Barnum v. Reed

• Decision Date: 22 January 1891
• Citation: 26 N.E. 572,136 Ill. 388
• Parties: BARNUM v. REED et al.
• Court: Illinois Supreme Court

136 Ill. 388

26 N.E. 572

BARNUM

v.REED et al.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Appeal from appellate court, second district.

Bill by Henry M. Barnum, as executor of Mary L. Davis, deceased, against Edward P. Barton and Permelia E. Reed to compel Barton to surrender to complainant certain notes and certificates of deposit in his hands, and to declare that Mrs. Reed had no title thereto. Complainant obtained a decree in his favor, but the appellate court reversed the decree, and he appeals.

Henry C. Hyde, for appellant.

Horatio C. Birchard, for appellees.

SHOPE, J.

The notes and certificates of deposit sought to be recovered in this case, being payable to Mrs. Davis, testatrix, and not indorsed, are prima facie assets of the estate. Therefore, unless it is shown she, in her life-time, made a valid disposition of the property, the executor of her will is entitled to the same. The defense interposed admits, in effect, that the testatrix died seised of this property, unless she parted with it, by donation or gift, eitherto her sister, Mrs. Reed, directly, or to E. P. Barton, as trustee for her benefit. The burden, therefore, rests upon Mrs. Reed to show that the title to the property passed to her from the testatrix, or to Barton in trust for her.

The claim that a gift was made of this property to Mrs. Reed is based principally upon the letter of the testatrix to Barton, written a week before Mrs. Davis' death, and his reply thereto. There was some evidence of the declarations of the testatrix, made a few days before, and on the night she wrote the letter which is referred to, in which Mrs. Davis said that her sister should have pay for all her trouble in taking care of her, that she should have all the testatrix's personal effects, and the like. The husband of Mrs. Reed testified to these declarations. Waiving the question of his competency to testify in favor of his wife, we think the evidence inadmissible for the purpose of showing what the testatrix in fact did in respect of her property, or as tending to interpret the meaning of the letter to Barton, afterwards written. If the intention of the testatrix was material, these declarations would afford evidence bearing upon that question, and tend strongly to show an unexecuted intention on the part of the testatrix to make some further provision for her sister; but whether by will, or by gift during her life, does not appear. If such provision was intended to be made by change in her will, as intimated in her letter to Judge Barton, it remained unexecuted.Mrs. Reed was already the principal devisee in the will of her sister. A valuable farm of 200 acres had been devised to her for life, and also chattel property of the value of $3,000; besides which she was to receive one-third of the residuum of the estate. In respect of whether there was a gift inter vivos, it is to be remembered that Mrs. Davis was living with her sister, Mrs. Reed; and, if she had desired to make an absolute gift to the latter of these notes and certificates of deposit, she could have done so, and, having declared the gift, let her sister send them to Judge Barton for collection, instead of doing so herself. The simplest and most natural course would have been to make the gift directly to the donee.

Reliance is placed upon the letter to Judge Barton, and his reply, as showing a gift donatio causa mortis. If these letters, in connection with the facts surrounding the transaction, fail to establish a valid transfer of property, Mrs Reed must fail. The letter of Mrs. Davis, after alluding to the uncertainty of life, and the possibility, if not probability, of its speedy termination, states the fact that the letter contained the notes, the three certificates of deposit, giving the amount, and the $50 in cash, and requests Judge Barton, with the money derived from the interest, when paid, on the notes and the certificates, to procure a new certificate of deposit of $2,000 in lieu of the certificates sent him. She further directs that, if she be then dead,-that is, when the interest is paid on the notes,-to draw the certificate, i. e., the $2,000-certificate, in her sister's name, and send the interest on the notes and certificate to her sister, until the notes and certificate are paid, and when they are paid to place the money in the bank, and send her sister the interest. Portions of the letter, standing alone, might indicate a direction to Barton to send Mrs. Reed the notes and certificates of deposit; but later in the letter the direction is to put the money, when they are paid, in the bank, and send her, i. e., the sister, the interest. The manifest meaning is when the notes and certificates are paid, to put the money thereby derived in the bank, and send Mrs. Reed the interest. It is evident from this that the notes and certificates were not to be delivered to Mrs. Reed, as in that event this latter direction could not be carried into effect. The language referred to, and most strongly insisted upon, is that occurring after the direction to take enough of the interest money arising from the notes, which, added to the $50 in cash sent in the letter, and the amounts of the certificates of deposit, would be sufficient, to purchase a new certificate for $2,000, and, if the testatrix was then dead, to draw said certificate in Mrs. Reed's name, ‘and send the interest and the notes, and the interest on them, to her as long as they continue.’ As long as what continued? Evidently, as long as they (the notes and certificates) continue to draw interest; that is, until they are paid. Then immediately follows the language, ‘and, when they are paid, put them in the bank, and send the interest to her.’ This clearly indicates that the interest on the notes and certificates of deposit was to be paid Mrs. Reed until they were paid off, and, when they were so paid, the money they represented was to be put in the bank, and the interest sent to Mrs. Reed. As long as the testatrix lived, her sister was given nothing. The latter clause of the letter reads as follows: ‘The remainder of the interest due in May send me, if alive; if not, to her, [Mrs. Reed.]’ By this is clearly meant that Barton should first procure the new and increased certificate of deposit, in her name, if alive; if not, in the name of her sister,-and send to her (Mrs. Davis) the interest, if alive; if not, it was to be sent to Mrs. Reed. It was only upon the condition of Mrs. Davis' death that the new certificate was to be taken in Mrs. Reed's name, if, in fact, it was ever so intended to be taken, or that any interest was to be sent to her. The reply of Barton shows that he received the property as agent of Mrs. Davis, for whom he, it appears, had acted for some years then past. He says: ‘Receivedsame, to collect in terest when due on the notes in May next, and on the $1,700 certificate, and return to you if alive the two notes, a certificate of the Second National Bank for $2,000, and the balance of the money. If you are dead when the interest matures in May, then I am to follow your letter of instructions in favor of Mrs. Permelia Estes...