McNabb v. Fisher

• Citation: 299 P. 679,38 Ariz. 288
• Decision Date: 02 June 1931
• Docket Number: Civil 3002
• Parties: L. C. McNABB, Administrator of the Estate of JOHN FISHER, Deceased, Appellant, v. GURIE FISHER and THE VALLEY BANK, a Corporation, Appellees
• Court: Arizona Supreme Court

299 P. 679

38 Ariz. 288

L. C. McNABB, Administrator of the Estate of JOHN FISHER, Deceased, Appellant, v. GURIE FISHER and THE VALLEY BANK, a Corporation, Appellees

Civil No. 3002

Supreme Court of Arizona

June 2, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. Honorable Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions.

Messrs McNabb & DeCamp, for Appellant.

Messrs Dougherty & Dougherty and Mr. James A. Walsh, for Appellee Fisher.

OPINION

ROSS, J.

This is an action by L. C. McNabb, the administrator of the estate of John Fisher, deceased, against Gurie (G. W.) Fisher, a son of John Fisher, and the Valley Bank, to recover from the bank a balance of a deposit made therein, a short time before John Fisher died, in the name of the deceased and his son G. W Fisher, payable to either or the survivor. The bank answered that it was ready to pay the money to whomsoever the court ordered it paid. Gurie Fisher answered by way of specific and general denials. The court, after hearing the evidence decided the case in favor of defendant Gurie Fisher and ordered the bank to pay such deposit to him. The administrator has appealed.

There is no question but that every dollar of the deposit was at one time the property of the deceased. This is conceded, but defendant contends that the money is his; that it was given to him by the deceased.

It is settled in this jurisdiction that, if the evidence substantially supports the trial court's findings and conclusions as to the facts, we will not disturb them. In other words, if the evidence was in conflict as to whose property the money was, the decision of the trial court will be accepted by the appellate tribunal as final.

The gift here, if there be one, is what is known as a gift inter vivos. It differs from a gift causa mortis in that it is irrevocable, whereas the latter may be revoked at any time before the donor's death. 28 Corpus Juris, 622, § 6. Essential elements of a gift are that the donor manifest a clear and unmistakable intent to give the property to the party claiming as donee, and that he pass to the latter before his death the possession and control of the thing given. Mere intention to give is not enough, nor is change of possession or control; these must concur.

The plaintiff's position is that, taking the testimony in its strongest light in favor of defendant, there was no gift, because there was shown no intention to give nor any surrender of control to Gurie Fisher.

The undisputed evidence is that John Fisher was an old man and in need of someone to look after him and his affairs. He had lived some thirty-five years at Black Rock, Graham county, Arizona, and owned a small herd of cattle and some mining locations. On or about 1927 or 1928 two of his daughters and their husbands and families, and Clem Fisher, a son, came from Oklahoma to Graham county. In November of 1928 defendant Gurie appeared on the scene. They all joined the old gentleman in an effort to develop his mines, but lost their time, labor and money, as the mines proved worthless. Gurie was with his father most of the time after he arrived. The other children lived with their families. In June of 1929 the father sold his cattle and deposited the sale price to his account in the Safford branch of the Valley Bank. At that time his total deposit was around $1,900. Because of the father's poor and illegible writing, it was necessary that someone fill out his checks. This was usually done by the cashier, the father signing them. Some talk was had about having someone else empowered to write and also sign checks against his deposit, at Safford, but no arrangements were in fact made. In September, 1929, the father and defendant Gurie went together on a visit to Texas and Oklahoma, states where they had formerly lived. Gurie had no money whatever, and his expenses on this trip were paid by the father. Before going, the father drew out of the Safford bank all of his deposit, taking in lieu thereof $75 in traveler's checks for expenses and the balance in a cashier's check payable to himself. This check, at Drumwright, Oklahoma, was deposited in the Drumwright State Bank to the father's account. Some of it was drawn out for expenses there and in returning home, and a cashier's check, payable to the order of G. W. Fisher, taken for the balance of $1,577. The father and son came to Mesa, Arizona, along in November, 1929, and on the 15th of that month Gurie left for collection with the Mesa branch of the Valley Bank the cashier's check above described. After its collection and on November 25, 1929, he returned to the bank with his father, and they opened an account in their joint names, thus: "Deposited by John or G. W. Fisher" $1,526.60. G. W. (Gurie) Fisher stated to the bank official that "they wanted a joint account so either he or his father might draw on it as occasion required." A card was made out by the bank official expressive of their wishes, and they signed it "John Fisher" and "G. W. Fisher." This card in general terms provided that either of the persons so signing or the survivor of them could draw against the deposit.

Gurie, on his direct examination concerning the Drumwright cashier's check and how it happened to be made to him, testified in his own behalf as follows:

"Q. Where was this check issued to you? A. At Drumwright, Oklahoma.

"Q. What were the conditions under which it was issued? A. Well, I drawed out what money -- I bought a cashier's check on account of getting robbed or anything you know.

"Q. With reference to this amount represented here, being $1577.00, what understanding or conversation did you have with your father John Fisher with reference to that? A. He told me to bring back what I wanted to. I wanted enough cash, and the rest in a cashier's check to bring it back safe.

"Q. What was said, if anything, about the money or check being made to you? A. There wasn't anything said. He told me to get what money I wanted and get a cashier's check.

"Q. At any time what was said between your father and yourself with reference to this check? A. He said this was my money and he would sign it over to me to take care of him as long as he lived.

"Q. When you got back to Mesa and made this deposit in the bank how did you come to make this a joint deposit? A. I told father I wanted him to go up to the bank, I wanted to give him authority to check on my account, that I might take down sick or something and he would have a little assistance when he needed it."

On cross-examination, he stated his father had told him on their way to Texas he was going to give him this money, and had repeated such intention many times on such trip. He also said his father told him, "'This amount now will just take care of me as long as I live,' and he told the cashier (at Drumwright) to send me the check." In another place he said: "I say the big check was his until he cashed it out and he give it to me to take care of him as long as he lived. He told the bank to send me the check on." He also said he had entire control of the bank account, and that, although he consulted his father about drawing checks, he did not have to do so. He admitted his father had the same right to draw against the fund as he had.

From this evidence the court found (1) "as a fact . . . that said money and every part thereof was delivered . . . to . . . Gurie by his father . . . some time prior to the death of John Fisher, as a gift . . . with the intention . . . that said money should be and become the sole and separate money and property of Gurie Fisher"; and (2) that the deposit in the Valley Bank of Mesa was of his (Gurie's) sole and separate money and property. Is there evidence to support these findings?

Gurie Fisher in his brief says the gift was completed when the check of the Drumwright bank was made to him instead of the father. It evidently is to that occurrence the court refers in the finding wherein it is said the gift was made "some time prior to the death of John Fisher." Gurie's testimony, however, as to why or how the check was made in his name, lends nothing to the gift theory or claim. In answer to the question, by his own counsel "What was said, if anything, about the money or check being made to you?" he said: "There wasn't anything said. He told me to get what money I wanted and get a cashier's check." So it appears the check was made payable to Gurie without any direction or instruction whatever from the father. And when he was asked, "At any time what was said between your father and yourself with reference to this check (Drumwright bank check)?" his answer was, "He said this was my money and he would...