Smythe v. Sanders

Sykes, P. J.,- delivered the opinion of the court. This cause presents an appeal from a decree of the chancery court overruling the demurrer of appellants to the amended bill of complaint of appellee, and is here granted to settle the principles of the cause. The material averments of the bill are: That Thomas J. Portwood died at the residence of the complainant, who was a niece of Portwood, leaving a last will and testament under which appellants Smythe and Winters are named as executors. That complainant is one of the beneficiaries named in the will. Complainant was reared by her aunt, Mrs. Winters, who died intestate. Mrs. Winters was a sister of Portwood. That Mrs. Winters had no children, and looked upon this complainant as her child, and expected and desired to devise and bequeath her property to the complainant, but was prevented from so doing by the objection of P'ortwood. That Portwood for some years prior to his death was in feeble health, and lived near complainant, and was frequently [387] visited, waited on, and oared for by complainant. That after the death of his sister, with whom Portwood lived, he lived alone until about two weeks before his death, when he became so helpless that in order to be better cared for he moved to the home of complainant, and there remained until his death, during wihoh time complainant waited on him and nursed him, being’ prompted in doing so by the natural love she had for him and he in return had for complainant. That none of his other relatives came about him or nursed him. That Portwpod was moved to complainant’s home at his request, and complainant, at the request of Portwood, nursed and cared for him, giving him at all times the best care and attention she could, and doing for him a work and service that was menial, arduous, and hazardous. The bill then alleges: That the day before Portwood’s death he requested complainant to write out for him to sign a check for two thousand dollars on the defendant bank, telling' her at that time that he wanted her to have that much, as she deserved it, and it belonged to her. That he did not have long to live, and wanted her to have that much of his money then deposited in the bank. After complainant had writtendhe check for two thousand dollars, Portwood then stated that he wanted to' include in the check two dollars and sixty-five cents he owed complainant’s husband, and to draw a check for two thousand two dollars and sixty-five cents, which she accordingly did, and this check was signed by Portwood. When the check was delivered to her Portwood requested her to have it cashed and place the money to her credit. That at this time Portwood’s health was such that she did not feel like leaving him, and that he died the following morning before she had an opportunity to cash the check. The afternoon of his death, however, she went to the bank, presented the check, and asked them to give her1 a deposit slip for this amount, which the bank did. Later on the bank wrote complainant that they had not credited her [388] account with this amount because of* the death of Port-' wood before the check was paid. The bill then alleges that, if this check; were credited to her1 account, the deceased would still have left in the bank more than one thousand dollars which was more than enough to pay all the creditors of his estate. It then alleges that the check was given to complainant by Portwood freely and voluntarily and in recognition of the just rights, claims, and deserts of compláinant, and was not revoked by him during, his lifetime; further, that she has presented as her claim against the estate the deposit slip of the bank for this amount, but that the bank and the executors of the estate refuse to allow and pay this claim. Appropriate relief is prayed. The demurrer, in short, states that Portwood was attempting; to make a gift to complainant, which was not completed during his lifetime and revoked by his death. Complainant contends that the check was not a gratuity, but was issued for valuable consideration, namely, her services for nursing Portwood and to repair a moral wrong* he had done complainant in helping persuade her aunt not to devise all of her property to complainant. If this check were issued for valuable consideration, a very interesting question would be presented to this court as to whether or not the death of Portwood would revoke the authority of the bank to pay. A number of the authorities bearing upon this question will be found collated in the note after the case of Estate of Richard Donahoe, 20 A. L. R. 392,, and also in the note to Foxworthy v. Adams, 27 L. R. A. (N. S.) 308. A vast majority, if not practically all, of the courts, however, hold that the attempted gift of a sum of money by check not cashed during the lifetime of the drawer of the check is revoked by his death. The reason of this is that there must be a, delivery of the money, either actual or constructive. The drawer must part with his dominion over the property. Until the check is actually [389] cashed he has the right to stop payment. The money given is his until the check is actually paid. This question is discussed in the cases of Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Kingsbury et al. v. Gastrell’s Estate, 110 Miss. 96, 69 So. 661; Woods v. Sturges, 116 Miss. 412, 77 So. 186, L. R. A. 1918C, 338 . Under the Negotiable Instruments Law (section 2763, Hemingway !s Code), “ a check is a bill of exchange drawn on a bank payable on demand.” Section 2767, Hemingway’s Code, provides “a check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” Section 2704, Hemingway’s Code, defines a bill of exchange as “as unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or' determinable future time a sum certain in money to order or to bearer.” The subject-matter of the gift is the amount of money called for in the check. A check is merely the order to the bank, the creditor of the drawer, to deliver the money to the payee. Until payment there is consequently no delivery of the subject-matter of the gift. We think the averments of the bill negative the idea that there was an implied contract on the part of Port-wood to pay his niece for nursing him. The bill alleges facts which show a close relationship of love and affection between uncle and niece and the inference from these averments is that she nursed him because of this relationship. The case comes squarely within the rule announced in Hoyle et al. v. Smith et al., 113 Miss. 729, 74 So. 611. Because of the relationship the presumption is that the services were intended to be gratuitous, and the bill fails to aver clear and positive facts of a contrary intention by these parties. [390] Even if Portwood felt that he had committed a moral wrong- ag'ainst complainant by persuading his sister not to make a will leaving her property to complainant, yet this is not a valuable consideration in law for the issuance of the check. The fact that the bank issued the deposit slip in favor of complainant makes; no- difference, inasmuch as the money has never1 been withdrawn from the bank, and the status quo of the parties is in leg’al contemplation the same as if the check has not been honored and the deposit slip issued. The two dollars and sixty-five cents owed complainant’s husband and included in the check does not alter the fact that it was an attempted gift. This money was owed, not to complainant, but to her husband, and it was evidently the intention of Portwood that out of the proceeds of the check she should pay this sum to her husband. The decree is reversed, the demurrer sustained, and the cause remanded.