162 A. 346 | Pa. Super. Ct. | 1932
Argued May 4, 1932. Anna Mary Vance, a resident of Allegheny County, with her brother, Rev. J.L. Vance and his wife were on a Mediterranean cruise when Miss Vance became ill and was taken to a hospital in Beirut where she died *469 intestate July 20, 1930. She left to survive her as next of kin, her brother, Rev. J.L. Vance, and a niece, Della Vance, the appellant. There is no dispute as to the facts involved. On the day before her death Miss Vance signed and delivered to her brother a check for the entire balance which she had in a savings account in the Oakland Savings and Trust Company of Pittsburgh. At the same time she delivered the pass book to the payee. The check was in the following form:
The rules of the trust company printed in the pass book provided inter alia that all monies deposited were subject to thirty days' notice of withdrawal and that any person wishing to draw money must send the pass book and order to the bank and that the signature of the depositor to the order of withdrawal must be witnessed. The check did not comply with the rules governing withdrawals. The check was an order for the payment to Rev. J.L. Vance of the entire balance with interest which the decedent had in such trust company. After the death of Miss Vance and the return of her brother to Pittsburgh, the check and pass book were presented to the Oakland Savings and Trust Co. and payment thereof demanded. The bank refused to honor the check. Letters of administration were taken out for the protection of the bank and the proceeds paid to Rev. Vance as administrator of his sister's estate. He accounted for the fund received and on distribution claimed the balance, which represented the deposit in question, as a gift inter vivos. The *470 auditing judge and court in banc awarded the fund to Rev. Vance. The niece, Della Vance, has appealed and the sole question presented for our consideration is whether, under these facts, there was a valid gift inter vivos.
"We have said that after the death of an alleged donor the evidence of a gift inter vivos must be clear and satisfactory, that it must disclose an unmistakable intention on the part of the donor at the time to withdraw or surrender his dominion over the subject of the gift, that it must show unequivocally an intention to invest the donee with the right of disposition beyond the recall of the donor, that the gift must be completed by actual or constructive delivery beyond the power of revocation, that the intention of the donor must be made manifest and established by clear and precise evidence, and the delivery of the subject of the gift must be as complete as the circumstances permit. To constitute a valid gift inter vivos two essential elements must combine, an intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject and invests the donee therewith. The burden of proof is upon the one who claims the benefit of a gift intervivos, and the proof must be clear and satisfactory": Turner's Estate,
The prime question involved is whether there was such a complete delivery as complies with the essentials of a gift inter vivos and, more particularly, whether the written assignment accompanied by delivery of the pass book constitutes a constructive delivery of the bank account. This is answered by a principle laid down in the cases of Reap, Exr. v. Wyoming V.T. Co.,
It will be observed that the assignment in writing, executed and delivered by Miss Vance, purported to transfer to the claimant at the time when delivered the entire balance standing to her credit with the trust company and that in the situation in which the parties found themselves she did everything that was possible to complete the gift. There was nothing left for the donor to do. Being many thousands of miles away and within one day of her death, it was not possible for the payee to present the book and transfer to the trust company and receive the proceeds. In fact, under the rules of the bank, he could not have secured the money until after a notice given.
This case closely resembles that of Taylor's Estate,
The argument of the appellant is based upon a distinction which has been drawn by our appellate courts between cases of the gift or attempted gift of deposits in a bank and other choses in action. "It is now well settled that a valid gift of non-negotiable securities may be made by delivery of them to the donee without assignment or indorsement in writing": Hafer v. McKelvey,
Counsel for appellant in his written brief states that he "stands squarely upon the law declared in Oldfield's Estate,
It is also contended that there is not here a valid gift because the assignment was not in the form prescribed by the rules of the trust company. These rules, however, are for the protection of the bank. Gifts of stock certificates have been upheld without any written assignment and yet it is the almost universal practice for the by-laws of a corporation to require actual transfer upon the books of the corporation. In Taylor's Estate, supra, the bank actually refused to recognize, during the lifetime of the donor, an assignment of a savings account made by mark, but it was held a valid gift. We are all of the opinion that the written assignment accompanied by the pass book indicated a present intention to pass the right of possession to the donee, and was such a constructive delivery of the subject matter of the gift as to divest the donor of all control and dominion over the property.
The decree of the lower court is affirmed, appellant to pay the costs of this appeal.