100 Minn. 331 | Minn. | 1907
The facts in this case are as follows: ' On November 29, 1904, Mrs. C. H. Brown, the mother of plaintiff, had on deposit in the First National Bank of Grand Rapids, this state, subject to check, the sum of $1,168.30. She was on that date at the home of her sister, a Mrs. Wright, at West Allis, Wisconsin, and about to undergo a serious surgical operation. In view of the operation and the probability of death resulting therefrom, she drew her check on the Grand Rapids bank for the entire amount of her deposit therein, payable absolutely to plaintiff, and left the same with Mrs. Wright, instructing her to deliver it to plaintiff, who was nót then’ present, in the event the operation resulted fatally. She also stated to her sister that, if she survived the operation, the check should be returned to her. Thereafter the operation was performed, and Mrs. Brown never regained consciousness, but died. Plaintiff was notified óf the facts, but was unable to reach his mother before her death, and the check was not delivered to him until after that event. He subsequently presented it to the bank, but payment was refused. Defendant was appointed administrator of Mrs. Brown’s estate, and the bank paid the money to him. Plaintiff thereafter brought this action to recover the same from the administrator, on the ground that the delivery of the check, under the circumstances stated, constituted a valid gift causa mortis to him of the funds in the bank. The cause was tried below without a jury, resulting in judgment for plaintiff, from which defendant appealed.
The only question presented is the validity of the alleged gift on which plaintiff relies for recovery. The cause was presented in this court on the oral argument and in the briefs with much ability by counsel, and the court has been aided very materially in the consideration of the question.
In Hogan v. Sullivan, 114 Iowa, 456, 87 N. W. 447, it appeared that the donor deposited certain money in a bank, causing a certificate of • deposit to be issued by the bank in the name of his son-in-law, to whom 'it was delivered. Two years later, in anticipation of death; he gave the son-in-law a written memorandum directing the disposition of the funds among certain beneficiaries after his death. .In disposing of the question whether the delivery to the son-in-law of the certificate of deposit payable to him, and the subsequent directions by the donor for the disposition of the money among the beneficiaries, was a sufficient delivery to constitute a valid gift causa mortis, the court held that the son-in-law occupied the position of trustee for those to whom the donor intended the money as a gift, and that the delivery was sufficient and effectual. The court, in the course of the discussion of the question, remarked that it was well settled by the authorities, that a gift causa mortis may be effected by a delivery to a third person in trust for the donee, though the gift does not come to the knowledge
But, unless the contrary appears, it will be presumed that the person to whom’ delivery is made takes a's the trustee of the donee. Devol v. Dye, 123 Ind. 321, 24 N. E. 246, 7 L. R. A. 439; Johnson v. Colley, 101 Va. 414, 44 S. E. 721, 99 Am. St. 884; 14 Am. & Eng. Enc. (2d Ed.) 1061.
In the case at bar it is beyond controversy that Mrs. Wright received the check in question as the trustee of plaintiff, and for all practical purposes the delivery was to him. The matter of acceptance by the donee is of slight importance. Where the gift is beneficial, and imposes no burdens upon the donee, acceptance will be presumed as a matter of law. Barnard v. Thurston, 86 Minn. 343, 90 N. W. 574; Ammon v. Martin, 59 Ark. 191, 26 S. W. 826; De Levillain v. Evans, 39 Cal. 120; Forbes v. Jason, 6 Ill. App. 395; Darland v. Taylor, 52 Iowa, 503, 3 N. W. 510, 35 Am. 285; 20 Cyc. 1235.
This brings us to the principal question in the case, viz., whether a bank check, unaccepted by the bank, constitutes a transfer to the payee of either the legal or equitable title to the funds to which it is subject, sufficient to sustain a gift causa mortis. The validity of gifts of bank deposits, evidenced by checks, or by the delivery of passbooks or certificates of deposit, has been before the courts in numerous cases. It is held in a majority of the states of this country, and perhaps the same rule prevails in England, that an ordinary check upon a bank for a part only of the drawer’s deposit, unaccepted by the bank before the death of the donor, is ineffectual as a gift causa mortis, for the reason, among others, that the check does not operate to pass to the donee
But a strong and vigorous minority hold that where the intention to make a gift is free from doubt, and no question of fraud or the rights of creditors is involved, the delivery of a check for a part or the whole of the deposit is sufficient, though not presented for payment until after the death of the donor. The courts so holding proceed upon the theory that the passing of a present legal title is not essential to a valid gift, that an equitable title is sufficient, and that such a title becomes vested in the donee at the time the check is delivered and becomes absolute on the death of the donor. That an equitable title is sufficient in such cases is supported by a long list of authorities. Druke v. Heiken, 61 Cal. 346, 44 Am. 553; Stephenson’s Adm’r v. King, 81 Ky. 425, 50 Am. 173; Ellis v. Secor, 31 Mich. 185, 18 Am. 178; Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11 L. R. A. 684, 21 Am. St. 758; Meach v. Meach, 24 Vt. 591; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500.
An examination of some of the reported decisions where gifts of money on deposit in banks have been made by delivery of a passbook or unindorsed certificate of deposit discloses a disposition on the part of the courts generally to sustain them, where the 1 intention of the donor is clear, there is no fraud, and the rights of creditors are not in- > volved. In the case of Sheedy v. Roach, 124 Mass. 472, 26 Am. 680, the court held that a deposit in a savings bank might be the subject-matter of a gift causa mortis, and the gift established by proof of the delivery of the passbook accompanied by an assignment to the donee, though the bank was not informed of the gift until after the death of j*the donor. In Conner v. Root, 11 Colo. 183, 17 Pac. 773, the court . held that a certificate of deposit might be the subject of a gift causa mortis, and, if delivered to a third person for the use of the donee, the title passed upon the occurrence of death, though the certificate was payable to the donor’s order and was not indorsed by her. In McGuire v. Murphy, 94 N. Y. Supp. 1005, 107 App. Div. 104, the court held that there was a sufficient delivery of a bank deposit where the passbook and an order on the bank for the payment of the amount to the donee is delivered to him, though the donor die before presentation
The courts holding that the deliver)'- of a passbook or certificate of deposit is sufficient distinguish 'that class of cases from those where a mere check is delivered to the donee for a part of the fund. McGuire v. Murphy, 107 App. Div. 104, 94 N. Y. Supp. 1005. The substantial/element of distinction, as we gather from reading the cases, is that in the case of a check there is no legal or equitable transfer or assignment of the bank funds to the donee. Whether the distinction has any logical foundation is, we think, an open question. Of course, as already7^ suggested, to render a gift of this sort valid, title to the thing given must pass to the donee. Whether any title passed to plaintiff by the check in question depends upon the further inquiry whether the check operated, unaccepted by the bank, as an assignment. Upon the general proposition whether such is the legal effect of a check, considered generally and not with reference to gifts, the authorities are in hopeless conflict. The great majority of courts maintain the doctrine that such a check, unaccepted by the bank, does not operate either as a legal or an equitable assignment, because there is no privity of contract between the holder or payee and the bank. 4 Cyc. 49, and cases cited. Other courts insist, and upon broad grounds, that a check is in equity an assignment, and operates, as between the drawer and payee, as a transfer pro tanto. This view of the law is sustained by the courts of Illinois, Iowa, Kentucky, Nebraska, Pennsylvania, South Carolina,, and Wisconsin. The privity of relation between the payee and the bank' is found in the implied obligation of the latter to pay the funds depos,-ited to whomsoever and whenever the depositor may direct. The authorities, as well as the merits of the question, are thoroughly discussed’, in a valuable note to Loan v. Farmers (S. C.) 63 Cent. Law J. 451, and referred to in a general way in Northern Trust Co. v. Rogers, 60 Minn. 208, 62 N. W. 273, 51 Am. St. 526. The precise question has, never been determined by this court, and its solution is not necessary in this case. It is probable that the reasoning of those courts holding to the position that a check operates, between the parties, as an assign
In the case at bar, the check relied upon by plaintiff was for the '* entire amount of the deposit, and in such cases the authorities are nearly uniform that an assignment of the whole fund results therefrom. Brady v. Chadbourne, 68 Minn. 117, 70 N. W. 981; Hill v. Escort (Tex. Civ. App.) 86 S. W. 367; May v. Jones, 87 Iowa, 188, 54 N. W. 231; Kimball v. Leland, 110 Mass. 325; Hawes v. Blackwell, 107 N. C. 196, 12 S. E. 245, 22 Am. St. 870; Pease v. Landauer, 63 Wis. 20, 22 N. W. 847, 53 Am. 247; Mandeville v. Welch, 5 Wheat. 277, 5 E. Ed. 87; Walker v. Mauro, 18 Mo. 564.
This principle is conceded by counsel for appellant, but he contended on the argument with much earnestness that it has no application to' a check made the basis of a gift causa mortis; that the rule that an ordinary check for the whole of a fund operates as an assignment from the drawer to the payee applies only to checks given for a valuable consideration. There is authority for this contention. Pullen v. Placer, 138 Cal. 169, 66 Pac. 740, 71 Pac. 83, 94 Am. St. 19. But the reasoning upon which the decisions so holding are founded is not sound. Gifts in anticipation of death require no consideration to support them. They are sustained by the courts upon the same principle that all intentional gratuities are upheld. The law supplies a consideration by intendment, and gives force to the intention of the donor, and a gift stands upon an equality with a contract founded upon a valuable consideration. The same legal principle surrounds and upholds the check designed as a gift and that' given for value received. Recent authorities sustain this view of the law. Phinney v. State, 36 Wash. 236, 78 Pac. 927, 68 L. R. A. 119; In re Taylor’s Estate, 154 Pa. St. 183, 25 Atl. 1061, 18 L. R. A. 855. See also a valuable discussion of the general question in 60 Cent. Raw J.‘ 244, and Murphy v. Bordwell, 83 Minn. 54, 85 N. W. 915, 52 R. R. A. 849, 85 Am. St. 454. It is unnecessary that the check in such cases distinctly state on its face that it covers the entire fund. The fact that it does may be shown by proof on the trial. 4 Cyc. 53, and cases cited; 2 Daniel, Neg. Inst. 1643.