63 Tenn. 273 | Tenn. | 1874
delivered the opinion of the Court.
The sole question presented in this case is as to the ownership of a sum of money, in gold coin, amounting to $5,258, which the complainant’s intestate, Constantine Perkins, in his life-time, deposited specially in the Planter’s Bank at Nashville, in the summer of 1864.
In her cross-bill
The proof shows that Constantine Perkins returned in the spring or summer of 1864, from Arkansas to his home near Columbia, bringing with him a large amount of United States currency. The country at the time was in great disorder — the civil war then flagrant — and in the section where he lived both life and property were very insecure. He came to Nashville and converted a large amount of his currency into gold, and deposited a tin lock-box of gold coin in the Planter’s Bank, with instructions to the cashier to keep the same, on special deposit, and to deliver it to no one but himself, and in the event of his death to no one but his wife. His state of health at the time
Mrs. Owen, a niece of complainant, testified that she lived in the family of Constantine Perkins at the time of his death; that he brought back irom Arkansas, in the summer of 1864, about §32,000 of greenback currency; she saw him take it off his person. About July, or August he invested the larger portion thereof in gold. A short time before she heard him say in presence of Mrs. Perkins, in family conversation, that he intended to invest the money in gold, so that in the event of any accident happening to himself, or in case of his death, the sum could be used for the main-tainance and benefit of his wife. After he returned from Nashville, the witness was informed by Mrs. Perkins that she had the key to a box of gold belonging to Mr. Perkins which Mr. Perkins had given her. The witness marked the key for her to distinguish it from others. “I know,” said the witness, “that Mr. Perkins allowed Mrs. Perkins to keep the key to the box of gold in the possession of H. Weaver, cashier; that at one time he went to Nashville, and did not take the key out of her possession; that said key was in Mrs. Perkins’ possession a short time before Mr.
The witness Tulloss testified that he informed Mrs. Perkins of the deposit; that Mr. Perkins had told him soon after the deposit that he had deposited $13,000; he showed witness the key of the box, and said he was going to carry it home and give it to his wife, and that nobody could get the money but his wife. He was then in his usual health. He did not inform the witness why he had made the deposit.
W. O’Neil Perkins, a brother of Constantine Perkins, and a party to this litigation, was examined as a witness. His testimony was objected to as incompetent. He stated he met his brother in Nashville about two months before his death; his brother spoke of converting his currency into gold, saying he had no confidence whatever in United States Treasury notes, and to save what he had he would invest it in gold, which would be good at all times and under all circumstances. He asked witness to advise him where to keep his gold;, that he was afraid to keep it at home as he might be robbed and his house burned at any time. The witness advised him to put the gold in a lock-box, put the key in his pocket, and deposit
The witness Rowland testified that he lived with Constantine Perkins at the time of his death, and had lived with him since 1852; that he continued to live with the widow until 1868. He had a conversation with Constantine Perkins in the fall of 1864, when he returned from Nashville; he told him that he had purchased a large amount of gold, and assigned as á reason for buying it that he had no confidence in “ greenbacks,” and that he had deposited it in some bank in Nashville — the Planter’s Bank, as witness thought — for safe keeping, and to pay his debts. Witness was very intimate with Mr. Perkins, and “ conversant with his business;” he never said that the gold was put in the bank for any one except his own use.
Mr. Weaver, the cashier of the Planter’s Bank, states that at the time of the deposit, or subsequent thereto, Mr. Perkins instructed him not to deliver the box to any one than himself or his wife, and in case of his death to deliver it to his wife only. His health was feeble, but not more so than usual.
The complainant gave a deposition in the case, which
Upon the foregoing facts the Chancellor was of opinion that the gift was not established, and so decreed.
The complainant has appealed.
We have carefully collated the strong points of the testimony bearing upon the question, both that which is competent and that which is not, in order to give
But this must be supported, if at all, as a gift inter vivos, or as a parol trust declared in favor of a wife, which, if it be clearly made out, and no injustice is likely to result to creditors, will be supported by a Court of Equity. As to the manner of the gift, by delivering the key, it has been several times held that this would be a sufficient delivery, all other elements of a valid gift concurring. And we can see no reason why the wife should not be the recipient of such a gift, and why it could not be sustained as well in her favor as in others, if creditors are not complaining. But the question, in any event, resolves itself .into one of intention. In order to make this gift complete, it must appear absolutely and beyond a doubt that the donor intended to part with his dominion over the property. If the intention to give or to declare the trust be not clearly made out, it cannot be supported; and if, upon the facts, the matter
The defendants filed a cross-bill, and the complainant answered this by cross-hill.