126 Mo. App. 355 | Mo. Ct. App. | 1907
Plaintiff is the daughter of Mrs. Lucinda W. Morse, deceased, and defendant the administrator of the estate of said deceased. This proceeding
“Edina, Mo., Oct. 21, 1905.
THE BANK OF EDINA,
Pay to Mattie F. Pennell ......$250.00
Two Hundred and Fifty........Dollars
In Current Funds.
L. W. Morse/'’
“Novelty, Mo., Oct. 21, 1905.
The Lyoan Bank oe Edina.
Pay to Mattie F. Pennell, or____$250.00
Two and Fifty................Dollars.
L. W. Morse/-’
Judgment was given in favor of plaintiff in the probate court, but on a trial anew in the circuit court, to which the case was appealed, the jury returned a verdict for defendant pursuant to a peremptory instruction given at the conclusion of the evidence for plaintiff. The checks which are the foundation of the demand, were signed a few hours before the death of Mrs. Morse and when she -was very low with illness. She had been in poor health for some time before, having suffered a stroke of paralysis which rendered one side of her body helpless. The date of the checks is October 21, 1905, but this date was inserted by mistake, as the checks were drawn two days later, on the twenty-third. Whether Mrs. Morse then realized how neár her end was, is uncertain on the proof. About three o’clock in the after: noon she asked plaintiff to get her check book and when it was put in her hands, wrote the two checks in question, handed them to her granddaughter, Daisy Pennell, the daughter of plaintiff, telling her to give them to plaintiff for the latter to use for any purpose she wished. This- incident occurred before the physician who had been attending the deceased, was sent for; but it must
“Whatever doubt may have once been entertained, the rule is now well established that all things in action which -consist of the promises or undertakings of third persons, not the donor himself, of which the legal or equitable title can pass by delivery, may be the subjects of a valid gift, including promissory notes, bills of
Equity does not lend assistance to voluntary dispositions of property while they are yet executory. If such dispositions are attempted in a mode-which fails for want of compliance with some indispensable rule of law, they will not be carried into effect in another mode to which the rule may not be essential. For example, if a gift is attempted without a complete delivery of the property meant to be given, the intention to give will be frustrated, and a court of equity will decline to treat the transaction as equivalent to a declaration by the would-be donor to hold the property in trust for the donee. [Bispham, Equity (6 Ed.), sec. 66.] This is according to the principle that executory agreements not based on a consideration, are unenforceable — ex nudo pacto non oritur aetió. And the merely meritorious consideration of kinship does not suffice in equity any more than at law, save in the instance of the defective execution of a power. [2 Story, Eq. Jur. (13 Ed.), sec. 793b; 3 Pomeroy (3 Ed.), sec. 996 et seq.; Young v. Young, 80 N. Y. 437; In re Soulard’s Estate, 141 Mo. 642, 43 S. W.
Our next inquiry will be whether the signing and delivery of the checks amounted to a present and completely executed assignment of the funds in deposit in the banks, whereby the title was passed to plaintiff. A check drawn by a depositor on his general account and not on a special fund, constitutes no assignment of the amount of the check, either at law or in equity. [Dickinson v. Coates, 79 Mo. 250; Akin v. Jones, 93 Tenn. 353; Hopkinson v. Forster, L. R. 19 Eq. 74; Citizens Bank v. First Nat. Bank, L. R. 6 H. L. 352; Insurance Co. v. Simmons, 30 Pa. St. 299; Laclede Bank v. Schuler, 120 U. S. 514.] Courts have said that if the check is drawn for the entire balance of the drawer, it will be treated as an assignment of it, if intended as such. [Kahnweiler v. Anderson, 78 N. C. 133; Kingman v. Perkins, 105 Mass. 111; Taylor’s Estate, 154 Pa. St. 183; Bispham, Equity (6 Ed.), sec. 167; 3 Pomeroy, Eq. Jur. (3 Ed.), sec. 1284.] This rule seems vague, but whether sound or not, it has no application to the present cause. If the deceased was not so far gone mentally as to be unfit to transact business, it looks like she must have known the checks she wrote did not correspond with her bank balances. She drew a check on the Lycan Bank for .$250, a sum much exceeding the fund she’ had on deposit there subject to check, and much less than the deposit covered by the
The judgment is affirmed.