Pennell v. Ennis

• Decision Date: 11 June 1907
• Citation: 126 Mo. App. 355,103 S.W. 147
• Parties: PENNELL v. ENNIS.
• Court: Missouri Court of Appeals

103 S.W. 147

126 Mo. App. 355

PENNELL v. ENNIS.

St. Louis Court of Appeals. Missouri.

June 11, 1907.

1. GIFTS — BANK CHECKS — COMPLETED DELIVERY.

Where decedent, just prior to her death, drew certain checks on her bank accounts and delivered the same to claimant, to whose order they were drawn, but the checks were neither accepted nor paid by the bank prior to decedent's death, they did not constitute a valid gift of the respective amounts for which they were drawn, for want of a completed delivery.

2. TRUSTS — DECLARATION — INVALID GIFT.

Where decedent attempted to give claimant $500 by drawing certain checks on decedent's bank account, but the gift was ineffective because of decedent's death before the checks were accepted or paid by the bank, decedent's intention could not be carried out by treating the checks as a declaration of trust to hold such portion of decedent's bank balance for claimant's use.

3. ASSIGNMENTS — EQUITABLE ASSIGNMENT — CHECKS.

Decedent, just prior to her death, drew a check in favor of plaintiff on a bank for $250, which sum far exceeded the fund she had on deposit in the bank subject to check and was much less than a deposit covered by a time certificate. She also at the same time drew another check on another bank for an amount in excess of her balance in that bank, and delivered both checks to claimant, and died before either check was presented or paid. Held, that the checks did not constitute a valid equitable assignment of the drawer's funds in either bank.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Claim by Mattie F. Pennell against John W. Ennis, as administrator of the estate of Lucinda W. Morse, deceased. From a judgment in favor of defendant on appeal from the probate to the circuit court, claimant appeals. Affirmed.

F. H. McCullough, for appellant.

GOODE, J.

Plaintiff is the daughter of Mrs. Lucinda W. Morse, deceased, and defendant the administrator of the estate of said deceased. This proceeding was commenced in the probate court on a demand presented against the estate and based on the following bank checks:

                                   Edina, Mo., Oct. 21, 1905
                The Bank of Edina
                  Pay to Mattie F. Pennell .............. $250.00
                Two Hundred and Fifty ................... Dollars
                In Current Funds
                                              L. W. Morse
                              Novelty, Mo., Oct. 21, 1905
                The Lycan Bank of Edina:
                  Pay to Mattie F. Pennell, or ......... $250.00
                Two and 50 ............................. Dollars.
                                                 L. W. Morse.
                

Judgment was given in favor of plaintiff in the probate court, but on a trial anew in the circuit court, to which the case was appealed, the jury returned a verdict for defendant, pursuant to a peremptory instruction given at the conclusion of the evidence for plaintiff.

The checks which are the foundation of the demand were signed a few hours before the death of Mrs. Morse, and when she was very low with illness. She had been in poor health for some time before, having suffered a stroke of paralysis which rendered one side of her body helpless. The date of the checks is October 21, 1905, but this date was inserted by mistake, as the checks were drawn two days later, on the 23d. Whether Mrs. Morse then realized how near her end was is uncertain on the proof. About 3 o'clock in the afternoon she asked plaintiff to get her check book, and, when it was put in her hands, wrote the two checks in question, handed them to her granddaughter, Daisy Pennell, the daughter of plaintiff, telling her to give them to plaintiff for the latter to use for any purpose she wished. This incident occurred before the physician who had been attending the deceased was sent for; but it must have been but a few minutes before, for he arrived at the house about 4 o'clock in the afternoon, and it was necessary for the messenger to go to the town of Novelty, some three miles away, and summon him, and for the physician to come from said town. When he arrived he saw Mrs. Morse could not live long, and, as stated, she died the same day. At the date the checks were signed the deceased had on deposit in the Lycan Bank the sum of $90, which was subject to check, and $336.58, not subject to check, but covered by a time certificate to fall due either 6 or 12 months after its date. She had a deposit in the Bank of Edina, on which the other check was drawn, of $69.64, which was subject to check. The figures in the check on the Lycan Bank called for $250 to be paid to plaintiff; whereas, the writing was for "Two and 50. . Dollars." At the time Mrs. Morse signed the checks she said they amounted to $500, showing that her intention was to make each check for $250. The drift of the cross-examination indicates that, if the defendant had been called on to put in evidence, he would have defended on the ground that the deceased was incompetent to transact business when the checks were given. But, as the court directed a verdict on the evidence for plaintiff, no such question is before us. There is evidence tending to prove Mrs. Morse knew what she was doing, and that her purpose was to give her daughter $500.

Plaintiff's counsel has treated the transaction as constituting a gift inter vivos, and not causa mortis. We have no doubt its real character was that of a gift causa mortis; but this point is immaterial. The essential question is whether or not the delivery of the checks was a valid gift, they not having been accepted or paid prior to the death of the drawer, and the rule of law controlling the decision is the same whether the transaction is regarded as inter vivos or causa mortis. The current of authority seems to be unbroken in favor of the proposition that a check drawn on the drawer's general account in a bank will not constitute a gift to the payee of the amount of the check if it is neither accepted nor paid prior to the death of the drawer. This is because a complete delivery is essential to a valid gift, and the check of the donor is looked on as no more than his promise to give the amount written. 1 Story, Eq. Jur. (13th Ed.) p. 610, § 607a, note 6; Harris v. Clark, 3 N. Y. 93, 51 Am. Dec. 352; Second Nat. Bank v. Williams, 13 Mich. 282; McKenzie v. Downing, 25 Ga. 669; Thresher, Adm'r, v. Dyer, Ex'r, 69 Conn. 404, 37 Atl. 979; Simmons v. Cincinnati, etc., Co., 31 Ohio St. 457, 27 Am. Rep. 521; Cloyes v. Cloyes, 36 Hun (N. Y.) 145; Rolls v. Pearce, L. R. 5 Ch. Div. 730; In re Mead, L. R. 15 Ch. Div 651; In re Beak's Estate, L. R. 13 Eq. 489; Bromley v. Brunton, L. R. 6 Eq. 275. Some of those cases consider the effect of the delivery of a donor's check when the gift is inter vivos, and others when it is causa mortis. The same rule is applied to attempted gifts by the delivery of the donor's own promissory note. School Dist. v. Sheidley, 138 Mo. 672, 40 S. W. 656, 37 L. R. A. 406, 60 Am. St. Rep. 576; West v. Cavins, 74 Ind. 265; Flint v. Pattee, 33 N. H. 520, 66 Am. Dec. 742; Holley v. Adams, 16 Vt. 206, 42 Am. Dec. 508; Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313. Cases are reported in which the gift was held valid on exceptional facts, as where the check was certified or paid prior to the death of the donor. Any step which changes the transaction from a mere executory and voluntary promise by the donor into an executed transaction will validate it. Obligations or checks drawn by third parties in favor of the donor are regarded as the latter's property, and which ...