Jones v. Weakley

• Decision Date: 06 February 1893
• Citation: 99 Ala. 441,12 So. 420
• Parties: JONES v. WEAKLEY.
• Court: Alabama Supreme Court

12 So. 420

99 Ala. 441

JONES v. WEAKLEY.

Supreme Court of Alabama

February 6, 1893

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by John H. Jones against S.D. Weakley, as administrator of the estate of Nat Jenkins, deceased, to recover money had and received. From a judgment for defendant, plaintiff appeals. Affirmed.

White &amp Howze, for appellant.

Cabaniss & Weakley, for appellee.

STONE C.J.

This case was tried by the court, without a jury, and presents a single question: Does the testimony prove that the deceased Nat Jenkins, made a valid, executed gift mortis causa to John H. Jones, the plaintiff, of the money he had on deposit with the First National Bank of Birmingham? There is no material conflict in the testimony. The First National Bank of Birmingham was a bank of issue, discount, and deposit, and was not a savings bank. Nat Jenkins was a colored man, was lying seriously wounded from a railroad disaster, believed he would die of his wounds, and did in fact die therefrom two days afterwards. He had a deposit account with the First National Bank. He had in his possession a pass book, in which was an account with the caption, "Dr. The First National Bank, in acc't with Nat Jenkins, Cr." In this pass book were items of debit and credit, but the account was not balanced. There was in fact a balance due the depositor of near $900. Jones was a nephew of Jenkins, and was visiting the latter as he lay in the hospital, from the effect of his injuries. He gave Jones the key to his box, and requested him to go and bring to him his pass book and other articles. On the next day, and in the presence of witnesses, Jenkins after stating he was going to die, handed to plaintiff Jones, the bank book, keys, and papers, and said to him: "Take this book. I give you this money, and all I have got. Go and get it. I don't want the old man or any of his folks to have anything that I have got. All I want is for you to see that I am decently buried." Jones took possession of the tendered pass book, keys, and papers, and retained them. After Weakley was appointed administrator, he checked the money out of the bank, and this action was brought by Jones to recover the same as so much money had and received for his use.

The general rule is that to constitute a valid gift, whether inter vivos or mortis causa, the donor must part with dominion over the thing attempted to be given; must do the act or acts which are, or appear to be, the most pronounced and decisive of the intention to part with possession and control; and the acts must of themselves amount to a parting with the possession and control. Authorities on this question are very abundant, and they cover almost every conceivable phase of the question. McHugh v. O'Connor, 91 Ala. 243, 9 South. Rep. 165; Dacus v. Streety, 59 Ala. 183, 8 Amer. & Eng. Enc. Law, p. 1341 et seq., and the numerous authorities cited by counsel.

The direct question presented by this record has been many times considered. A pass book issued by a savings bank, it is held rests on a peculiar footing. Such book is the record...