Dunn v. German-American Bank

• Decision Date: 14 March 1892
• Citation: 109 Mo. 90,18 S.W. 1139
• Parties: DUNN v. GERMAN-AMERICAN BANK, (TITTMAN, Public Adm'r, Intervener.)
• Court: Missouri Supreme Court

18 S.W. 1139

109 Mo. 90

DUNN v. GERMAN-AMERICAN BANK, (TITTMAN, Public Adm'r, Intervener.)

Supreme Court of Missouri, Division No. 1.

March 14, 1892.

DONATIO CAUSA MORTIS — VALIDITY — RIGHTS OF DONEE — PUBLIC ADMINISTRATOR.

1. Where, a short time before death, decedent hands a certificate of deposit to another for safe-keeping, requesting him to see that decedent's children got the money in case he died, there is not a valid gift causa mortis.

2. A donee causa mortis takes title to the property subject to the contingent right of the administrator, and is bound to have the property forthcoming when required for the payment of debts.

3. A gift causa mortis, made with a view to deprive the widow of her dower in the personalty, is not valid.

4. In determining the validity of a gift causa mortis, all questions regarding the fact of delivery, as well as of the capacity in which the person who receives the property holds it, are for determination by the jury.

5. The authority of a public administrator to take charge of an estate cannot be questioned collaterally.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Action on a certificate of deposit by Thomas Dunn against the German-American Bank. Eugene G. Tittman, public administrator, claimed the deposit, and interpleaded. Judgment for interpleader. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

On August 6, 1887, the defendant bank issued its certificate of deposit to John T. Dunn, payable at six months. Within three months thereafter Dunn died intestate, leaving a widow and two children surviving him in Cork, Ireland. On March 17, 1888, the plaintiff sued the bank on said certificate, his petition, omitting formal portions, being as follows: "That on the 6th day of August, 1887, one John T. Dunn deposited in said defendant bank the sum of twenty-six hundred and thirty-nine dollars, and received therefrom a certificate of such deposit, duly signed by the cashier of said bank, in words and figures as follows, to-wit: `$2,639.00. German-American Bank. Due February 6th, 1888. St. Louis, August 6th, 1887. John T. Dunn has deposited in this bank twenty-six hundred and thirty-nine no-100 dollars, payable to the order of himself on the return of this certificate six months after date, value received. No. 14,126. [Signed] C. E. KIRCHER, Cashier.' Plaintiff states that, in and by said certificate of deposit, which is herewith filed, and marked `Exhibit A,' said defendant bank bound itself to pay, on the 6th day of February, 1888, the said sum of twenty-six hundred and thirty-nine 00-100 dollars, to the order of said John T. Dunn on the return of said certificate. Plaintiff further states that on or about the ____ day of November, 1887, the said John T. Dunn, being then ill of a disease of which he shortly thereafter died, and being aware of the fatal character of his sickness, and in anticipation of his death, took said certificate of deposit, and made a gift thereof to and delivered the same to plaintiff, stating at the time that he was to take said certificate and hold the same, and the money to be collected therefrom, in trust for the use and benefit of his (said John T. Dunn's) children, said children being then and now minors under the age of eighteen years; that said plaintiff thereupon received said certificate from his said brother, said John T. Dunn, and took the same into his possession, and has ever since had the same in his custody and control. Plaintiff further states that, at the maturity of said certificate, the same was presented to the said defendant bank, and payment thereof was demanded of the teller and cashier thereof; but the same was refused, and is yet unpaid. Plaintiff prays judgment against said defendant for said sum of twenty-six hundred and thirty-nine dollars, with interest thereon at the rate of six per cent. per annum since the 6th day of February, 1887, and for judgment for costs."

The widow of deceased in Ireland wrote to Mr. Sapp, requesting him to take steps to obtain the money for herself and children; and he requested Tittman, public

[18 S.W. 1140]

administrator, to take charge of said estate, which he did on April 16, 1888, and demanded of the bank the fund in question. Meantime Thomas Dunn had sued the bank to recover the fund. The bank filed an answer and bill of interpleader, stating the facts that the fund was claimed by Thomas Dunn as a gift causa mortis, and that it was also claimed by Tittman as public administrator in charge of the estate of John T. Dunn, deceased, and also containing all other proper allegations for a bill of interpleader. It prayed for an order of court making said public administrator a party, and for leave to pay the fund into court, and for a return of said certificate of deposit to it, and that said Thomas Dunn and said public administrator be required to interplead as to said fund. These orders were made. The fund was paid into court by the bank, and the bank discharged. July 5, 1888, Tittman, as public administrator of the city of St. Louis, filed his interplea in said cause, duly sworn to. The plaintiff answered, traversing whatever was material to be denied, and claiming that he was entitled to said certificate because the same was delivered to him by his deceased brother in trust for the use and benefit of said John T. Dunn's minor children. The interpleader filed a general denial of this answer.

The evidence herein all tended to show that the certificate in litigation was only delivered by the decedent to his brother, the plaintiff, for safe-keeping, accompanied by a request that, if decedent died, the plaintiff should see that decedent's children got the money. This phase of the matter appears very conspicuously in the testimony of Jennings, who, after testifying that he told the deceased of his impending dissolution, proceeds then to state that deceased thereupon "told me to go down and get his brother Tom, and I went down and got his brother Tom. I came right up with him into the room again. `Tom,' he says, `you go down to the pocket of my alpaca coat, and you will find a bank certificate there, and bring it up.' The man was very sick; he could hardly speak. So Tom went down, and brought up the certificate; and, says he, `John, here is your certificate;' so he looked at it, and read it, and he says, `You take this certificate and keep it;' and he says, `In case anything might happen to me, or should happen to me, you draw this money and save it for my children, — keep it for my children.'" Thereupon the decedent handed the certificate to the plaintiff, who took it into his possession. This witness says he understood that Tom, the plaintiff, was to keep the certificate, and, in case his brother did not get well, then Tom was to get the money for the children, and this was the way plaintiff understood it, as shown by his admission made after his brother's death, and after he had made several vain attempts to obtain bondsmen to go on his bond so he could take out letters of administration on his brother's estate. The testimony of Patrick Dunn in his deposition does not materially differ from that of Jennings.

At the conclusion of the testimony, the court gave the following instructions: "The court instructs the jury that if they believe from the evidence that John Dunn, deceased, handed to Thomas Dunn the certificate in question to be held by him as the agent of John Dunn, until he got well or died, and that said Thomas Dunn received said certificate for such purpose, and that it was not the intent of said John...