72 Pa. Super. 340 | Pa. Super. Ct. | 1919
Opinion by
The question involved arises in the distribution of the balance shown to be due in the account of the administrator of the estate of Thomas Oldfield, deceased. One Jennie L. Edwards appeared before the auditing judge and claimed the sum of $633.55 which she alleged had been given to her by the decedent in his lifetime. The circumstances surrounding the alleged gift may be thus briefly stated. At and prior to^ the date of his death the decedent had on deposit in the Germania Savings Bank of Pittsburgh the sum of $634.55. A few weeks before the date of his death he went to the home of the claimant and her husband, with whom he had always been on friendly terms, and remained there until he died. On May the 16th he was told by his physician that his illness was serious and that he could not live long. He then declared to the physician that he had some money in the bank and wanted Mrs. Edwards to have it because she had always been good and kind to him. The physician then wrote for him the following notice to the bank:
“May 16, 1917.
“To the Germania Savings Bank, Pittsburgh, Pa.
“Dear Sir:—
“I want to draw all of my money out, $634.55. Oblige,
“Yours truly,”
This was signed by the decedent and given to the claimant who took it to the bank. One of the employees therein then filled up the customary blank used in such cases, which, among other things, gave the number of the de
“Notice must be given for all amounts in excess of $25.00.
“Pittsburgh, Pa., May 16,1917.
“Germania Savings Bank,......$633.55 June 13,1917, ......weeks after date, pay to Jennie L. Edwards or bearer $633.55/100 and charge to my' account, deposit book No. 40707.
“Witness: “Thomas Oldfield.
“George W. Edwards.
“Bank book will have to come with this order.”
The decedent died on May the 18th. As the check or order, by its terms, was not payable until the 13th of June following, it was not presented for payment during the lifetime of the decedent nor afterwards.
Under this state of facts, had the claimant acquired, in the lifetime of the decedent, the title to the sum of money mentioned so that it could be said the gift had been fully executed and could be supported either as a donatio causa mortis or an equitable assignment? The learned court below held that the money was hers and awarded it to her. The decree of distribution being after-wards confirmed by the court in banc, this appeal followed.
It is certain the so-called check or order on the bank was not a negotiable instrument. So much was clearly held in Iron City National Bank v. McCord, 139 Pa. 57. The reason why it was so held was because the check or order in that case, as in this, contained a distinct stipulation that the bank book of the depositor must be presented at the bank with the check or order before any legal obligation to pay could arise. Now it is universally conceded that there is no such thing recognized by the law as an executory gift. This for the simple reason
In the present case we may concede that the intention of the decedent to give this money to the claimant was established by satisfactory proof. But there was still more to be done by him before he could execute his intention. His next necessary step was to give notice of that intention to the savings bank because it was a condition of his deposit that such a sum could not be withdrawn until after notice for a prescribed length of time had been given. This second step was taken and the intention of the decedent thus approached a degree nearer its final execution. Now it seems to be conceded, and
Gifts causa mortis are exceptions to some of the general rules applicable in such matters because of the unusual conditions under which they are made. It becomes incumbent therefore upon those who distribute the estates of dead men to see that such claims conform in all respects with the requirements of the law that recognizes them. The sufficiency of what was done by the decedent in this case has been considered by many of the courts and they have uniformly determined that, because of the failure of the depositor to deliver his bank book along with his check or other order upon the bank, the intended gift had not been fully executed and therefore could not be sustained as a gift causa mortis: Foley v. New York Savings Bank, 139 N. Y. Supp. 915; Pfeifer v. Badenhop, Supreme Court of New Jersey, 92 At. Rep. 273; Conser v. Snowden, 54 Md. 175; White v. Cushing, 88 Me. 339.
Nor do we think we could soundly hold that the signing of the order or check on the bank amounted to an equitable assignment of the amount of the check to the claimant ; thus vesting in her a then present title to that fund which would have been good against the decedent himself, had he been restored to health, or against his creditors who might have attempted to seize it. It is to be constantly kept in mind that if the claimant acquired
In determining whether or not there was an equitable assignment of a fund, important effect has been given to the fact whether the parties dealt with the whole of a particular fund or with only a part of it. We quote the following from the opinion of Mr. Justice Mercur in Jermyn v. Moffitt, 75 Pa. 399: “It is true, where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee, it binds the fund in his hands. Where, however, the assignment is of a part only of the fund the law seems to be otherwise. Thus, it was said by Mr. Justice Story, in giving the opinion of the court in Mandeville v. Welch, 5 Wheat. 277, ‘when the order is drawn on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the draft.’ The reasons which
As long ago as Nesmith v. Drum, 8 W. & S. 9, the nature of an equitable assignment was thus defined or declared : “An equitable assignment is an agreement in the nature of a declaration of trust, which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on valuable, or even good consideration.” In Hemphill v. Yerkes, 132 Pa. 545, a state of facts was developed which clearly called for the application of the principle. The fund in the bank was a special one deposited in the name of a master who had been appointed by the court to conduct a sale of real estate. The resulting purchase money of course belonged to the owner of the land. In due course of time the master drew a check for the whole of this special deposit to the order of the landowner to whom the money in reality belonged. It was held that there resulted an equitable assignment notwithstanding the general principle that an ordinary check upon a bank does not amount to an assignment of any part of the funds of the maker to the payee. If the principle could not be properly applied in such a case, there would be no reason for its existence at all. So in Fett’s Est., 39 Pa. Superior Ct. 246, there was a special deposit made by the decedent of money resulting from the sale of real estate belonging to his wife. The money was therefore clearly hers. As Ms executrix she had a right, as against legatees under his will, to retain that which was legally and morally hers. The question was, had she done so in the substitution of successive certificates of deposit in lieu of the one which had been delivered to her husband in his lifetime? It was held her
In the case at bar the claimant was a volunteer. She makes no attempt even to set up the status of a creditor. The money in the bank was not an ordinary deposit subject to payment by check. It could be drawn by the owner only after compliance with certain, conditions precedent. Until he had given notice in writing for a prescribed length of time of his intention to withdraw his money, and until he himself or one holding his order to pay presented with it his bank book, no obligation to pay arose. The decedent did give the required notice but it had not yet expired at the time of his death. He did
The decree of the court below is reversed and the record remitted with direction to make distribution in accordance with this opinion, the costs of this appeal to be paid out of the fund.