121 Cal. 674 | Cal. | 1898
The plaintiff, as the administrator of the estate of Elizabeth Cook, deceased, seeks by this action to recover from the defendant certain personal property, or its value, alleged to belong to said estate. The defendant claims the property under title derived from the deceased in her lifetime. Mrs. Cook had been ill for several months, and, with the purpose of seeking relief, was about to undergo a surgical operation from which she apprehended danger. On the morning of May 30, 1895, the defendant came to her house by previous appointment to see her, and she informed him of this purpose, and stated that she wanted to dispose of her property; that she had once made a will, but had destroyed it, and had made up her mind that she might as well give her property away while she was living, say
“For and in consideration of one dollar, to me in hand paid by W. G-. Tripp, and other considerations to me moving, I do hereby sell, assign, transfer, and deliver to said W. Gr. Tripp all my household furniture, wearing apparel, and all other personal property owned or held by me in that certain house in the city of Oakland known and designated as 680 Tenth street.
“Dated May 31, 1895.
“ELIZABETH L. COOK.”
This instrument is in form a bill of sale, but defendant testified that no consideration was given therefor. On the same day she assigned to the defendant three bank-books representing-money deposited by her in certain saving banks in Oakland, and which he immediately caused to be transferred to his account in the banks. On the next day she indorsed to him certain promissory notes held by her, and also assigned to him two certificates of stock for five shares each in the Equity Building and Loan Association. She underwent the surgical operation on the 12-th of June, and in two days thereafter died. The present action was brought to recover the above property. Judgment was rendered for the plaintiff, and upon motion of the defendant a new trial was granted. From this order the plaintiff has appealed.
It is claimed by the defendant that by this transaction the property was transferred to him absolutely as a gift inter vivos, while the plaintiff contends that Mrs. Cook intended no more than to transfer it as a gift causa mortis, and that her intention failed of effect for the reason that the property was not delivered by her to the defendant.
The circumstances attending the transaction very clearly preclude it from being' considered as a gift of the property inter vivos. Mrs. Cook was an invalid fifty-four years of age, and it" must be assumed that she had at least a hope that she would come safely out of the surgical operation that she was about to
At the interview between them on May 31st the defendant prepared the following memorandum of the disposition that Mrs. Cook desired to be made of the property to be transferred to him:
“May 31, 1895.
“Instructions of Mrs. E. L. Cook as to the Disposal of her Property in the Event of Death.
“AY. G. Tripp is to have the house and lot and contents of the house at 680 Tenth street, and all other real estate, and is to pay all debts and funeral expenses, for permanent care of the cemetery lot, and such monuments as he may choose for herself and husband. To pay E. A. Jenner, of Belvedere, two thousand dollars; Fred B. Kimball, AYebster City, Iowa, one thousand dollars; Fred AY. Cook, Hew York, one thousand dollars; C. F. Hieklaus, Oakland, Cal., two thousand dollars; Mrs. Fannie Hilton, Oakland, five hundred dollars; Miss Grace Hilton, five hundred dollars; Miss Carrie Hilton, five hundred dollars; Mrs. Pierce, Oakland; one thousand dollars; Miss Maggie Gates, Oakland, two hundred dollars.
“Any property remaining after these instructions are carried out is to belong to G. AY. Tripp.”
The following addition appears to have been afterward made to this memorandum: “June 8, 1895. Trunk and contents in closet under the back stairs is to be delivered to Mrs. Hilton.” This memorandum is not signed by anyone, nor does it appear that Mrs. Cook ever saw it or knew its contents, but the defend
Whether the transaction constituted a valid gift causa mortis must depend upon what was said and done by Mrs. Cook at the time of the alleged transfer.
Gifts causa mortis are not regarded in the law with favor, since they are in contravention of the general rules prescribed for the testamentary disposition of property, and therefore should in all eases be established by clear and convincing proof of the requisites of such a gift. For the purpose of preventing frauds and perjuries, the statute requires a testamentary disposition of property to be made by a written instrument, executed with certain formalities, and, while a gift causa mortis is testamentary to the extent that it is made in contemplation of death, and becomes absolute only upon the death of the donor, it is at the same time subject to the rules governing a gift inter vivos. The actual delivery of the thing given is made the substitute for the formal writing required for a testamentary disposition, but without such delivery the words of the donor are unavailing to constitute a gift. Donatio perficitur possessions accipientis. All gifts are necessarily 'inter vivos, for a living donor and a living donee are indispensable to a valid gift; but when the gift is made in contemplation' of impending death, and as a provision for the donee in the event of such death, it is called a gift causa mortis.■■ This designation of its character does not, however, change the elements requisite for rendering the gift complete. There can be no gift without an intention to give, and a delivery either actual or constructive of the thing given. The Civil Code, section 1146, defines a gift to be a transfer of personal property,
Only Mrs. Cook and the defendant were present at the interview between them, and the defendant is the only witness who gives any account of what was then said. Hone of the writings introduced have any reference to a gift, and, as there was no one else present at the conversation between the defendant and Mrs. Cook, the character of the transaction must be determined from his testimony alone. At the interview of May 30th she did not make any disposition of the property, but postponed her action until after she had consulted an attorney. Her statement at that interview, “I want to give it to you, or place all of it in your hands, and tell you those whom I want should have it,” indicates merely a purpose which is not fully disclosed, and the second clause of the statement is to he regarded as signifying the meaning which she attached to the word “give” in the first clause, and is to be construed as her desire to make the defendant her agent for the disposition of her property,
The promissory notes and the certificates of stock were kept by Mrs. Cook in a tin box, which was locked and placed in a secretary, which was also kept locked. This secretary stood in the room which was occupied by Mrs. Cook during her illness, and remained there until after her death. There was also in the secretary some jewelry which does not appear to have been mentioned by her, and which the defendant says he did not have in his hands at any time until after her death, when he took it out ■of the secretary. On the 30th of May, at her first interview •with the defendant, Mrs. Cook handed to him the key of the ¡secretary, but, as she did not on that day determine the disposition she would make of her property, no significance can be attached to this act. Ho use appears to have been made by him of the key until June 1st, when he took the notes and certificates of the stock from the secretary, and after Mrs. Cook had signed the indorsements thereon he put them back into the box, locked .it up, and put it into the secretary, where it remained until after her death. He appears to have retained the key to the secretary, and after her death he took from it the tin box with its contents. At the time Mrs. Cook gave him this key she did not accompany it with any words of gift, and her request to him to take it is more consistent with her desire that he should be merely its custodian than with a purpose to give him the secretary or any of its contents. The subsequent placing of
It is evident that it was the intention of Mrs. Cook to dispose of her entire estate for the purposes mentioned in the memorandum of May 31st, and that the payments therein named were not to be made by the defendant unless he should receive the whole of her estate. It was clearly her intention that he should not have the whole of her estate, and, as he would not be required to make any of the payments in case he should receive only a portion of it, it must follow that by reason of his failure to obtain the property, other than the money, for want of a delivery in her lifetime her entire purpose must fail. Unless the gift can be maintained as a whole, the failure of the principal part must defeat it entirely. (See McGrath v. Reynolds, supra.)
The moneys in the bank at the time of the assignment of the bank-books to the defendant amounted to $8,702.53, and by the memorandum of instructions made by the defendant he was directed to pay out $8,700, aside from all debts and funeral expenses. The value of the entire personal property received by him is $10,802, and he testified that he has already paid $1,800 for debts and expenses. The character of the assignment of
The order granting a new trial is reversed.
Temple, J., McFarland, J., Garoutte, J., Henshaw, J., and Van Fleet, J., concurred.
