121 Cal. 426 | Cal. | 1898
The plaintiff seeks hy this action to recover from the defendant certain moneys claimed to belong to the estate of James Preston, of which he is the administrator. The defendant claims a right to the money by virtue of a gift causa mortis from the intestate. Judgment was rendered in favor of the plaintiff, and the defendant has appealed.
On the nineteenth day of March, 1897, James Preston, being ill and expecting to die from his illness, placed in the hands of the defendant two savings hank hooks, saying; “I want you to draw this money and pay it out as I wish to have it done, to different parties. I want you to draw the money and pay Damas Sirard one thousand dollars; pay John Sherman, in North San Juan, for one week’s hoard, about six dollars, I suppose, and pay to A. J. Grimes ten dollars. Then he said, ‘You select some charitable institution and give or send
Money deposited in a savings bank may be the subject of a gift causa mortis, if it appears from the transaction that the donor intended thereby to confer upon the donee a present right to the money, and, at the same time, clothed him with the means of obtaining it. The delivery, however, must be as a gift in presentí, and not for the purpose of making a future disposal of it under the directions of the donor. If the donee is merely empowered to draw the money, and is thereafter to dispose of it in accordance with instructions from the donor, he is only an agent of the donor and his agency terminates with the death of the donor. It is essential to a gift
At the time that Preston handed the bank books to the defendant he said nothing that in terms indicated his intention to make a present gift of the money. His remark, “I want you to draw this money and pay it out as I wish to have it done, to different parties,” and the subsequent designation of the persons to whom the money was to be paid, merely indicated the disposition which he wished made of his money after his death, and his selection of the defendant as his agent for that purpose. Certain directions for the payment of a portion of the money were then given, but at the time of giving them Preston said nothing indicating an intention to give any money to the defendant, or of the disposal to be made of what might remain after making the payments which he then directed. The language used by him indicated that the defendant was to pay
That it was not the intention of Preston to direct the defendant to make an immediate payment to the persons designated, and that the defendant was not authorized to make such payment, is shown by the defendant’s statement that at the time he received the bank books he told Preston that he would keep the money safely for him and that he should have it all back if he recovered. It is also to be noted that, with the exception of the one hundred dollars which was to be given to some charitable institution to be afterward selected by the defendant, Preston was under some obligation to each of the persons to whom he directed the defendant to pay the money; and, while the use of the word “pay” might be consistent with an intention to make a gift, it is inconsistent with such intention when used with reference to the discharge of an obligation. It cannot be held that there was a gift by Preston to any charitable institution, since the defendant was to select the institution to which the money was to be given.
The judgment and order are affirmed.
Garoutte, J., and Van Fleet, J., concurred.