Jacobs v. Jolley

• Decision Date: 19 February 1902
• Parties: JACOBS v. JOLLEY et al.
• Court: Indiana Appellate Court

29 Ind.App. 25

62 N.E. 1028

JACOBS

v.JOLLEY et al.¹

Appellate Court of Indiana, Division No. 1.

Feb. 19, 1902.

Appeal from circuit court, Tippecanoe county; W. C. L. Taylor, Judge.

Action by Mary A. Jacobs, as administratrix of the estate of Sarah A. Cloyd, deceased, against Frances L. Jolley and others. From a judgment in favor of the defendants, the plaintiff appeals. Reversed.

Stuart, Hammond & Simms and Arthur D. Cunningham, for appellant. Davidson & Boulds, for appellees.

BLACK, J.

The appellant, administratrix of the estate of Sarah A. Cloyd, deceased, brought her action against Frances L. Jolley and the Lafayette Savings Bank. The purpose of the action shown by the complaint was to recover as assets of the decedent's estate a sum of $1,077.20 on deposit in the savings bank, and to require Frances L. Jolley to deliver up to the appellant a bank book or pass book issued to the intestate by the bank, which showed the condition of the account between the bank and the intestate, of which said Jolley, it was alleged, had obtained possession at or prior to the death of the intestate. Frances L. Jolley filed separate affirmative answers to the complaint, and her cross complaint, in an of which she asserted her ownership of the money in question by way of gift from the intestate. A demurrer of the appellant to the cross complaint for want of sufficient facts was overruled. The appellant replied to the answers of Frances L. Jolley, and answered her cross-complaint by denials. The bank filed pleadings in the nature of petitions for interpleader. The contentions here are between the appellant and Frances L. Jolley.

The cause was tried by jury, the defendant Jolley having the burden of proof, and at the conclusion of the evidence the court, upon the motion of the defendant Jolley, instructed the jury as follows: “Gentlemen of the jury, the jury is instructed to find for the defendant Frances L. Jolley on her answers to the first and second paragraphs of complaint, and to find for the defendant Frances L. Jolley on her cross complaint, that she is the owner of the bank book in controversy, and that she is entitled to the $1,077.20 deposited in the Lafayette Savings Bank in the name of Sarah A. Cloyd; and that the jury find for the defendant Frances L. Jolley on her cross complaint against the Lafayette Savings Bank that she is the owner of said bank book and the $1,077.20 in controversy.” The verdict corresponded to this direction. The appellant insists that the court erred in overruling the demurrer to the cross complaint and in directing the jury to return their verdict for the defendant Jolley. In the pleading denominated a cross complaint, seeking affirmative relief for Frances L. Jolley, she showed, amongst other pertinent matters, that Sarah A. Cloyd, the mother of appellant and the appellee, on the 19th of July, 1899, having on deposit in the savings bank $1,077.20, and having in her possession the deposit book, or pass book, of the bank, which, by its entries, showed that she had that amount to her credit in the bank, made an absolute gift to the cross complainant of the sum of $700, telling her that she gave to her said sum; and, to confirm and to secure to said plaintiff the said gift, she executed and delivered to the cross complainant a written order upon said Lafayette Savings Bank, as follows: “$700.00. July 18th, 1899. Treasurer of Lafayette Savings Bank: Please pay at my death, to the order of Frances L. Jolley, seven hundred dollars ($700 dollars). Allow him to sign your draft book, and have the same entered in my deposit book, No. -, which is to accompany this order. Sarah A. Cloyd.” It was alleged that the word “him” in this order occurred in the printed form used by the bank, which, by inadvertence, Sarah A. Cloyd did not change to “her”; that at the time she voluntarily delivered actual possession of the pass book to the cross complainant as her own, and the same was then and there accepted by her, “and she has had the same in her possession thence to the present time”; that afterwards, in October, 1899, the intestate made the cross complainant an absolute gift of the remainder of the money so on deposit and noted on the pass book, saying to her, “You already have the bank book, and I give it all to you,” and at the same time made a further gift of her pocketbook, containing a small sum of money, and manually delivered the pocketbook and small amount of money to her, which gifts the cross complainant at the time accepted, “and so the whole sum of $1,077.20 became and was the rightful property of the cross complainant; that from that time onward, and continuing to the death of said Sarah A. Cloyd, and ever since, this cross complainant has been in the actual possession of said book”; that after the death of Sarah A. Cloyd the cross complainant presented the bank book to the savings bank, and demanded payment, etc.

It is contended on behalf of the appellant-correctly, we think-that this pleading did not show a gift causa mortis, because it did not show that it was made in apprehension of death (Langworthy v. Crissey, 10 Misc. Rep. 450, 31 N. Y. Supp. 85;Brunson v. Henry, 140 Ind. 455, 39 N. E. 256); but it is also insisted that it did not state facts sufficient to show a gift inter vivos; that as to the alleged gift of $700, as well as that of the remainder of the deposit, the facts specially set forth fail to show a gift; that it appears that the intestate attempted to make the alleged gifts to take effect at her death; and we are referred by counsel to Smith v. Dorsey, 38 Ind. 453, 10 Am. St. Rep. 118, where it is held that, to constitute a gift inter vivos, it is essential that the article given should be delivered absolutely and unconditionally; that the gift must take effect at once, and completely, and when it is made perfect and complete by delivery and acceptance it then becomes irrevocable by the donor; that gifts inter vivos have no reference to the future, but go into immediate and absolute effect, and a court of equity will not interfere, and give effect to a gift that is inchoate and incomplete. The property involved in that case was a gun,-a thing capable of actual, present delivery,-and the gift was expressly conditioned upon an uncertain future event. Counsel, in referring in argument to the order copied in the pleading, call it a “check.” This is hardly an accurate name for the instrument. If its purpose and all the circumstances of the transaction be taken into consideration, it will more properly be called a voluntary assignment of a specific portion of a fund on deposit in a savings bank. It seems to have been made out on a printed form provided by the bank, and by its terms was to be accompanied by the deposit book showing the account between the intestate and the bank. It is alleged that at the time of its delivery to the appellee by the intestate she also voluntarily delivered to the donee actual manual possession of the pass book as her own, and it was then accepted by the donee, who thereafter held it in her possession, and that the intestate told the donee that she gave her the sum named in the order. For the assignment of such a deposit no particular form is necessary, and langauge or act which makes an appropriation of the fund is sufficient to make an equitable assignment of the fund. In Slaughter v. Foust, 4 Blackf. 379, it was said that no formality is necessary to effect an equitable assignment of a chose in action,-as a promissory note; that any transaction between the contracting parties which indicates their intention to pass the beneficial interest in the instrument from one to the other is sufficient for that purpose; and that a debt may be assigned, in equity, by parol as well as by writing. Here the written evidence of the debt was delivered with a separate written appropriation of a definite part of it in the form provided by the bank for such purpose, which manifestly contemplated and indicated that such an assignment, accompanied by the book, would be sufficient for the making of the appropriation. It is the accepted doctrine in this state that the drawing and delivery of an ordinary banker's check, without words of transfer, and drawn upon no particular designated fund, unless accepted by the drawee, does not of itself operate as an appropriation or equitable assignment of a fund in the hands of the depositary, the drawee, or as an assignment of a part of the drawer's chose in action against the drawee. Harrison v. Wright, 100 Ind. 515, 538, 539, 58 Am. Rep. 805. That case, however, holding that, strictly speaking, the depositary holds no fund to be appropriated, but owes a debt, the right of the depositor being a chose in action, expressly recognizes the right of the depositor, as the holder of a chose in action, to assign it in whole or in part, saying that, when assigned, equity, for the purpose of making good the assignment, seizes upon the debt, and calls it a fund; and it is said by the court that in equity an assignment of a part of a chose in action or fund, if really made, will be upheld and enforced, whether the debtor has assented thereto or not. The court quoted the following from Story, Eq. Jur. § 1044: “If A., having a debt due from B., should order it to be paid to C., the order would amount in equity to an assignment of the debt, and would be enforced in equity, although the debtor had not assented thereto. The same principle would apply to the case of an assignment of a part of such debt. In each case a trust would be created in favor of the equitable assignee on the fund, and would constitute an equitable lien upon it.” Our supreme court further said: “What we now hold is that the simple fact that the fund or debt is a general one, and that there is no promise or assent by the debtor or holder of the fund, are not insuperable barriers to such an assignment.” It is also said in the court's opinion: “In the absence...