In re Estate of Bacon

OPINION By HAMILTON, J. The question for determination is, do these facts complete a gift either causa mortis or inter vivos? It is immaterial from which standpoint the case is considered, since the death of the donor intervened without revocation of the gift, if such it was. It is claimed that the instruction given, together with the delivery of the keys completed a symbolic delivery of the property to the donees. It was shown that there was an intention to make the gifts The rule is that such gifts are not favored in law, and must be clearly proved. The evidence is not in dispute. It is to the effect that the deceased desired to make the gifts, and the instruction suggested to the niece as to the mailing of the envelopes containing the bonds was sufficiently established, as was also the delivery of the safety deposit box keys to the niece. [273] Had the keys been delivered to the donees, we would have no difficulty in finding a completed gift. This raises the question as to whether or not the delivery of the keys to the niece with instructions to open the box and mail the envelopes is sufficient to complete the intended gifts. In 28 C. J., 694, the rule is stated that delivery to a third person for the donee is sufficient delivery to complete an intended gift. In the same authority, in §693, it is stated, and the cases there collated so hold, that the handing over of. keys with intent to make a gift is sufficient as a constructive symbolic delivery of the property to which they gave access. The case of Rote v Warner, 17 C.C., 350 was a case wherein the donor wished to give his minor daughter certain bonds. He endorsed upon each of the bonds the words “This bond I give and set over to my daughter”, and then he delivered the bonds to his wife, who kept them until after the death of her husband. The court held in that case that delivery to the wife for the daughter was sufficient to establish a completed gift of the bonds to the daughter. The case of Moore et v Shiclett, 187 Ky., 7, presented facts similar to those under consideration. There, the wife, before her death, called in her sister, showed her a package of money and had her place it'in a dresser drawer from which it had been taken. The wife gave her sister a key, -stating it was her desire that her nephew have the money after her death. This was held to be a valid gift causa mortis, executed by the symbolic delivery of the key. The great weight of authority is to the effect that, under facts similar to those in the instant case, the third person entrusted with carrying out the instructions of the donor as to the donation acts as trustee and agent of the donee. 3 A.L.R. 926. See also: 20 O. Jur., 49, and O’Brien, Admrx. v O’Brien et, 112 Oh St, 202, 207. We have mentioned these cases on delivery, but it seems to the writer of this opinion the facts under consideration make this a stronger case than the several cases here referred to, upholding a completed gift of the bonds to the donees. The donor, Mr. Bacon, prepared some bonds, placed them in envelopes, sealed, stamped, and addressed them, and all that remained to complete the gift and to complete delivery was placing the same in the mail; that on Saturday morning, preceding his death, the donor, conscious of approaching death, called his niece to his bedside and gave her the keys to the box, directing her to go to his safety deposit box, take out the letters, which he described to her, and place them in the mail, that they might be transmitted to the donees, completing the gifts he desired to make. The only thing that prevented this completion was the fact that the bank closed, preventing the niece from carrying out the instructions of the' donor to the letter, and the donor’s death intervened before she could fulfill his instructions. When the donor delivered the keys to his niece, he parted with all authority and control over the safety deposit box. If there could be such a thing as a symbolic delivery, it would seem to apply to the facts in this case. Our conclusion is that the undisputed facts support the requisites necessary to show a completed gift. The judgment of the Common Pleas Court will be reversed, and a judgment sustaining the exceptions to the inventory filed by Stanley Conger, and directing the delivery to him of the bond in question may be entered here. ROSS, PJ, concurs. MATTHEWS, J, dissents.