Croox v. First Nat. Bank of Baraboo

• Decision Date: 27 September 1892
• Citation: 83 Wis. 31,52 N.W. 1131
• Parties: CROOX v. FIRST NAT. BANK OF BARABOO.
• Court: Wisconsin Supreme Court

83 Wis. 31

52 N.W. 1131

CROOX

v.FIRST NAT. BANK OF BARABOO.

Supreme Court of Wisconsin.

Sept. 27, 1892.

Appeal from circuit court, Sauk county; ROBERT G. SIEBECKER, Judge.

Action by Peter Crook, as administrator of the estate of Lucretia Austin, deceased, against the First National Bank of Baraboo. From an order overruling a demurrer to the answer, plaintiff appeals. Affirmed.

The other facts fully appear in the folowing statement by PINNEY, J.:

The appellant, in his capacity as administrator of the estate of Lucretia Austin, deceased, brought this suit against the respondent, alleging that prior to and at the time of her death there was deposited in the defendant bank, of the moneys of the said Lucretia Austin, and to her credit, the sum of $4,504.70, which sum it was alleged was due and owing to her, the said Lucretia Austin, from the defendant bank, at the time of her death, but the defendant still has and holds it, and on demand of plaintiff has refused to pay the same. The answer alleges, in substance, as a first defense, that prior to the death of the said Lucretia Austin, and on the 28th of December, 1887, the defendant received from her four United States government bonds, with directions to sell them, and place the proceeds to her credit; and also received therewith, at the same time, for collection, certain interest coupons of the value of $221, the proceeds of which were in like manner to be placed to her credit. That such proceeds of the bonds and coupons were $4,504.70, and were, immediately after the sale of said bonds and collection of said coupons, placed to her credit in the said bank; that they were receipted for by the cashier of said bank when it received them, as follows: “Ironton, Dec. 28,'87. Received of Lucretia Austin four 4 1/2 registered bonds, No. 43,981, No. 43,986, No. 43,983, No. 43,982, to be sold, and the proceeds placed to her credit in the 1st Nat'l Bank of Baraboo. Also, for collection, $221 in coupons. CHAS. L. SPROAT, Cashier.” Lucretia Austin died January 3, 1888, and afterwards, on the 6th of February, 1888, the said receipt was presented at the defendant bank by Charles Mitchell, indorsed upon the back thereof as follows: “Ironton, Sauk Co., Wis. Mr. Chas. L. Sproat, Baraboo, Wis.--Sir: Please let Chas. Mitchell, my nephew, have the amount of the within bill, and oblige. LUCRETIA AUSTIN. Witness: W. H. MITCHELL. CATHERINE DYSON,”--dated January 2, 1888. That the said Sproat, as cashier of the bank, upon the presentation of the receipt so indorsed, paid to the said Mitchell the amount aforesaid, namely, $4,504.70. The defendant alleged that by the delivery of the said receipt with the order of direction so made thereon the said Lucretia Austin, on the 2d of January, 1888, “intended to give, and did give,” the amount for which the said receipt was given, to wit, the sum of $4,504.70, to the said Charles Mitchell, or to the said Charles Mitchell and others, to wit, to said Charles Mitchell and his brothers and sisters. The second defense was that the plaintiff, as such administrator of the estate of Lucretia Austin, after the payment of the said sum of money to Charles Mitchell, as aforesaid, upon the said receipt bearing the indorsement and order above mentioned, commenced an action in the circuit court for Sauk county against said Mitchell and others, and recovered judgment for the amount so paid by the defendant in this action to the said Charles Mitchell on the 6th of February, 1888, to wit, $4,504.70, together with interest thereon; that said judgment was for the same demand and claim made in this action against the defendant; and it is averred that the plaintiff, by instituting the action against Mitchell and others, and prosecuting the same and recovering judgment therein for said money collected on said bonds and coupons, and paid by the defendant to the said Charles Mitchell, as aforesaid, on presentation of said receipt and indorsement, elected to hold, and did hold, the said Charles Mitchell and his codefendants liable thereon, and thereby waived the right to claim the same of the defendant. The plaintiff demurred to the answer. The circuit court overruled the demurrer, and from the order thereon plaintiff appealed.G. Stevens and Duffy & McCrory, for appellant.

R. D. Evans, for respondent.

PINNEY, J., ( after stating the facts).

The receipt set out in evidence given by the bank to Lucretia Austin for the four bonds and $221 in coupons, the former to be sold and the latter to be collected, and the proceeds to be placed to her credit, was more than a mere receipt. It was of a contractual character, defining the duty of the bank in the premises, and was the sole evidence which Mrs. Austin had to establish her right to the fund produced by the sale of the bonds and collection of the coupons. The bank, upon such sale and collection, became her debtor for the amount. The receipt was in the nature of a certificate of deposit. Plainly, the bank would not be expected to or be bound to pay over the money without the surrender of its obligation to Mrs. Austin. The receipt was, therefore, potentially the fund itself, without which, in the ordinary course of business, it could not be obtained; and equitably, at least, if not legally, it possessed all the characteristics of a regular certificate of deposit. It represented the money, the proceeds of the bonds and coupons. The answer alleges, in substance, the delivery of this receipt with the indorsement thereon by Mrs. Austin to her nephew, Charles Mitchell, five days after its date, and one day before her death, and that she thereby “intended to give, and did give,” the entire fund produced from the bonds and coupons--$4,504.70,--to the said Charles Mitchell, or to him and his brothers and sisters. Construed with reasonable liberality, the answer must be held to allege a gift of this fund due from the bank to Mrs. Austin, under the circumstances above stated, to the party named in the order, and evidence would doubtless be admissible under the answer to show a gift of the fund either inter vivos or causa mortis. A gift inter vivos must be completed by a delivery of the subject of the gift. A donatio causa mortis must be completely executed, so far as delivery is concerned, in the lifetime of the donor, precisely as required in the case of gifts inter vivos. A donatio causa mortis is a gift absolute in form, made by the donor in anticipation of his speedy death, and intended to take effect and operate as a transfer of title only upon the happening of the donor's death. The gift must be absolute, with the exception of the conditions inherent in its nature, and a delivery of the article donated is a necessary element; but it may be revoked by the donor, and is completely revoked by his recovery from the sickness or escape from the danger in view of which it was made. And, if not so revoked, the gift may be taken by the administrator of the donor, if necessary, for the payment of his debts. 3 Pom. Eq. Jur. § 1146; Basket v. Hassell, 107 U. S. 609, 610, 2 Sup. Ct. Rep. 415;Henschel v. Maurer, 69 Wis. 576, 34 N. W. Rep. 926. The question presented by the first defense is whether the delivery of the receipt, indorsed, as stated, to Charles Mitchell, with intent to give him the proceeds of bonds and coupons, could operate as a gift, for whether the gift was one inter vivos or was intended as a donatio causa mortis is not a material question, as it is abundantly shown by the authorities that, so far as the subjects which may be disposed of by gift and the question of delivery are concerned, the law is the same in either case. Camp's Appeal, 36 Conn. 92, 93; Harris v. Clark, 3 N. Y. 93, 113;Grover v. Grover, 24 Pick. 261, 264;Basket v. Hassell, 107 U. S. 614, 2 Sup. Ct. Rep. 415. The law favors free and comprehensive power of disposition by an owner of his property, and the rigor of the earlier cases has been materially relaxed, both as to the subjects of such gifts and as to what will serve as a delivery to make them effectual. This is well illustrated by the cases above cited, in which it is held that the thing given must be delivered, or it must be placed in the power of the donee by delivery to him of the means of obtaining possession. “As to the character of the thing given,” says SHAW, C. J., in Chase v. Redding, 13 Gray, 418, 420, “the law has undergone some changes. Originally it was limited, with some exactness, to chattels, to some object of value deliverable by the hand; then extended to securities transferable solely by delivery, as bank notes, lottery tickets, notes payable to bearer or to order and indorsed in blank; subsequently it has been extended to bonds and other choses in action in writing represented by a certificate, when the entire equitable interest is assigned; and in the very latest cases on the subject in this common wealth it has been held that a note not negotiable, or, if negotiable, not indorsed, but delivered, passes with a right to use the name of the administrator of the promisee to collect for the donee's own use.” And in Parish v. Stone, 14 Pick. 198, speaking of the extension of the doctrine to include choses in action delivered so as to operate only as a transfer by equitable assignment or a declaration of trust, SHAW, C. J., also says that “these cases all go on the assumption that a bond or other security is a valid, subsisting obligation for the payment of a sum of money, and the gift is in effect a gift of the money by a gift and delivery of the instrument that shows its existence and affords the means of reducing it to possession.” It has since been repeatedly held “that a deposit in a savings bank may be the subject of a valid donatio causa mortis, as well as of a gift inter vivos, and that such a gift may be proved by the delivery of the bank book to the donee, or a third person for him;...