McCord's Adm'r v. McCord

• Decision Date: 31 October 1882
• Citation: 77 Mo. 166
• Parties: MCCORD'S ADMINISTRATOR v. MCCORD et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 166

MCCORD'S ADMINISTRATOR

v.MCCORD et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

Alex. Graves and A. F. Alexander for appellants.

When any person in last sickness with a view to death, delivers any personal property to another, who accepts the same, with instructions that at or after his death it shall be delivered to a third person, or be divided between third persons, in a specific proportion, it is a good gift mortis causa; and if the donor dies of that sickness without having revoked the gift, the donee is a trustee of the property for the uses indicated by the donor. Clough v. Clough, 117 Mass. 83, 85; Pierce v. Boston B'k, 129 Mass. 425; s. c., 37 Am. Rep. 371; Sheedy v. Roach, 124 Mass. 472; s. c., 26 Am. Rep. 680; Ellis v. Secor, 31 Mich. 185; s. c., 18 Am. Rep. 178; Turner v. Estabrook, 129 Mass. 425; Hill v. Stevenson, 63 Me. 364; s. c., 18 Am. Rep. 231; Davis v. Ney, 125 Mass. 590; s. c., 28 Am. Rep. 272; Grymes v. Hone, 49 N. Y. 17; Sessions v. Mosely, 4 Cush. 87; Coutant v. Schuyler, 1 Paige 316; Trorlicht v. Weizenecker, 1 Mo. App. 482; Caldwell v. Renfrew, 33 Vt. 213; Carradine v. Carradine, 58 Miss. 286; s. c., 38 Am. Rep. 324. No particular ceremony or technical words are necessary to express the intention of the donor with regard to the property; but it is only necessary that such an intention was expressed or clearly indicated, and that the amount each beneficiary is to have may be ascertained; and if such an intention was indicated, it is the duty of the courts to carry out that intention. Clough v. Clough, 117 Mass. 83, 85; Sheedy v. Roach, 124 Mass. 472; s. c., 26 Am. Rep. 680; Ellis v. Secor, 31 Mich. 185; s. c., 18 Am. Rep. 178; Dresser v. Dresser, 46 Me. 48; 2 Story Eq. (12 Ed.) 607 a. If the donee be in the possession of the property at the time the intentions of the donor are expressed to him, it is a sufficient delivery to him, and the law requires no new delivery. Hunt v. Hunt, 119 Mass. 474, 476; Champney v. Blanchard, 39 N. Y. 111; Wing v. Merchant, 57 Me. 383; Stevens v. Stevens, 2 Hun 470. If the property be in the hands of any bailee of the donor who is notified of the donation at the time it is made, this constitutes a sufficient delivery to the donee. 3 Redfield on Wills, (3 Ed.) 329, note 28; Waring v. Edmonds, 11 Md. 424; How v. Taylor, 52 Mo. 592. The validity of the gift is not affected by the fact that it constitutes the greater part, or even the whole, of the personal estate of the decedent, nor by the fact that at the same time the decedent gives instructions for the conveyance of real estate for other purposes; Meach v. Meach, 24 Vt. 591; 3 Redfield on Wills (3 Ed.) marg. p. 344, § 15; marg. p. 339, § 11; Ellis v. Secor, 31 Mich. 185; Cooper v. Burr, 45 Barb. 9; nor by the instructions of the decedent to pay a certain sum of the money to defray the expenses of his funeral. Hills v. Hills, 8 M. & W. 400; 1 Williams on Exrs., (4 Ed.) 652. Walter v. Ford, 74 Mo. 197, cannot be construed to mean that the delivery, to sustain a gift causa mortis, must be the same as required in gifts inter vivos. Because that case is based on the doctrine laid down by Story; and he says on this point: “The doctrine no longer prevails that where a delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causa.” 1 Story Eq. Jur., (12 Ed.) p. 591, § 607 c; also note 3.

John F. Philips for respondent.

An indispensable requisite of every gift is a delivery of the subject matter by the donor to the donee. This delivery must be made at the time of the gift. Delivery takes the place of nuncupation. French v. Raymond, 39 Vt. 623; Cutting v. Gilman, 41 N. H. 147, 151, 152, 153; Egerton v. Egerton, 17 N. J. Eq. 421; Clough v. Clough, 117 Mass. 84; Powell v. Hillicar, 26 Beav. 261; Bunn v. Markham, 7 Taunt. 224 (2 E. C. L. 81). There can be no pretense in this case that on Saturday, the day and time of the alleged gift, there was any delivery, any tradition of this property. The money then was down-stairs between the beds and in the possession of Mrs. McCord, and there it remained until after the alleged donor's death.

Appellant invokes the maxim: Lex non cogit ad vana seu inutilia; and claims that the money was already in Charles' possession at the time of the gift, and, therefore, no tradition was necessary. Even had the money been within his reach at the time of the gift, well considered authorities say that is not sufficient. Cutting v. Gilman, 41 N. H. 152; McGrath v. Reynolds, 116 Mass. 569; Duncan v. Duncan, 5 Littel (Ky.) 12; Delmotte v. Taylor, 1 Redf. (N. Y.) 417; French v. Raymond, 39 Vt. 623; Shower v. Pilch, 4 Exch. 478; Walsh v. Studdart, 4 Dru. &. War. 159. The authorities holding or intimating to the contrary lose sight of the principle that delivery takes the place of nuncupation, and is the evidence of the consummation of the gift. Miller v. Jeffries, 4 Gratt (Va.) 480. Charles McCord, however, did not have possession of the money at the time of the gift, in fact or law. On the Tuesday before, when the money was handed him by the intestate to take care of for him, Charles handed it at the time to his wife to take care of. This was done in the presence of the intestate He saw it and acquiesced in her custodianship, and thereby consented to her being and acting as the depository for him. She thereby became his agent, and not that of her husband. Charles never re-acquired possession of the property during his father's lifetime; nor does the evidence show that he even knew where it was kept. After the owner's death Mrs. McCord got it and handed it to Charles. Her possession was not sufficient to dispense with a redelivery to Charles. Case v. Dennison, 9 R. I. 88; s. c., 11 Am. Rep. 222.

The transaction was an attempt to make a parol testamentary disposition of the whole estate, personal and real, of the intestate. As such it cannot be sustained as a gift causa mortis. Headley v. Kirby, 18 Pa. St. 326; R. S., § § 3984, 3986, 3987; French v. Raymond, 39 Vt. 625; Haydock v. Haydock, 34 N. J. Eq. 570; s. c., 38 Am. Rep. 385; s. c., 13 Reporter 434; Harris v. Clark, 3 Comst. 121.

The alleged gift must fail because it was not a gift in praesenti. There must be a gift and delivery of the property to take effect immediately, subject to be recalled or defeated at donor's recovery. Hassell v. Basket, (U. S. C. C. Indiana,) 7 Cent. L. J. 308. The property must pass at the time, and not be intended to pass at the giver's death. Gass v. Simpson, 4 Cold. (Tenn.) 293; Dole v. Lincoln, 31 Me. 422, 428; Chevallier v. Wilson, 1 Tex. 171; Zimmerman v. Streeper, 75 Pa. St. 147; Shower v. Pilch, 4 Exch. 478.

Wallace & Chiles also for respondent.

There was no such delivery as the law requires to constitute a gift mortis causa. 1 Williams on Executors, (3 Am. Ed.) s. p. 650, 655, and note J; Winchell v. Mitchell, 1 Murphy 127. Mere delivery to an agent, in the character of agent for the giver, is not sufficient to constitute a gift mortis causa. Chevallier v. Wilson, 1 Tex. 161; 3 Redfield on Wills, 330, 331; 2 Gill & John., 215, 217; Duncan v. Duncan, 5 Litt. 12; Cutting v. Gilman, 41 N. H. 147; Hassell v. Basket, 7 Cent. L. J. 308. Both possession and title must pass to the donee to constitute a gift. This applies as well to gifts causa mortis as to gifts inter vivos. The title must pass inter vivos, or it never can pass, but will go to the donor's legal representative. Gass v. Simpson, 4 Cold. 293; Dole v. Lincoln, 31 Me. 422, 428; Zimmerman v. Streeper, 75 Pa. St. 147; Shower v. Pilch, 4 Exch. 478; Huntington v. Gilmore, 14 Barb. 243, 248; Spencer v. Vance, 57 Mo. 429; Case v. Dennison, 9 R. I. 90; Delmotte v. Taylor, (1 Redf.) 5 N. Y. 417; Farquharson v. Cave, 2 Collier's Ch. 366.

The conversation on Saturday was not only a gift of money, but a provision by parol for buying land, conveying away land, putting into possession of land, paying his funeral expenses and partition of money. Manifestly, this whole provision was testamentary in its character, and that part in reference to buying the interest of Mrs. Kirtley in land, and that part directing the making of a deed to Lucy Ann (Broddus) for the farm in Jackson county, could not be enforced, and have no binding validity. But the whole arrangement must be sustained and enforced, or all fall together. It cannot be supposed that the intestate intended part of the arrangement to be carried out, while the balance failed. But one part was as valid as the other, and the whole was a nullity. McGrath v. Reynolds, 116 Mass. 566, 569. But the very language used by the intestate shows that there was no authority in Charles to take possession of the money in the lifetime of Wm. D. McCord, for he said “that in case he should not get well, to take the money,” etc. So there could not, under this authority, be any delivery in the lifetime of the deceased, in order to constitute a gift mortis causa. Kenney v. Pub. Admr., 2 Bradf. (N. Y.) 319; 1 Story Eq. Jur., §§ 606, 606 a; 2 Kent Com., 445.

There is no pretense of a separate delivery to Charles W. McCord of the $1,400 claimed by him, but only a delivery of $7,700, out of which he was to distribute to himself $1,400; and that delivery was to him, as agent of the alleged donor, Wm. D. McCord. So the subject of the alleged gift to him-- $1,400--was not delivered to him. For if there was no valid delivery of the whole sum of $7,600, as gifts mortis causa, it will be hardly claimed that a part of such sum, $1,400, was delivered as a gift, mortis causa, to Charles, himself.

HENRY, J.

This is a suit by plaintiff, originally against Charles McCord, to recover the sum of $8,000, which, it is alleged, was the property of plaintiff's intestate, and was wrongfully taken possession of by Charles McCord, and converted to his own use. After the death of the intestate, the money was equally divided...