Devol v. Dye

• Citation: 24 N.E. 246,123 Ind. 321
• Decision Date: 12 April 1890
• Docket Number: 14,154
• Parties: Devol et al. v. Dye et al
• Court: Supreme Court of Indiana

24 N.E. 246

123 Ind. 321

Devol et al. v. Dye et al

No. 14,154

Supreme Court of Indiana

April 12, 1890

From the Boone Circuit Court.

The judgment is affirmed, with costs.

A. J Seay, J. A. Abbott and S. M. Ralston, for appellants.

C. S Wesner, O. D. Wesner, R. W. Harrison and B. S. Higgins, for appellees.

OPINION

Mitchell, C. J.

It appears from the special finding of facts that William J Devol, late of Boone county, died testate on the 6th day of December, 1886, leaving an estate of the probable value of $ 80,000, and leaving one brother living, and the descendants of three deceased brothers, as his only heirs. At, and for a long time prior to his death, the testator had been the president of the First National Bank of Lebanon. During this time he had a tin box, which he kept in a private drawer in the vault of the bank safe, and in this he kept stocks, bonds, money, and other valuables belonging to him personally. Both box and drawer were kept locked, and no one had access to it but the testator. On the 15th day of November, 1886, being in failing health, he went South, returning to his home on the 2d day of December following, very sick. From that time until he died, which was four days after he returned, he was confined to his bed, and, while he did not wholly despair of recovery, he fully realized the dangerous condition he was in, and was apprised of the probable fatal termination of his malady. Before going South he entrusted the key of his box, and private drawer in the safe, to Mr. Lane, the cashier of the bank, and these remained in the custody of Mr. Lane from that time until after the testator's death. On the day following the one on which he returned from the South, while sick, and propped up in bed, the testator declared to Mr. Lane that it had always been his purpose to give Pressley G. Dye, who was a cousin, $ 5,000, either in cash or bank stock, and that he had put $ 2,000, in gold, in a bag and marked the name of the latter upon it, and left it in the tin box in the vault. He then directed Lane to go to the bank and count out $ 3,000 more in gold coin and put it in a sack and mark it as the other sack was marked, and that he should also count out $ 1,000, in currency, and place it in an envelope for Mrs. Nickerson, and put her name upon it. He then directed that, in case of his death, the sacks and package should be delivered by Lane to the parties indicated by the writing thereon.

The gold coin and currency were counted out of the tin box and placed in sacks and in a package, and marked by Lane as directed, after which the latter informed the testator that his directions had been carried out, to which he replied approvingly. The sacks containing the gold coin, and the package with the currency, remained in the box and drawer until after the testator's death, Lane retaining the keys. At the time of the testator's death the tin box was found to contain, in addition to other large sums of money, a sack containing $ 2,000, marked in the handwriting of the testator as follows: "$ 2,000. This belongs to P. G. Dye. 11-15-1886." The controversy here is between Pressley G. Dye and Mrs. Nickerson, on the one hand, the former claiming the two sacks of gold coin, the latter claiming the package containing the currency, and certain residuary legatees under the will of the testator who assert the invalidity of the gift and claim the whole fund as part of the residue of the testator's estate.

A gift causa mortis is consummated when a person in peril of death, and under the apprehension of approaching dissolution from an existing disorder, delivers, or causes to be delivered, to another, or affords the other the means of obtaining possession of any personal goods for his own use, upon the express or implied condition that in case the donor shall be delivered from the peril of death the gift shall be defeated. Blackstone defines donatio causa mortis to be a gift in prospect of death, "when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered, to another, the possession of any personal goods to keep as his own in case of his decease."

The chief distinction between gifts inter vivos and those of the character here in question, is that while the former are consummated by delivery the title to the property is irrevocably vested, while in the latter the title is ambulatory and inchoate until the death of the donor occurs.

The concurrence of three things is essential to the consummation of a gift causa mortis: (1) The thing given must have been of the personal goods of the donor. (2) It must have been given while the latter was in peril of death, or while he was under the apprehension of impending dissolution from an existing malady; and, (3) the possession of the thing given must have been actually, or constructively, delivered to the donee, or to some one for his use, with the intention that the title should then vest conditionally upon the death of the donor, leaving sufficient assets in addition to pay his debts. 8 Am. and Eng. Encyc. of Law, 1349, 1354. A mere unexecuted purpose, however clearly or forcibly expressed, so long as it rests merely in intention, is not effectual. The intention must not only have been manifested, but, in addition, in order to consummate the gift, the donor must have transferred the possession of the thing to the donee in person, or to some one for his use, under such circumstances as that the person to whom delivery is made is thenceforward affected with a trust or duty in the donee's behalf. Smith v. Ferguson, 90 Ind. 229; Wilcox v. Matteson, 53 Wis. 23, 9 N.W. 814; Gano v. Fisk, 43 Ohio St. 462, 3 N.E. 532; 21 Am. Law Rev. 732; 19 Cent. Law Jour. 222; Walsh's Appeal, 122 Pa. 177, 15 A. 470.

No particular form of words is necessary to give effect to the transaction if the intention of the donor sufficiently appears, and the intention to give is either accompanied with or followed by acts requisite to constitute a valid delivery. Kenistons v. Sceva, 54 N.H. 24; Martin v. Funk, 75 N.Y. 134; Coleman v. Parker, 114 Mass. 30; Hatch v. Atkinson, 56 Me. 324; Clough v. Clough, 117 Mass. 83.

The title of the donee in gifts causa mortis is of an inchoate character until the death of the donor occurs; but notwithstanding this, where the nature of the gift admits of it, a complete manual transfer of the possession of the subject should take place, and the transaction should be accompanied by words, signs, or a writing adequately expressive of the donor's intention. Flood Wills Per. Prop. 27.

It is well settled, however, that the delivery need not be made to the donee personally, but may be made to another as his agent or trustee. A delivery thus made is as effectual as though it had been made directly to the donee. Thus, in Milroy v. Lord, 4 De Gex F. & J. 264, Lord Chief Justice Turner said: "I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purpose of the settlement, or declares that he himself holds it in trust for...