Carradine v. Estate of Carradine

Chalmers, C. J., delivered the opinion of the court. Thomas G. Carradine, administrator of his deceased brother, Bird Carradine, omitted in his final settlement to account for $671 of Mexican coinage which he was known to have in his possession, and which the distributees claimed as belonging to the estate of the decedent, but which he asserted was his own property. The chancellor sustained an exception to his account based on such omission, and compelled him to account for the money : and from this, decree he appeals. His title to the money rests upon an alleged gift of it to himself by his deceased brother, and the validity of the gift depends upon the question of whether or not it was perfected by a delivery of the money. , The facts are as follows: The deceased, Bird Carradine, in conjunction with another brother, William G. Carradine, buried in 1863 a sum of Mexican silver dollars, which belonged in equal portions to the two. William died a few years after the close of the war, the money remaining buried. His son, B. C. Carradine, became his executor, but the money was permitted to remain in the earth. In 1876, Bird Carradine, who was very old, and unmarried, and rapidly growing feeble, told B. C. that he wanted his brother Thomas to have his portion of the buried treasure, and that after his death it must be dug up and equally divided between said Thomas and said B. C., as the executor of his father’s estate. He made the same statement and direction to Thomas. A few days before his death, however, he and B. C. changed their minds, and concluded to disinter the money at once. They sent for Thomas, and he and B. C. proceeded to make search for the money, which was in two boxes. One box they found readily, and this box Thomas proposed to appropriate ; but, B. C- objecting, they continued their search for the other. They failed to find it, and, after many hours of vain attempt [292] to do so, were forced to bring Bird Carradine to the scene. Directed by him, they soon found the other box. Both boxes were carried to the house jointly occupied by Bird and B. C. Carradine, in the grounds connected with which they had been buried. Six days afterward Bird Carradine died, and the day after his burial the money was equally divided between B. C. and Thomas, ' in ' accordance with the directions previously given by the deceased. Some months thereafter Thomas qualified as administrator of his brother’s estate. B. C. Carradine sets up no claim to the money in questiou, either on behalf of himself or his father’s estate, but some of the other heirs-aflaw of Bird contend that there was no such delivery of it as to pass title to Thomas, and- this view was taken by the chancellor. We do not concur in this view. Delivery of personal property is essential to a gift, whether inter vivos or causa mortis, but it is not essential in either case that it should be simultaneous with the words of donation. It may either precede or succeed the words. If it precede the words, so that the property is alreadjr in possession of the donee, no new delivery is necessary; if it succeeds the words, it makes perfect that which was before inchoate. In the case at bar the words had been previously spoken, both to the donee and to the nephew, B. C. Carradine. The subsequent sending for the donee, the- directions to dig up the money, the identification of the place where it was to be found, the disinterment of it in obedience to the directions, and the manual possession of it by the donee in its transportation to the house, constituted a deliveiy and perfected the gift. That it was not divided between the donee and the other joint-owner does not afiect the result, nor does its temporary deposit in the house jointly occupied by the deceased and the other joint-owner. It was during this time no more in the possession of the deceased than of the nephew, the legal owner of one-half of. it; and it is well settled that a donatio causa mortis is good if the property is either delivered to one person to be given to another after the death of the donor, or if, being already in the pos [293] session of a third persou, it is left there with directions to be so given. Even if the gift in this case should be held not good as a donatio inter vivos because the subject of it was left in the possession of B. C. Carradine, it became effective as a donatio causa mortis by leaving it with him for Thomas Gf. Carradine, after the death of the donor. Southerland v. Southerland, 5 Bush, 592; Waring v. Edmonds, 11 Md. 424; Wyble v. McPheeters, 52 Ind. 393; Rinker v. Rinker, 20 Ind. 185 ; Grymes v. Hone, 49 N Y. 17 ; Allen v. Cowan, 23 N. Y. 502 ; Carradine v. Collins, 7 Smed. & M. 428. There was no error in the refusal of the chancellor to award a trial by jury. There was no question of fact to be determined, there being no conflicting evidence; and even if th.ere had been, the granting of a.jury trial, in the Chancery Court, where no statute prescribes one, is always discretionary with the chancellor, as has several times heretofore been announced by this court. Decree reversed and cause remanded for a decree in the Chancery Court in accordance with the views announced in this opinion.