Carter v. Greenway

Hart, J. (after stating the facts). The theory upon which appellees brought this suit and upon which it was tried in the lower court was that they were entitled to the amounts of the checks on the ground of a gift causa mortis. The law on this question has been clearly and concisely stated by the New York Court of Appeals in Ridden v. Thrall, 11 L. R. A. 684. Judge Earl, speaking for the court, said: ‘ ‘ Gifts causa mortis, as well as inter vivos, are based apon the fundamental right every one has of disposing of his property as he wills. The law leaves the power of disposition complete, but, to guard against fraud and imposition, regulates the methods by which it is accomplished. To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered, and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos, the moment the gift is thus consummated it becomes absolute and irrevocable. But in the case of gifts causa mortis more is needed. The gift must be made under the apprehension of death from some present disease, or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the lifetime of the donor. It is not needful that the gift be made in extremis when there is no time or opportunity to make a will. In many of the reported cases the gift was made weeks, and even months, before the death of the donor, when there was abundant time and opportunity for him to have made a will. These are the main features of a valid gift causa mortis, as they are set forth in many text-books and reported cases.” The language used is in accordance with our own holdings on the subject. Ammon v. Martin, 59 Ark. 191; Hatcher v. Buford, 60 Ark. 169; Lowe v. Hart, 93 Ark. 548; Harmon v. Harmon, 231 Ark. 501, and Gordon v. Clark, 149 Ark. 173. It is equally well settled under these authorities that an acceptance may be implied where the gift, otherwise complete, is beneficial to the donee. It was also held in the case of Gordon v. Clark, supra, that where a gift causa onortis is made to one person for another, there is a presumption of acceptance where the gift is beneficial. The evidence shows that at the time C. H. Greenway delivered the box containing the checks to his sister, and also at the time of his death, he had on general deposit in the First National Bank of Batesville $2,000, and also had there $2,000 on time deposit. His estate was solvent, and the money was not needed, to pay debts. . It is earnestly insisted by counsel for appellants that a check can not be made the basis of a gift causa mortis. There is some conflict and confusion in the authorities on this question. But we think that the better reasoning and the trend of our own authorities, where the rights of creditors are not involved, is that when the delivery of the check is coupled with an intent to transfer a present interest in the money, and no revocation is attempted, the intent of the donor should be given effect, and that the donee has the right to the payment of the check after the death of the drawer as well as before. This is a part of the reasoning in Lowe v. Hart, 93 Ark. 548, although the precise point was not involved and was not decided. See also Gordon v. Clark, supra. We think that the rule laid down in Morse on Banks and Banking (5 Ed.) vol. 2, par. 549, p. 198, to the effect that there may be a gift of a check causa mortis is the correct one. After saying that, in order to complete the gift, there must be such a delivery by the donor as to clearly indicate his intent to transfer the property from himself, and an actual transfer of the rightful control of the property, the learned author continues as follows: “But this, we contend, is done when he gives a cheek to the donee, or to another to give to the donee, and does not revoke before the delivery is made according to instructions. In this peculiar case of a check, the donor could revoke during his life; but as against the rest of the world it is a clear delivery of control of the money, and no one but the creditors of the donor have a right to object. They have a superior equity to the donee, but, if the donor is solvent, and continues in the same mind till his demise, what right has any one else to interfere with his clear intent? A bill of exchange may be the subject of a donatio causa mortis, and the death of the drawer of a bill does not operate to change the duty of the drawee to accept it; why should it be different in the case of a check? The rule that has grown up is a child of the error that the drawer’s death is a revocation of the bank’s authority to pay his checks, and should be banished with its parent. It does not seem sensible to say that a donatio causa mortis is a gift to take effect in case of death, and then to say that the donor did not intend it to be good unless it took effect before his death. And if he intended it to take effect after death, why not give life to his intent? If it is said that the formalities of the wills act must be conformed to in order to guard against fraud, then let the law be consistent, and deny the possibility of any gift causa mortis, by savings bank book, or any delivery, actual or constructive. If he had given bank bills, or the same money .that is on deposit in the bank, to some person, D, to keep, and in case the donor died to give it over to the donee, it would surely be held a good gift; in such case, it could not be properly said that the agent’s authority was revoked by his principal’s death, for it is clear that, instead of ceasing at the donor’s demise, it is then only that the agent’s authority arises. Where a donor delivered to B for the donee, it has been held that a delivery by B to the donee after the death of the donor is good. And if an agent’s authority does not always die with his principal, then is it not common sense to hold that a bank’s authority does not cease, at any rate in relation to checks that the donor delivered with the very intent that the fund should go to the donee in case of his death? The donor has a right to do with his property as he chooses, and his intent, clearly indicated, should be respected, and his personal representative has no right to frustrate his wish. The continuous progress of legal thought on this subject of gift points to the conclusion set forth above, viz., that, although a gift of a check cannot give an action against the donor himself, nor prefer the donee to creditors, yet it should be held otherwise good. And if the donor is solvent and does not revoke during his life, it ought, we think, to be good against the d^pnsii, and against his personal representatives when they have obtained possession of the deposit on which the check was drawn; for in this respect the theory that said personal representatives are identi-. cal with the deceased is groundless; any action they may take against the donee profits, not the deceased, but his heirs and legatees, and therefore the executor or administrator in reality represents said heirs or legatees, and as against them the donee has the superior equity.” To the same effect see Varley v. Sims (Minn.) 8 L. R. A. (N. S.) 829; May v. Jones (Iowa) 54 N. W. 231; Phinney v. State, (Wash.) 68 L. R. A. 119; Murphy v. Bor dwell (Minn.) 85 Am. St. Repts. 454, and Mill v. Escort (Tex. Civ. App.) 86 S. W. 367, and cases cited. Error is predicated upon the action of the court in giving certain instructions asked by appellees and re-fusing others asked by appellants. With regard to these assignments of error, we only deem it necessary to say that the instructions given -by the court are in accordance with the principles of law announced and approved in this opinion. The instructions asked by appellants were either not in accordance with the principles of law herein declared, or they were peremptory in their nature. Therefore, the assignments of error with respect to the instructions are not well taken. Finally, it is insisted that the evidence is not sufficient to support the verdict. We do not agree with counsel for appellants in this contention. According to the evidence for appellees, O. H. Greenway had resided with his widowed sister, Mrs. Smith, for nine years prior to his death. He was a bachelor and thought more of his youngest brother, J. H. Greenway, than any of his other brothers. Here, then, is shown the motive for making the gift to his widowed sister and his youngest brother, but of course there must have been not only an intent to give, but also a deliverv of the thing given. According to the testimonv of Mrs. Smith, her brother gave her the box and told her to keep it and put it away where it would not get destroyed. After- he died, she opened the box in the presence of her daughter and took therefrom the checks, which are copied in our statement of facts, as well as some notes. On each check was indorsed the following: “This is the way I want this to go.” Bach check was drawn on the First National Bank of Batesville, Ark. One of them was for $2,000 payable to'the order of J. H. Greenway. The other was for a like amount and payable to the order of C. B. Smith. The checks were dated Nov. 25, 1919. Just a few days before this, C. H. Greenway’s physician told him that he was going to die and that there was very little probability of his getting well. It seems that he kept his checks in his own possession until about Christmas, when he gave them to his sister. He died the following April. There were also in the box which he gave to his sister two notes, and on one of them was the following notation: “Pay this note to J. H. Greenway. This is the way I want this to go, this way.” On the other note was the following: “This note will be paid to J. H. Greenway. I mean for him to have this note. ’ ’ The notations on the notes and checks signed by C. H. Greenway, when coupled with the other testimony, makes it fairly inferable that he intended to make a gift ccmsa mortis to his sister and youngest brother, when a box and its contents were ' delivered to her. He had been told that he was going to die, and signed the checks a few days thereafter. It is inferable that he became more thoroughly convinced of his impending death when he gave the box to his sister about Christmas. He did not check against either account after signing the checks. It has been aptly said that when a chattel or chose in action has been given causa mortis, possession delivered, and death has performed the condition subsequent on which it depended, no title whatever descends to the heirs of the donor, and his administrator has no right to the possession of the same for the purpose of administration. Upon the authority of Lowe v. Hart, 93 Ark. 548, it is fairly inferable that there was an actual delivery of the checks to Mrs. Smith for her use and for J. H. Green-way’s use. An expectation of death at the time of delivery, the death of the donor following, the subsequent delivery of one of the cheeks to J. H. Greenway, and the presentation to the bank of the checks for payment after C. H. Greenway’s death, warranted the jury in finding for the appellees. In such a case, as we have already seen, the law implies an acceptance of the gift, although at the time the box was delivered to Mrs. Smith neither she nor J. H. Greenway knew what it contained. The circumstances under which it was delivered, however, indicate that there was something of advantage to her or some trust reposed in her of some kind by her brother, C. H. Greenway. We find no prejudicial error in the record, and the judgment will be affirmed.