Marshall v. Felker

• Decision Date: 23 October 1945
• Citation: 156 Fla. 476,23 So.2d 555
• Parties: MARSHALL v. FELKER.
• Court: Florida Supreme Court

23 So.2d 555

156 Fla. 476

MARSHALL v. FELKER.

Florida Supreme Court

October 23, 1945

Appeal from Circuit Court, Broward County; George W Tedder, judge.

James J Marshall, of Miami, for appellant.

Ella Jo Stollberg, of Hollywood, for appellee.

SEBRING, Justice.

Robert Marshall who died testate on October 26, 1943, was the owner of certain United States postal savings certificates and a war savings bond. Elizabeth Felker, the appellee, was in possession of these instruments at the time Marshall died claiming that Marshall had given them to her as a gift shortly prior to his death. She also claimed that the estate of Marshall was justly indebted to her for certain services rendered and expenses incurred by her on behalf of Marshall during his last illness. Both claims were controverted by the executor of the estate. Accordingly, Mrs. Felker brought suit against the executor to establish ownership of the securities, and to recover for the alleged services rendered and expenses incurred. After final hearing the chancellor entered a decree finding that the securities were the property of Mrs. Felker by parol gift inter vivos, and that the claim for services rendered and expenses incurred during the last illness of the decedent should be allowed. The executor has appealed from the decree.

The postal savings certificates and savings bond in queston are marked respectively, 'not negotiable and not transferable' and 'not transferable'. They were duly issued by the Post Office Department, and the Treasury Department, of the United States under rules and regulations promulgated by each of said departments for the issuance of such instruments. The applicable rules and regulations of the Post Office Department are as follows: 'Postalsavings deposits shall be evidenced by non-transferable and nonnegotiable certificates of deposit * * *.' Sec. 1608. 'A depositor may not designate a beneficiary to receive payment except through the formality of a will, and payment shall be made only to the person or persons authorized * * *.' Sec. 1620(3). 'The final judgment, order, or decree of any court of competent jurisdiction adjudicating any right or interest in the credit of any sums deposited by any person with a postal savings depository * * * shall, upon submission to the Postmaster General of a copy of the same, duly authenticated * * * be accepted and pursued by the board of trustees as conclusive of the title, right, interest, or possession so adjudicated, and any payment of said sum in accordance with such order, judgment, or decree shall operate as a full and complete discharge of the United States from the claim or demand of any person or persons to the same.' Sec. 1624. See Postal Laws and Regulations of the United States of America, Edition of 1940, pp. 628, 650, 659. The regulations of the treasury Department under which the savings bond was issued provide: 'United States Savings Bonds are not transferable and are payable only to the owners named thereon except in case of the disability or death of the owner or as otherwise specifically provided herein, but in any event only in accordance with the provisions of these regulations * * *.' Sec. 315.8. 'A creditor of the owner of a savings bond may secure payment thereof to the extent of the owner's interest, or to the extent of the creditor's claim, whichever is smaller, through valid judicial proceedings: Provided, however, That no such proceedings will be recognized if they would give effect to an attempted voluntary transfer inter vivos of the bond * * *.' Sec. 315.51. See Department Circular No. 530, Fifth Revision, dated June 1, 1942, Regulations Governing United States Savings Bonds, Treasury Department, United States of America.

The appellant concedes in his argument and briefs that under the rules and regulations quoted the securities involved in the case at bar are transferable causa mortis. He contends, however, that such securities may not be the subject of a gift inter vivos.

It is the general rule that every species of personal property of which the legal or equitable title can pass by delivery, actual or constructive, may be the subject of a valid gift, either inter vivos or causa mortis. 28 C.J., Gifts, §§ 38, 39, 114; 38 C.J.S., Gifts, §§ 30, 31, 90; 24 Am.Jur., Gifts, § 66. The rule applies to 'nonnegotiable' or 'nontransferable' postal savings certificates and savings bonds issued by the federal government so long as the federal statutes, rules and regulations under which they are issued contain no express prohibition against the transfer of such instruments by gift. In re Diskin's Estate, 105 Pa.Super. 519, 161 A. 893; In re Vanicek's Estate, Neb., 17 N.W.2d 477; Blair v. Kirchner, 319 Ill.App. 348, 49 N.E.2d 292; Dietzen v. American Trust & Banking Co., 175 Tenn. 49, 131 S.W.2d 69.

We find nothing in any of the rules or regulations brought to our attention which will...