Aubrey's Adm'x v. Kent
| Decision Date | 17 November 1942 |
| Citation | 167 S.W.2d 831,292 Ky. 740 |
| Parties | AUBREY'S ADM'X v. KENT et al. |
| Court | Kentucky Court of Appeals |
As Modified on Denial of Rehearing Jan. 29, 1943.
Appeal from Circuit Court, Fayette County; King Swope, Judge.
Proceeding by Mary Kent and others against Mattie Aubrey's administratrix, involving issue of alleged gift of a savings account from decedent to administratrix. From a judgment on a directed verdict against claimant administratrix individually, she appeals.
Reversed.
George W. Vaughn and Richard Colbert, both of Lexington, for appellant.
Robert H. Hays and Owen S. Lee, both of Lexington, for appellees.
STANLEY Commissioner.
The question before us is whether the evidence to establish delivery of a passbook was sufficient to take the case to the jury on the issue of a gift of a savings account of $1,012.66. The trial court held it was not and directed a verdict against the claimant.
Mrs Mattie Aubrey, of Lexington, died July 16, 1931, survived by her sister, Mrs. Nannie Coryell, who lived with her, and a number of nieces and nephews. One of these, Mrs. Mattie McClanahan, also a widow, lived on a farm in Fayette County her sister, Mrs. Lizzie Wallace, living with her. In proceedings in the county court, instituted against Mrs. McClanahan by six of the heirs, it was shown that she had disbursed $280 principally for a doctor's bill and funeral expenses, which was about what she had received as administratrix disregarding the claimed personal gift. She reported that Mrs. Aubrey had had $1,000 on savings deposit which she had given her during her last illness, saying that she wished her and Mrs. Wallace to have it in payment for the attention and services they had rendered Mrs. Aubrey and Mrs. Coryell during the years, and requested that in consideration of the gift they care for the latter who was an invalid. This was controverted. In a response to a later motion respecting a settlement and to have the administratrix removed because of her adverse claim, Mrs. McClanahan joined issue on some of the charges and stated that the decedent and her sister were very old; that Mrs. Aubrey was deaf; that during the last months of her life she was practically helpless. She outlined the services and attention given her. The movants limited their denial to the justification of the appropriation of the savings account as a gift. The rest of the allegations of the response, therefore stand admitted. It appears that only the deposition of Mrs. McClanahan, taken as on cross examination, was filed in the county court. In this she testified that her aunt had given her the account. Exceptions to her report as administratrix and the response were overruled, but it was ordered she be removed as administratrix because of the adverse claim. In due course the complaining heirs filed an appeal to the circuit court from that part of the judgment which had the effect of sustaining Mrs. McClanahan's claim to the savings account. She never appealed from the order of removal, and so far as this record shows no other action was taken by her as personal representative.
The evidence of several neighbors is uncontradicted that these nieces, particularly Mrs. McClanahan, were very kind and attentive to their aunts. Mrs. McClanahan came there practically every day and kept them supplied with farm products and sometimes groceries. She looked diligently after their care and personal needs. Mrs. Aubrey would often have a neighbor call Mrs. McClanahan at night and she would always respond promptly. Time and again Mrs. Aubrey expressed her devotion of and dependence upon Mrs. McClanahan, and told her friends that when she died she wanted her and Mrs. Wallace to have her property. Sometimes she qualified the statement that it should be after her sister Nannie was gone. To Mrs. Reynolds she had said: "If anything happens to me I have a thousand dollars; Mr. Vaughn knows about it; it is insurance money; and I want Mattie to have it; I want her to have it." This, she said, was "because she had done more than any one else." There was no intimacy between Mrs. Aubrey and her other nieces and nephews, some of whom lived out of the state. They never came about her except one called at the hospital in her last days. When she died Mrs. Aubrey owned the house in which she lived, the furnishings and the savings account, and nothing more.
Sometime in the latter part of 1930, Mrs. Aubrey broke her hip and was taken to St. Joseph Hospital. While there she asked a neighbor, Mrs. Darnaby, to keep her passbook until she got home. After she was taken home Mrs. Darnaby gave it back to her, saying she did not want to be responsible for it any longer. She saw Mrs. Aubrey take a black bag from under her pillow and put the book in it. After that, apparently a short time, Mrs. Aubrey broke her hip again. She also suffered from cancer. Mrs. Minnie Rose, her nurse, testified that on several occasions Mrs. Aubrey repeated what she had told others about wanting Mrs. McClanahan and Mrs. Wallace to have her property after her sister's death. Mrs. Rose testified:
The witness did not see what the bag contained or identify what Mrs. Aubrey gave her. As to what she did see, as just related, she testified clearly and persuasively in an effort to develop something else from her under cross examination. As we read the record, this occurred after Mrs. Aubrey's leg was broken the second time and before she was taken to the Good Samaritan Hospital, where she died within a month.
On June 11, 1931, Mrs. Aubrey signed a will, but it was not probated because attested by only one witness. She undertook to give one-half of her personal property to her sister; certain articles of furniture to three friends; dishes to a grand niece; her watch to Mrs. Wallace; other dishes to Mrs. McClanahan; $25 each to four other nieces, and concluded: "If there is anything left when my sister dies it is to be divided equally between my nieces, Mrs. Lizzie Wallace and Mattie McClanahan, provided they have taken care of their Aunt Nannie." This was done by them until Mrs. Coryell's death a year or so afterward.
Virgil McClanahan, appellee's son, testified that a week or ten days before Mrs. Aubrey died, he saw her savings account passbook and her will in his mother's dresser drawer.
To perfect a gift of personal property there must be a delivery of possession, actual, constructive or symbolic, with the intention to transfer title--permanently if inter vivos either conditionally or permanently if causa mortis. The delivery of a savings account passbook consummates its gift and transfers the money on deposit to the donee if that was the intention and purpose of the donor. This, it is generally said, is because such book is equivalent to a certificate of deposit, the presentation of which authorizes withdrawal of the funds. Stephenson's Adm'r v. King, 81 Ky. 425, 50 Am.Rep. 173; McCoy's Adm'r v. McCoy, 126 Ky. 783, 104 S.W. 1031; Snidow v. Brotherton, 140 Va. 187, 124 S.E. 182, 40 A.L.R. 1246; 24 Am. Jur., Gifts, Sec. 104; 28 C.J. 665. The regulations or rules printed in Mrs. Aubrey's passbook provided that the depositor should bring the book to the bank "when you want to deposit and withdraw money." But the cashier testified the rule had not been strictly enforced. Whatever effect that could be said to have in derogation of the reason of the law as to the transfer of a savings account by the gift of the book, since this court, differing from many others, has held the rule of law to be applicable alike to a passbook evidencing deposits in a commercial or drawing account (McCoy's Adm'r, v. McCoy, supra), the absence of need of presentation makes no difference. The cashier further testified that on Mrs. Aubrey's direction he had endorsed on the ledger sheet on August 16, 1920, the notation, "Don't pay any checks unless Mrs. Aubrey is present." There were several small withdrawals during the course of the years, but no evidence that this direction was observed. But this, it seems to us, does not of itself make any difference in the matter of transfer of the account by delivery of the passbook, just as it has been held to make no difference that a rule printed in a passbook required an order or power of attorney to authorize anyone other than the depositor to...
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