Castle v. Persons

CARLAND, District Judge. This action was originally commenced in the district court of Washington county, Minn., and subsequently removed by the defendant in error to- the circuit court of the United States for the district of Minnesota, on the ground of diversity of citizenship. Maria Persons was the original plaintiff, but, she having died pendente lite, the action is now prosecuted by her executor. The object of the action was to recover from defendant in error the sum of $5,000 and interest. The complainant alleged for a cause of action that prior to the 23d day of January, 1897, the defendant in error became and was indebted to one Thomas Persons in the sum of $5,000; that on said date defendant in error admitted said indebtedness, and, at the request of said Thomas Persons, promised to pay the same to Maria Persons, with interest. The answer of defendant in error denies any indebtedness to Thomas Persons, or that said Thomas ever directed or requested him to pay said indebtedness, if any existed, to Maria Persons, or that defendant in error ever promised or agreed to pay said indebtedness to Maria Persons. At the close of the testimony for plaintiff in error, counsel for defendant in error made the following motion: “I move to direct a verdict on the ground that there is not sufficient evidence to enable the jury to find the issue in favor of the plaintiff in this action, and particularly that there is not sufficient evidence to show an accounting by which any sum was agreed upon between the father and defendant, and no sufficient evidence to show that there was an assignment of that claim by the father to the mother, and it appears so far as any evidence appears, as a question of law, that if anything was due that money is still due to the estate of Thomas Persons, and not to the mother.” The trial court granted the motion upon two grounds, and those grounds can hardly be said to have been embraced in the above motion. They were that the evidence showed that plaintiff in error’s title to the chose in action was derived through an attempted donatio causa mortis, which failed (1) because there was no delivery of the chose in action by Thomas Persons to Maria Persons; and (2) because there was a recovery of Thomas Persons from the sickness which caused him (Thomas Persons) to make the gift, which by operation of law revoked the same. The case was not tried on any such theory, and not till the court ruled had this theory been mentioned in the pleadings or by counsel. Counsel for plaintiff in error excepted to the ruling of the court, and such ruling is the only error assigned here. Conceding, for the purpose of this writ of error, that the theory bn which the trial court ruled was the correct one, let us examine plaintiff’s testimony, and ascertain if there were not issues that ought to have gone to the [837] jury. There was abundant testimony from which the jury might have found the following facts: On January 23, 1897, at Alma, state of Washington, Thomas Persons, father of defendant in error, was a man 84 years of age. He was a very sick man. He expected to die; others expected him to die. He desired to dispose of his property in order to save administration. In contemplation of death he gave to defendant in error certain property in the state of Washington, and to another son certain property in the state of Minnesota. On this same date he was asked by defendant in error this same question: “What are you going to do with what money I owe you ?” Thomas Persons answered: “That is mother’s. I want mother to have that.” Defendant in error, turning to his mother, Maria Persons, who was present, said: “Mother, that is all right, but I have not got the money with me, but I will pay you when I get back.” That defendant in error repeatedly acknowledged to Maria Persons and others subsequent to this time and prior to the death of Thomas Persons that the amount owing by him to the latter was $5,000. That defendant in error subsequently, many times prior to the death of Thomas Persons, promised to pay this sum to Maria Persons, and did pay her $100 thereof. Thomas Persons died on December 27, 1897. The following is all the testimony bearing upon the question of revocation of this' transaction by operation of law, resulting from the recovery of Thomas Persons from the illness from which he apprehended death, and under which apprehension he made, or attempted to make, this disposition of the chose in action to Maria Persons. He never did anything himself to revoke the gift. Simon E. Persons, examined in chief by counsel for plaintiff in error: “Q. Well, what eventually happened? Did he recover or recover temporarily? A. He did partly. He partially recovered, and we took him back to Minnesota.” Cross-examination: “Q. Tour father, up to the time he died, from the time he first came back from Alma, was in feeble health? A. He was quite feeble at first, but he got so he could walk half a mile and further,—sometimes three-quarters of a mile. Q. But during the last few weeks of his life he was very feeble, was he not? A. The last two months he was continually in bed, or six weeks. Q. Was your father able to transact business on his own ,account and keep his accounts and do his business for himself, or did somebody have to assist him? A. He was perfectly able to do it himself; at least, I thought so. He always did. Q. Did he do correspondence of his own? A. Mother, X think, did the writing for him. Q. Up to the time of his death? A. I think so.” Maria Persons, examined in chief by counsel for plaintiff in error, testified as follows: “Q. After that did your husband die or did he recover? A. He recovered partially. Q. Where did you go then? A. We came, or rather was brought back here, to Afton; neither one of us could walk.” Out of 67 pages of printed testimony, the foregoing is all that counsel on either side put into the case upon a question which turned the plaintiff out of court. The court, at the close of the case, elicited the following testimony from the witness Marion E. Persons: [838] “The Court: After your father made this disposition of his property dio he get well, so he was able to travel? A. Yes, sir. Do you mean at Alma or at any time? The Court: At any time. Ans. Yes, sir. Q. Where did he drive? A. He traveled around about the yard and up and down the roads at my place at Afton. The Court: How far was he able to go? A. Half a mile or a mile. He did walk that, and might have walked more. He was out and walked every morning before breakfast about half a mile. The Court: Was he as well as he had been for several years before this sickness in Washington that you spoke of, at the time that he disposed of this property? A. He was until the last two months. The Court: Have possession of his mind and faculties, so he could think as well about his affairs as he had been accustomed to before that sickness in Washington? A. Yes, sir.” On the theory that the evidence showed a donatio causa mortis, these questions by the court were dangerous in the extreme to plaintiff in error’s case, and the most dangerous could not have been asked by counsel for defendant in error in the form in which they were put. The witness simply affirmed the testimony of the court. On this evidence was the court justified in deciding as a matter of law that there was no delivery of the chose in action? The evidence in regard to the order or request which Thomas Persons made to the defendant in error, to pay the indebtedness owing by defendant in error to Thomas Persons to Maria Persons, when considered with the evidence in regard to the acceptance of said order and the promise to pay said indebtedness to Maria Persons by defendant in error, was sufficient, to say the least, to go to the jury upon the question of delivery, under proper instructions. We understand that a mere request on a bailee, depository, or debtor to pay money to the donee is not a sufficient delivery of a chose in action so as to validate a gift causa mortis. Yet where the request or order is accepted by the person upon whom it is made during the lifetime of the donor this is a good delivery. A check upon a bank is in itself, though delivered to the donee, no delivery, but if accepted by the bank during the lifetime of the donor the delivery is good. Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500, and cases cited. We see no difference between a verbal order or request and a written order or request, there being no law requiring either to be in writing. Neither need the acceptance be in writing. If the defendant in error owed Thomas Persons, and Thomas Persons requested him to pay the debt to Maria Persons, and he, upon such request, promised to pay it to Maria Persons, thereby extinguishing his debt to Thomas Persons, Maria Persons could sue and recover upon the promise, and, if this could be done, then all control over the chose in action would be in Maria Persons. She had complete power to reduce it to possession. In other words, all the delivery of which the chose in action was capable had been made. We also' think the court erred in deciding as a matter of law that if the evidence showed a donatio causa mortis it was revoked by operation of law by the recovery of Thomas Persons from the illness which caused him to apprehend death, and under which apprehension he made the gift causa mprtis. In the first place, the record may be searched in vain for any evidence as to the cause of the illness of Thomas Persons. Had he been injured in an accident? Had he consumption ? Had he a contagious disease ? Had he a cancer, Bright’s [839] disease, or one or more of many other diseases which lead as straight . to death as the projectile from the gun? If we do not know the cause of the sickness of Thomas Persons on January 23, 1897, how can we say as a matter of law that he recovered from it before he died, especially in view of the evidence in the record as to his partial recovery ? He had the possession of his faculties. So he did at Alma when he disposed of his property and was expected to die every hour. He was brought from the state of Washington to Minnesota, but he could not walk. If we are permitted to draw any inference from the evidence as to the cause of his illness, we might infer that the weight of 84 years was so heavy upon him as to cause him to believe that his life might end any day. Who can say as a matter of law that Thomas Persons did not each day from January 23, 1897, to December'27, 1897, when he died, apprehend death from the same cause that made him sick at Alma, state of Washington? Grymes v. Hone, 49 N. Y. 21, 10 Am. Rep. 313, is a case where Federal Vanderburgh made what was held to be a donatio causa mortis. It was made August 19, 1867, and he died January 23, 1868. He was from 78 to 80 years of age and in failing health. Peckham, J., in delivering the opinion of the court, used the following language: “True, he did not, and of course could not, know when death would occur, when he executed the assignment, but he was in apprehension of it. His age and his ‘failing’ told him death was near, hut when it might occur he had no clear conviction. An ailment at such an age is extremely admonitory. From these facts can this court say, as a matter of law, that this 'testator was not so seriously ill when he executed this assignment as to he apprehensive of death; that he was not legally acting in view of death; that he was not so ill as to be permitted to make this sort of gift? True, the donor died five months thereafter; but we are referred to no case or principle that limits the time within which the donor must die to make such a gift valid. The only rule is that he must not recover from that illness.” We have no doubt that the issue of gift or no gift causa mortis, and' the issue as to whether, if there was a gift causa mortis, it had been revoked by the recovery of Thomas Persons, ought to have gone to the jury under proper instructions. The question whether there has been a gift in a particular case is for the consideration of the jury, and the evidence on the subject should therefore be submitted to it. Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56; Jones v. Jones (Ky.) 43 S. W. 412; Nye v. Chace, 139 Mass. 379, 31 N. E. 736; Peirce v. Burroughs, 58 N. H. 302; Betts v. Francis, 30 N. J. Law, 152; Trow v. Shannon, 78 N. Y. 446; Hess v. Brown, in Pa. 124, 2 Atl. 416; Osthaus v. McAndrew (Pa.) 8 Atl. 437; Horn v. Buck, Id. 609; Swab v. Miller (Pa.) 9 Atl. 667; Jacques v. Fourthman, 137 Pa. 428, 20 Atl. 802; Sourwine v. Claypool, 138 Pa. 126, 20 Atl. 840; In re Osterhaut’s Estate, 148 Pa. 223, 23 Atl. 1069; McKane’s Ex’rs v. Bonner, 1 Bailey, 113; McLure v. Lancaster (S. C.) 58 Am. Rep. 259. Whether or not there has been a delivery is a question for the jury. Thomas v. Degraffenreid, 17 Ala. 602; Hunt v. Hunt, 119 Mass. 474; Kelly v. Maness, 123 N. C. 236, 31 S. E. 490. A gift causa mortis, like a gift inter vivos, is a question of fact for the jury. Dunn v. Bank, 109 Mo. 90, 18 S. W. 1139; Scollard v. Brooks, 170 Mass. 445, 49 N. E. 741. The judgment of the court below should be reversed, and a new trial granted; and it is so ordered. Footnotes [¶] 2. See Gifts, vol. 24, Cent. Dig. § 116.