Grant Trust And Savings Company v. Tucker

• Decision Date: 17 November 1911
• Docket Number: 7,609
• Parties: GRANT TRUST AND SAVINGS COMPANY, ADMINISTRATOR, v. TUCKER
• Court: Indiana Appellate Court

96 N.E. 487

49 Ind.App. 345

GRANT TRUST AND SAVINGS COMPANY, ADMINISTRATOR, v. TUCKER

No. 7,609

Court of Appeals of Indiana

November 17, 1911

Rehearing denied February 2, 1912.

From Grant Circuit Court; H. J. Paulus, Judge.

Action by Cora M. Tucker against the Grant Trust and Savings Company, as administrator of the estate of Harvey S. Mark deceased. From a judgment for plaintiff, defendant appeals.

Affirmed.

Field W. Sweezy, Robert M. Van Atta and Condo & Browne, for appellant.

Brownlee & Cline and Miller, Shirley & Miller, for appellee.

OPINION

FELT, P. J.

It appears from the special finding of facts that appellant's decedent, Harvey S. Mark, was on April 7 1899, the owner of certain United States bonds; that on and prior to said date said bonds had been enclosed in an envelope and left for sale keeping in the vault of the Marion Bank, of the city of Marion, Indiana; that on that day decedent wrote upon said envelope as follows:

"April 7, 1899. In case of my death deliver to Cora Breed. H. S. Mark,"

and delivered the package to said bank, and it was placed in its vault; that thereafter said Mark procured additional government bonds, and in each instance he directed George Webster, Jr., who was cashier of said bank, to place said bonds in the envelope with the bonds already placed therein, to which he referred as "Cora's other bonds;" that said Webster on such occasions asked him if he desired to continue his previous instructions, to which he replied, in substance, that he did, and on each occasion, at his direction, said cashier indorsed on said envelope the following:

"May 5, 1905. Renewed this instruction.

G. W., Jr.

May 9, 1906. This instruction continued.

G. W., Jr.

February 14, 1908. This instruction continued.

G. W., Jr."

That all bonds placed in said envelope on April 7, 1899, and those subsequently placed therein, remained continuously in the vault of said Marion Bank and its successor, Marion State Bank, until after the death of said Mark, which occurred on April 1, 1908, with the exception that on one occasion at Mark's request said cashier forwarded to Washington a portion of said registered bonds, to have an error in the use of the name "Marks" instead of "Mark" corrected; that after such correction had been made the bonds were returned directly to the bank, and again placed in the envelope so indorsed as aforesaid; that the unregistered coupon bonds, placed in said envelope, amounted to $ 15,500, and the registered bonds amounted to $ 12,500, all of the value of $ 28,000; that the vault in which said package containing said bonds was kept was at all times under the exclusive control of the officers of said bank, and was used by them for the safe-keeping of the funds and valuable papers of the bank, and also the papers of its customers; that said Mark never knew the combination to the safe, or had any means of access to said vault; that said Webster acted as cashier of said banks during all the time said bonds were so held by them, and, at the request of said Mark, when each quarterly instalment of interest fell due on the bonds he detached the interest coupons, and they were by decedent deposited to his own credit in the bank; that on one occasion he caused the cashier to place in said envelope a sum of money, and subsequently called for and received it; that after April 7, 1899, on divers occasions and to numerous persons, including Richard E. Breed, then the husband of appellee, and to other close friends and business acquaintances of said Mark, the decedent, in substance, stated that he had given the bonds in question to "Cora" (meaning appellee), and that the bonds belonged to "Cora;" that about two years before his death he rented a private box in a safety deposit vault of another bank in Marion, Indiana, and thereafter, until his death, used it as a receptacle for his personal papers, including one or more government bonds; that when asked to bring his bonds from the Marion State Bank and place them in his private box, he stated that "those are Cora's bonds, and I will not mix them with my own bonds," that he had given those bonds to "Cora;" that on other occasions he stated he had given the bonds to "Cora" because she was entitled to them, and had helped him make his money; that he was asked to deposit those bonds with a United States depositary, and get two per cent interest thereon, but he declined so to do, saying, "those bonds are Cora's," meaning appellee; that said Mark on different occasions, while the bonds were in the keeping of the bank, stated to Richard E. Breed, then the husband of appellee, that he had deposited the bonds with said bank for "Cora," but that he had reserved the interest during his lifetime; that when requested by said Breed to use the bonds in purchasing real estate, he replied that the bonds did not belong to him, and that if he should make an arrangement to exchange them for the real estate he could not put the real estate under the same conditions that the bonds were without making an absolute deed; that he had given the bonds to appellee, but had placed them in the bank so they would be easily accessible for the clipping of the coupons from which he derived enough money to live on; that he did not at any time after April 7, 1899, assert ownership of said bonds, or seek to regain possession or control of them; that he was seventy-five years old at the time of his death; that appellee was his niece, had clerked in his store, and had been for many years the special object of his favor and bounty; that when he so indorsed said envelope and delivered it to the bank, as aforesaid, he intended to give and did give said bonds to appellee, who was then Cora Breed, and in each instance vested in her a present interest in the bonds so placed in said envelope, subject only to his right to the interest thereon during his lifetime; that the bonds so delivered to said bank were by it to be held in trust for appellee until the death of said Mark, and were then to be delivered to appellee; that on December 20, 1904, said cashier delivered to said Mark, at his request, an unsigned memorandum or list of the bonds in said envelope, headed

"List of three per cent government bonds owned by H. S. Mark, and left at Marion Bank for safekeeping only;"

that such was the usual heading used in such receipts, and was given to distinguish said envelope from packages and papers belonging to the bank, or held by it as collateral; that said memorandum was made without any suggestion from Mr. Mark, or any question as to their ownership, and was to show that the bonds did not belong to the bank.

The court also found facts showing the change in the organization of the bank and the divorce of appellee from her former husband, Breed, but no controversy arises in regard to either of such facts.

Upon the foregoing finding the court stated its conclusions of law as follows: (1) That Harvey S. Mark, in his lifetime, made an absolute gift of the bonds in question to appellee, reserving to himself the income thereof during his natural life; that appellee is the absolute owner and entitled to the possession of all said bonds; (2) that appellant has no interest in said bonds, and at the death of said Mark held possession thereof as trustee for appellee, and in no other capacity, which bonds, on the death of said Mark, were to be delivered to appellee.

It is conceded that appellant's decedent intended to give the bonds in question to appellee, but counsel assert that he failed so to execute the gift in his lifetime by delivering the bonds, and thus did not meet the requirements of the law and perfect the intended gift.

It is the law in this State that to make a valid gift inter vivos, it is essential that the article given be unconditionally delivered in the lifetime of the donor to the donee or to some third person for the use and benefit of the intended donee. If, however, such third person be only the agent of the donor, the death of the latter revokes the authority of the agent, and the gift is defeated. Smith v. Ferguson (1883), 90 Ind. 229, 46 Am. Rep. 216; Martin v. McCullough (1894), 136 Ind. 331, 338, 34 N.E. 819; Bingham v. Stage (1890), 123 Ind. 281, 286, 23 N.E. 756; Devol v. Dye (1890), 123 Ind. 321, 326, 7 L. R. A. 439, 24 N.E. 246; Goelz v. People's Sav. Bank (1903), 31 Ind.App. 67, 67 N.E. 232.

Appellant contends that the decedent never parted with the control of or title to the bonds in his lifetime, and that all he did was to express a definite intention to give the bonds to appellee and appoint the bank his agent to execute such intention after his death; that appellee did not in the lifetime of the donor acquire any present interest in the bonds; that control thereof did not pass to appellee or any one acting as trustee for her, beyond the power of revocation by the donor at any time during his lifetime.

If this contention can be sustained, appellant should prevail. In this case...