DlCKESCHIED v. Exch. BANK.

Citation28 W.Va. 340
PartiesDlCKESCHIED v. EXCHANGE BANK et al.
Decision Date18 September 1886
CourtSupreme Court of West Virginia

1. To constitute a valid gift inter vivos, the donor must be divested of, and the donee invested with, the right of property in the subject of the gift; it must be absolute, irrevocable and without any reference to its taking effect at some future period. The donor must deliver the property and part with all present and future dominion over it. (p. 359.)

2. To constitute a valid gift causa mortis, it is essential, that the donor should make it in contemplation of death, either in his last illness, or while he is in other imminent peril, and that his death should result from such illness or peril. The donor must part with all dominion over it, so that no further act of him or of his personal representative is necessary to vest the title perfectly in the donee, to belong to him presently as his own property, in case the donor should die of his present illness or from the impending peril, without making any ehange in relation to the gift, leaving the donee f viving him. (p. 360.)

3. Delivery at the time of making the gift is essential to a perfect gift causa mortis. It is not the possession of the donee, but the delivery to him by the donor, that is material. An afteracquired possession, or a previous and continuing possession of the donee, though by the authority of the donor, is insufficient, (p. 362.)

4. Where a party claims title to personal property as a gift, either

inter vivos or causa mortis, the burden of proof, in whatever form the issue may be presented, rests upon him to establish the validity of the gift, of which the delivery of possession is the strongest and most material, (p. 360.)

5. The mere possession of the subject of the alleged gift, unaccompanied by proof of its delivery by the donor to the don9e, is insufficient to establish it as a gift either inter vivos or causa mortis, (p. 3bu.)

6. Every person claiming property as a gift thereby admits, that up to the time when the gifc is alleged to have been made, it belonged to the donor; and as the law does not presume that the owner parted with his property without any valuable consideration, the gift itself and the delivery thereof to the donee must be proved by the party claiming under it. (p. 361.)

7. If the agent of the donee, residing with the donor, be authorized to accept and receive the gift, so that actual delivery thereof to him is a delivery to such donee, and the gift is in faet so delivered to and accepted by him at the place of the donor's residence, his possession thereof at such place of residence will be Insufficient to make it a valid gift. vp« 370.)

8. If the subject of a gift be delivered by the donor to a third person with authority to deliver it to the donee, such third person, until the authority is executed by an actual delivery to, and acceptance by the donee, is the agent of the donor, who, until such actual delivery is made, may revoke the authority and take back the gift. (p. 370.)

9. If such actual delivery to the donee do not take place during tin

lifetime of the donor, the authority of such third person to de liver the gift is revoked by thedonorvs death; the property doe: not pass to the donee but remains in the donor, and goes to hi executor or administrator, (p. 371.)

10. The words "goods'1 and "chattels" as used in sec. 1. of ch. 71 o the Code of 1868 include money and every other kind of pei sonal property which may be the subject of a gift inter vivos c causa mortis, (p. 368.)

11. An instruction to the jury which tells them "If they believe a the evidence offered on behalf of the defendant and all tl evidence offered for ihe plan fcift, so far as the same does not coi diet with the evidence on behalf of the defendant, they showl find for the plaintiff/' is erroneous, because it is "in effect an i struetion as to the weight of the evidence. (p. 350.)

12* "(). I >." deposited in bank fourteen bags of silver coin of tl value of $7,496.75, which was claimed by "H. R." admin is tl tor, Upon the refusal of the bank to deliver the coin to uO. D." she brought an action of detinue, to recover the same. The bank appeared to the action, riled the affidavit prescribed by sec. 1 of ch. 107 of the Code of 1868, and on its motion said administrator was required to inter-plead with the plaintiff. Held,

That under said sec. 1 of ch. 107, the inter-pleader was properly directed, (p. 349.)

13. The form of the issue provided for by said section and the position of the parties in relation thereto must be determined by the court from the facts disclosed by their respective pleadings therefore the judgment of the circuit court will not be reversed the facts appearing on the trial, and not disclosed by the pleadings, show, that the form of the issue ought to have been different, and the position of the parties in relation thereto ought ta have been reversed, (p. 349.)

D. Lamb and Caldwell $ Caldwell for plaintiff in error.

M. T. Frame and W. P. Hubbard for defendant in error.

Woods, Judge:

This was an action of detinue brought in the circuit court of Ohio county by Othilie Dickeschied against the Exchange Bank of Wheeling for the recovery of a trunk, fourteen sacks, and $7,843.00 in silver coin contained therein. The declaration contained three counts in the usual form, substantially alleging that on March 27, 1883, the plaintiff delivered to the defendant, one tin covered trunk, of the value of $10.00; fourteen sacks of the value of fifty cents each, and silver coin contained therein of the value of $7,843.00, to be re-delivered to the plaintiff on request; that on March 30, the defendant being requested so to do, refused to deliver, and still detained the same to the plaintiff's damage of $8,000.00. Guenther Schuchardt was assassinated on March 19, 1883, about six o'clock p. m. On the twenty-eighth of the same month Henry M. Russell was appointed and qualified as the curator of his estate; and on the same day he gave notice in writing to the defendant's cashier, that he claimed said money as the property of his decedent. On April 28,. 1883, the will of Guenther Schuchardt was admitted to probate, and said Russell was appointed and qualified as the administrator of said Schuchardt, with his will an nexed, and he again notified the bank that he claimed the money as part of the estate of his decedent.

On May 12, 1883, the defendant filed in said cause the affidavit ot its cashier stating that "the Exchange Bank of Wheeling has been duly served with process in said action of detinue, that the same has been brought by the plaintiff for the recovery ot the possession of a certain trunk, containing fourteen linen bags ot silver money of the value of $7,496.75, now in the keeping and possession of the bank; that the bank makes no claim to said property; that the same was left with said bank for safe keeping by one Wendel Dickescheid on March, 1883, who subsequently stated it to be the property ot the plaintiff; that said property is claimed by Henry M. Russell as curator of the estate of Guenther Schuchardt, deceased, and that said bank does not collude with said curator but is ready to deliver the said property to the owner thereof as the court may direct."

On May 3, 1883 the bank filed in the cause a similar affidavit of its cashier alleging the same facts, except that the value of the money in the sacks was $7,496.75 and no more, and not ot the value of $7,843.00, as in the plaintiffs declaration is alleged and that the money was claimed by Henry Russell in his character of administrator of the estate of decedent. On May 14, 1883, on motion ot the defendant, and against the objection of the plaintiff, Henry M. Russell in his character of such administrator of Guenther Schuchardt was made a defendant in the action and required to appear and state the nature of his claim and to maintain or relinquish the same, and thereupon the court stayed the proceedings in the action; to this also the plaintiff excepted. Russell as such administrator appeared, waived service ot process and stated that of the property in the declaration mentioned, the silver money to the amount and of the value of $7,496.75 is not, nor is any part thereof the property of the plaintiff nor is she entitled to the possession of the same, or any part thereof; and further, that the said money to the amount and of the value aforesaid was the money and property of the said Guenther Schuchardt at the time of his death, and now is the money and property of said Henry M. Russell administrator with the will annexed ot Guenther Schuchardt, deceased, and as such administrator, he is entitled to the possession thereof, and thereupon moved the court to cause an issue therein to be tried whether said silver money to the amount and of the value aforesaid was at the time of the bringing of this suit, or any, and if any what part thereof was the money and property of Othilie Dickeschied, on the trial of which issue she shall be plaintiff, and said administrator shall be defendant, which motion the court overruled, and the administrator excepted. Thereupon an issue was directed to ascertain whether said silver money was the money and property of Henry M. Russell as such administrator, in which issue he was made plaintiff and Othilie Dickeschied defendant, and to this action of the court the administrator again excepted.

At the December term, 1885, the issue was tried and a verdict rendered in favor of Othilie Dickeschied. The administrator moved to set the verdict aside and award him a new trial, which motion was overruled and he again excepted, and filed his bill of exceptions, whereby all the evidence which was before the jury, was certified. Upon this verdict the court renderedjudgment in favor of Othilie Dickeschied, and ordered that said silver coin be paid to her with costs.

To this judgment the administrator of Schuchardt has obtained...

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