of death, was a good clonatio mortis causa, although no consideration passed.
In Coutant v. Schuyler, 1 Paige, 316, Mr. Chan.cellor Walworth held that a promissory note of a
In Thomas v. Lewis, 89 Va. 1, William A. Thomas, an old bachelor, under apprehension of death, made a gift of money and securities, valued at $200',000, to Bettie Thomas Lewis, an illegitimate child by a mulatto woman. The principal part of the gift consisted of money on deposit in the bank and bonds and stocks which were in a safety-deposit, box in vaults of the Planters’ National Bank of Richmond, Virginia. At the time of the gift he explained to the donee the character of the securities, and the importance of the same, and where situated. He gave her his bank book, showing the amount of money on deposit, some negotiable notes, and the keys to his safe in the banking house of Drewey & Company, and also to his safety-deposit box before mentioned. He also told her what was in the box, the contents of the safe, and the amount deposited in the bank, represented by the bank book. The gift disposed of the donor’s entire personal property. At, the time of making the delivery he said to her all the things' before mentioned “were to be hers in case of his death,” and told her to put them in her trunk and not to .let anybody have them. The donee retained possession of the things given to her until the donor’s death, which was only a few hours thereafter. The factum of the gift was proven by only one competent witness. The donor and donee resided together at the time of the gift, and the possession was at their residence. Upon that state of facts, the Supreme Court of Virginia, in a learned and exhaustive opinion, held that the delivery of the keys to the safe and to the safety-deposit box to the donee was a valid constructive delivery of the contents there
In Miller v. Jeffress, 4 Gratt. 479, Judge Baxdwin, in delivering the opinion of the court said: “A delivery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, as of a watch or a ring, or of the means of getting the possession and enjoyment of the thing, as of the hey of a trunk or a warehouse in which the subject of the gift is deposited; or if the thing be in action, of the instrument by using which the chose is to be reduced into possession, as a bond, or a receipt, or the like.”
Mr. Minor in'the third volume of his Institutes (Lith. Ed.), pp. 222-224 (following* the text of Lomax Ex., 463-464), says: “The general rule requires an actual delivery of the thing to substantiate the gift . . . .; where the nature of the thing is capable of corporeal delivery, such delivery is never dispensed with . . .; where the nature of the thing is incapable of corporeal delivery, the delivery of the means of getting possession or making use of the thing will suffice, as of a writing, of a key of a trunk or warehouse; not that the key or the writing is a symbol of delivery, symbolical delivery” (one thing for another) “being always insufficient.”
The delivery must be such as is becoming the nature of the thing given, and not according to the capacity of the donor at the time of the gift to make the delivery. [Turner v. Brown, 6 Hun 331.]
Mr. Pomeroy in the third volume of his Equity Jurisprudence says at section 1149 that the delivery must be such as thereby “the donor parts with all control and power of exercising dominion over the thing given, while the donee obtains the exclusive power of taking physical possession thereof.” [See 3 Lawson’s
In Debinson v. Emmons, 158 Mass. 592, the Supreme Court of Massachusetts held that, where in a suit in equity there was evidence tending to show that the donor upon her death-bed, when almost in ex-tremis, gave to the donee, as a present gift, two trunks and their contents, which were at the foot of the bed upon which she lay, at the same time handing to the donee the keys, and declaring that the trunks and all in them were the donee’s, and that the donor knew that she had certain bank books in the trunks at the time of the gift, and referred at the time of the gift to her money and to the manner in which she had obtained it, it cannot be said that the presiding justice was not justified in finding that there was a present transfer of the actual possession, dominion and property of the trunks and their contents, including the bank books.
. In People ex rel. v. Benson, 99 111. App. 325, 1. c. 327, the court said: “Appellee did not have manual possession of the notes until after the death of her husband. He gave to her the key to the safe in which the notes were kept, and stated that he gave her the contents of the safe. After his death, she took manual possession of the contents. The notes were the only contents of value in the safe. While delivery of possession of the article is essential to the validity of tbe gift, the delivery need not always be a manual delivery. The delivery may be symbolic, as the delivery of a key to a chest or a trunk. The term is not to be taken in such a narrow sense as to require that the thing given shall go, literally, into the hands of the donee and be carried away. An unequivocal declaration of gift accompanied by a delivery of the only means by which possession of the article given can be obtained, is sufficient. . [Grover v. Grover, 24 Pick. 261; Coleman v. Parker, 114 Mass. 30; Hagemann v. Hagemann, 90 111. App. 251.] Where the donor, at
In Telford v. Patton, 144 Ill. l. c. 619, the Supreme Court of Illinois said: “There are three requisites necessary to constitute a donatio mortis causa: (i) The gift must be with a view to the donor’s death; (2) it must have been made to take effect only in the event of the donor’s death by his existing disorder; (3) there must be,an actual delivery of the subject of the donation. [1 Story’s Eq. Jur. 607a; Kenistons v. Sceva, 54 N. H. 24; Roberts v. Draper, 18 Bradw. 167; Barnes v. People, 25 Ill. App. 136; Ridden v. Thrall, 125 N. Y. 572.] The deposit was made and the certificate was issued on May 1, 1889; and if there was any delivery, either constructive, or in trust for the benefit of the -appellee, it must have taken place at that time. There is, however, no proof tending to show that the deceased was then under the apprehension of death from any existing disease or other impending peril. He lived for more than eight months thereafter; and the record is barren of any evidence whatever, that the certificate was to be operative only in the event of ■ his death from a disorder existing when the deposit was made. It follows, that there are lacking the first and second requisites of a gift causa mortis. Was there a gift inter vivos¶ It is essential to a donation inter vivos, that the gift be absolute and irrevocable, that the giver part with all' present and
In Reynolds v. Reynolds, 20 Misc. Rep. (N. Y.) 254, shortly before her death defendant’s intestate gave to plaintiff a bunch of keys, including the key of her trunk and of a tin box therein, and stated that she wanted her and her husband ‘to have everything.’ Plaintiff thereupon opened the trunk and took therefrom the tin box containing a bank book, and retained it until after decedent’s death. The Supreme, Court
In Goulding v. Horbury, 85 Me. 227, the facts were as follows: An old and illiterate man, with no other family than an illegitimate daughter thirty-six years old at the date of his death, had by his letters to her and in other ways manifested a strong affection for such daughter, and she was the only ooeupant in his house with him when he died. He had for some years made her his principal confidante in business matters, and had frequently intimated in his letters that she would some day receive his property or the bulk of it. His estate consisted mostly of stock, bonds, and savings bank notes, of the value of some fifteen thousand dollars, which he kept in a small portable cupboard in the room 'where he lived. During his last sickness, while expecting death, he gave her from his pocket two wallets, containing one hundred dollars in money, and the key of the cupboard, saying that he gave her the money and the cupboard and all that was in it. She thereupon unlocked the cupboard in his presence, he seeing what she did, and after some hasty handling and examination of the papers, she locked them in the cupboard again, ever after during his sickness keeping the key in her own pocket. Soon after this on the same day she placed some valuables of her own in the same cupboard. He had physical strength enough to have got from his bed and taken the articles and passed them to her by his own hand. He died within three days after this act. Hpon that state of facts the Supreme Court of Maine held, that the jury were authorized to find a sufficient actual delivery to constitute a valid gift causa mortis.
In Stephenson v. King, 81 Ky. 425, the facts, were substantially as follows: The donor, in the apprehension of death, delivered the key to her desk, containing some valuables, to her mother, also a letter from one King, her agent, residing in Louisville, contain
In tbe case of Marsh v. Fuller, 18 N. H. 360, tbe Supreme Court of New Hampshire, in speaking through Chief Justice Parker, beld, that a delivery of tbe key of a chest, with words of gift of tbe chest and its contents, was a good delivery to pass tbe property to tbe donee.
In Sheegog v. Perkins, 4 Baxter, l. c. 281, tbe Supreme Court of Tennessee said: “As to tbe manner of tbe gift, by delivering tbe key, it has been several times beld that this would be a sufficient delivery, all other elements of a valid gift concurring.”
The case of Leyson v. Davis, 17 Mont. 220, 31 L. R. A. l. c. 448, before mentioned, is, in my opinion, tbe ablest and clearest presentation of tbe vexed question of donatio causa mortis that we have upon tbe subject on either side of tbe Atlantic, and has done more to explain tbe principles upon wbicb that form of conveyance is based and to harmonize tbe conflicting adjudications thereon than any other opinion to wbicb my attention has been called, or that I have been able to find. That case involved tbe gift of $1,000,000 in bank stocks. In that great opinion, Judge Hunt, in discussing this question, said:
“The last English case that we have been able to find is Robson v. Hamilton (1891), 2 Ch. 559. Joseph Robson bequeathed and gave to his nephew Joseph Robson his old mahogany desk, ‘with the contents thereof,’ and made other disposition of his other property. The desk was found to contain notes, bankers’ deposit receipts, and unindorsed checks to the order of the testator. The court sustained the gift of the desk with its contents, except the key to a tin box, and adverted upon the disadvantage to men in making bequests of that kind, and then said: ‘But in this case, as I have said, I think that the words the testator has used are strong enough, and, properly construed, ought to he held to include all the choses in action. The choses in action, if any distinction is to be taken, are such as could have been given by the testator by mere delivery as a donatio mortis causa. In that case the indorsement of the executors would be required, and in this ease the indorsement of the executors will also be required.’ This last expression from the Court of Appeals of England is evidence of the development of the law in that country upon the subject of gifts causa mortis. It is only cited as an instance of the growth of the doctrine permitting gifts of choses in
“It being clear now that, under the progress of administration of principles of equity, gifts causa mortis may be made of incorporeal as well as corporeal chattels, and of dioses in action generally, we must examine the class of property in this case — namely, national bank shares — and observe whether or not they are to be treated as upon any different plane from that occupied by shares of stock generally. As will be seen by the statement of the facts, the certificates delivered to Andy were issued in the donor’s name, and each certificate contained the words ‘transferable only by him or his attorney on the books of the bank on the surrender of this certificate. ’ The by-laws of the bank also required a transfer on the books. The Revised Statutes of the United States (section 5139) provide as follows: ‘The capital stock of each association shall be divided into shares of one-hundred dollars each, and be deemed personal property, and transferable on .the books of the association in such manner as may be prescribed in the by-laws or articles of association. Every person becoming a shareholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder of such shares.’ No writing having passed at all between the parties, donor and donee, and no transfer on the books having been made, we must look at the principles and authorities bearing upon the direct point involved.
“It was held in Slaymaker v. Bank of Gettysburg, 10 Pa. St. 373, that shares of stock are, in commercial usages, regarded as choses in action, and the certificates are evidence of the title of the holder to them. Now, a chose in action is incorporeal and in
“Although some writers of recent date disapprove of the doctrine which sustains gifts cenosa mortis of stock in a bank by mere manual delivery of the certificate, yet there is a recognition that such gifts made are upheld where a complete equitable title vests in the donee, and where the evidence shows that it was plainly the intent of the donor to make the gift. This principle is recognized in Grover v. Grover, heretofore cited; also in Bates v. Kempton, 7 Gray, 382, and in the following cases: Allerton v. Long, 10 Bosw.
.“The view that a delivery of the shares to Andy without writing or transfer on the books is good is also in direct harmony with Basket v. Hassell, supra,
“The argument that national bank shares stand upon a different footing is not tenable, for it was held in Johnston v. Laflin, 103 U. S. 800, that, whep a certificate of stock in a national bank was delivered
“We are, therefore, of the opinion that it was not indispensable to the validity of the transfer of the stock in question, by our statutes or the law generally, that there should have been any writing on the backs of the certificates, and that an equitable title passed to Andy. This equitable title gave Andy full right to the stock, and equity should afford him the means of obtaining the possession of that incorporeal subject of gift — stock itself. The intent having existed in Judge Davis’s mind to make the gift, and the stock certificates having been delivered, the legal title was complete as between Andy and his uncle, subject always, of course, to revocation or to the inherent conditions in gifts causa mortis. We need not consider the attitude of third parties or creditors, because none have appeared in this case. The donee, therefore, having an equitable title and a legal right, may enforce that right by the aid of equity. Many of the cases heretofore cited are where courts have extended their aid to give effect to gifts causa mortis. [1 Story, Eq. Jur., secs. 607 et seq.] ”
The case that goes to the furthest extreme in upholding the doctrine of symbolical delivery of a chose in action, is that of Ebel v. Piehl, 143 Mich. 64. There the defendant had received property from his father upon a verbal promise to pay his sister $400 at his father’s death; afterwards, in the presence of
Another case along the same line is that of Grangiac v. Arden, 10 Johns. 293. There a father purchased a lottery ticket which he declared he gave to Ms infant daughter Eliza, and wrote her name upon it, and after the ticket had drawn a prize, he declared he had given the ticket to his daughter Eliza, and that the prize money was hers. In that case the Supreme Court of New York held that the facts were sufficient for a jury to infer all the formality required to a valid gift, and that the title to the money passed m praesenti, was complete and vested in the daughter.
The came conclusion was reached by this court in the case of Shackleford v. Brown, 89 Mo. 546. There the controversy was over two notes, and whether they had passed as a gift causa mortis to the donees, the Hatchers. The material and important evidence in the case was the testimony of Mrs. Pulliam, as stated by tire court, and was as follows:
“She stated that about a week before Mrs. Wetherkolt’s death, witness visited her at her home in Nor-borne. Witness further testified: ‘She was reading the Bible, but put it up, and went and got her basket;
This court in a Per Curiam opinion said: “On the authority of the cases of Walter v. Ford, 74 Mo. 198, and McCord v. McCord, 77 Mo. 166, the judgment in this case is hereby affirmed.”
While in the case of Walter v. Ford, supra, the gift was held invalid, yet the court there, as stated in the case of Shackleford v. Brown, recognized the doctrine of constructive delivery of choses in action, etc. The same may be said of the case of McCord v. McCord, supra.
In the case of Waite v. Grubbe, 43 Ore. 406, the father, having buried several sums of money in various places about his premises, took his daughter to the whereabouts of the money during his last illness and while quite feeble, and told her definitely the several places where it was hidden, with a positive declaration
We might go on indefinitely citing and reviewing cases where the courts of last resort of the various states of this country have held that all species of personal property, whether corporeal or incorporeal, are proper subjects of donatio mortis causa, and that actual physical delivery of the subject of the gift must be made when practicable, or symbolical delivery when the nature or the location of the subject was such that, actual delivery could not be made, or where the existing conditions were such that a physical delivery would be unreasonable; and in such cases the intention of the donor to part with the control of and dominion over the property given is a prime factor to- be considered by the court and jury in passing upon the question of delivery.
From the foregoing review of the authorities, it' is observable that there are many respectable authorities, both text-writers and adjudications, supporting the positions taken by counsel for both appellant and respondent. But by a close study of those cited by respondent, it will be seen that they are based upon some of the early English cases, adopting the civil law as to donadío mortis causa, at a time when there seems to have been a diversity of opinion among the jurists of that country as to what was really the civil law upon that subject.
As previously stated, Lord Hakdwicke, understood it one way, while Lord Eldon expounded it in another. Respondent’s cases lean to the views expressed by the former, which in many instances practically required a physical delivery of the subject of
■ Some of the courts of this country have followed one or the other, and even both, of that class of cases, and, as a result thereof, we have at this day many cases which hold that money or property deposited in. a bank, or in the hands of another; valuables stored in safety deposit companies; choses in action, and incorporeal property, etc., are not legitimate subjects of gifts either inter vivos or causa mortis without the consent of the bank in which the money is deposited, the safety deposit company having the custody of the valuables, or the debtor owing the debt. But notwithstanding that class of eases relied upon by counsel for respondent, the overwhelming weight of authority is in harmony with the position contended for by counsel for appellant — that is: that all species of personal property are proper subjects of gift, either inter vivos or causa mortis; and that where the intention to give is clear and unmistakable, accompanied by a delivery of possession consistent with and becoming to the nature, character and location of the property donated, the courts will not hestitate in holding such gifts valid. The difficulty the courts meet with in most cases in the administration of the rule contended for by counsel for appellant is one of fact as to what is sufficient delivery in the particular case, and not one of law, as declared- by Lord Hardwicke in Ward v. Turner, supra.
Returning to the question in hand: was the manner of gift, namely, the delivery of the keys to the safety deposit box, a sufficient delivery of the contents thereof to appellant to constitute a valid donatio causa mortis?,
According to the authorities before considered, I have no hesitancy whatever in answering that question in the affirmative; provided, of course, as previously suggested, that all the other elements of a valid gift existed and concurred therewith. In other words, if the evidence in the case showed the factu-m of gift, and that Medley was in extremis when the gift was made, then the delivery of the keys to the box was a sufficient delivery of the contents thereof.
But this proposition will receive consideration in the next paragraph of the opinion.
HI. We now approach the vital question presented for our determination, and that is, is the evidence preserved in the record sufficient to support a gift of this character?
The personal property of every man during his lifetime is either actually or constructively in his possession; .and, when death occurs, by operation of that fact the possession of .that portion which he had in his actual possession, as a matter of fact, passes into the constructive possession, at least, .of those in possession of the premises in which he dies; and as regards the property of which he had only constructive possession, all evidences of that possession which he has about his person and in the premises in which he dies likewise passes to those left in charge thereof, and there remains until it is delivered to or taken possession of by the executor, administrator or other lawful authority.
Under those conditions, if it was not for this wise and wholesome, rule regarding the greater weight of the evidence, any unscrupulous and designing person could despoil the dead of his estate by taking actual possession of the personal property about the body and premises,' and also possession of the muniments of title to all the personal property of which he had constructive possession, and then set up the claim of donatio camisa mortis, and produce as evidence thereof his possession of both the property on hand and the muniments of title to that which was deposited elsewhere; and with the testimony of only one witness, and, perhaps, by slight corroborative circumstances, establish his concocted scheme, which had no existence whatever in fact. The temptation to fraud incident to such claims has been recognized and guarded against by the law of all countries where this species of conveyance has been recognized.
The various States of this country, either by statute or by the adoption of rules of evidence similar to those in force in England, have thrown such safeguards around this class of gifts that it has become. ' almost impossible to get through the courts a fraudulent claim of this character.
While this State has enacted no statute upon the subject, nor has she adopted the civil law requiring .five witnesses to such a gift, yet she demands evidence of a character as high and more convincing to the judicial, mind than is required by the courts of England, and by those of most of the States of this Union.
This idea of strict proof in this class of cases was adopted by the courts of Missouri in conformity to the wise policy requiring strict'pro of of nuncupative wills,, oral agreements to dispose of real esate to another after one’s death, in consideration of personal services performed during his life, and in all other
We will now return to the evidence in the case at bar, and determine whether or not it measures up to the standard of weight before mentioned.
Edwin Foley, the eighteen-year-old son of appellant, was the only witness who was present at the time the alleged gift was made by Medley to her; and, consequently, this gift must largely stand or fall upon his testimony.
On direct examination he testified:
“Q. At the time he [Medley] gave her [the appellant] the keys what did he say to her, as near as you can give it? A. Well, he called her over to the
“Q. What did your mother say to that — just a moment, did your mother take the keys? A. Yes, sir. Q. What did she do with them? A. She put them away in the book case. ”
On cross-exatmination he testified, that, he had talked the transaction over with his mother four times before the suit was brought, and three or four times with appellant’s counsel before it was brought, and about the'same number of times subsequent .to that time, and before the day of the trial; also that he had given his deposition in the case previous to the date of the trial, and had never told the appellant or her counsel the same story twice regarding what he had heard Medley say to her about the alleged gift.
He was then asked if he could give the language of •Mr. Medley, and he answered: ‘I don’t know as I can give the same language. ’ Q. Well, give it just the best you can. What did he say? A. Well, he said, ‘Mrs. Foley, here are the keys to my safety deposit box; I give them to you; what is in there belongs to you; you will find Johnnie’s money there also.’ ”
In this connection his deposition was shown him, where he testified that Mr. Medley said to appellant, “Mrs. Foley, here are the keys to my safety deposit boxes,” and when asked why he said safety deposit box at the trial and boxes in the deposition, he said, “I don’t remember of saying boxes,” but would not say that he did not so state.
“Q. ‘They are yours; what is in them I will give it to you.’ Now you say, ‘what is in there belongs to you.’ That is the way you say it to-day. ‘They are yours; what is in them I will give it to you. ’ ‘You will find Johnnie’s money there also.’ Now, which is con
“Well, then, you say then that if you said that there, that is not correct? A. No, sir; I don’t say it ain’t correct. • .
“Q. How do you account for making two different statements, if you made them? (Witness makes no response.)
“The Court: “Do you understand the question, Edwin?
“ (Question read by the reporter.)
“ (Witness makes no response.)
“Q. Well, let’s drop that. We will pass on. Now, you say you had this deposition in your hands for several days. Since when did you say — Thursday? A. Yes, sir.
“Q. Well, now, don’t you remember anything it contains? What did you get it for? What was it given to you for? A. Well, I read it over is all.
“Q. You read it over to see what you said on . that occasion, didn’t you? A. Yes, sir.
“Q. Now, do you recollect that you stated that conversation that you say took place between your mother and Mr. Medley at the time she got those keys, — do you recollect that you stated it twice differently in this deposition? A. That in there I stated it twice different?
“Q. Yes. A. No, sir.
“Q. You remember stating it twice, this conversation, in this deposition, don’t you? A; Yes, sir.
“Q. Do you think it is just the same? A. I don’t know as it is just the same.
“Q. Now, here is what you say the second time here. Here- is the deposition, Mr. Foley, the one I showed you and the one you signed. Just read that. You can read, can’t you? A. Yes, sir.
. “Q. Yes, I want you to read the answer to that question. A. ‘Mrs. Foley, here is the keys to the safe
“Q. Well, now, was that the conversation that you heard there? A. I don’t know whether it is exactly or not.
‘ ‘ Q. Oh, I know, but in the first question you answered there, the first time you detailed this conversation you say that everything that was in that box was hers, now in this one you say that the money that was in there was hers, that the old man said so, don’t you? A. I don’t remember of ever saying anything about money; I know Johnnie’s money was mentioned.
“Q. Do you tell the jury that you didn’t swear on the taking of this deposition this: ‘Mrs. Foley, here is the keys to the safety deposit box; I give them to you and all the money there is there I give to you, and Johnnie’s money is in there, too?’ Now, didn’t you use that language? A. I don’t recall ever saying that.
“Q. Do you swear that you didn’t do it? A. No, I don’t swear.
“Q. Why did you state here ‘Mrs. Foley, here is the keys to the safety deposit box; I give them to you and all the money there is in there?’ Why did you make that statement ? Was that what the old man said ? A. I know he spoke in connection with Johnnie’s money.
‘ ‘ Q. Well, this is not in connection with Johnnie’s money. A. I don’t remember saying anything about the money in there.
“Q. Would your memory be better now to-day here than it was in December? A. No, sir. .
“Q. It ought to have been better then, oughtn’t it, than now? It was nearer to the time. It ought to have been just as good? A. Yes, sir.
“Q. Then, if you said that, why did you say it, if it wasn’t true?
“Q. Can you answer? (Witness makes no response.)
“Q. If you decline to say so, just say so, and that ends the business. Do you want to answer it or not? A. Well, I know1 it was in connection with Johnnie’s money.
“Q. Oh, of course, it was in connection with Johnnie’s money, because he mentions Johnnie’s money right there next? A. Yes, sir.
“Q. But the answer is this: ‘I give them to you1 (that is, the keys) and all the money there is in there I give to you, and Johnnie’s is in there, too.’ Of course, he speaks about Johnnie’s money. You are right on that. I am not understanding you to say that is wrong or the other is wrong, but I am just saying — asking you now why you stated that the old man said that all the money *that was in there belonged to your mother and he gave it to her, if it wasn’t true? Why did you make that statement? (Witness hesitates.)
“Q. Can you answer it? (Witness makes no response.)
“Q. Oh, if you can’t answer it, just say so, and we will go on.
“The Court: Do you understand the question, Edwin? A. Yes, sir.
“The Court: Well, can you answer it? (Question read by the reporter.)
“Q. Well, he can say he can’t answer it.
“The Court: Answer the question, Edwin.
“ (Question again read by the reporter.)
“The Court: Do you know what statement he is talking about? A. Yes, sir.
“The Court: Well, then, answer the question; why did you make that statement? A. I don’t know.
“The Court: He says he don’t know.”
This testimony is by no means satisfactory and convincing.
If this transaction should be tolerated, then it would practically erase from our 1 Constitution the italicized portion of that provision which guarantees to all the right of life, liberty and property.
From the views thus expressed, it must follow that the order and judgment of the trial court granting a new trial must he affirmed; and it is so ordered, with directions to the trial court to try the case anew in harmony with the views herein expressed.
