190 Mo. 640 | Mo. | 1905
On July 25, 1901, Giles Burlinggame of Putnam county, Missouri, died testate, at said county, and on July ———, 1901, his will was duly probated, and letters testamentary were issued to tbe defendants William Johnson and James E. Davis, who were duly qualified and are acting as such executors of said estate.
On August 26,1902, Tbe Harris Banking Company filed its petition in tbe circuit court of Putnam county, stating that it was and still is a banking corporation with its banking bouse in tbe town of Harris, Sullivan county, Missouri; that for several years prior to bis death, said Burlinggame bad kept a considerable sum of money upon deposit in plaintiff’s bank, bearing interest; that on May 22, 1901, plaintiff issued to said deceased a certificate of deposit for $8,080.91, which was dated June 11, 1901, and which said Burlinggame on said May 22, 1901, by written indorsement, assigned to Helen A. Miller; that plaintiff is informed and believes said Burlinggame delivered said certificate of deposit to said Helen A. Miller soon after said assignment and before bis death; that plaintiff is informed and believes that said certificate of deposit was in tbe possession of said Burlinggame at tbe time of bis death, and wbetber.be held tbe same for himself or for Helen A. Miller, plaintiff does not know. That said Helen A. Miller claimed same as her absolute property, but said executors inventoried same as tbe assets of tbe estate of said Burlinggame, and refused to deliver it to her; that said executors on the one band, and tbe said Helen A. Miller on tbe other band, are now each demanding' plaintiff to allow amount due on said certificate of deposit, and are threatening to sue tbe plaintiff if tbe sum is not paid to each of them respectively in full. That
At the October term of said court, 1902, Helen A. Miller filed her interplea, alleging that she was the owner and rightfully entitled to the said certificate of deposit and the fund evidenced thereby, and that the said Giles Burlinggame had no right, title or interest therein. That on or about the---day of--, 1894, at the special solicitation of the said Giles Burlinggame, said Helen A. Miller moved from her home at Springfield, Missouri, to the residence of said Giles Burlinggame and his twin brother, Miles Burlinggame, both of whom were old and infirm, living alone, both being bachelors and her cousins, and undertook to keep house, wait on and nurse them. That said Miles was then and has continued to be without means of support and was living off the bounty of his brother, the said Giles Burlinggame, and that solely at the solicitation of said Giles Burlinggame she entered upon the work, service and duties she had so assumed, and from that date continued in the discharge of the duties in keeping house, waiting on and nursing said Burlinggame until the death of said Giles Burlinggame on July 25, 1901. That in recognition of the kindness she had so shown said Giles Burlinggame and his brother, and because of the work and the labor so performed and the care and the attention she had bestowed upon said Burlinggame
On the same day Johnson and Davis, the executors, filed their petition as interpleaders, and admitted that they were the executors of the last will and testament of Giles Burlinggame, deceased, and alleged that said banking company duly issued its certificate of deposit to said deceased on date June 11, 1901, for. the sum of $8,080.91, bearing three per cent interest to maturity only; that said certificate ever afterwards remained the property of said Burlinggame, and was his property at his death, and that said money was due from said banking company to said Burlinggame, with all interest thereon, and was wholly unpaid at his death and was a' part of the assets of his estate. That said certificate was duly taken possession of by them as executors of the last will of said deceased, and duly inventoried by them as assets of said estate and they are now the owners and holders thereof as such and said certificate and said sum of $8,080.91, with all interest, is now due, for which they pray judgment and that this court order the same paid to them and for all proper orders.
On January 13, 1903, Helen Miller filed her answer to the petition of said executors substantially as fol
On the same day the executors filed their answer to the interplea of Helen A. Miller, and alleged that the deceased at his death had and held the said certificate of deposit for $8,080.91, and that these defendants have had and still have possession thereof ever since the death of said deceased, and deny 'all the other allegations in the petition of said Helen A. Miller and prayed judgment as in their interplea.
The cause was tried by the court without a jury, on January 13 and 14, 1903, upon the foregoing pleadings, and judgment was rendered for Helen A. Miller, inter-pleader, and the plaintiff bank was ordered and adjudged to pay said sum of $8,080.91 to her and the costs were adjudged against the executors, Johnson and Davis. Within due time the executors filed their mo
On the part of the interpleader, Helen A. Miller, the evidence was as follows:
Overton Harris testified that he resided at Harris, Missouri, was a farmer and banker; he knew Giles Burlinggame twenty-five or thirty years; he died in about one month after his last visit to our town on June 13, 1901. Witness was at the time of giving his evidence, and had been president of the Harris Banking Company for three years. At the time of his death Giles Burlinggame had $8,080.91 on deposit in the bank; he had been a depositor for several years. The certificate of deposit for $8,080.91 was drawing three per cent for twelve months. At the time he made this deposit Burlinggame told me and my son, Cliff Harris, the cashier of the bank, that he wanted to wind up his business, and asked us to fix this deposit so that Helen A. Miller could be the absolute owner of said property. We told him that he could make an indorsement on the back of it and sign it over to her. Cliff wrote the indorsement and handed the certificate to him, and Giles Burlinggame signed the same. He then said, this winds up my business with the exception of about $3,500 that he had on deposit in a Lucerne bank, which amount he .expected to bring down and fix the same way that he had the $8,080.91; that he wanted her to have this last amount as well as the first he had given her. On June 13,1901, he came back to Harris to our bank and brought $500. I asked him if he wanted a time’ certificate for it; he said no, that he would be down in a few days aud bring the balance; he would then fix it as he did the other. He said for us to pay this to no one but Helen Miller. Just about a year before he made this deposit, his deposit he made at that time was $7,855.26. He told us at that time in case of his death that Helen Miller would come
*653 Harris Banking Company, Harris, Mo.,
June 11, 1901.
“Giles Burlinggaine, Esq., Lucerne, Mo.
“Dear Sir: Regarding the matter we were talking about I wish you would come down this week if possible as we have a chance now to make a nice $5,000 loan on 1,000 acres of land. This is a loan we want to make and if we use your funds in making it we want to have them soon. I think now that I will have to be away from home next week, and if your health is good you had better come down this week. ■ Please answer and let us know when you will be down. I will be at home all this week.
“Yery truly yours,
“O. Harris.”
C. R. Harris testified as follows: I reside at Harris, Missouri, and am a son of Overton Harris and cashier of the Harris Banking Company and have been for five years. He testified that Giles Burlinggaine had been a depositor in their bank ever since he had been cashier; that he would come around about the first of June to collect his interest on his old certificate, and renew it, or make a new deposit. He came down on May 22,1901, the certificate matured June 11; said he wanted to wind up his business; wanted to leave his money to Mrs. Miller; that he wanted to leave some more'money in connection with his time certificate he was then carrying, plus the accrued interest. The other amount was about $3,500 he then had in the bank at Lucerne, his home bank. He would bring that down in small sums, to leave the impression he was loaning it. We arranged his new certificate upon his request, payable to himself, for $8,080.91, at three per cent for twelve months. He said he wanted this, as he had previously instructed us, so that Helen A. Miller could draw it at the time of his death; that he wanted her to have it, and asked how he
Frank O. Miller testified he was a son of Mrs. Helen A. Miller, interpleader; that some twelve years before his mother went to live with Giles Burlinggame, he had a conversation with Giles Burlinggame in which the latter said to him, “I would like to have your.mother come and live with me, or in other words take care of me; I am getting old, I will give her all I have; do you think she would come?” I said, “I do not know, but said I would write to her about it,” and he said, “all right, he wished I would.” He said there were only two women in the world he cared anything about and one of them was my mother. That was about all of the conversation at that time. I wrote her the statement he made to me. I suppose he was about sixty-five years old at that time.
Thos. Scott testified: My name is Thomas Scott, age 54 years, residence Wintersville, Sullivan county; occupation farmer. I have known Giles Burlinggame for ten years. I saw him at Harris the latter part of May, 1901. I told him I had a life policy in the Woodmen and had come to have it changed; and he said he had come to get his business fixed up; that he got Cliff
Mrs. Miller also read in evidence a passage from the inventory filed by the said executors, as follows: “ Certificate of deposit No. 132 issued by the Harris Banking Company of date June 11, 1901, bearing interest at the rate of three per cent per annum for the sum of $8,080.91; interest due on the above to date $40.60. ’ ’ In parenthesis: ‘‘ (Above certificate indorsed to Helen A. Miller.) ’’ Also read in evidence said certificate, as follows: “ $8,080.91. Harris Banking Company, Harris, Missouri, June 11, 1901. Giles Burlinggame has deposited in this bank eight thousand and eighty dollars and ninety-one hundredths, subject to the order of himself on the return of the certificate properly indorsed. C. B. Harris, Cashier. No. 132. This certificate isn’t subject to check, three per cent interest to maturity only,” and on the back the following indorsement: “For value received I hereby assign this certificate to Helen A. Miller, and authorize her to draw the same. Giles Burlinggame.”
S. S. Johnson, a tenant of Burlinggame, testified that he saw him in. June, 1901; about a week after Bur
Charles Burlinggame, nephew of the deceased, testified he was at his uncle’s a few days before his death; he had something like a little book, wrapped up in a piece of leather and he was very weak and tried to sew that into his bosom. Mrs. Miller offered to help him and he said if he wanted any help he would ask for it. I was there the day the executors -got the papers. Mrs. Miller said they came and got Giles’s papers and that there was a certificate of deposit for $500 among them and she gave it to them. She did not mention the $8,000 certificate.
A. H. Lowry testified: I was at Burlinggame’s the morning he died. A few minutes before he died Mrs. Miller said for me to take charge of the papers in his shirt pocket and give them to her; that was Burlinggame’s request. She said there was a paper in there that really belonged to her; that he had showed it to her, but that he wanted to keep it in his possession to draw the interest on it. I don’t know whether she said it was a paper or a certificate. I went and got Uncle Billy 'Wil-.
James E. Davis, executor, testified he was at the inventory; that Mrs. Miller said that when Burlinggame came from Harris he showed her the certificate of deposit, and my impression is that he told her that at his death it was hers. That he would keep it and draw the interest while he lived. There was a will and some-notes and a memorandum of deposit of $500 in that book. They were all inventoried. I believe I heard Mrs. Miller say something about the paper being hers, hers at his death. I think she said that he would keep it until his death and he would draw the interest. She said that he had shown it to her when he came from Harris and said that it was hers at his death, but that he would keep it until his death and draw the interest.
William Johnson, one of the executors, testified that he was sent for, and Mrs. Miller got the papers; she said they were on Mr.'Burlinggame’s body. She named about them being pinned on or sewed on his shirt or on his breast, and says that he said that he would keep them right there. A day or two afterwards we went back to get the papers. Mrs. Miller handed them to Mr. Ourrey and he opened the papers and this certificate was among them. She said he was giving her that to take care of Miles, that certificate she was claiming; that he was afraid if Miles got it into his possession at his death these other brothers and folks would get the
Dr. Parish testified: I was at Burlinggame’s the night he died. He was very sick and kept holding his hand on his left breast. I asked him if anything was hurting him and I thought he mentioned his money. I noticed a bulk in his shirt and it looked like it was sewed in. After his death I asked Mrs. Miller what had become of those papers and she said we called in some parties and took them off.
In rebuttal, William Wilson, a witness for Mrs. Miller, testified, that Mrs. Miller said that when Burlinggame came home from Harris he took out that certificate and handed it to her and told her he wanted her to read it, and he said, “Now that is yours, but I want the use of it while I live. ’ ’ I was at Burlinggame’s directly after his death and found a bundle of papers sewed up in his shirt pocket. I ripped the pocket open and took the papers out. I didn’t notice the papers; they were tied up with a twine string, solid, all in a bunch, and I handed them to Lowry and he handed them to Mrs. Miller and told her to put them away, and she put them in her trunk. After the burial she asked me to open the package — she did not want to hold it. I found the two certificates, one for $8,080.91 and one for $500; some notes payable to Burlinggame, and the will, and about $95 in cash. And she said that Burlinggame had them in his pocket while he lived and had her sew them in. She said that he wanted her to-wear them on her person and she did not like to do it; that he put them in his pocket when she did not want to take them and put them in there and had her sew them in, and I came in while she was sewing them in and saw her sewing them.
The issue is a simple one, to-wit, who is the rightful owner of the said certificate, Mrs. Helen A. Miller on the one hand, or the executors of the last will of Giles. Burlinggame, deceased, on the other hand? The facts are few and not complicated. It is not disputable that the deposit of $8,080.91 in the plaintiff bank of date June 11, 1901, was originally made by the said Giles Burlinggame in his own name and a certificate of deposit issued directly to him. Mrs. Miller asserts title to the said certificate and the fund which it represents on two grounds: First, an executed gift inter vivos, and second, an executed parol trust created by Giles Burlinggame in her favor to the said fund. The executors insist that the gift was invalid for want of a delivery of the certificate after the assignment thereof on its back to Mrs. Miller, and that there was no evidence of any intention to create a trust in said fund in favor of Mrs. Miller. The learned circuit court made a special finding of facts and found that the evidence established a valid executed gift inter vivos from the said Burlinggame to Mrs. Miller, and that by his assignment of the deposit certificate to Mrs. Miller and his subsequent acts he had relinquished all control over the said certificate of deposit and held the same as the property of Mrs. Miller. The first inquiry, therefore, must be as to the propriety of this finding of the circuit court. The question is one of equity and the finding and conclusion of the circuit court is open to review by this court; and
Addressing ourselves then to the question whether the facts developed on trial established a valid executed gift inter vivos from Giles Burlinggame to Mrs. Helen A. Miller, the testimony in our opinion establishes that .Giles Burlinggame deposited $8,080.91 of his own money in plaintiff’s bank on the 22nd day of May, 1901, and took a certificate of deposit therefor in his ownname, and at the same time he indorsed on the back of said certificate the following words: “For value received I hereby assign this certificate to Helen A. Miller and authorize her to draw the same. Giles Burlinggame. ’ ’ And at the time of the execution of said assignment the said Giles Burlinggame directed the plaintiff banking company not to pay said deposit to any one else, but to pay the same to Helen A. Miller, and requested Overton Harris, the president of the said banking company, to hold the said certificate of deposit, but the said Harris declined to do so; that thereupon the said Burlinggame replaced said certificate in his pocket and returned to his home with it in his possession. As to what occurred between Giles Burlinggame and the interpleader, Mrs. Helen A. Miller, in regard to said certificate of deposit after his return to his home, Mrs. Miller was not competent to testify, and we are forced to accept the evidence as to her statements of what occurred by proof aliunde. It is conceded on all hands that when Giles Burlinggame died, this certificate of deposit, together with another for $500 and his will, were found on his person wrapped in a leather bag and sewed to his shirt, and was turned over to his executors by Mrs. Miller soon after his
James E. Davis, one of the executors, testified that he was present at the making of the inventory, and Mrs. Miller said that when Burlinggame came from Harris he showed her the certificate of deposit, and his impression was that he told her that at his death it was hers; that he would keep it and draw the interest while he lived.
William Johnson, the other executor, testified, that he was sent for after Burlinggame’s death, and Mrs. Miller got the papers and turned them over to him; he said they were on Mr. .Burlinggame’s body when he died, pinned on or sewed on. his shirt, and said that he said that he would keep them right there; that,when he opened the package the certificate in controversy was among them.
William Wilson testified that Mrs. Miller said that when Mr. Johnson, the executor, came down there and got the papers, Mrs. Miller asked if he thought he ought to take the certificate that was signed over to her, but he said that as it was found among the other papers he thought he ought to take it to Hnionville with him, but that he thought it ought to be sent back to her; that Mrs. Miller said that when Mr. Burlinggame came back from Harris he took out that certificate and handed it to her to read it and said, “Now that is yours, but I want to
Mr. Clifton R. Harris testified that at the time the certificate of deposit was issued, Mr. Burlinggame said he wanted this fixed so that Helen A. Miller could draw it at the time of his death.
That Giles' Burlinggame intended to give Mrs. Helen A. Miller the certificate of deposit or rather the fund which it represented at some time does not admit of doubt. “Courts are ever desirous of carrying out and effectuating the intention of parties as manifested by their agreements or declarations of trust, and will do so whenever it can be done consistently with the established rules of law. To constitute a valid gift inter vivos, there must be an intention to give,and a delivery to the donee, or to someone for him, of the property given. An intention of the donor to give is not alone sufficient; the intention must be executed by a complete and unconditional delivery. Neither will a delivery be sufficient unless made with an intention to give. The transaction must show a completely executed transfer to the donee of the present right of property and the possession. The donee must become the owner of the property given. [Dunn v. Bank, 109 Mo. 97; McCord v. McCord, 77 Mo. 166; Walter v. Ford, 74 Mo. 195; Tomlinson v. Ellison, 104 Mo. 105.] A gift cannot be made to take effect in the future. Such a transaction would only amount to a promise to make a gift in the future, and being without consideration is void. [Spencer v. Vance, 57 Mo. 429; School District v. Sheidley, 138 Mo. 672.] ” [In re Estate of Soulard, 141 Mo. l. c. 657.]
In view of these well-settled principles of law can
II. Notwithstanding the conclusion we have reach-that the transaction by Giles Burlinggame cannot be
Mr. Perry in his learned and exhaustive treatise on Trusts, in the first volume, section 86, thus states the doctrine: “'There does not seem to be any objection to the establishment of a trust in personal property by parol. The owner in the absence of a statute has entire control of it; he can sell and transfer it without writing and by parol, and if he can transfer it by parol, there is no reason why he may not by parol transfer it upon such lawful terms, and to- such uses and trusts, as he may desire. It has been so ruled in express decisions in the United States. When a person sui juris orally or in writing explicitly or impliedly declares that he holds personal property for another, he thereby constitutes himself an express trustee.” Section 3416, Revised Statutes 1899, in force at the date of the making of the deposit and the assignment of the certificate therefor, in this case, is to-all intents and purposes identical with sections 7 and 9 of the English Statute of Frauds of 29 Charles II.
By its terms personal chattels are not included within it and such has been the uniform judicial construction of these sections in our sister states. [Gilman
The English cases fully sustain this view. [Benbow v. Townsend, 1 M. & K. 506; Jones v. Lock, 1 L. R. Ch. App. Cas. 25.]
Such unquestionably was the opinion of this court in Lane v.' Ewing, 31 Mo. 86. But we are cited to two decisions of this court holding that an express trust cannot be created by parol under section 3416, Revised Statutes 1899; Mount Calvary Church v. Albers, 174 Mo. 331, and State ex rel. v. Hawes, 177 Mo. 360.
The announcement of this rule in Mt. Calvary Church v. Albers, supra, was predicated on the decisions in Rogers v. Ramey, 137 Mo. 598, and Woodford v. Stephens, 51 Mo. 448.
A careful reading of both decisions will demonstrate that neither supports the proposition that an express trust as to personal property cannot be created by parol. Each of said cases involved a claim of trust to real estate alone and of course the language used had reference alone to the subject-matter, to-wit, real estate. The statement in State ex rel. v. Hawes is based upon Mt. Calvary Church v. Albers. The writer, who is responsible for the statement in the Hawes case, is convinced that this statement of the law as to the creation of a trust in personalty is opposed by the unbroken line of authority in England and in the United States, and has no hesitancy in taking this first opportunity of confessing his error. He is still of opinion that Church v. Albers and State ex rel. v. Hawes were both correctly ruled on all other points and that it was not necessary to have announced that a trust in personalty could not be created by parol. We think those cases are in conflict with the earlier decisions in Lane v. Ewing, 31 Mo. 86, and Huetteman v. Viesselmann, 48 Mo. App. 582.
Accordingly we hold that the objection that the trust, if any, in favor of Mrs. Helen A. Miller, cannot be established by parol evidence is not tenable, and we must decline to follow the rulings to the contrary in Church v. Albers, 174 Mo. 331, and State ex rel. v. Hawes, 177 Mo. 360.
But it is further urged that this assertion of a trust is antagonistic to the claim of an executed gift inter vivos, and we are cited to the language of the Court of Appeals of New York in Young v. Young, 80 N. Y. 437, approved in In re Soulard’s Estate, 141 Mo. 659, to the effect that “it is well settled that equity will not interpose to perfect a defective gift or voluntary settlement made without consideration. If legally made, it will be upheld, but it must stand as made, or not at all. "When, therefore, it is found that the gift, which the deceased attempted to make, failed to take effect, for want of a delivery or a sufficient transfer, and it is sought to supply this defect and carry out the intent of the donor by declaring a trust which he did not himself declare, we are encountered by the rule above referred to. It is established as unquestionable law that a court of equity cannot by its authority render that gift perfect which the donor has left imperfect, and cannot convert an imperfect gift into a declaration of trust, merely on account of that imperfection.”
Conceding and agreeing to this statement, it does not follow that, because a party is not able to establish a perfect gift inter vivos, he or she may not show a perfect valid trust and have it enforced. The decision in Soulard’s case is a complete refutation of such a position. In that case it was ruled there was no valid gift, and yet it was held that a valid express trust had been created and it was enforced. Judge Macfab.lane, speak
La Savings Institution v. Titcomb, 96 Me. 62, the case was one of interpleader in equity, just as in the suit at bar, and the interpleader set up a gift inter vivos subject to a parol trust for his children, or if not a gift, then a trust created by the donor in favor of inter-pleader’s children. The Supreme Court of Maine held, as this court did in Soulard’s case, that the evidence did not establish a valid gift inter vivos, but that it did sustain a valid executed trust and enforced it. The court said: “It still remains to inquire whether he created a valid trust. We think he did. It is true if the transaction was intended as a gift in praesenti, but was • imperfect, as for want of delivery, a trust cannot now be substituted for the gift. If it was intended fi> be a gift inter vivos, whether it was perfect or imperfect, it was not a trust. [Norway Savings Bank v. Merriam, 88 Me. 146.] On the other hand, if the transaction was not intended to he a gift, it might constitute a trust.”
The pleadings of Mrs. Miller in this case are tantamount to the pleading of the interpleader in Savings Institution v. Titcomb, and the evidence was offered to sustain her right to the deposit in the alternative. The
We recur then to the main proposition in this case, and that is, did the evidence establish an executed parol trust as to this certificate of deposit for the benefit of Mrs. Miller?
If a complete valid executed trust is established it will be enforced notwithstanding it is purely voluntary. [Leeper v. Taylor, 111 Mo. l. c. 324; Pomeroy’s Eq. Jur. (2 Ed.), secs. 996, 997.]
In In re Estate of Soulard, 141 Mo. 660, it is said that it is well settled law that no particular words are necessary to declare a trust. If the language sufficiently expresses an intention to create a trust, that will be sufficient. This is recognized by all the authorities. [Perry on Trusts, sec. 82.]
The donor or trustor may accomplish this result “by actually transferring the property to the persons for whom he intended to provide and the provisions, will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purpose of the settlement, or if he declares himself a trustee for those purposes.”
Giving full credence to the witnesses who testified to the statements of Mrs. Miller as to what occurred between Mr. Burlinggame and herself on his return from Harris with the certificate of deposit in his pocket and the assignment indorsed thereon, together with the testimony of the Messrs. Harris, we think no other rational conclusion can be drawn, than that Mr. Burlinggame intended that Mrs. Miller should have the fund represented by the certificate of deposit at his death. This is made entirely clear by his consulting Overton Harris as to the method he should pursue, to use his
In the case at bar there were both deposit and declaration. By this statement we are not to be understood as holding that a voluntary executory agreement to create a trust could be enforced, but that where there is a declaration of an executed trust after the donor had done all he could so that nothing remained to be dope, then the trust was executed. Looking at the substance of things, not mere forms, we are constrained to hold
In this case the deceased donor said to Mrs-. Miller after showing her the certificate duly assigned to her and after-she had read it: “Now that is yours, but I want the use of it while I live. ’ ’ This statement is fully corroborated by the testimony of the Messrs. Harris as to his inquiry how he could make it her absolute property, and when advised to accept a certificate and then indorse it to her, he did so and then and there directed them not to pay it to anyone else. This was not a mere executory promise, but considered altogether was a declaration of a trust in favor of Mrs. Miller in the present tense, and doubtless considered by Giles Burlinggame as a completed transaction, inasmuch as when it was done and his directions given to his bankers to pay it to no one else, he said that if was her property, not that he intended to give it to her, but it was now hers, subject only to the right in himself to receive the
La Gerrish v. New Bedford Institution, 128 Mass. l. c. 161, it was said: ‘ ‘ There is in the case at bar no formal written declaration. But no particular form of words is required to create a trust in another, or to make the party himself a trustee for the benefit of another. It is enough for the latter purpose if it be unequivocally declared in writing, or orally if the property be personal, that it is held in trust for the person named. [Ex parte Pye, 18 Ves. Ch. 140; Wheatley v. Purr, 1 Keen 551; M’Fadden v. Jenkyns, 1 Hare 458; Milroy v. Lord, 4 De G., F. & J. 264.] When the trust is thus created, it is effectual to transfer the beneficial interest, and operates as á gift perfected by delivery.” In that case the court commented upon the effect of notice to the donee, and said: “Notice to the donee is indeed not necessary when other acts or declarations of the donor are sufficient and complete in themselves; but when the transaction is capable of two interpretations and the- settlement is merely voluntary, it is plain that notice given by the donor to the donee of the existence of the trust would, in most cases, be decisive on the question of intention. It takes the place of that delivery which is' necessary to perfect a gift of personal property. It is not only satisfactory evidence of an executed intention, but it is a declaration in the nature of an act necessary to complete the transaction and create the trust. ’ ’ In this case the donor not only gave notice to the donee and announced to her, in view of the deposit and the assignment in writing to her, that it was hers, and that he was holding it for her until his death, but he went further and notified the bankers who owed the deposit that it was her absolute property and not to pay it to any one but her. ■
While in our opinion the circuit court erred in holding it a valid gift inter vivos, all the facts are before us as a court of equity, and the judgment and decree of the circuit court is affirmed, notwithstanding the reason upon which it is based is not approved.
