Dietzen v. American Trust & Banking Co.

• Decision Date: 01 July 1939
• Citation: 131 S.W.2d 69,175 Tenn. 49
• Parties: DIETZEN v. AMERICAN TRUST & BANKING CO.
• Court: Tennessee Supreme Court

131 S.W.2d 69

175 Tenn. 49

DIETZEN v. AMERICAN TRUST & BANKING CO.

Supreme Court of Tennessee.

July 1, 1939

Appeal from Chancery Court, Hamilton County; J. Lon Foust Chancellor.

Suit by John A. Dietzen against the American Trust & Banking Company administrator of the estate of Mrs. Rosa Dietzen, deceased for certain United States postal bonds and certain United States savings certificates, alleged to have been given to complainant by his mother, Mrs. Rosa Dietzen, prior to her death. To review a decree of the Court of Appeals affirming decree of chancellor in so far as it allowed complainant recovery for amount of United States postal bonds, but reversing the decree in so far as it allowed complainant recovery for amount of United States postal bonds, but reversing the decree in so far as it allowed complainant recovery for amount of United States savings certificates both parties bring certiorari.

Decree of the chancellor affirmed, and that of the Court of Appeals reversed, in so far as the United States postal savings certificates are concerned.

Williams & Williams, of Chattanooga, for complainant.

Cantrell, Meacham & Moon, of Chattanooga, for defendant.

DEHAVEN Justice.

The question presented for determination is whether or not complainant acquired valid title to certain United States Savings Bonds, having an accrued value of $1,500, and certain United States Postal Savings Certificates, having a face value of $2,500, by virtue of a gift made to him by his mother, Mrs. Rosa Dietzen.

It is contended for defendant that the bonds and certificates were not endorsed and, in fact, are non transferable and nonnegotiable and no title could pass by delivery.

The chancellor granted complainant a decree for the total amount of the bonds and certificates. On defendant's appeal, the Court of Appeals affirmed the decree of the chancellor as to the bonds, but reversed the decree as to the certificates upon the ground that they were not transferable by delivery and, consequently, valid title thereto did not pass to complainant.

The parties have filed their respective petitions for certiorari to this court, which have heretofore been granted and argument heard.

The material facts are, in substance, that Mrs. Rosa Dietzen, mother of complainant, eighty years of age, became seriously ill on September 15, 1937, and a few days prior to her death on October 4th of that year, gave him $500 in cash and two United States postal bonds and certain United States savings certificates; that the money and certificates were in her safety deposit box in the bank with which she did business; that she gave him the key to her box with directions to go to the bank and remove the above-mentioned securities and money, which he did, upon a written order signed by his mother, taking possession of the money and securities, and he deposited the money in the bank in his own name, but having no safe place to keep the bonds and certificates he replaced them in his mother's safety deposit box with other property belonging to her, retaining the key to the box in his own possession, and the securities remained there until after the death of the mother, which occurred a few days later. Upon the demand of the administrator he turned over to him the key, accompanied with a letter setting forth his claim to the securities. It further appears that complainant had lived on a farm with his mother for some eighteen years, and was practically an invalid; that in her last illness, Mrs. Dietzen was worried about John (complainant) not having money enough to look after the finances of the farm, and she said to Mr. W. H. DeWitt, a banker and her confidential financial adviser, that she had given the money and these securities to John because she wanted him to have them as she knew he could not produce on the farm. She asked Mr. DeWitt's advice as to how she could give the money and these securities which were in the lockbox to John, and he advised her that she would have to have a written order to the bank directing it to turn over the box to John with its contents, and would have to give John the key in order that he could open the box. Mr. DeWitt dictated the necessary order and, at the request of Mrs. Dietzen, he accompanied John to the bank and was present when the box was opened and the money and the specified bonds and certificates were removed therefrom, and he testified to the circumstances under which the bonds and certificates were replaced in the box. The box contained no other money or securities.

The chancellor and the Court of Appeals concurred in finding the facts substantially as above set forth.

We think the gift of the money and securities by Mrs. Dietzen to complainant was made causa mortis, as held by the Court of Appeals. The chancellor did not hold otherwise, but merely found that a valid gift had been made without characterizing it as inter vivos or causa mortis. Mrs. Dietzen undoubtedly had the intention to make the gift and she did all that it was possible for her to do in the circumstances in the matter of delivery. She delivered the key to her lockbox to complainant for the purpose of enabling him to get into the box and take possession of the subject matter of the gift. What more could she have done to effect a delivery in her condition of physical incapacity and sickness? In Scott v. Bank & Trust Co., 123 Tenn. 258, 283, 284, 130 S.W. 757, 764, the court said, "when it is once ascertained that it is the intention of the donor to make such a gift, and all is done which is possible under the circumstances in the matter of delivery, the gift will be sustained."

Not only did the intention to make the gift and effect delivery of the securities in question exist on the part of Mrs Dietzen, but delivery was actually made when complainant, the done, went to the bank and obtained the box...