8 R.I. 536 | R.I. | 1867
The bill is brought to determine who is entitled to a sum of money on deposit in the Providence Institution for Savings in the name of Sarah Crocker, who died August 5, 1865, leaving a husband who died August 20, 1865, without having taken out letters of administration on her estate. The money is claimed by the brother and sisters of Sarah Crocker, as her next of kin; by James Wheaton, as executor of the last will of John Crocker, and also by Abby Ashton and Jane K. Carpenter, two of the sisters of Sarah Crocker, by virtue of an alleged gift mortis causa from Sarah Crocker, or from John Crocker after her decease, and agreeably to her request. The last named is the *540 claim which has been mainly contested, it being virtually conceded, that as between the next of kin of Sarah Crocker, claiming as such, and the executor of John Crocker, the executor has the better right.
Sarah Crocker at her decease, held, as evidence of the amount due her from the bank, a book in which her account with the bank was stated by its officers; and it is claimed that the gift was made by a delivery of this book, with words of gift, to Abby Ashton, by John Crocker, into whose hands the book had come, after his wife's decease, accompanied by a letter from her requesting him to divide it equally between Abby and Jane after he had done with it.
In proof of this allegation, William T. Luther was called as a witness and testified, that he was with John Crocker during his last illness and took care of him; that said Crocker was sick a week or ten days after his wife's decease; that a day or two before he died he saw him give to Mrs. Ashton a book similar to the bank-book which was exhibited to the witness, (being the book formerly belonging to Mrs. Crocker,) and heard him tell her to take it, keep it, and take care of it, it was hers. The witness could only say the book given was like the book exhibited to him, not that it was the same. In regard to the note alleged to have been written by Mrs. Crocker, the witness only knew there was a note found in her drawer after she died, and that it was given to Mr. Crocker; the next morning he asked Mr. Crocker if he had read it; Crocker said he had, it was sacred, that anything Sally said, should be done, — meaning his wife. The witness also testified that Mr. Crocker had considerable gold and silver in the house which he wanted Mr. Wheaton to dispose of; that Wheaton took the gold and took a bank-book with him; that Wheaton returned and again went away; and that it was two or three hours subsequently that Mr. Crocker gave the bank-book to Mrs. Ashton. Wheaton testified, as to the alleged letter to Mrs. Crocker which was shown him, that there was a letter from Mrs. Crocker of a similar import, but he thought not the same as the one shown him, though he was not-sure; and as to the bank-book, that Mr. *541 Crocker handed it to him, and that at his request he carried it to the bank to have it transferred to Mrs. Ashton and Mrs. Carpenter; that the bank declined to make the transfer, and he probably returned the book to Mr. Crocker, the witness being old and his recollection indistinct.
Such is the substance of the testimony, and, being uncontradicted, we think it proves that the book delivered to Mrs. Ashton is the book which belonged formerly to Mrs. Crocker, and that it was given by Mr. Crocker in contemplation of death, and for the purpose of transferring to the donee the money in bank of which it is the evidence. Such being our conclusion, the question is, whether, under the law relating to gifts mortiscausa, the gift by simple delivery of a bank-book, which in itself is nothing more than the non-negotiable evidence or certificate of the deposit and its increment, can operate as a gift of the deposit and its increment.
It has been uniformly held, that bank-notes, notes payable to bearer, and other securities and evidence of indebtment, which are transferable by mere delivery, may pass as gifts, mortiscausa; but in Miller v. Miller, 3 P. Wms. 356, it was decided that a note of hand, not payable to bearer, and being a mere chose in action to be sued in the name of the executor, was not the subject of a donatio causa mortis. In Ward v.Turner, 2 Ves. Sen. 431, it was held by Lord Hardwicke, that a gift of receipts for South Sea Annuities was not a good donatiocausa mortis, principally because the property did not pass by a delivery of the receipts, but a transfer was necessary, which was not made. The doctrine of these decisions has been recognized and approved in other English and in some American cases. Tate v.Hilbert, 2 Ves. Jr., 110; Pennington v. Gittings, 2 Gill
J. 208; Bradley v. Hunt, 5 Gill J. 54; Overton v.Sawyer 7 Jones' Law (N.C.)R. 6. But in the more recent English decisions, the strictness of the ancient rule has been much relaxed, and it is stated by Mr. Redfield, who seems to have had access to all the later cases, that it is now fully settled in the English courts, that not only are all securities which pass by delivery or by endorsement, when endorsed in blank, the subjects for a *542
valid gift mortis causa, but that "even promissory notes and bills not negotiated so as to pass by delivery, and also promissory notes not negotiable, bonds, mortgages, policies of insurance, and all other evidences of indebtedness which may be regarded as representing the debt, may, by a parol gift, and the delivery of the paper by which the debt is evidenced, either with or without written assignment or endorsement, constitute a good gift mortis causa." 2 Redfield on Wills, pp. 312, 313, and cases there cited. The rule thus educed from the English authorities has been repeatedly recognized and applied by the American courts. Brown v. Brown,
The answer of Mrs. Ashton and Mrs. Carpenter sets up a claim to the deposit and its increment by virtue of a gift mortiscausa to them jointly. The evidence shows a gift to Mrs. Ashton alone. There must, therefore, be some amendment of the allegation to correspond with the evidence; or the decree, if entered in favor of both the sisters, must be entered by consent. *543