54 Mo. App. 85 | Mo. Ct. App. | 1893
— On September 5, 1888, and for years prior thereto, Alexander Wilson resided at Bieh Hill, Missouri. He was then married to the second wife and had four living children, all by his first wife. Two of these children were of age, and two, the above named plaintiffs, Isabella and Anna, were minors.
On said September 5, 1888, Wilson went to the Bieh Hill Bank, where he did business, and transferred the entire balance of his account, to-wit, $1302.97, to the joint credit of his two minor daughters, Isabella and- Anna. He got from the bank a pass-book, made out in the names of these children, wherein was entered the above deposit. He retained this in his own possession till his death in January, 1890. In addition to this other smaller sums were deposited, and he checked out from time to time different * amounts, in every instance signing the names of the two girls by Alexander Wilson. The last check on the account made by him was in August, 1889, and this was on account of a loan of $600 that day made to one Hill. For this he took Hill’s note payable to himself. Hill’s note was renewed from time to time always made payable to Alexander Wilson, and the same, together with the bank book, was found among Wilson’s papers at his death in January, 1890.
The above facts have given rise to two suits; this one being brought by the guardian and curator of the two minor children seeking to have the court declare them entitled to the Hill note, on the ground that the money thus loaned by the father belonged to them, and the second suit was brought by the administrator against the guardian of the two infant children, asking that the balance left in the bank ($724.97), and to the nominal credit of Isabella and Anna, be decreed and held as assets of the estate of said Alexander Wilson.
When we have, settled the character of the transaction of September 5, 1888, where Alexander Wilson drew his money out of the bank at Rich Hill and replaced it to the credit of his two minor .children, the determination of both these cases becomes easy. If that was a valid and effective gift, then the two children were vested with a title to the money thus deposited; and they are entitled not only to the $724.97, balance to their credit, but as well to the Hill note given for the loan of the $600.
The trial judge in terms declared, in his finding and judgment, “that the moneys so deposited by Alexander Wilson in the names of his said minor-children, Isabella- and Anna Wilson, .was not a complete gift to them during his life, as contended for by plaintiff herein, but that the same was deposited by said Alexander Wilson subject to his own order and control, and was not intended to vest in said minors until his death.” The correctness of this holding is the question here.
This was in no sense a gift causa mortis; it was not made if at all ‘ ‘in his last illness and in contemplation and expectation of death” as is necessary to constitute a gift causa mortis. 2 Kent’s Commentaries, 444. Hence, much that is said in briefs of counsel may be eliminated. If anything, it was a gift inter vivos. Mr. Wilson made this deposit some eighteen months before his death and while in perfect health, it seems. His death was from an accident in a mine.
As to what will constitute a gift, or such as the courts recognize, has been so often declared that repetition is tiresome. We had occasion to say in Keyl v. Westerhouse, 42 Mo. App. 57, that “a gift inter vivos is a parting with the title of personal property in ¿orce
In view now of these well established principles, I would state the law as applicable to this case to be this: If, when Alexander Wilson placed this money in the Rich Hill bank to the credit of his minor children, he intended thereby to make an absolute gift in prcesenti, intended to part with the money at once, and vest the title thereto in said Isabella and Anna, and no longer to retain dominion thereof on his own account, then it became a valid gift, absolute and irrevocable. But if when such deposit was made said Wilson did not intend at once to part with the title and possession, and simply placed the money to the credit of the children to take effect as a kind of post mortem benefaction, to be his while he lived and theirs at his death, then it was not an executed and valid gift, and the courts will not give it effect.
But the question arises, what was Alexander Wilson’s intention in the matter of this deposit in the names of his minor children. Did he intend thereby to transfer the property'to his infant children at once, or was it a mere attempted testamentary disposition? The intention is the important element in determining the character of such transactions, and such intention may be manifested by acts or words or both. Sneathen v. Sneathen, supra, 210; Standiford v. Standiford, 97 Mo.
The testimony shows conclusively too that he treated this money all the time as if his own, checking on it at pleasure. In short, the circumstances all the way through show that when he placed the deposit in the bank to the credit of the children he' still regarded it as his money, but that it was his desire, if anything happened to him, to have it go to the said minor children. At most then Mr. Wilson attempted a noncupatiye will under circumstances bylaw not permitted, and it is not in the power of the courts to give it effect. In
The judgment of the circuit court will "be affirmed.