O'Neil v. First Nat. Bank
| Decision Date | 03 October 1911 |
| Citation | 117 P. 889,43 Mont. 505 |
| Parties | O'NEIL v. FIRST NAT. BANK OF BILLINGS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Sydney Sanner Judge.
Action by Edward O'Neil, as executor of John O'Neil deceased, against the First National Bank of Billings and others to recover the proceeds of certificates of deposit. Defendant banks, having disclaimed any interest in the fund paid the money into court, and James O'Neil alone defended. From a judgment in favor of plaintiff, James O'Neil appeals. Affirmed.
J. R Donohue, James A. Walsh, and R. E. Noyes, for appellant.
C. C. Hurley and Geo. W. Farr, for respondent.
John O'Neil died at Glendive, Dawson county, Mont., on September 22, 1908, at the age of 68 years. He had neither wife nor children. He left a will dated August 12, 1908, designating the plaintiff, a brother, as his executor. By order of the district court in and for Dawson county, made on March 31, 1910, the will was admitted to probate, and the plaintiff, having qualified as executor, entered upon the discharge of his duties. Prior to his death the deceased had made deposits in different amounts with the defendant banking institutions, which were evidenced by certificates payable to himself, and amounting in the aggregate to about $12,000. The deceased was a resident of the city of Helena, Mont., but the will was executed at Glendive, where he had stopped to visit the plaintiff and his family while on his way to Rochester, Minn., to secure special medical treatment, having for some time theretofore been in failing health. On August 20th he telegraphed to the defendant, James O'Neil, who resided at Hudson, Wis., to meet him in St. Paul, Minn., to accompany him to Rochester. The two met in St. Paul on August 21st, and proceeded at once to Rochester. They remained there together at a hotel until August 24th, when James returned to his home. In the meantime the deceased was under treatment by his physician preparatory to undergoing a surgical operation which it was thought would probably aid his restoration to health. For safe-keeping, he put into the hands of one Fridell, the proprietor of the hotel, his watch and a wallet containing the certificates of deposit mentioned, together with other papers. On September 6th James O'Neil returned to Rochester, having been informed by the deceased by telegram that the operation would be performed within two days. On the next day, and before going to the hospital to undergo the operation, the deceased obtained the watch and wallet from Fridell, and handed them to his brother. The certificates were not indorsed. The operation was performed on September 8th. James remained at Rochester, spending a part of each day with the deceased at the hospital, until September 10th. On that day he went to his home, taking the wallet and its contents with him. He did not thereafter return to Rochester to see the deceased. After four or five days the deceased, having survived the operation, though still weak from the effects of it and his illness, returned to the hotel, and remained there until September 18th, when he left, returning to Glendive, the home of plaintiff, where he remained until his death. He was accompanied by a son of plaintiff, whom he had summoned from Glendive by telegram to come to Rochester to attend him. Separate actions were brought by the plaintiff, as executor, against each of the banks to recover the amounts of the different deposits as assets belonging to his testator's estate. James O'Neil was made defendant in all of them. The action against the Cruse Savings Bank was originally brought in Lewis and Clark county. The others were brought in Yellowstone county, the place at which the defendant institutions, other than the Cruse Savings Bank, are doing business. The first was by agreement of the parties transferred to Yellowstone county, whereupon all of them were consolidated and tried as one. Disclaiming any interest in the deposits, the defendant banks were permitted to pay into court the amounts due from them, respectively. James O'Neil alone answered. As a defense he alleged, in substance, that, after the execution of his will and during the month of September, the deceased was suffering from a dangerous illness; that, in the hope of obtaining relief, he was about to undergo a surgical operation; that prior to undergoing the operation, being aware of the attendant danger and apprehensive that death might result from his illness and the operation, the deceased gave to the defendant, James O'Neil, the certificates of deposit held by him; that immediately thereafter the deceased submitted to the operation; that he subsequently, on September 22d, died of his illness, and that the defendant, having accepted the gift of the certificates, thereby became the owner of them and the amounts due upon them. The issues made upon these allegations by the reply of the plaintiff were found by the jury by a general verdict in favor of the plaintiff. Judgment was rendered against each of the banks for the respectice amounts due from them, and against James O'Neil for the costs of the actions. This defendant has appealed from the judgment and an order denying his motion for a new trial.
Some contention is made by counsel upon the question whether these actions are at law or in equity; the appellant contending that they are in equity, and hence that this court should examine the record and determine the questions of fact and law arising thereon, under the provisions of the Code applicable to such cases. Rev. Codes, § 6253. We are inclined to the view that the pleadings present strictly legal issues only, and that, under the rule so often stated by this court, the finding of the jury must stand if any substantial support for it is found in the evidence. But assuming that the position taken by counsel for appellant is correct, and giving him the benefit of the more liberal mode of review prescribed by the statute as it has heretofore been construed and applied (Bordeaux v. Bordeaux, 32 Mont. 165, 80 P. 6; Finlen v. Helnze, 32 Mont. 377, 80 P. 918; Pew v. Johnson, 35 Mont. 178, 88 P. 770, 119 Am. St. Rep. 852; Delmoe v. Long, 35 Mont. 139, 88 P. 778), we are nevertheless of the opinion that the contention, which is the principal one made by appellant, that the evidence is insufficient to justify the finding of the jury must be overruled.
The statute defines a gift as a "transfer of personal property, made voluntarily, and without consideration." Rev. Codes, § 4635. It defines a "gift causa mortis," or one made in view of death, as follows: "A gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver." Section 4638. To constitute a gift inter vivos, within the statute, the donor must voluntarily deliver the subject of the gift to the donee with the present intention to vest the legal title in the donee, who must accept it. The essential elements are, therefore, the delivery, the accompanying intent, and acceptance by the donee. Such a gift is made without condition, and becomes at once irrevocable. A gift causa mortis is subject to the conditions: (1) It must be made in contemplation, fear, or peril of death. (2) The donor must die of the illness or peril which he then fears or contemplates. (3) The delivery must be made with the intent that title shall vest only in case of death. While there is some conflict in the authorities upon the question whether the title vests upon delivery, subject to be defeated by the recovery of the donor, or vests only upon the death, they uniformly agree that all these elements must concur to render the gift effective. Leyson v. Davis, 17 Mont. 220, 42 P. 775, 31 L. R. A. 429; Daniel v. Smith, 64 Cal. 346, 30 P. 575; Zeller v. Jordan, 105 Cal. 143, 38 P. 640; Williams v. Guile, 117 N.Y. 343, 22 N.E. 1071, 6 L. R. A. 366; Ridden v. Thrall, 125 N.Y. 572, 26 N.E. 627, 11 L. R. A. 684, 21 Am. St. Rep. 758; Allen v. Allen, 75 Minn. 116, 77 N.W. 567, 74 Am. St. Rep. 442; Varley v. Sims, 100 Minn. 331, 111 N.W. 269, 8 L. R. A. (N. S.) 828, 117 Am. St. Rep. 694; Gourley v. Linsenbigler, 51 Pa. 345; Blazo v. Cochrane, 71 N.H. 585, 53 A. 1026; Larrabee v. Hascall, 88 Me. 511, 34 A. 408, 51 Am. St. Rep. 440; 3 Redfield on Wills, pp. 324, 326; Thornton on Gifts, § 25 et seq.; 1 Williams on Executors, 887; 20 Cyc. 1236. Hence the statute, though in theory it makes the vestiture of title dependent upon the death of the donor, embodies the commonlaw definition recognized by the courts generally.
Counsel devote much of their argument to the question whether the evidence justifies the conclusion that the deceased was moved to make the gift of the certificates to his brother, because weakened as he was by his existing illness, he feared that he would die under the operation, or whether he was apprehensive that he would eventually die of his illness, even though he might survive the operation. As we view the evidence, it is not of moment what his apprehension was. As appears from the instructions submitted to the jury, the court proceeded upon the theory, which is correct, that the burden was upon defendant to establish his claim. This required him to show, not only that the delivery to him by deceased was induced by fear of approaching dissolution, but also that the intention was to vest title in the defendant in case death occurred as he then feared. In other words, it was a question upon the evidence whether the deceased intended the delivery of the wallet and watch as a gift or merely as a deposit for safekeeping. The solution of this question, depending as it did upon the credibility of the witnesses as to what...
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