Bundrant v. Boyce

• Decision Date: 24 June 1910
• Docket Number: No. 6,687.,6,687.
• Citation: 92 N.E. 126,47 Ind.App. 253
• Parties: BUNDRANT v. BOYCE et al.
• Court: Indiana Appellate Court

47 Ind.App. 253

92 N.E. 126

BUNDRANT

v.BOYCE et al.

No. 6,687.

Appellate Court of Indiana, Division No. 1.

June 24, 1910.

*126For majority opinion, see 91 N. E. 968.

WATSON, P. J.

I am unable to concur in the opinion by the majority in this cause. Appellant, as executor of the will of Frances J. Williams, instituted this action upon a note executed by appellees to appellant's testatrix. The note is set out in the complaint as an exhibit, and is in the ordinary form of a promissory note for the sum of $300, payable to the order of Frances J. Williams, five years after date, with 6 per cent. interest payable annually. The appellees filed their joint and several answers to plaintiff's complaint and to each of said answers appellant's separate demurrers were overruled. Appellant electing to stand on the pleadings, judgment was rendered thereon in favor of appellees.

The assignment of error raises the question of the sufficiency of appellees' said answers, each setting out an agreement alleged to have been executed simultaneously with said note by the same parties and as a part of one entire contract. So much of said agreement relevant to the questions here involved reads as follows: “That in consideration of a loan of $300.00 this day made to said trustees of the First Universalist Church of Muncie, Indiana, by said Frances Jane Williams, the said trustees of said church have executed to said Frances Jane Williams one promissory note for the sum of $300.00 dated February 1, 1900, payable five years after date, with six per cent. interest from date until paid, payable annually. *** Said trustees hereby agree to pay to said Frances Jane Williams the annual interest on said loan in accordance with the terms of said note during the existence of said loan, or during the life of said Frances Jane Williams in the event said loan shall extend to the time of her death. In the event that the principal of said loan shall not be demanded by said Frances J. Williams in person during her life, she hereby agrees, and it is expressly understood, that said note shall, immediately upon her death, be returned to said trustees as a benefit and donation from said Frances Jane Williams to the First Universalist Church of Muncie, Indiana. In witness whereof,” etc. In each of said answers it is averred that said Frances Jane Williams did not demand payment of said note during her lifetime, and that defendants performed all the stipulations of said contract by them to be performed. The question is between her representative and the church.

It is contended that by the terms of these instruments the debt sued for was only payable to Mrs. Williams upon her personal demand. If this were in the contract, recovery could only be had according to its terms. Sebrell v. Couch, Adm'r, 55 Ind. 122. The transaction evidenced by the note in suit was complete in itself. The note has become due, and recovery should be had unless the debt has been discharged or the contract modified. This has not been done. The instrument by which the terms of the note are supposed to have been modified sets out the note and refers to it as and only as a completed and separate transaction. It also recites the loan and the execution of the note, and provides not that the terms of the note shall be changed, but for a gift to the church upon death. So long as she lived, it was a mere indebtedness to be repaid on demand. It was not a gift in præsenti because it was by the terms of the instrument*127to be considered during her life as a mere indebtedness evidenced by said note to be repaid on demand. By the terms of the instrument she reserved the right to compel the repayment of the money during her life, and to give at her death the note and sum represented by it to the church. There was no delivery of the note to the church or any cancellation thereof during the lifetime of decedent. A promise to make a donation at the death of the promisor is not enforceable for various reasons. First, an essential element of an absolute gift is an unconditional delivery. To constitute a valid gift inter vivos, it must take effect at once, and pass entirely beyond the control of the donor. Love v. Francis, 63 Mich. 181, 29 N. W. 843, 6 Am. St. Rep. 290;Snyder v. Snyder, 131 Mich. 658, 92 N. W. 353;Calvin v. Free, 66 Kan. 466, 71 Pac. 823;Savings Inst. v. Titcomb, 96 Me. 62, 51 Atl. 249, and cases cited; Hafer v. McKelvey, 23 Pa. Super. Ct. 202;Sterling v. Wilkinson, 83 Va. 791, 3 S. E. 533;Yancey v. Field, 85 Va. 756, 8 S. E. 721;Taylor v. Harmison, 179 Ill. 137, 53 N. E. 584;Harris Banking Co. v. Miller, 190 Mo. 640, 89 S. W. 629, 1 L. R. A. (N. S.) 790. A gift cannot be made to take effect in the future. Such a transaction would only amount to a promise to make a gift in the future, and, being without consideration, is void. In re Soulard's Estate, 141 Mo. 642, 43 S. W. 617; Harris Banking Co. v. Miller, supra. And in all cases the disposition made must be such as will place the jus disponendi beyond the donor's power to recall. Love v. Francis, supra. The promise to donate the loan became void on the...