204 P. 505 | Nev. | 1922
By the Court,
The appellant having been the plaintiff below, the parties will be referred to in this opinion as plaintiff and defendant.
The plaintiff is the surviving husband of Margaret L. Goldsworthy, who died on May 9, 1918. They were married on December 25, 1910. Upon their marriage they took up their residence at the Mercury mine at lone, in Nye County, where the plaintiff held a position as superintendent of that property. They continued to reside together at the place mentioned until 1913 (prior to which time the mine closed down and the plaintiff lost his position), when it was decided that the wife should seek employment elsewhere. She went to Tonopah-, where she soon secured employment, leaving the plaintiff at their home at the mine. She remained at Tonopah for some months, during which time she earned about $900. She opened an individual account with two. San Francisco banks, and placed all of her earnings during the period mentioned in those accounts. Later she put some of them in a postal-savings account at Tonopah, the balance being in savings account in San Francisco. In 1917 she used the money so earned in the purchase of Liberty bonds, which were held for her by the Tonopah Banking Corporation. Prior to the purchase of the bonds the Mercury mine resumed opera
On May 6, 1918, three days prior to her death, she wrote, signed, and delivered to the defendant two instruments, as follows:
“It is my wish that D. S.. Johnson have the Liberty bonds to have and to be used as he may deem best in payment of services rendered me.
“Margaret L. Goldsworthy.”
“Tonopah Banking Corp.: Please deliver to D. S. Johnson $1,000 bonds called for by this receipt.
“Margaret L. Goldsworthy.”
The latter instrument was written upon the back of a receipt executed by the Tonopah Banking Corporation for money paid by the deceased on account of the bonds.
This is an action to recover the bonds; plaintiff claiming the same as community property. The defense to the action is that the conduct of the deceased amounted to a donatio causa mortis. The lower court ordered judgment in favor of the defendant; hence this appeal.
The first contention we are called upon to determine is whether the Liberty bonds were the separate property of Mrs. Goldsworthy at the time she executed the instruments quoted. The determination of this question involves the correct application of section 2169 of the Revised Laws of 1912 to the facts, since, generally speaking; all property acquired through the earnings •of either spouse is community property. The section mentioned reads:
“When the husband has allowed the wife to appropriate to her own use her earnings, the same, with the issues and profits thereof, is deemed a gift from him to her, and is, with such issues and profits, her separate property.”
This is a case of first impression in this court, and no authority has been called to our attention in which a similar state of facts, applicable to a statute like ours, has been considered; hence we must pioneer in reaching a conclusion. •
The deceased left lone with the avowed purpose of earning money. That she did earn several hundred dollars within a few months thereafter, with the knowledge and consent of her husband, is not denied; that she never turned over to her husband one dollar of the money so earned is not questioned; that her husband repaid to her $50 which she had paid to a merchant to apply upon the indebtedness of about $75 contracted by the plaintiff during her absence is admitted; that she kept the money so earned, except as paid out for her individual use, during her absence in an interest-bearing account in savings banks to her personal credit, though there was a joint community account, is without doubt; that she invested the same early in 1917 in Liberty bonds is admitted; and that the plaintiff made no inquiries as to what she was doing with her earnings or in the least, by word or action, manifested the slightest interest in the same, is conceded. In the light of this situation, did the deceased appropriate her earnings to her own use, and did the plaintiff allow her to do so ?
This conclusion is not only based upon sound reasoning, but by analogy the rule of emancipation of a child by its parent amply sustains our position. The earnings of
In Cloud v. Hamilton, 11 Humph. (Tenn.) 104, 53 Am. Dec. 778, it was held that, while the father was entitled to the custody of his son and to receive his earnings, such rights might be waived, as might appear by express
“While it is clear that as a rule the father is entitled to the earnings of his son during minority, yet it is equally clear that this right may be relinquished, and where such minor son contracts on his own account for his services, and the father knows of it and makes no objection, there is an implied assent that the son shall be entitled to his earnings. Morse v. Welton, 6 Conn. 551; Whiting v. Earle, 3 Pick. 201; Nightengale v. Worthington, 15 Mass. 273.”
The rule is stated as follows in 20 R. C. L. p. 609:
“An implied emancipation results when the parent, without any express agreement, impliedly consents by his acts and conduct that the child may have his own time and the control of his earnings, or such consent is inferred from or shown by circumstances.”
Without reviewing or quoting from other authorities, we cite the following as sustaining the general rule: Note to Culberson v. Alabama Const. Co., 9 Ann. Cas. 507; Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S. W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326, and note 330.
The next question is: Was there a valid gift causa mortis ? In this connection we will dispose of the assertion that the death of the deceased before the delivery of the bonds revoked the authority of the bank to make delivery. We do not intend to follow counsel for appellant in .their line of argument because they do not go directly to the question involved, but take a circuitous route, across which many obstacles to a clear comprehension of the real question are thrown.
Gifts causa mortis seem to be of very ancient origin. They are clearly sanctioned by the Roman civil law having been borrowed, as some commentators say, from the Greeks, in proof of which it is said that an instance of a perfect gift causa mortis is related in the Odyssey (book 17, v. 78), where Telemachus makes presents to Piraeus if he be slain, and another by Hercules in the Alcestes of Euripides (v. 1020). While these may have been typical of gifts causa mortis, whether they were inspired and sustained by the jurisprudence of their time does not seem clear. That such gifts, however, found justification in the Roman law, as stated, is shown by no less an authority than Justinian, as is seen by the following quotation from a translation by Walker:
“A gift causa mortis is one made in expectation of death; when a person gives upon condition that, if any fatality happen to him, the receiver shall keep the article, but that if the donor should survive, or if he should change his mind, or if the donee should die first, then the donor shall have it back again. These gifts causa mortis are in all respects put upon the same footing as legacies. For since there was a difference of opinion amongst lawyers whether such a donation ought to be equivalent to a gift or to a legacy, possessing as it did some of the characteristics of each, so that some of them classed it with one and some with the other, a constitution was issued by us ordaining that it should be classified with legacies in almost all respects, and should be solemnized in the manner which our constitution laid down. To put it briefly, a gift .causa mortis is*369 when a person wishes that he himself should have the gift in preference to the donee, but that the donee should have it in preference to the heir.” Walker’s Just. p. 119.
See, also, Cooper’s Just. (3d ed.) p. 100; Sandars Just. (13th ed.) p. 147, note.
“Besides these formal legacies, contained in a man’s will and testament, there is also permitted another deathbed disposition of property which is called a donation causa mortis. 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 and bills drawn by the deceased upon his banker) to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor; yet it shall not prevail against creditors, and is accompanied with this implied truth, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or causa mortis. This method of donation might have subsisted in a state of nature, being always accompanied with delivery of actual possession. * * *”
The first case which came before the courts of England in which an alleged donation causa mortis was involved
“The only case wherein such a symbol seems to be held good is Jones v. Selby; but I am of opinion that amounted to the same thing as delivery of possession of the tally, provided it was in the trunk at the time.”
In speaking of Lord Hardwicke’s attitude on symbolic delivery, Kent says:
“Symbolical delivery is very much disclaimed by Lord Hardwicke in this case, and yet he admits it to be good when it is tantamount to actual delivery; and in Smith v. Smith it was ruled that the delivery of the key of a room containing furniture was' such a delivery of possession of the furniture as to render the gift causa mortis valid. C. J. Gibbs said that was a confused case; but the efficacy of delivery, by means of the key, was not a questionable fact.” Kent’s Comm. (14th ed.) p. 730.
While it may be that there is some confusion among the early English authorities as to whether or not there could be a symbolic delivery, the great weight of authority in this country clearly sustains such a delivery; the main point of divergence apparently being whether or not the facts of a particular case justify a holding that there was a symbolic delivery. For instance, it was held in Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11
“The gift was consummated by the delivery of the books, and no other formality was needed to constitute the actual delivery of the bank deposit needful to vest the possession and title in the donee. In savings banks in this state such deposit books are issued as evidence of the indebtedness of the banks. Withdrawals of deposits are entered in the same books, so that the deposit book always, with the addition of any interest, shows the actual state of the accounts between the depositor and the bank and the whole indebtedness of the bank. It answers the same purpose in the case of a savings bank that is answered by a certificate of, deposit in the case of other banks. The decisions are not entirely harmonious as to the sufficiency of the mere delivery of such deposit books to constitute a valid gift, either inter vivos or causa mortis. But the general rule in England and in this country, and particularly in this state, is that any delivery of property which transfers to the donee either the legal or equitable title is sufficient to effectuate a gift; and hence it has been held that the mere delivery of nonnegotiable notes, bonds, mortgages, or certificates of stock is sufficient to effectuate a gift.”
On the other hand, in Thomas’s Admr. v. Lewis, 89 Va. 1, 15 S. E. 389, 18 L. R. A. 170, while the court held that the delivery of the possession of a savings-bank pass-book did not consummate a donation causa mortis, it did expressly recognize that there might be a symbolic delivery, in saying:
“Delivery is essential; it may be either actual, by manual tradition of the subject of the gift, or constructive, by delivery of the means of obtaining possession. Constructive delivery is always sufficient when actual, manual delivery is either impracticable or inconvenient.”
The decision which seems to go further than any other which has come to our attention to sustain an alleged constructive delivery is that of McKenzie v. Steeves, 98 Wash. 17, 167 Pac. 50. This was a case of a gift of an automobile. It seems that there was neither an actual delivery of the automobile nor a writing, order, or other document directing its delivery to the donee. In fact, the gift seems to have been based . entirely upon the statement of the donor, who was then on the verge of dissolution in a hospital, in the following words: “I give you my automobile, May.” The opinion says that the donee “took and had charge of the automobile for .several days,” but it nowhere appears from the opinion when or under what circumstances she took charge of it.
11. It is said that the fact that the instruments in writing set out herein were not presented to the bank
13. We come now to the contention that Mrs. Golds-worthy had no intention of making a gift. It is said that she intended only to make a bill of sale of the bonds in question. This attitude is based upon the language in the writing quoted — that defendant should have the bonds “in payment of services rendered me.” We do
For the reasons given, the judgment is affirmed.