O'Brien v. Elmira Savings Bank, 91 N.Y.S. 364

O'Brien v. Elmira Savings Bank

91 N.Y.S. 364 | N.Y. App. Div. | 1904

Chester, J. :

The legality of the judgment appealed from depends upon the correctness of the decision of the trial court that Ames made a valid gift causa mortis to Mrs. Peckham of the moneys in question. She is not a party to the action and the defendant bank has paid the money to' her upon her production and presentation to it of the pass book in accordance with its rule requiring such production *79and providing that “all payments made to persons producing the pass book shall be deemed good and valid payments to the depositors respectively, and shall discharge the Bank from any further liability.” If the money, however, in fact belonged to the estate of Ames and not to Mrs. Peckham, who produced the book and drew the money after his death, the bank having knowledge of such death when it paid the money to her, would not be protected by its rule.

If, on the other hand, there was a valid gift causa, mortis made by Ames to Mrs. Peckham, the money did not belong to the estate of Ames and the judgment dismissing the complaint o£ his administrator suing therefor was correct.

The essential elements to constitute such a gift are that it must have been made in contemplation of tbe donor’s impending death, by a clearly expressed intention to give in prmsenii • the subject-matter of the gift must have been delivered and the donor must have died from the existing ailment or peril without revocation of the gift. (Champney v. Blanchard, 39 N. Y. 111; Grymes v. Hone, 49 id. 17; Bidden v. Thrall, 125 id. 572.)

There is no question in the case that Ames died from an ailment with which he was affected when it is alleged he made the gift. He had typhoid fever at the time. He feared he would not recover therefrom and he died of that disease ten days thereafter.

An examination of the evidence satisfies me that it is sufficient to clearly show not only that Ames intended to give the moneys to Mrs. Peckham, but to show the delivery of the pass book to her. The defendant had the evidence of Daniel F. Murphy and his wife, who were disinterested persons and who at his request signed the paper executed by Ames on April seventh as witnesses. Their testimony shows that they were sent for by Ames for the purpose of witnessing the instrument; that he inquired whether it was necessary to have a notary public and was assured that two witnesses were sufficient. Murphy testified: “ When we went in, my wife spoke to Mr. Ames and asked what he wanted of her, and he said he had some money in the bank and he wanted to let Maggie (Mrs. Peckham) have it if anything happened to him and then he got up; he sat up in the bed and the paper was put down there * * * and he sat up like that and signed it. * * * He said he would have *80to have a run of typhoid fever and he said he was afraid that he wouldn’t get up again.” Mrs. Murphy corroborated this testimony. She testified that Ames said at the time, “ I have a little money over in the bank * * * and I want her (Mrs. Peckham) to have it in case anything should happen to me; ” that he then signed the paper in question, and “ after signing it he handed it back to Maggie.” The evidence in this respect was also corroborated to some extent by that of the mother and the sister of Mrs. Peckham. . All this evidence clearly shows that Ames intended to give the money to Mrs. Peckham in case he died from the dangerous disease from which he was then suffering and that his purpose in signing the request to the bank which he did was to effectuate such intent.

The evidence also shows that the paper signed by Ames and the - pass book were delivered to Mrs. Peckham, who on the same day took them to the defendant bank, where she signed its signature book and where the defendant changed its ledger account and the pass book to read : “ Dr. The Elmira Savings Bank to De Witt Ames or Mrs. Margaret Peckham, Or.” The message that Mrs. Peckham took to the bank from Ames, as testified to by the cashier, was that “ Ames wanted to know how to fix it so she could draw the money in case he should die.” The cashier further testified : “ I drew that instrument (the request referred to) in accordance with instructions received by me. I drew it to comply with those instructions as I understood them.” It is thus evident that the purpose of the bank was to so change the account and pass book as to give effect to the intent of Ames to let Mrs. Peckham have the money in case he died.,

All this repels the idea that the object of Ames in doing what he did and in having the changes made in the account was to create an agency in Mrs. Peckham to draw the money for his benefit during his life.

Where the intent to make a gift appears so clearly as it does here it is needless to examine the numerous authorities where no such intent appears, as to the effect of a joint credit such as was shown in this account after it was changed.

The evidence shows also that the pass book was delivered by Ames to Mrs. Peckham, who took it to the bank to procure the changes to be made, and that on her return from the bank she put it in the *81drawer of a desk belonging to her, where it remained until after he died. The fact that he kept his papers in this drawer and had a key and access thereto is not of much moment in view of the facts that she also had a key and access thereto and that he had delivered the book to her when she took it to the bank for the purpose of making effectual his intention of giving her the money. It is apparent that the book was under her control by his assent all the time after it was given to her by him. Such a delivery accompanied by the changes he had authorized to be made in the account was a good symbolical delivery of the moneys represented by the book. (14 Am. & Eng. Ency. of Law [2d ed.], 1059, 1060.)

When in addition to the facts already mentioned, which in my opinion are quite sufficient to sustain the judgment, it also appears that Ames and Mrs. Peckham were engaged tó be married; that he lived with her in the family of her mother; that she nursed him in his last sickness; that the time for their marriage had been fixed and was near at hand, and that they had rented a house and fixed the date upon which they were to take possession, the judgment appears to me to be clearly founded upon strong and satisfactory evidence and such evidence as under the authorities is required to support a gift omisa mortis. (De Puy v. Stevens, 37 App. Div. 289.)

The judgment should be affirmed, with costs.

All concurred, except Parker, P. J., dissenting; Chase, J., concurred in result only.

Judgment affirmed, with costs.