49 Ind. App. 345 | Ind. Ct. App. | 1911
It appears from the special finding of facts that appellant’s decedent, Harvey S. Mark, was on April 7, 1899, the owner of certain United States bonds; that on and prior to said date said bonds had been enclosed in an envelope and left for safe keeping in the vault of the Marion Bank, of the city of Marion, Indiana; that on that day decedent wrote upon said envelope as follows:
“April 7, 1899. In case of my death deliver to Cora Breed. II. S. Mark,”
and delivered the package to said bank, and it was placed in its vault; that thereafter said Mark procured additional government bonds, and in each instance he directed George Webster, Jr., who was cashier of said bank, to place said bonds in the envelope with the bonds already placed therein, to which he referred as “Cora’s other bonds;” that said Webster on such occasions asked him if he desired to continue his previous instructions, to which he replied, in substance, that he did, and on each occasion, at his direction, said cashier indorsed on said envelope the following:
“May 5, 1905. Renewed this instruction.
G. W., Jr.
May 9, 1906. This instruction continued.
G. W., Jr. '
February 14, 1908. This instruction continued.
G. W., Jr.”
That all bonds placed in said envelope on April 7, 1899, and those subsequently placed therein, remained continuously in the vault of said Marion Bank and its successor, Marion State Bank, until after the death of said Mark,
“List of three per cent government bonds owned by H. - S. Mark, and left at Marion Bank for safekeeping only;”
that such was the usual heading used in such receipts, and was given to distinguish said envelope from packages and papers belonging to the bank, or held by it as collateral; that said memorandum was made without any suggestion from Mr. Mark, or any question as to their ownership, and was to show that the bonds did not belong to the bank.
The court also found facts showing the change in the organization of the bank and the divorce of appellee from her former husband, Breed, but no controversy arises in regard to either of such facts.
Upon the foregoing finding the court stated its conclusions of law as follows: (1) That Harvey S. Mark, in his lifetime, made an absolute gift of the bonds in question to appellee, reserving to himself the income thereof during his natural life; that appellee is the absolute owner and entitled to the possession of all said bonds; (2) that appellant has no interest in said bonds, and at the death of said Mark held possession thereof as trustee for appellee, and in no other capacity, which bonds, on the death of said Mark, were to be delivered to appellee.
It is conceded that appellant’s decedent intended to give the bonds in question to appellee, but counsel assert that he failed so to execute the gift in his lifetime by delivering the bonds, and thus did not meet the requirements of the law and perfect the intended gift.
Appellant contends that the deeedfent never parted with the control of or title to 'the bonds in his lifetime, and that all he did was to express a definite intention to give the bonds to appellee and appoint the bank his agent to execute such intention after his death; that, appellee did not in the lifetime of the donor acquire any present interest in the bonds; that control thereof did not pass to appellee or any one acting as trustee for her, beyond 'the power of revocation by the donor at any time during his lifetime.
If this contention can be sustained, appellant should prevail. In this case the delivexy to the bank is unquestioned. But the dispute is waged as to whether the writing on the envelope containing the bonds, and whether the other things said and done in relation thereto, show the bank to be only an agent of the donor, with directions to complete an unexecuted gift upon the happening of some future event, or a trustee holding property for the donee, the control and title to which has been surrendered by the donor to the donee, subject only to conditions not inconsistent with the passing of an absolute and present interest.
In this ease the principal controversy relates to the control of the bonds during the lifetime of the donor, after placing them in the keeping of the bank.
Appellant contends that the facts show that the bonds
"We think, however, that the several indorsements on the envelope containing the bonds, the conduct and the statements of the donor at the time of and subsequent to the making thereof, afford some evidence from which the court may have consistently found that the donor not only intended to give the bonds to appellee, but that he did unconditionally part with the control and ownership thereof, save and except the right to the accruing interest during his lifetime.
Tiie questions raised by the motion for a new trial do not require consideration here, further than to state that they fail to present any error harmful to appellant. Devol v. Dye, supra, at page 328.
The trial court was fully warranted in the conclusions reached, and the judgment is therefore affirmed.