Harrison v. Foley

• Decision Date: 20 May 1913
• Docket Number: 3,759.
• Citation: 206 F. 57
• Parties: HARRISON et al. v. FOLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

206 F. 57

HARRISON et al. v. FOLEY.

No. 3,759.

United States Court of Appeals, Eighth Circuit.

May 20, 1913

Rehearing Denied Aug. 25, 1913.

Jacob L. Lorie and W. S. Cowherd, both of Kansas City, Mo. (Cowherd, Ingraham, Durham & Morse, of Kansas City, Mo., on the brief), for plaintiffs in error.

W. F Guthrie, of Kansas City, Mo. (L. C. Boyle and A. F. Smith both of Kansas City, Mo., on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges.

HOOK Circuit Judge.

Mrs Foley sued Harrison, the administrator of Medley, deceased, in a state court in Kansas City, Mo., to recover the contents of a safe deposit box consisting of mortgage securities and money. She claimed they were given her by Medley in anticipation of his death, which soon followed, and that the gift was accompanied by the delivery to her of his keys. A verdict in her favor was vacated, and a new trial was awarded, by that court. On her appeal to the Supreme Court of the state the order was affirmed. Foley v. Harrison, 233 Mo. 460, 136 S.W. 354. When the case went back for retrial, she dismissed it without prejudice, and at once commenced the present action for conversion in the federal court. A trial in that court also resulted in her favor, and Harrison prosecuted this writ of error. The questions here are whether, assuming the evidence for plaintiff to be true, the delivery of the contents of the safe deposit box, necessary in gifts mortis causa, could be effected by handing over the keys, and whether in this case there was sufficient evidence of the fact of gift.

The general doctrine of the common law as to gifts mortis causa is recognized by the Supreme Court of Missouri as prevailing in that state, and in Foley v. Harrison, supra, it was held that a delivery of the keys was an effective symbolical delivery of the contents of the box. The latter conclusion was reached after an exhaustive review of the decisions of the courts and the views of text-writers from a very early date, and we think it is correct. True, the keys given to Mrs. Foley would not have opened the box without the assistance of the safe deposit company and the guard key which it retained; but in this respect the case is not different from one of a gift of a deposit in a savings bank by delivery of the pass book. officials, would be unavailing, yet a delivery of it is upheld as sufficient. Pierce v. Boston Savings Bank, 129 Mass. 425, 37 Am.Rep. 371; Tillinghast v. Wheaton, 8 R.I. 536, 5 Am.Rep. 621, 94 Am.Dec. 126; Hill v. Stevenson, 63 Me. 364, 18 Am.Rep. 231. It does not affect the sufficiency of the delivery that the possession and presentation of the pass book is not a full compliance with the rules and regulations of the savings bank respecting the right of another than the depositor to draw the funds. By delivering the keys of the safe deposit box the donor parted with all the means of access in his possession at the time and placed them in the hands of Mrs. Foley. His action was in harmony with his condition and the situation of the property. The money and securities being elsewhere under lock and key, and not susceptible of manual transfer, he gave the keys, which at the time and place were, more than anything else, the physical symbols of dominion. It was the best he could do. The cases of delivery of a key of an ordinary receptacle are in point. Thomas v. Lewis, 89 Va. 1, 15 S.E. 389, 18 L.R.A. 170, 37 Am.St.Rep. 848; Debinson v. Emmons, 158 Mass. 592, 33 N.E. 706; People v. Benson, 99 Ill.App. 325; Jones v. Brown, 34 N.H. 439, 445; Marsh v. Fuller, 18 N.H. 360. See, also, Stephenson's Adm'r v. King, 81 Ky. 425, 50 Am.Rep. 173. The present state of the law of gifts mortis causa, as regards both the subjects and the methods of making them, is a natural adaptation to modern customs and usages. We appreciate that the ancient barriers to fraud and perjury have been weakened, but believe the remedy is for the legislatures, not the courts.

There is a preliminary phase of the contention regarding the sufficiency of the evidence. It is said the proof in favor of Mrs. Foley before the state...