Burbank v. Stevens

Keeler, J. The errors of the trial court with regard to its refusal to strike out the paragraphs of the finding which are attacked in the first reason of appeal as being found without evidence, are not apparent. The evidence attached to the finding as exhibits shows that the court had competent evidence to support the facts found. The claim for the substitution of a paragraph as above noted is placed on the ground that it “is supported by the evidence, and said correction is material.” This is not a ground upon which the correction can be made. There should have been an allegation that the finding of the fact desired to be inserted in the finding was admitted or undisputed. If, however, we overlook the defect in form, the testimony printed shows that the fact claimed was in dispute, and that the conclusion of the court was sustained by the evidence. The claim of a variance above alluded to was not much pressed in argument, and is not a proper ground of error. The allegation of the complaint was that on a certain day of April, 1923, Miss Stevens delivered to Burbank the bank-book and order for payment to him. The fact found by the court is that the book and order were delivered to Mrs. Powers as trustee to deliver the same to Burbank. The defendant did not object to evidence of delivery of the book to Mrs. Powers as such trustee, and in view of the finding of the court of the fact and manner of the delivery, and its evident purpose, and the fact that the case was tried upon the facts as found by the court, we cannot say that after judgment the varia *22 tion is material; the defendant must be held to have waived this defect. The important question in the case, however, is whether the trial court was in error in holding that the transaction detailed in the finding constituted a valid gift inter vivos from Miss Stevens to Burbank. In Guinan’s Appeal, 70 Conn. 342, 347, 39 Atl. 482, we held the requisites of a valid gift to be “a delivery of the possession of the property to the donee, and an intent that the title thereto shall pass immediately to him.” In Main's Appeal, 73 Conn. 638, 640, 48 Atl. 965, in an opinion collecting, commenting upon, and distinguishing the authorities, we said: “It is not necessary that there should be a manual delivery of the thing given, nor that it should be made to the donee in person; nor is there any particular form or mode in which the transfer must be made or by which the intention of the donor must be expressed. There may be a valid gift of money on deposit in a savings-bank in the name of the donor, by a delivery of the deposit book to the donee, and without any written order or assignment.” The weight of authority generally is to the same effect. “We accordingly hold that the owner of personal property may make a valid gift thereof with the right of enjoyment in the donee postponed until the death of the donor, if the subject of the gift be delivered to a third person with instruction to deliver it to the donee upon the donor’s death, and if the donor parts with all control over it, reserves no right to recall, and intends thereby a final disposition of the property given.” Innes v. Potter, 130 Minn. 320, 325, 153 N. W. 604, 3 A. L. R. 896. The report of the case last referred to contains extensive annotation referring to many supporting authorities. The similarity in principle of such dispositions to escrow deeds *23 of real property is maintained. By the great weight of authority no acknowledgment or acceptance of such a gift is necessary on the part of the donee, since it is highly beneficial and his acceptance is assumed. Innes v. Potter, supra, and notes in 3 A. L. R. 903; also Martin v. Funk, 75 N. Y. 134, 142, 143. The trial court has found the intention of Miss Stevens to make an immediate and unconditional gift to Burbank of the bank deposit, to become effective upon her death, and that the book was delivered to Mrs. Powers, as trustee for Burbank, to carry out that intent. If so, the gift became immediately absolute and irrevocable and beyond the control of the donor, since it is subject to no conditions not consistent with such an intent. “A question of intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one that cannot reasonably be made.” Meriden Trust & Safe Deposit Co. v. Miller, 88 Conn. 157, 162, 90 Atl. 228. The conclusion of the trial judge in the instant case is certainly one reasonably derived from the facts found. There is no error. In this opinion the other judges concurred.