Barnes v. Barnes

• Decision Date: 29 November 1911
• Citation: 174 Ala. 166,56 So. 958
• Parties: BARNES v. BARNES.
• Court: Alabama Supreme Court

56 So. 958

174 Ala. 166

BARNES v. BARNES.

Supreme Court of Alabama

November 29, 1911

Appeal from Circuit Court, Dale County; H. A. Pearce, Judge.

Action by J. W. Barnes, as administrator of the estate of William Barnes, deceased, against Jesse Barnes. Judgment for plaintiff, and defendant appeals. Affirmed.

H. L Martin, for appellant.

J. E Z. Riley and W. L. Parks, for appellee.

SIMPSON J.

This is an action of detinue, brought by the appellee, as administrator of the estate of William Barnes, deceased, to recover a certain certificate of deposit, issued by a bank in favor of said William Barnes.

The facts are that, while said William Barnes, deceased, was sick, the wife of the defendant, according to her testimony picked up the certificate of deposit under the bed of said William Barnes, and gave it to her husband, the defendant; that, when said William Barnes was about to be removed to Montgomery (for what purpose it does not appear), he called the defendant to his bedside, and said: "Jesse, they are going to take me away, and I don't want to go. I have decided what I am going to do with all my papers; keep these, and if I never get back I give you half, and give Jesse the other half; give Jesse the other half."

Said witness testifies further that the "defendant offered to W. W. Barnes the paper back, and he said: 'No; you take them, collect the money, and if I never get back give Jesse half.' He said not to let anybody have them and collect the money, and 'if I never get back take half and give Jesse half. Divide it equally.' " Also that said William W. Barnes said to defendant, when he offered to return the certificate: "You keep them; I have been thinking for some time, for two weeks, to let you have the papers to take care of. You keep them. You keep them; collect the money. You take your half, and give the other half to Jesse, provided I don't come back."

It is not shown whether William W. Barnes ever returned from Montgomery, nor when he died. This of itself shows that there is an entire failure of proof to sustain either a gift inter vivos or causa mortis; but, pretermitting the proof of the condition of the mind of said William W. Barnes, and admitting that the meaning of the intestate was that he expected to die at Montgomery, and that he did do so, the evidence is not sufficient to establish a gift causa mortis.

"A gift causa mortis is a gift of personal property made in the immediate apprehension of death, subject to the conditions, expressed or implied, that if the donor should not die, as expected, or if the donee should die first, or if the donor should revoke the gift before death, the gift should be void" (14 Am. & Eng. Ency. Law [2d Ed.] 1052); or a gift made "in expectation of death, then imminent, and upon the essential condition that the property shall belong fully to the donee, in case the donor dies, as anticipated, leaving the donee surviving him, and the gift is not in the meantime revoked, but not otherwise." 20 Cyc. 1228.

It is essential to the validity of a gift causa mortis that the property be delivered to the donee, either actually or constructively. 20 Cyc. 1231; Basket v. Hassell, 107 U.S. 609, 2 S.Ct. 415, 27 L.Ed. 500. In the case just cited the intestate, just before his death, indorsed upon a certificate of deposit the words: "Pay to M. B. of H., Ky.; no one else; then not till my death. My life seems uncertain. I may live through this spell. Then I will attend to it myself"--signed and delivered it to B., and it was held...