Lead Opinion
delivered the opinion of the court.
The suit is in chancery, and involves the question of whether or not a gift of certain promissory notes by J. N. Harmon, deceased, to his son Ellie "W. Harmon was completed by delivery of the notes.
The litigation arose in this way: J. N. Harmon died,' and left an estate, and J. C. McFarlane, Jr., was appointed executor. Upon the petition of the wife of .the
The proper parties, including the bank, the wife and children, and the son Ellie W. Harmon, were brought into court, and Ellie W. Harmon claimed the notes as a gift from his father, and the wife and children of deceased disputed the claim, and upon this issue the court heard the evidence, and decreed there was no gift of the notes to appellant, Ellie W. Harmon, by his father, J. N. Harmon, deceased, because there had been no delivery of them.
The testimony, in which there is no substantial conflict, shows the following state of facts upon which must be determined the question of whether there was a consummation of the gift by a delivery of the notes; the deceased had borrowed three hundred seventy-six dollars and twenty-five cents from the Commercial Bank & Trust Company and deposited the notes as collateral to secure the payment of the debt It seems the notes were in the custody of Mr. J. G. McFarlane, Jr., president of the bank, and who was also personal adviser of the deceased. However, the notes were in the vaults of the bank, and held there as security for the debt due by the deceased to the bank.
££I want Ellie to have the notes; I am going to give them to him. The old woman is trying to beat me ont of my property. Ellie is the only one who ever cared anything for me, and I want him to have them. ’ ’
The deceased also said to Mrs. Mize, another witness, that he wanted Ellie to have his personal property, and that he had fixed it with Jim MeFarlane so Ellie conld get what he had. The old gentleman shortly before his death also said to John Mize that he had left his personal property with Jim MeFarlane for Ellie.
A few days before the death of Mr. Harmon Mr. MeFarlane went around to his room to visit him. And Mr. MeFarlane testified regarding this visit as follows:
££I went around to see John Harmon, and Ellie was there. And John Harmon seemed to be very much pleased that Ellie had come to see him, and said, £I want him to get enough to pay his railroad fare here and railroad fare back.’ And he said, £I want you (speaking to MeFarlane) to give him those notes. ’ I did not do it that afternoon, so the next morning Ellie came over to the bank and asked about the notes, and I showed him what they, were and all about them. ’ ’
There is other testimony in the case tending to show that, after the deceased had instructed MeFarlane to deliver the notes to Ellie Harmon, he, the deceased, believed the notes had been delivered, and that he had surrendered the ownership of them to his son.
Mr. Harmon died in a few days after the conversation with Mr. MeFarlane, and the above evidence is practically all there is in the case.
The question for our determination then is whether the facts and circumstances shown are sufficient to constitute a delivery of the notes, a surrender of all control or dominion over them by the d( nor, so as to perfect the gift.
We have reached the conclusion the gift was consummated when Mr. McFarlane, in pursuance of the request of the deceased, took the notes from the vault and showed them to Ellie Harmon and told him all about them, and then replaced them in the vault to -remain as collateral security for the debt owed to the bank.
Let us take all the facts and circumstances together and determine therefrom, by the layman’s logic, what happened and what was intended with reference to the delivery of the notes, and whether such acts and conduct was equivalent to a delivery.
When Mr. McFarlane called on the deceased at his room a few days before his death, the deceased expressly directed McFarlane to give-the notes to his son Ellie: and McFarlane said that he did not give the notes to Ellie that afternoon but the next morning Ellie came over to. the bank and asked about the notes, and that he showed the notes to him and explained all about them, and then retained them in the bank, as he had a right to,do, to secure the payment of the debt due by the deceased.
Ellie was in the room that afternoon when the old gentleman instructed McFarlane to turn the notes over to Ellie; and McFarlane in effect said, “I did not turn the notes over that evening, but the next morning Ellie
The deceased told Mr. McFarlane the reasons why he wanted to leave the notes to his son. His directions in that regard could not have been plainer or more positive. The old gentleman had told other friends that he wanted his son Ellie to have the notes, and that he had arranged with Mr. McFarlane for his son to have the notes; and he fully believed, according to this record, that the. notes had been delivered to his son, for he made no further claim to them nor tried to use them to secure a. subsequent loan, but resorted to other property he had. Undoubtedly he thought his gift to his son had been completed, and entertained this satisfaction at the time he closed his eyes in eternal sleep.
We think what took place between McFarlane and Ellie Harmon at the bank the next morning, after the conversation with the deceased was an act equivalent to delivery, and therefore constituted the delivery necessary to consummate the gift. Under the circumstances we think such delivery was made as was reasonably susceptible; the banker having a lien on the notes may not have actually placed the physical possession of them in the hands of the donee because he intended to hold them as security for the debt, yet there was delivery of the notes, as evidenced by the conversation regarding them and the taking of them from the vaults and showing and discussing the notes with Ellie Harmon, who was there to receive the property which he knew had been given to him by his father the day before; this was a delivery in the eyes of the law, and completed the execution of the gift. Garra
Therefore the decree of the lower court is reversed, and judgment entered here for appellant.
Reversed, and. judgment for appellant.
Dissenting Opinion
(dissenting').
Judge Sykes and myself are of the opinion that the contemplated gift here in question was not consummated by the delivery of the subject thereof. The only additions to the statement of facts contained in the opinion in chief and comment thereon which we deem necessary are:
(1) McFarlane was not the custodian of the notes. They were deposited with the bant of which McFarlane was the president as collateral security for a debt due by the deceased to the bank. It does not appear what Mc-Farlane’s authority as president of the bank was, and, in the absence of a charter provision or by-law to the contrary, the cashier and not the president is the executive officer of the bank.
(2) McFarlane did not approve of the deceased’s intention to give the notes to his son Ellie, and each time the matter was mentioned to him by the deceased, except the last, he attempted to dissuade the deceased from so doing. This fact should be taken into consideration in determining whether or not McFarlane intended to deliver the notes when he showed them to Ellie.
(3) The conversation of the deceased with John Mize in which he stated that he had left his personal property with McFarlane for Ellie occurred some days before the conversation between the deceased and McFarlane set out in the opinion in chief.