Larrabee v. Hascall

• Decision Date: 25 February 1896
• Citation: 88 Me. 511,34 A. 408
• Parties: LARRABEE v. HASCALL.
• Court: Maine Supreme Court

34 A. 408

88 Me. 511

LARRABEE

v. HASCALL.

Supreme Judicial Court of Maine.

Feb. 25, 1896.

(Official.)

Agreed case from supreme judicial court, Androscoggin county.

Assumpsit by Albert W. Larrabee, administrator of John P. Larrabee, deceased, against James A. Hascall. Submitted on an agreed statement. Judgment for defendant.

A. R. Savage and H. W. Oakes, for plaintiff.

W. H. Newell and W. B. Skelton, for defendant.

FOSTER, J. The plaintiff, as administrator of John P. Larrabee, deceased, brings this suit to recover of the defendant the sum of $200, which he claims to belong to the estate of the deceased, drawn by the defendant from the Auburn Savings Bank two days after the decease of the intestate, upon the following order:

"West Durham, April 25, 1892. "To the Treasurer of the Auburn Savings Bank:

"Pay to James A. Hascall two hundred dollars, and charge the same to deposit book No. 11,875. John P. Larrabee.

"Witness: Charles H. Hascall."

The case shows that deceased was 72 years old, lived alone, and had been sick for about 6 months prior to his decease, and from this sickness he died. It appears that the defendant nursed and cared for him for about three months prior to his death, which occurred June 11, 1892. When the order was drawn, and at the time of his death, the deceased had a deposit in the Auburn Savings Bank for $486.26. At the time the order was drawn and signed, the deceased delivered it, together with the savings bank book, to the defendant, saying to him: "Take this, Jim, when I am gone, draw the money, put a monument over my brother Stillman's grave, pay my funeral expenses, and the rest is yours."

The defendant took the order and book, and retained them in his possession till after the decease of said Larrabee. Two days after his decease the defendant presented the order and book to the oank, and drew the $200, and afterwards surrendered the bank book, with the remainder of the deposit therein, to the administrator, who demanded that he should pay over the $200 to him.

Subsequently the defendant paid out from the sum thus drawn upon the order all but $12 for the funeral expenses of the deceased and for the monument of his brother Stillman, in accordance with the request of said deceased at the time the order and bank book were delivered to him.

We do not think, from the facts as they appear, that the plaintiff is entitled to recover.

Had the order been for the full amount represented by the savings bank book, there could be no question but that such an order, accompanied by the bank book, would constitute a valid transfer of the funds, without further notice, or even an acceptance of the order by the bank. Kingman v. Perkins, 105 Mass. 111; Kimball v. Leland, 110 Mass. 325; Foss v. Savings Bank, 111 Mass. 285.

In Kimball v. Leland, supra, a depositor delivered an order for the payment of the deposit, and also the bank book, to a person for the purpose of transferring the money represented by the order and book. The order and bank book were not presented to the bank til after the death of the donor, and it was held that such order and delivery of the bank book constituted a complete transfer as against the next of kin of the donor, notwithstanding the money was not drawn during the life of the donor. Nor is there any doubt that an order for a specific fund, which is identified by the order itself, would constitute a valid assignment of that fund, as was held in Kingman v. Perkins, supra; Holbrook v. Payne, 151 Mass. 383, 384, 24 N. E. 210. And so would an order for a part only of an entire debt or demand constitute an equitable assignment to a party so as to be good as between him and the debtor upon trustee process in cases where just and equitable results may be accomplished thereby. Bank v. McLoon, 73 Me. 498; Roberts v. Noyes, 76 Me. 590, 593; Home v. Stevens, 79 Me. 262, 9 Atl. 616; Dana v. Bank, 13 Allen, 445, 447; James v. Newton, 142 Mass. 366, 374, 8 N. E. 122.

In the case at bar, the order, it is true was not for the full amount of the deposit represented by the bank book, but, notwithstanding that fact, the intention of the deceased is clearly manifest, and that was to transfer a specific and definite sum. With the delivery of that order and the bank book to the defendant, we are unable to perceive any valid reason why the deceased did not thereby transfer his title to that specific sum as effectually as though it had been for the entire amount of the deposit. Brill v. Turtle, 81 N. Y. 454. Such was undoubtedly his intention, manifested by the language of the order itself and the attendant circumstances. It was certainly an equitable assignment, and it is held both in England and this country that any delivery of property which transfers to the donee either the legal or equitable title is sufficient to effectuate a gift. Ridden v. Thrall, 125 N. Y. 572, 577, 26 N. E 627, and cases there cited; Basket v. Hassell, 107 U. S. 602, 610, 2 Sup. Ct. 415. In Brill v. Turtle, supra, the New York decisions are reviewed, and it is there held that, if the language is ambiguous, and the order not negotiable, "the attendant circumstances may be shown to determine the intention and understanding of the parties." There is a distinction to be noticed between those instruments which are in form negotiable, and on their face show that they were drawn upon a particular fund, and those that are not negotiable. Holbrook v. Payne, supra; Whitney v. Bank, 137 Mass. 351, 355.

In this case the order was not negotiable. It was signed by the deceased, and the same, together with the bank book, was delivered to the defendant in the presence of the person who witnessed it. At the same time there was a declaration of trust that the defendant was to take the same, and, when the deceased was gone, to draw the money, put a monument over his brother's grave, pay his funeral expenses, and the rest to keep for himself. This was a gift coupled with a trust, which the defendant has executed.

This delivery of the evidence and means of reducing the gift to possession was sufficient, so far as the element of delivery was concerned, to pass the title as a gift causa mortis. There was actual delivery so far as the nature of the property would admit of. Hatch v. Atkinson, 56 Me. 324; Hill v. Stevenson, 63 Me. 364; Curtis v. Bank, 77 Me. 151, 153; Barker v. Frye, 75 Me. 29, 33: Drew v. Hagerty, 81 Me. 231, 17 Atl. 63; Pierce v. Bank, 129 Mass. 425.

In Bomeman v. Sidlinger, 15 Me. 429, it was held that a negotiable promissory note, payable to order, may be the proper subject of a gift causa mortis without indorsement; that the equitable interest passes to the donee; and that, if there is a mortgage given as collateral security, it would be held in trust for his benefit, and may be enforced in the name of the representative of the donor, as the note may be also, if necessary. The same doctrine is established in several Massa chusetts cases among which are Bates v. Kempton, 7 Gray, 382, and Pierce v. Bank, 129 Mass. 425, 433.

So delivery of a bank book, without an assignment even, passes an equitable title to...