Beck v. Hall

• Decision Date: 24 June 1918
• Docket Number: No. 12792.,12792.
• Citation: 211 S.W. 127
• Parties: BECK v. HALL.
• Court: Missouri Court of Appeals

211 S.W. 127

BECK v. HALL.

No. 12792.

Kansas City Court of Appeals. Missouri.

June 24, 1918.

Appeal from Circuit, Court, Platte County; Alonzo D. Burnes, Judge.

"Not to be officially published."

Action by William C. Beck, administrator of the estate of Sallie Ann Hudson, deceased, against C. D. Hall. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Ryan & Zwick, of St. Joseph, for appellant.

Raymond W. Hall, of Kansas City, and Guy B. Park, of Platte City, for respondent.

ELLISON, P. J.

This, a replevin suit, involves an alleged gift of a promissory note. The facts upon which the claim is made that there was such a gift are as follows:

Amanda Hillix, an aged lady, had, among her assets, a note in the sum of $500, executed in her favor by her nephew, Lee Hudson, and another note for $1,500 executed by one Brill. W. C. Polk was assistant cashier in a bank, and Mrs. Hillix in her lifetime transacted her business through Polk's bank, keeping in the bank her papers, consisting of notes, deeds, insurance and papers of that kind. These papers were placed in a large envelope with Mrs. Hillix's name upon it, and deposited in a pigeon hole in the bank's files. These two notes had been in the custody of the bank for a number of years before the time it is claimed they were given to plaintiff's decedent, Sallie Ann Hudson, who was a sister of Mrs. Hillix. Mrs. Hillix, being ill and unable to go to the bank, sent for Mr. Polk, and upon his arrival talked over with him the matter of transferring the Lee Hudson note to the maker, Lee Hudson, her nephew, and the Brill note to her sister, Sallie Ann Hudson. No business was transacted upon that day, but in a few days Mr. Polk returned to the residence of Mrs. Hillix at her request, and brought with him at the direction of Mrs. Hillix the notes mentioned. When he arrived Mr. Polk said to Mrs. Hillix, "Do you want Lee to have this note?" (that is, the $500 note), and she said, "Yes." And Mr. Polk then said, "Well, then, you write your name on this note" (that is, on the Lee Hudson note), and Mrs. Hillix wrote her name on it, and her signature was witnessed by a nurse who was present. Mrs." Hillix said that she wanted to take care of Aunt Sallie (meaning Sadie Ann Hudson). Mr. Polk then said, "Now, you want Sallie" (meaning Sallie Ann Hudson) "to have this note?" (meaning the $1,500 Brill note), and Mrs. Hillix said, "Yes." Mr. Polk said,. "Then you sign your name on this slip" (meaning on the $1,500 note), which was done, and the nurse likewise witnessed this signature of Mrs. Hillix. Mr. Polk further testified that after this was done the following happened: "And now Aunt Mandy" (meaning Mrs. Hillis) "says, `Take those notes and take care of them—to take them and keep them, to take them and take care of them. And I took them and put them back in her papers, in the bank." When Mr. Polk returned to the bank he said, "I thought I would indicate which note was meant for Lee and which for Aunt Sallie, and I wrote Lee Hudson's name on one note and Aunt Sallie's on the other," and he put the notes back in the envelope containing Mrs. Hillix's papers. Later he took out these notes and put them in separate envelopes, marking on the outside the name of the party to which each was to go, and put them back in Mrs Hillix's papers. Nothing more was (one in reference to the matter until after Mrs. Hillix's death, which occurred a short time thereafter, and at which time Mr. Polk delivered the notes to her administratrix.

At the close of the evidence above detailed the court sustained a demurrer to the evidence, and plaintiff has appealed.

There is no gift causa mortis unless there be a delivery. In Cochrane v. Moore (1890) 25 Q. B. D. 57, 76, Lord Esher said:

I have come to the conclusion that in ordinary English language and in legal effect there cannot be a `gift' without a giving and taking. The giving and taking are the two contemporaneous reciprocal acts which constitute a `gift.' They are a necessary part of the proposition that there has been a `gift'"

Such delivery need not be to the donee personally, as it may be made to a third person for such donee. Tomlinson v. Ellison, 104 Mo. 105, 16 S. W. 201. And if it be accompanied by language which clearly shows that the owner intended a gift, the presumption is raised that the person thus receiving it took it as trustee of the donee, and not as agent of the donor. Thornton on Gifts, §§ 168, 160. It is conceded that the donor desired to make the gift and thought she had done so. But the question is, Did she do so? and that depends on whether she delivered the note to Polk for the donee. The note, with the donor's other papers, had been in possession of the bank. Up to this time the bank, and not Polk (who was assistant cashier), was her agent for keeping the note. She had Polk separate it from those papers and bring it to her, so she might do what was thought necessary to make the gift to the donee. Polk complied with her request, and she thus withdrew it from the bank. She said, "I want to give this to Aunt Sallie" (her sister), and she took the note from Polk, indorsed it, and handed it to him, saying, "Take it and take care of it," meaning, of course, to take care of it for her sister. She did not direct that it be returned to her papers in the custody of the bank, and beyond doubt intrusted it to Polk for her sister. Polk took it, and after marking it with the donee's name and putting it in a separate envelope, put it "back with her papers in the bank." Now it seems to me to be going beyond good reason to say absolutely, as a matter of law, that the donor did not deliver the note to Polk for the donee. Townsend v. Schader (Sup.) 204 S. W. 1076, 1079.

Defendant relies on the Tomlinson Case supra, but the facts in that case are vitally different from these. There the notes alleged to have been the subject of a gift causa mortis were in the possession of the donor's agent (in his safe) along with his, the donor's, other papers. They were not separated or otherwise disturbed, and the gift was attempted by the execution of a separate instrument, which instrument the donor handed to his agent, with instructions to put it with "his other papers." Thus in effect directing that the notes and the instrument be kept in his possession as his other papers were.

I think the judgment should be reversed, and the cause remanded for trial.

TRIMBLE, J., concurs.

BLAND, J., dissents.

TRIMBLE, J.

As stated by Judge ELLISON, the deceased thought she was making then a completed gift, and when the interview with Polk was over, she thought she had done so. The only question is, Did she, in fact and in law, complete the gift by delivering it to Polk for the donee?

On this issue, the plaintiff, having the affirmative and the burden of proof, must adduce evidence sufficient to tip the beam of the trier's scales in her favor. She cannot succeed with evidence which merely leaves the jury to guess or conjecture whether the delivery to Polk was for the donee. So that the precise question for us to decide here narrows down to whether there is any evidence from which a jury could reasonably find that the note was handed to Polk for the donee rather than that it was merely returned to him to be replaced in the bank among donor's effects as before.

Now, in addition to what is stated as having taken place at the time the notes were indorsed and turned over to Polk, the record discloses that decedent had talked to Polk once before about transferring the notes, this prior conversation being about a week or ten days before she died. In this conversation the two notes were specifically mentioned, and she definitely and explicitly told Polk she wanted the notes transferred; that she wanted to come to town herself to attend to the business, but was not able to come, and wanted Polk to take care of the business for her. And it was agreed that he would come out with the notes, and they could make the conveyance. Not that it would be put in such shape as that it could be made, but that they would make it when he came. He afterwards, pursuant to that understanding and agreement, took the notes out, and the matter was attended to.

So that when Polk brought the notes out to her, both of them fully understood that she was making a present, executed transfer of the notes, and that, because of the donor's physical inability, the transaction was being had with Polk in the effectuating and completion ,of the conveyance. Under all the circumstances then, is there not room enough for a jury to say, and with reasonable certainty to find, that when the donor delivered the notes to Polk and said, "Take those notes and take care of them," she was delivering them to Polk for the donees? If so, then the jury should be allowed to pass upon the question. It seems to me that, when the circumstances are considered, it is unreasonable to think that when the donor handed the notes back to Polk she was giving them to him to keep for herself. While it is true, no subsequent act of Polk with reference to the notes could affect the matter unless it was done by authority of the donor; yet, if what he afterwards did was pursuant to what both of them understood and intended at the time the notes were delivered to him, then he acted by authority.

BLAND, J.

I am unable to agree with the majority opinion. It was held in the case of Tomlinson v. Ellison, 104 Mo. 105, 16 S. W. 201, that a delivery of a gift causa mortis might be made to one person for the benefit of another, but a delivery by the donor to his agent of a document as evidence of title to certain promissory notes and...