McLeod v. Brown

• Decision Date: 20 December 1923
• Docket Number: 5 Div. 876.
• Citation: 210 Ala. 491,98 So. 470
• Parties: MCLEOD ET AL. v. BROWN ET AL.
• Court: Alabama Supreme Court

98 So. 470

210 Ala. 491

MCLEOD ET AL. v. BROWN ET AL.

5 Div. 876.

Supreme Court of Alabama

December 20, 1923

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Bill of interpleader by T. S. Davis, doing business under the trade name of Bank of Hurtsboro, against George W. and Minnie McLeod Brown, individually, and A. A. McLeod and others as executors of J. W. McLeod, deceased. From a decree for cross-complainants, George W. Brown and Minnie McLeod Brown the respondents executors, appeal. Affirmed.

R. H Powell, of Tuskegee, for appellants.

Frank M. de Graffenried, of Seale, for appellees.

MILLER J.

This is a bill of interpleader filed by T. S. Davis, doing business under the name of Bank of Hurtsboro. It avers that it has in its possession $4,000 in Liberty coupon bonds, which are claimed by George W. Brown and his wife, Minnie McLeod Brown and that they are also claimed by A. A. McLeod and others, as executors of the estate of J. W. McLeod, deceased; and seeks to have the bonds deposited in court; to have the adverse claimants propound their claims and title to such bonds; to have complainant relieved of liability, and his attorney paid a reasonable fee for representing him and filing the bill of interpleader.

By consent of the parties the court decreed that the complainant deposit the bonds in court, and he was thereby relieved of further liability. The court by decree also directed that one bond of $500 be sold by the register, and out of the proceeds complainants's attorney be paid $250 as solicitor's fee, and the remainder of the money be invested by the register in United States bonds; but reserved the right to make final order as to taxation of the $250 fee in final decree. It appears this decree was complied with by the complainant and the register.

The respondents, George W. Brown and wife, Minnie McLeod Brown filed their answer in the nature of a cross-bill, in which they set up their claim, interest, and title to the bonds. They aver that J. W. McLeod, deceased, during his lifetime owned these bonds, they were payable to him, and that he duly and legally transferred, assigned, and delivered the said bonds on April 11, 1921, as a gift to them; and afterwards they delivered the bonds to the Bank of Hurtsboro, and at the bank's request delivered it written instructions from the donor to forward the bonds to the treasurer of the United States to be converted or changed into coupon bonds for these cross-complainants. The bonds were converted into coupon bonds, and returned to the bank. The Bank of Hurtsboro refused on demand to deliver the coupon bonds, when returned, to these cross-complainants, and they seek to have the bonds so delivered to them.

J. W. McLeod died testate on October 3, 1921, leaving no wife or children or their descendants. He and his wife had reared cross-complainant Minnie McLeod Brown, as an adopted daughter-though she had never been legally adopted by him, he treated her as his daughter. At the time of his death and for several years prior thereto he lived in her home, which he had given to her. His will was duly probated, and the executors of his estate are made parties to the answer in the nature of a cross-bill of George W. Brown and wife. His next of kin are a sister residing in Texas, various nephews and nieces, some of whom reside in Texas, some in Georgia, and one in Alabama; the last named having since died, leaving two children.

The executors of the estate of J. W. McLeod by their original answer to the original bill, and their answer to the cross-bill, set up and aver that the bonds belong to the estate of the decedent; that the original bonds were never delivered by the testator to the cross-complainants, Mr. and Mrs. Brown; and that, if they were delivered, the gift was void because the testator, the donor, was of unsound mind at the time when it was made; further, if the bonds were delivered, it was a void gift, as it was obtained by the donees from the donor by undue influence; and they pleaded specially that the written instrument evidencing the gift and directing the delivery of the bonds was not executed by the testator, J. W. McLeod, or by any one authorized to bind him in the premises.

The court by decree granted cross-complainants, Brown and wife, the relief desired, directed the bonds to be delivered by the register to them, and directed the executors of the estate of J. W. McLeod, deceased, to pay them out of the funds in their hands belonging to the estate the $250 fee paid complainant's solicitor, and taxed the estate of McLeod with the court cost. This appeal is prosecuted by the executors of the estate from that decree, and it is the error assigned.

The part of our statute, section 3392 of the Code of 1907, applicable, states:

"Parol gifts of personal property are inoperative until the custody, control, management, and use of the property passes from the donor to the donee, and is possessed by such donee or his agent."

In 28 Corpus Juris, p. 640, § 31(b) we find the following general rule:

"While a delivery may be made to a third party in order that the latter may deliver the subject of the gift to the donee as agent of the donor, the gift is not complete, until there is an actual delivery to the donee."

It appears the above quoted general rule is based on the opinion of this court in Durrett v. Sewall, 2 Ala. 669, and many other cases in other states there cited.

J. W. McLeod owned on April 11, 1921, in Liberty bonds, payable to himself, the sum of $4,000. He sent for the cashier, S. B. Williams, of the Farmers' & Merchants' Bank, and Williams, who went to the residence of George W. Brown, where J. W. McLeod resided, testified:

McLeod "told me that he desired that said bonds [the $4,000 bonds] be transferred to Mr. Brown and his wife and his children."

The witness advised him to transfer the bonds; it was necessary that McLeod indorse and transfer them, which should be witnessed by him as cashier of the bank, accompanied by the seal of the bank, in accordance with the ruling of the Treasury Department. S. B. Williams further testified:

"Mr. J. W. McLeod signed the transfer and assignment of each of the registered bonds which he then had, and are involved in this cause, in the form and manner I have above testified to.

"I did not then and there sign my name as a witness to the transfer of said registered bonds by McLeod, but I told him that it would be more convenient for me to carry the bonds to the bank, and there sign my name as cashier of the Farmers' & Merchants' Bank as a witness to his signature of the transfer and assignment of said bonds, and would then affix to my signature an imprint of the corporate seal of the bank, stating to him that the corporate seal of the bank was then at the bank, and that I could take said bonds to the bank for this purpose, and, after signing my name in the manner testified to, as a witness, I could deliver the bonds to Mr. G. W. Brown. Mr. McLeod said, 'All right, go ahead and do this."'

Brown and wife were present during this conversation. This witness further stated that he carried the bonds to the bank, signed his name as attesting witness to the signature of J. W. McLeod, affixed the seal of the bank, and "delivered each and all of said registered bonds to Mr. George W. Brown, after the same had been transferred and witnessed as I have above testified to"; and he further stated "the said bonds could then be transmitted to any person or bank into whose possession said bonds came." After Williams had delivered the bonds to Brown, he was requested by Brown to send them to Washington to be converted into coupon bonds; Williams declined to receive the bonds and transmit them, because he stated to Brown that service should be performed by the bank of Hurtsboro, and not by his bank, as it required a good deal of labor and correspondence, and that Brown and McLeod did their banking business at the Bank of Hurtsboro. Brown then carried the bonds to the Bank of Hurtsboro, the complainant, and this bank would not send said bonds to the Treasurer at Washington to be converted into coupon bonds, for the reason as stated by the president of the bank, T. S. Davis, witness for the executors, cross-respondents:

"When Mr. Brown brought me the bonds, I told him that before the bank could send them off and have them changed I would have to have written authority from Mr. McLeod, and I told him in substance just what I would require. The paper writing marked Exhibit A as prepared by Mr. S. B. Williams, so he told me, and the paper executed as it now appears was handed me later on the same day at the Farmers' & Merchants' Bank by Mr. Williams. After carrying the paper to the bank, Mr. Williams came over to the Bank of Hurtsboro, according to my recollection on the next day, and stated to me, substantially as follows: That he was not satisfied in his own mind as to whether Mr. McLeod knew what he was doing in the transfer, for the reason that, when he asked him if he wanted to transfer these bonds to G. W. Brown and wife, he replied, 'Yes, I don't know who else to give them to.' I asked Mr. Williams if he meant to say that, in the event the question was raised in a court of law with reference to the gift of these bonds, he would swear that, in his opinion, Mr. McLeod was not of sound mind, and his answer was, 'Yes."'

The witness Williams testified that he made no such statement to Davis, "that J. W. McLeod was of sound mind beyond a reasonable doubt," when he transferred the bonds, and when he signed the written paper.

The written paper mentioned above, marked Exhibit A, made at the instance of Davis, president of the bank, was signed on the same day, but after Brown presented the bonds to the...