Taylor v. Harmison

• Decision Date: 17 April 1899
• Citation: 179 Ill. 137,53 N.E. 584
• Parties: TAYLOR et al. v. HARMISON.
• Court: Illinois Supreme Court

179 Ill. 137

53 N.E. 584

TAYLOR et al.

v.HARMISON.

Supreme Court of Illinois.

April 17, 1899.

Appeal from appellate court, Third district.

Proceedings by Effie Harmison against Harriet N. Taylor and others. From a judgment of the appellate court affirming a judgment for plaintiff (73 Ill. App. 380), defendants appeal. Affirmed.

O. J. Boyer, for appellants.

Chiperfield, Grant & Chiperfield, for appellee.

CARTWRIGHT, J.

This proceeding originated in the county court of Fulton county under section 81 of the administration act, for the purpose of discovering whether appellants had in their possession notes belonging to the estate of Andrew J. Whitnah, deceased, and upon a hearing the court found that the notes payable to said Andrew J. Whitnah in their possession were assets of said estate, and ordered them to deliver the same to the administrator. They appealed to the circuit court, where the case was heard de nevo, and the court found likewise, and entered a like order. They again appealed to the appellate court, and that court affirmed the order.

At the hearing in the circuit court it appeared that the intestate, Andrew J. Whitnah, who was about 80 years of age, went on January 30, 1897, to the office of Abbott & Shepley, at Canton, Ill, where he had notes aggregating about $25,000, kept in a tin box in their safe. One of the notes was for $4,000, and he sent Shepley with it to the maker to collect the interest, and have it divided into three notes, to be made payable to him. This was done, and he then took all the notes, and, dividing them into five lots, put them in five separate envelopes, and had the names of appellants severally written upon the envelopes. He handed these envelopes to Shepley, and told him to put them in his tin box; that he wanted to make Shepley their custodian, and ‘if anything happened to him, and he was planted,’ he wanted Shepley to deliver them, and deliver them in person, and to tell appellants that the gift was from their father and grandfather. He also told other persons afterwards, in substance, that he wanted to be his own executor, and wanted to fix his business so that when he died it would be settled, and that he had arranged his affairs, and saw no use for an administrator. Whitnah died March 10, 1897,-40 days after the transaction,-and Shepley delivered the envelopes containing the notes according to said direction.

It was, no doubt, the intention of Andrew J. Whitnah that appellants should each have the notes contained in the envelope marked with the name of such appellant; but if this was done to obviate the necessity of a will, by making what amounted to a testamentary disposition of the notes, it would be invalid. 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, 26 N. E. 572;...