Gano v. Fisk

• Decision Date: 03 November 1885
• Citation: 43 Ohio St. 462,3 N.E. 532
• Parties: GANO v. FISK.
• Court: Ohio Supreme Court

43 Ohio St. 462

3 N.E. 532

GANO

v.FISK.¹

Supreme Court of Ohio.

Filed November 3, 1885.

Error to district court, Morrow county.

Samuel Gano died intestate June 1, 1880. His property consisted of 141 acres of land in Morrow county, a few hundred dollars' worth of live-stock and farming implements, etc., and about $7,000 in promissory notes. There were 38 notes of various amounts, from $5 to $750, and interest, and bearing divers dates, from August 7, 1867, to July 20, 1880, as set forth. He left surviving him his widow, Elizabeth A. Gano, the plaintiff in error; Chloe J. Fisk, who intermarried with I. J. Fisk, the administrator; Caroline O. Pearson, who intermarried with B. J. Pearson; and Sarah A. Coomer, who intermarried with C. D. Coomer, children of his first wife, and Frank W. Gano, by his second wife and present widow. On June 14, 1880, I. J. Fisk was appointed administrator of decedent's estate, and entered upon the discharge of his trust. Appraisers were appointed, and on July 9, 1880, the personal property of the deceased, including the notes, was duly appraised as assets of his estate. The administrator collected a large part of the notes. On November 23, 1881, the children of the first wife filed a petition in the court of common pleas of Morrow county against I. J. Fisk, as administrator of Samuel Gano, Elizabeth A. Gano, the widow, and Frank W. Gano, setting up ownership in themselves and Frank W. Gano to all the promissory notes; and they asked that, on the final hearing of the cause, I. J. Fisk be by the court ordered to deliver up to the plaintiffs and Frank W. Gano all the notes and claims that remain uncollected, and also to deliver in like manner all the moneys that have been by him collected on the same, and that the notes and claims, with the money collected on the same, may be adjudged by the court to be the money and property of the plaintiffs and Frank W. Gano; or that they may have judgment for the same, and for such other, further, and different relief as is equitable in the premises. To the petition the administrator answered ‘that he cannot deny the statements and allegations in the plaintiff's petition; that he has collected a portion of the claims, and now holds the same, and those claims that are uncollected are also in his hands; that he is ready and willing to pay the moneys so collected, and to deliver the claims as the court shall direct; and he asks that the court make such order and judgment and decree in this action as will fully protect him.’ Frank W. Gano did not answer. Elizabeth A. Gano denied that the possession or the ownership of the promissory notes at the death of Samuel Gano and prior thereto was in the heirs; and she averred that they were assets of the estate to be administered upon. On trial in the court of common pleas there was a finding and decree in favor of Elizabeth A. Gano. A motion for a new trial was overruled, and a bill of exceptions taken. Plaintiffs also gave notice of their intention to appeal the case to the district court, and the appeal was perfected. At the trial in the district court in July, 1883, on request, the court found the facts to be as follows:

‘(1) We find that Samuel Gano died intestate June 11, 1880, leaving surviving him his wife, Elizabeth Gano, and Chloe J. Fisk, who intermarried with I. J. Fisk; Caroline O. Pearson, who intermarried with B. J. Pearson; and Sarah A. Coomer, children of his first wife; and Frank W. Gano, the child of his second wife, defendant in this case,-his heirs at law and legal representatives.

‘(2) That his property consisted of one hundred and forty-one (141) acres of land in said county, and his stock, consisting of horses, cattle, and sheep, amounting in value to a few hundred dollars, and about seven thousand dollars in promissory notes, the property in dispute, and of the value of seven thousand dollars.

‘(3) That before his last sickness he had expressed a desire that his children aforesaid should have his notes, and that his son, Frank, should have his farm.

‘(4) That on the day before his death he said he could not get well, and called the attention of his daughter Mrs. Fisk to the notes. He said they were in the cabinet; that he wanted her to take them and divide them among the children.

‘(5) That on the morning of the day of his death, in the presence of I. J. Fisk, Mrs. Fisk, and Caroline Pearson, he called Mrs. Fisk and said to her, ‘My notes are in a little box on the bureau there; I want you to take them, and divide them equally among you children;’ that the key to the box is in a little drawer, and to go and get the key; that she did go and get the key, and tried it in the box, and that it was the key belonging to the box; that she gave the key to her husband, I. J. Fisk, to take care of for her, for fear she might lose it; that Gano died the same evening about five o'clock, of the same illness; that after her father's death Mrs. Fisk took the box containing the notes home with her; that she never did divide the notes, before or after her father's death; that on June 14, 1880, I. J. Fisk was appointed administrator of the estate of said deceased; that at the same time appraisers were appointed who, after being qualified, on July 9, 1880, on the premises of said deceased, inventoried and appraised the personal property of said decedent, including said notes; that the box containing said notes was brought back by Mrs. Fisk, and by the administrator turned over to the appraisers as assets of said decedent, to be inventoried and appraised as part of his estate; that Mrs. Fisk and the other heirs at law of said decedent never relinquished their claim upon said notes, claiming the notes as a gift from their father.'

And thereupon the court said:

‘We find and declare the law to be, upon the findings of fact aforesaid: (1) That there was a delivery of the promissory notes in question by the donor during his life-time, in apprehension of death from his then present illness, and that such delivery constitutes a good gift causa mortis, subject only to the donor's implied power of revocation during life. (2) That the delivery by the donor of the key of the box containing the notes to his daughter, with instructions to take them and divide equally with herself and his other children, and trying the key to the lock on the box by her, is taking possession of the property for the purposes named; and that it is not essential to the validity of the gift that such division be made during the donor's life.’

A motion for a new trial was overruled, and the court ordered the administrator to deliver the promissory notes to Chloe J. Fisk, Caroline O. Pearson, Sarah A. Coomer, and Frank W. Gano in equal proportions, and also that he pay to them, in equal proportions, all the moneys he had collected upon the notes. To all which Elizabeth A. Gano excepted, and she now seeks reversal of that judgment and decree.

[Ohio St. 466]

S. C. Kingman

and Thos. E. Duncan, for plaintiff in error.

[Ohio St. 468]Andrews & Allison and James Olds, for defendants in error.

[Ohio St. 469]FOLLETT, J.

These promissory notes are claimed as gifts causa mortis. The principles and laws that govern the rights of ownership and control of property are fundamental to man's enjoyment and civilization. The rules and laws for the transfer or transmission of such rights are carefully guarded, and should be strictly enforced. Gifts causa mortis are not favored, and such gifts must be clearly proved. The civil law sought to prevent fraud in such gifts, and required their execution in the presence of five witnesses to render them valid. Great strictness and clear proof to establish such gifts have been required by the English courts, and litigation as to them has been extensive and hostile. Such a gift can be upheld only where the intention of the donor is definite and certain, and such interest is expressed as to a proper matter of such gift, and such gift is executed. Whatever property Samuel Gano had at his death could be disposed of only by his will or by the law. Needles v. Needles, 7 Ohio St. 433;Crane v. Doty, 1 Ohio St. 283.

[Ohio St. 470]This court held in Phipps v. Hope, 16 Ohio St. 586, that ‘directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as the law would prescribe in case of intestacy, are of no validity unless made through the medium of a last will and testament.’ Directions alone are not sufficient. A gift causa mortis has the nature of a legacy. It is a gift in prospect of death, and it may be revoked before death, and it is not complete during the donor's life, but takes effect only upon his death. Such a gift is liable to the debts of the donor. Such is the holding of both English and American courts. In Lawson v. Lawson, 1 P. Wms. 441, a husband, upon his death-bed, gave to his wife a purse of 100 guineas, and bid her apply it to her own use, and the court held: ‘This is a donatio causa mortis, and a good legacy to the wife, and shall not go to the executors or administrators of the husband, if there is sufficient to pay his debts.’ But we need not cite other decisions, as the statutes 8 & 9 Vict. c. 76, declares that such a gift is a legacy within the meaning of the acts in England and Ireland which impose duties on legacies. ‘A donatio causa mortis is of the nature of a legacy.’ Jones v. Brown, 34 N. H. 439. ‘Gifts causa mortis are of a mixed nature, resembling gifts inter vivos in the essential requisite of delivery, and resembling legacies in being subject to the debts of the deceased, and in being ambulatory or revocable, and contingent on death.’ Bloomer v. Bloomer, 2 Bradf. Surr. 340. See, also, Rhodes v. Childs, 64 Pa. St. 18; Roper, Leg. 2; 3 Redf. Wills, § 42, and cases cited.

Look at the ‘facts' in this case as found by the court. Decedent left a widow, three girls who were children of a first wife, and a boy, the son of his...