78 Iowa 426 | Iowa | 1889
Katharine Schollmier died intestate on the twenty-fifth day of December, 1886. For about fifteen years before her death she had made her home with the defendants, her daughters, living a part of that time with one of them, and the remainder with the other. In her lifetime she kept an account with the German Savings Bank, and on the twenty-eighth day of May, 1886, it had to her credit abalance of $1,730.18. On that day decedent visited the bank with her bank-book, which contained a statement of her account with it, and had the assistant cashier write on the page next after the end of the account the following: “May 28, ’86. Pay to order of Elizabeth Schoendelen and Dorothea Hasenmiller all of the within deposit after my decease.” This was signed by decedent. Two days after her death defendants drew from the bank the balance aforesaid, together with $65.40 accrued interest, making a total so drawn of $1,795.58. Plaintiff seeks to recover that amount, with interest, as belonging to the estate of decedent. Defendants claim • that decedent made h<?r home with them, as aforesaid, under a verbal agreement, by virtue of which they were to furnish her with the necessaries of life so long as she should live, in consideration of which they were to have all the property which she should own at the time of her death, and that the amount received by them was so received pursuant to said agreement. They further claim that for'
II. It is claimed by appellant that the making of the assignment was of itself sufficient to create a vested s___._. interest in defendants, and cases are cited evidence. in supp0rt of that claim. See Ellis v. Secor, 31 Mich. 185; Gerrish v. New Bedford Institution, 128 Mass. 159; Davis v. Ney, 125 Mass. 590; Martin v. Funk, 75 N. Y. 134; Ray v. Simmons, 11 R. I. 266; Blasdel v. Locke, 52 N. H. 238; Harris v. Hopkins, 43 Mich. 272. We think there should be some evidence in addition to the writing to show that it was regarded by its maker as a completed transaction, and that according to her intent nothing but the lapse of time was required to give to defendants the right to the possession of the money. As already stated, a delivery
“Pay to Martin Basket, of Henderson, Kentucky, no one else ; then not till my death. My life seems to be uncertain. I may live through this spell. Then 1 will attend to it myself.
“H. M. Chaney.”
After making this endorsement, Chaney delivered the certificate to Basket, and died. The court speaks of the transaction as being, “in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities, and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in prcesenti, unless paid or accepted while the donor is alive.” But there is a marked difference between the effect of the endorsement in that case and the assignment in this. While in that case the endorsed certificate was delivered, yet the language of the endorsement showed clearly that it was not to take effect in case the endorser recovered. As stated by the court, the donor attached to his endorsement and delivery a condition precedent, which must happen before it became a gift. In this case the conditions related to the time when the interest transferred might be enjoyed, and not to its transfer. The decision in that case rested in part upon the doctrine that a check against a deposit is not in effect an assignment of it, and does not withdraw it from the control of the depositor. See, also, Curry v. Powers, 70 N. Y. 212. But it is the settled law of this state that a -check or order drawn against funds may operate as an equitable
17. In view of what we have already said it is unnecessary to refer specially to various questions in regard to the introduction of evidence discussed by counsel. If the bank-book was delivered to defendants by decedent after the assignment was made, for the purpose of carrying it into effect, nothing further need be shown in the present condition of the pleadings to enable defendants to succeed; but should they be unable to show such delivery, it may be material to inquire into such facts as will tend to show the intent of decedent in regard to the assignment. The judgment of the district court is Reversed,