3 Ga. App. 742 | Ga. Ct. App. | 1908
John McCullongb, after living in Texas for some years, unexpectedly came to the home of bis brother Enoch McCullough in Polk county, Georgia, on the 26th of June, 1904. He was in bad health and was suffering from an incurable disease. At the dinner table, bis. brother and his brother’s wife and son being present, on the day of his arrival, be stated to bis brother and family that he had come back from Texas to his brother’s home, where be wanted to remain until be died; that he was in bad health and did not expect to recover, and that be wanted his-brother and family to take care of him and nurse him as long
Some time after the occurrences above narrated, J. H. Philpot, as administrator of John McCullough, brought suit in the city court of Polk county against E. E. McCullough, W. F. Goldin, and the Temple Banking Company, the purpose of the suit being to
The controlling question in this ease is whether the foregoing uncontroverted facts constitute a valid gift. Much learning has been exhibited by text-writers and courts as to gifts inter vivos and gifts causa mortis. From the very earliest times it has been uniformly held by the courts of England and this country that any kind of personal property may be the subject-matter of gifts either inter vivos or causa mortis. Gifts inter vivos and gifts causa mortis differ in nothing except that the latter are made in the expectation of death, become effectual only on the death of the donor, and may be revoked. Otherwise, the same principles apply to each. The Civil Code, §3564, defines the essentials of a gift: “To constitute a valid gift there must be the intention to give by the donor, acceptance by the donee, and a delivery of the article given, or some act accepted by the law in lieu thereof.” Section 3567 declares, that.“Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor, and the transfer of dominion to the donee, is a constructive delivery.” And section 3574 declares, that “A gift in contemplation of death (donatio causa mortis) must be made by a person during his last illness or in peril of death, must be intended to be absolute only in the event of death, and must be perfected by either actual or symbolical delivery. Such a gift, so evidenced, may be made of any personal property by parol, and proved by one or more witnesses.”
Applying the foregoing statutory provisions to the facts in this case, we think it is very clear that the gift of John McCullough to his brother Enoch was in all essentials a valid gift in contemplation of death. It is insisted that the gift in question was not complete, because there was no delivery by the donor to the donee that the check which John McCullough gave to his brother Enoch
Wien John McCullough delivered the certificate of deposit, issued bjr the bank in Texas and payable to his order, to his brother Enoch, accompanied by the declaration that he desired his brother, out of its proceeds, to pay his funeral expenses and the expenses of his last sickness, and wanted him to have the balance of the proceeds, the gift causa, mortis to his brother was complete. There was an equitable assignment of the certificate of deposit to the donee, although the donor at that time failed to indorse it; and if the situation had remained unchanged, the title of his brother Enoch to the certificate of deposit would clearly have been upheld as an equitable assignment of the certificate and the proceeds thereof. What took place subsequently did not divest the title of Enoch McCullough, and was simply a means adopted by John, his brother, of more effectually completing the gift. ■ When he acted upon the suggestion of Dr. Goldin and, by consent of his brother Enoch, indorsed the certificate of deposit, and had the certificate of deposit placed to his credit with the Temple Banking Company, and subsequently gave to his brother Enoch his own cheek for the full amount of the certificate, it did not change the character of the gift or affect its validity; and the individual check of the donor and the delivery of the same to the donee, with the res gestae
A case very much in point is that of Duffin v. Duffin, 44 Law Rep. Chan. Div. 76. “A testator who held a banker’s deposit note for £580, in his last illness and very shortly before his death, took out the note, filled in, and signed upon a stamp and form of check indorsed on the note, ‘Pay self or bearer £580" and interest,’ and handed the document to a relation, . . telling her that she was to give it back to him if he recovered, and, if not, she would he all right. Held, that there was a valid donatio causa mortis, for that, assuming a donatio causa mortis of a check not presented in the drawer’s life time to be invalid, the intention here was not merely to give the check, but the deposit note; that a deposit note is a g;ood subject of donatio causa mortis, and that the gift was not defeáted by the giving the check along with the note.” So in the present case, the gift of the certificate of deposit (which has universally been held to be a good subject of a donatio causa mortis), with proper words of gift at the time of delivery, was not defeated by
2. The burden was on the administrator in this case to show that the gift was either made at the time when the donor was incapable, on account of mental infirmit)'-, of making a gift, or that it was procured from him by fraud or undue influence. The general rule is, that if the donor has sufficient mental capacity to comprehend the transaction, his gift will be valid, and that mere mental weakness will not authorize the court to set aside an executed gift, if such weakness does not amount to an inability to comprehend the transaction: Thornton on Gifts, §442. There was no evidence, in this case of any mental unsoundness when the gift was made. The testimony of the physician and of the other witnesses who saw the» donor at that time, Avas that he AAras entirely rational, and that there was no indication of mental weakness. The evidence that the donor, a few days before his death, was generally unconscious, both from the progress of the disease and the effect of opiates, is not sufficient to sIioav any mental unsound
We think, on the controlling questions in this case, the verdict directed by the court was demanded by the evidence. In this view, the other questions made in the motion for a new trial become wholly immaterial. Judgment affirmed.