Felter v. Erwin

Mr. Justice Eldredge delivered the opinion of the court. We have no doubt that by indorsing certificate No. 3483 and delivering the same by Mrs. Busk in her lifetime to Mrs. Erwin with the assertion that it was Mrs. Erwin’s property, a valid gift of the certificate from Mrs. Busk to Mrs. Erwin was consummated. As to the other four certificates, however, no title ever passed to Mrs. Erwin. Title to the certificates in Mrs. Erwin cannot be supported upon the theory that the transactions mentioned constituted gifts either causa mortis or inter vivos. A gift causa mortis is a gift of personal property in expectation of death from a disorder or peril then present. There is absolutely no evidence in the record to sustain the theory of gifts causa mortis. Telford v. Patton, 144 Ill. 611; Rosenthal v. People, 211 Ill. 306; First Nat. Bank of Chicago v. O’Byrne, 177 Ill. App. 473; Lounsberry v. Boger, 193 Ill. App. 384. In order to constitute a gift inter vivos it is essential that the gift be absolute and irrevocable; that the giver part with all present and future dominion over the property given; that the gift go into effect at once and not at some future time; that there be a delivery of the thing given to the donee, and that there be such a change of possession as to .put it out of the power of the giver to repossess himself of the thing given. Telford v. Patton, supra. A gift inter vivos is defined in 20 Cyc. 1192,- as follows: “A gift inter vivos is a contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee gratuitously, and the donee who accepts and acquires the legal title to it. It operates, if at all, in the donor’s lifetime, immediately and irrevocably; it is a gift executed; no further act of parties, no contingency of death or otherwise, is needed to give it effect.” While a delivery may be made to a third party in order that the latter may deliver the subject of the gift to the "donee as agent of the donor, the gift is not complete until there is an actual delivery to the donee; and until the gift is completed by delivery, the'donor can revoke the agent’s authority and resume possession of the gift. If the delivery is to a trustee for the benefit of the donee, such delivery is good and the death of the donor will not revoke it. In the case of Trubey v. Pease, 240 Ill. 513, it was said: “The law is well settled that title to personal property by gift may be passed by delivery of it by the owner to another as trustee for the donee. In such case, delivery to the trustee is deemed, in law, delivery to the donee, and divests the donor of all control over or right or title in the property, and the gift is irrevocable. When a trust has been perfectly created it is not revocable by the death nor at the will of the party who created it. (Taylor v. Harmison, 179 Ill. 137; Telford v. Patton, 144 id. 611; Light v. Scott, 88 id. 239; Lawrence v. Lawrence, 181 id. 248.”) Mrs. Busk never lost dominion over or control of these certificates or the money represented by them. She could at any time before her death have revoked the written authority given to the bank to pay the certificates to Mrs. Erwin in the event that she should die before Mrs. Erwin did. Mrs. Erwin never acquired any right, title or interest in or to the certificates during the lifetime of Mrs. Busk and never could have acquired any except in the event that Mrs. Busk should die be-, fore she did. \The bank did not hold the certificates as a trustee for Mrs. Erwin but simply as the agent of the donor.’ Some stress is laid upon the fact that some of the interest as it accrued was paid to Mrs. Erwin by the bank and that at two different times parts of the principal were paid to her as showing an intention on the part of the donor to pass title to the certificates to the donee. This contention has no force in view of the evidence. The bank had no lawful right to pay Mrs." Erwin any part of the interest or principal until after the death of Mrs. Busk without express authority from the latter to do so, and of this there is no evidence. No action of the bank in violation of its authority could change the character of the transaction. The president of the bank testified that Mrs. Rusk was not able to go to the bank very often in the latter years of her life and he thought he was paying the interest to Mrs. Erwin as the agent of Mrs. Busk, and this undoubtedly was the case. The fact that the word escrow was used in the directions to the bank is of little or no importance, as the circumstances show that the certificates were not in fact delivered in escrow. It is practically conceded by counsel for defendant in error that the title of the defendant in error to these certificates cannot be sustained on the theory that they were gifts either inter vivos or causa mortis. Counsel in their argument, state: “We contend that there never was any delivery in escrow; but that there was an absolute present interest vested in Mrs. Erwin as of the date of said certificates. The interest vested in Mrs. Erwin was either a joint.tenancy with Mrs. Busk; or, Mrs. Busk and Mrs. Erwin were tenants in common for life, with a contingent limitation to the survivor.” If this proposition should be entitled from any point of view to serious consideration, it would at least be dependent upon a valid delivery of the certificates. So long as Mrs. Busk had control and dominion of the subject of the gift and the power of revocation, Mrs. Erwin could acquire no rights whatever therein. The whole transaction shows clearly that Mrs. Busk was attempting to make a testamentary disposition of her property without the formality of a will. In the case of Barnum v. Reed, 136 Ill. 388, it was held: “If the gift does not take effect as an executed and completed transfer to the donee, either legally or equitably, during the life of the donor, it is a testamentary disposition, good only when made by a valid will. (Basket v. Hassell, 107 U. S. 602; Comer v. Comer, 120 Ill. 420; Cline v. Jones, 111 Ill. 563; Walter v. Ford, 74 Mo. 195; McCord v. McCord, 77 id. 166; Gano v. Fisk, supra [43 Ohio St. 462].”) In Taylor v. Harmison, 179 Ill. 137, it was held: “If the intended gifts did not take effect as executed and completed gifts, but were to be completed by delivery after his death, it would be an attempted testamentary disposition of the notes. In order to complete the gifts it was necessary that there should be a delivery by which Whitnah parted with all control over the notes, reserving no right to reclaim or repossess himself of them. Such a delivery must be absolute, and the donor must part with all his present and future interest and control over the property. (Barnum v. Reed, 136 Ill. 388; Telford v. Patton, 144 id. 611; Williams v. Chamberlain, 165 id. 210.”) Plaintiff in error has not argued the assignment of error in regard to the allowance of the award to Mrs. Erwin, and it must be considered as waived. The judgment of the Circuit Court is reversed with directions to enter an order in accordance with the opinion herein expressed. The cost's are taxed against Martha D. Erwin in her personal capacity. Reversed with directions.