Dunn v. German-American Bank
| Decision Date | 14 March 1892 |
| Citation | 18 S.W. 1139,109 Mo. 90 |
| Parties | Dunn, Appellant, v. The German-American Bank; Tittman, Public Administrator, Interpleader |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.
Affirmed.
Eber Peacock for appellant, Thomas Dunn.
(1) The language of the donor in making the gift, coupled with the delivery of the certificate of deposit to Thomas Dunn made a complete donatio causa mortis, notwithstanding the paper was not indorsed, and such delivery conveyed to the donee the title to the property given for the purpose indicated by the donor. Trorlicht v. Weizenecker, 1 Mo.App. 482; Wright v. Wright, 1 Cow. 598; Contant v Schuyler, 1 Paige Ch. 316; Nelson v. Sudiek, 40 Mo.App. 342; Shackelford v. Brown, 80 Mo. 546. The gift and delivery in this case was of the chose in action the declaration of the donor being, "Take this certificate, and, in case anything should happen to me, draw the money and hold it for the children." This was a gift and delivery in praesenti, subject to be revoked by the donor's recovery. Hassell v. Basket, 7 Cent. Law, 308; Harris v. Clark, 2 Barb. S.Ct. 94; Dole v. Lincoln, 31 Mo. 422. (2) The German-American Bank at its peril refused payment of the certificate of deposit when presented to it by Thomas Dunn at its maturity, and the fact that it was not indorsed did not entitle it to the aid of a bill of interpleader for its protection, the proof shows that it was long after the maturity of the paper and after the bank had been sued that at its instance the public administrator interposed. The bank had a complete and adequate remedy at law; it could make a complete defense to the action of Mr. Dunn against it, and, therefore, had no right to invoke the aid of a court of equity. Beadle v. Ramsey, 52 Mo. 153. (3) The public administrator had no authority to intervene, even had John T. Dunn left property at his death subject to administration, for the reason that he had two brothers residing here at the time of his death and both of them in business with him and entitled to administer. R. S. 1879, secs. 7-57, pp. 3-10. (4) The authority of the public administrator to act is purely statutory. It is only when he can bring himself within some of the six subdivisions of section 306, Revised Statutes, 1879, that any power exists in him to administer; none of the first five subdivisions would apply in this case, and the sixth requires an order of court to confer authority, and none existed. R. S. 1879, sec. 306, p. 45; State to use of Ranney v. Green, 65 Mo. 528.
S. N. Taylor, H. M. Pollard and Solon N. Sapp for Tittman, interpleader, respondent.
(1) The delivery of the certificate by John to Thomas Dunn was not a donatio causa mortis. Delivery is essential to a gift, and whether it be inter vivos or causa mortis there must be not only an actual handing over, but also an intent to transfer the right of property and possession. Walter v. Ford, 74 Mo. 198; McCord v. McCord, 77 Mo. 173; Nicholas v. Adams, 2 Whart. 17; Basket v. Haskell, 107 U.S. 602; Johnson v. Stevens, 22 La. Ann. 144; Housman v. Millett, 55 Me. 184; Carleton v. Lovejoy, 54 Me. 445; Egerton v. Egerton, 2 C. E. Greene, 419; Bushman v. Hogart, 28 Ind. 449; Peeler v. Guilesy, 27 Tex. 355; Curry v. Curry, 30 Ga. 257; American Law of Administration, pp. 121-2. (2) A gift causa mortis is as much within this rule as if it were absolute. There must be such a delivery as passes the right of property and possession. McCord v. McCord, 77 Mo. 173; Irons v. Smallpim, 2 B. & Ald. 551; Basket v. Haskell, 107 U.S. 602; Walter v. Ford, 74 Mo. 198. (3) Gifts causa mortis are subject to a defeasance by the donor's restoration from danger; nevertheless, the title and ownership of the property must pass at the time of delivery and not be intended to pass at the donor's death, else the gift is void. Walter v. Ford, 74 Mo. 198; McCord v. McCord, 77 Mo. 173; Duncan v. Duncan, 5 Little, 12; Walden v. Dixon, 5 Mon. 170-1; Basket v. Haskell, 107 U.S. 602. (4) The foregoing authorities establish the principle that a donatio causa mortis is an executed gift, inter vivos, upon an implied condition subsequent. Walter v. Ford, 74 Mo. 198; McCord v. McCord, 77 Mo. 173; Nicholas v. Adams, 2 Whart. 17; Chase v. Redding, 13 Gray, 422; Parish v. Stone, 14 Pick. 203; Mitchell v. Smith, 10 Law Times (N. S.) 520. (5) All questions as to the fact of the delivery, and of the character in which the person receiving it holds the property, are for decision by the jury, precisely as any and all other facts arising in actions at law. Hunt v. Hunt, 119 Mass. 474; Clough v. Clough, 117 Mass. 85; Jones v. Deyer, 16 Ala. 221, 224, 225. (6) The only way the bank could protect itself, when the fund in its hands was demanded by two persons, was to bring it into court, making both claimants parties to the judicial proceeding. Glaser v. Priest, 29 Mo.App. 1; Stillwell v. Ins. Co., 2 Mo.App. 22; Monks v. Miller, 13 Mo.App. 363. (7) Ward v. Turner, 2 Ves. 434; Drury v. Smith, 1 Pr. Wms. 406; Chase v. Redding, 13 Gray, 418; Boreman v. Sidlinger, 15 Me. 429; 2 Kent, 362.
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 sixth day of August, 1887, one John T. Dunn deposited in said defendant bank the sum of $ 2,639, and received therefrom a certificate of such deposit, duly signed by the cashier of said bank, in words and figures as follows, to-wit:
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 sixth day of February, 1888, the said sum of $ 2,639 to the order of 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 $ 2,639 with interest thereon, at the rate of six per cent. per annum since the sixth 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 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 ...
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