delivered the opinion of the court:
This case comes to this court from the Appellate Court by appeal on a certificate of importance.
Daisy M. Hart, (now Rothwell,) appellee here but who will be hereafter referred to as plaintiff, brought a replevin suit in the municipal court of Chicago against John L. Taylor, (hereafter referred to as defendant,) individually and as executor of the will of Elizabeth Condell, deceased, to recover two promissory notes for $1300 and $300, respectively, and two certificates of deposit of money in a bank, one for $465, the other for $100. These notes and certificates were payable to Elizabeth Condell and were never indorsed by her. After her death defendant learned they were in possession of plaintiff and demanded them as assets of the estate. She refused to give them up. Subsequently she placed them in the hands of her lawyer, with instructions not to deliver them to defendant without an order of court. Afterwards the lawyer did give them to defendant without any order of court and took a receipt from defendant stating that they were delivered to him but that such delivery was made under protest and without prejudice to plaintiff’s rights.
Elizabeth Condell lived in Libertyville, Illinois, and died there August 26, 1917. She had lived alone until some time before her death, when plaintiff, who was her niece and a nurse, went to her house and stayed with and took care of her till she died. Deceased was a maiden lady, seventy-two years old. Benjamin- Miller, an attorney, testified he prepared a will for her which was executed July 4, 1917, by which, after providing for the payment of her debts and funeral expenses and the erection of a monument not to cost to exceed $200, she devised all the residue of her property to Miller, Taylor (defendant) and Eaton, as trustees, for the establishment of a hospital in Libertyville. Miller testified -that about the first of August plaintiff called on him and told him her aunt desired to see him as early as convenient. He went to see her and she told him she wanted to change her will; that she wanted to give plaintiff the house and lot where she lived. He prepared another will giving the house, lot and furniture to plaintiff, and the residue of the testatrix’s property was disposed of the same as in the will of July 4. Miller testified he feared plaintiff’s influence had caused Miss Condell to make the change in her will, and when the last will was executed he inquired of her where she wanted the will kept and where she kept her papers and securities. Miss Condell requested him to keep possession of the will and told him she had her papers in her house in a bureau drawer. Miller, who is named as one of the trustees in the will, appears to have been very solicitous that the notes and certificates should pass to the hospital under the will and said he feared plaintiff might influence her aunt to dispose of them otherwise. He inquired if she thought that was a safe place to keep them, and Miss Condell told him to go to the bureau drawer and take out of a package an $18,000 mortgage and keep it with the will. In the same envelope were the notes and certificates of deposit here in controversy. Miller asked what she wanted done with them, and she told him to leave them there; that she might want to get money on them, and that she could do that if she wanted to. They were left in the bureau drawer.
It is not denied that plaintiff was in possession of the notes and certificates before and at the time of Miss Con-dell’s death, but they were never indorsed by Miss Con-dell. Plaintiff claimed her aunt made a gift of them to her and delivered them to her possession before her death. After-incompetent evidence, heard subject to objection, was stricken out, the proof of a gift to plaintiff by her aunt is plaintiff’s claim of ownership and possession of the notes and certificates before Miss Condell’s death. There was no proof that plaintiff’s possession of the notes and certificates was not acquired pursuant to a gift by her aunt. If they were a gift to plaintiff, indorsement was not essential to pass the title but it would have been important in establishing a gift. The question then presented to the trial court for decision was, whether plaintiff’s claim of ownership and possession of the unindorsed securities before the death of her aunt was sufficient proof of her title and ownership to authorize a judgment in her favor against defendant for their value. The trial court held that proof was insufficient and rendered judgment for the defendant. The plaintiff prosecuted an appeal to the Appellate Court for the First District, and that court reversed the judgment and entered judgment there for plaintiff for the face value of the notes and certificates. The Appellate Court’s judgment was not the result of finding the facts different from the trial court but from holding the trial court did not correctly apply the law to the facts; that the facts proved on the trial as a matter of law entitled plaintiff to judgment.
One of defendant’s contentions here is that a jury having been waived in the trial court and no propositions of law having been submitted no question of law was preserved for review by the Appellate Court, and for that reason the Appellate Court erred in reversing the judgment of the trial court. Counsel now say when the briefs were written the decisions of the Appellate Court for the First District were conflicting on that question, but it is now admitted that the question was settled contrary to defendant’s contention in Pittsburgh, Cincinnati, Chicago and St. Louis Railway Co. v. Chicago City Railway Co.
It is now well settled by all the authorities that negotiable instruments are subjects of a valid gift without indorsement or written assignment by the payee, if delivered to the donee by the payee with intent to transfer the title. The burden of proof of the gift is on the donee to prove all facts essential to a valid gift. The essential facts are the delivery of property by the donor to the donee with intent to pass the title, and the great weight of authority is that the proof to sustain the gift must be clear and convincing. (Maxler v. Hawk, 233 Pa. St. 316; In re Bolin,
Plaintiff contends that the undisputed proof of her possession of the property before her aunt’s death makes a prima facie case of her ownership, which defendant failed to overcome by contrary proof. In support of this contention great reliance is placed on Martin v. Martin,
To constitute a valid gift inter vivos of a chose in action there must be a delivery of the paper with intent to transfer the title. (12 R. C. L. sec. 18, p. 941.) Mere proof of delivery may be some evidence tending to show intent, but under the circumstances shown in this case all the authorities are that but little consideration can be given to it. Let us assume that because plaintiff had possession of the notes and certificates before her aunt’s death it must be presumed, unless the contrary is shown, that her aunt delivered them to her. Would the presumption also follow, as a matter of law, that the delivery was with intent to pass title ? The intent to pass title by delivery is an essential element of a valid gift. Here the delivery is claimed to have been made a few days before Miss Condell’s death. Must it be presumed such delivery was made with intent to pass title to plaintiff and for no other purpose ? There is no proof whatever of the intent with which the delivery was made, and we find no case, under circumstances similar to those of this case, where the intent will be inferred from the fact, alone, of delivery. (14 Am. & Eng. Ency. of Law, 1050-51.)
The Appellate Court erred in rendering judgment for plaintiff. Its judgment is reversed and the judgment of the municipal court affirmed.
Judgment of Appellate Court reversed.
Judgment of municipal court affirmed.