McCoy's Adm'r v. McCoy

• Decision Date: 23 October 1907
• Citation: 126 Ky. 783,104 S.W. 1031
• Parties: MCCOY'S ADM'R v. MCCOY.
• Court: Kentucky Court of Appeals

104 S.W. 1031

126 Ky. 783

MCCOY'S ADM'R v. MCCOY.

Court of Appeals of Kentucky.

October 23, 1907

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action between Ellen McCoy's administrator and William H. McCoy.From the judgment, the administrator appeals.Affirmed.

O. P Schmidt and E. J. Bitting, for appellant.

R. C Simmons, for appellee.

CARROLL J.

The principal question involved in this controversy is whether or not a deposit in a bank may be the subject of a gift inter vivos or causa mortis by the delivery of the pass book of the depositor.In the petition it is alleged that three days before her demise, and while under the apprehension of death Ellen McCoy, the mother of appellee, William H. McCoy delivered to him a deposit book of a savings bank, in which she had $1,209 to her credit, and a promissory note on which there was an unpaid balance of $402.The day following Mrs. McCoy became unconscious, and remained so until her death.Except for the statement that the book was delivered in her last illness, and while she was under the apprehension of impending dissolution, the petition does not disclose whether the pleader intended to rest his right of recovery upon a gift inter vivos or causa mortis.Indeed, so far as the circumstances surrounding the gift and the manner of its delivery are concerned, there is no substantial difference between the two classes of gifts.In both cases the thing must be personal property, and there must be a delivery, actual or constructive.In a gift inter vivos, the donor must not only part with the possession of the property, but with the dominion over it.It is unconditional and irrevocable.While a gift causa mortis is a gift by a person in sickness, who, apprehending his dissolution, delivers or causes to be delivered to another the possession of any personal goods, to keep as his own in case of the donor's death; and it only takes effect in case the giver dies.It is conditional, and the donor may at any time revoke it.Bouvier's Law Dict. titles "Donatio Mortis Causa,""Gifts Inter Vivos";Duncan's Adm'r v. Duncan, 5 Litt. 12;Meriwether v. Morrison,78 Ky. 572.

The evidence discloses the following facts concerning the gift: Mrs. McCoy told appellee to go to the cupboard, raise a plate, and get a book that was there.He got the book and gave it to her, when she handed it back to him, saying "This is yours," and requested him to pay her debts and not squander it.This evidence contains all the elements necessary to show a complete delivery, whether it be treated as a gift inter vivos or causa mortis.There was no condition attached showing that it was not to take effect in the event the donor did not die; but, as she did die within a few days thereafter, we think the gift may be sustained either upon the theory that it was a gift inter vivos or a gift causa mortis, as it had many of the features belonging to each class, and none of those that distinguish gifts causa mortis from those inter vivos, except the circumstance that the donor died in a few days thereafter.The lower court, entertaining this view, instructed the jury that "if they believed from the evidence that the decedent, Ellen McCoy, during her lifetime delivered the savings bank deposit book and the note to the plaintiff, W. H. McCoy, with the purpose and intent of giving said note and the money on deposit in said bank to him, the jury will find for the plaintiff."The authorities hold, almost without exception, that the delivery of a pass or deposit book in a savings bank transfers the money on deposit to the donee.Jones v. Weakley,99 Ala. 441, 12 So. 420, 19 L.R.A. 700, 42 Am.St.Rep. 84;Ridden v. Thrall,125 N.Y. 572, 26 N.E. 627, 11 L.R.A. 684, 21 Am.St.Rep. 758;Pierce v. Boston Five Cent Savings Bank,129 Mass. 425, 37 Am.Rep. 371;Hill v. Stephenson,63 Me. 364, 18 Am.Rep. 231;McNamara v. McDonald,69 Conn. 484, 38 A. 54, 61 Am.St.Rep. 48;Page v. Lewis,89 Va. 1, 15 S.E. 389, 18 L.R.A. 170, 37 Am.St.Rep. 848.

In this state the precise point here presented has never been directly adjudicated, except in Ashbrook v. Ryon, 2 Bush, 228, 92 Am.Dec. 481, where the question arose as to whether the delivery of a pass book in an ordinary bank of deposit transferred the money on deposit, and the court without assigning any reason, simply said: "The money deposited in bank did not pass by the delivery of the pass book, and the gift as to it was not perfect."But in the later appeal of Stephenson's Adm'r v. King,81 Ky. 425, 50 Am.Rep. 173, the court, in commenting on this statement and in effect overruling the case, said: "This court, in Ashbrook v. Ryon, held that the delivery of the notes without assignment perfected the gift, and it is there further held that the delivery of the pass book did not give right to the money in bank.Why it did not...