Frank v. Frank
| Citation | 42 S.E. 666,100 Va. 627 |
| Parties | FRANK. v. FRANK. |
| Decision Date | 20 November 1902 |
| Court | Virginia Supreme Court |
bonds—delivery.
1. Where a debtor, a short time before his death, executed bonds for the amount of his debts, and placed them in the hands of another to be delivered at his death to the obligees named therein, the obligor parting with all dominion over them, the delivery was sufficient
Appeal from circuit court Rockingham county.
Sipe & Harris and W. H. Bertram, for appellant.
O. B. Roller, D. H. L. Martz, and Winfield Liggatt for appellee.
KEITH, P. Henry Frank, a short time before his death, caused six bonds, each for the sum of $250, to be written, signed, and placed in the hands of William Miller, to be delivered at his death to the obligees therein named. The bonds are in the following form:
In two of the bonds Luverna Ellen Frank was named as the obligee, one of which was delivered to her in person immediately upon its execution. After the bonds were written, Henry Frank executed his will, in which he provides that all of his just debts shall by paid, and then disposes of the residue of his estate. This will was duly attested, and there is no controversy concerning it. The sole question for our decision is, were thebonds delivered by the testator in his lifetime?
Three witnesses were present with Henry Prank, —Benjamin P. Ralston, who wrote the bonds, J. W. Miller, and Lewis E. Swank. According to the testimony of Ralston and Swank, the bonds were written and signed. Tile will was then written and signed, and then Henry Frank delivered the bonds and will to Miller for safe-keeping; the bonds to be by him delivered upon the death of Henry Frank to the obligees named therein, and the will given to the executors therein named.
Miller's recollection of the transaction is that the bonds and will were delivered to him to be by him at the death of Henry Frank given to the executors named in the will, with instructions to deliver the bonds to the obligees therein named.
There is no material conflict, therefore, among these three witnesses, who are the only witnesses to the transaction. The only difference between the testimony of Miller and that of Ralston and Swank is that, according to his recollection, he was instructed to deliver the bonds and will to the executors, with instructions that the bonds should be delivered to the obligees; while according to the testimony of Ralston and Swank the bonds were to be delivered by Miller to those entitled to them. The delivery seems to have been unconditional and absolute. The obligor parted with all dominion over them. The obligees...
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... ... Pollock, 117 Mo. 467, ... 22 S.W. 1077, 38 Am St. Rep. 671; Bury v. Young, 98 ... Cal. 446, 33 P. 338, 35 Am. St. Rep. 186; Frank v ... Frank, 100 Va. 627, 42 S.E. 666; Haeg v. Haeg, ... 53 Minn. 33, 55 N.W. 1114; Wittenbrock v. Cass, 110 ... Cal. 1, 42 P. 300; Wilhoit v ... ...
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Snidow v. First National Bank, Record No. 2361.
...or causa mortis, and delivery of a deed for real estate are much the same, with exceptions not necessary to be here noted. Frank Frank, 100 Va. 627, 42 S.E. 666; Payne Payne, 128 Va. 33, 104 S.E. 712; Thomas First Nat. Bank, 166 Va. 497, 186 S.E. 2, 3 The general rule has been stated in a m......
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O'Brien v. O'Brien
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