Philpot v. Temple Banking Co.

Decision Date24 February 1908
Docket Number741.
Citation60 S.E. 480,3 Ga.App. 742
PartiesPHILPOT v. TEMPLE BANKING CO. et al.
CourtGeorgia Court of Appeals

Syllabus by the Court.

A certificate of deposit is a subsisting chose in action, and represents the fund it describes, so that a delivery of it as a gift constitutes an equitable assignment of the money for which it calls.

[Ed Note.-For other definitions, see Words and Phrases, vol. 2 pp. 1030, 1031.]

A brother who held a certificate of deposit issued by a bank and payable to his order, during his last illness, and very shortly before his death, delivered the certificate to a brother with proper words of gift, but failed to indorse the certificate at the time of delivery. Subsequently, he indorsed the certificate, and had the same deposited in a bank to his credit. Contemporaneously with the deposit, he gave to his brother a check on the bank for the full amount of the certificate deposited. Held (a) The delivery of the certificate of deposit constituted a valid gift causa mortis. (b) The subsequent execution and delivery of the check for the exact amount of the certificate did not affect the validity of the gift, but was the means adopted by the donor of perfecting the gift. (c) Even if the gift had not been fully consummated by the delivery of the certificate of deposit, the giving of the check operated as an equitable assignment of the certificate and, consequently, an assignment of the fund. (d) The failure of the donee to present the check to the bank for payment until after the death of the donor did not operate as a revocation of the gift.

[Ed Note.-For cases in point, see Cent. Dig. vol. 24, Gifts, §§ 135-138.]

A party who attacks the validity of a gift on the ground that the donor was mentally incapable of making the gift, or that the gift was procured by fraud or undue influence, has the burden of proving his charge. There is no evidence in this case tending to show either mental incapacity or fraud or undue influence.

[Ed Note.-For cases in point, see Cent. Dig. vol. 24, Gifts, §§ 81-86.]

The verdict as directed by the court was demanded by the evidence.

Error from City Court of Polk County; F. A. Irwin, Judge.

Action by J. H. Philpot, administrator of John McCullough, against the Temple Banking Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Where the holder of a certificate of deposit, who, during his last illness, had delivered the same to his brother, with proper words of gift, but without indorsement, subsequently indorsed the certificate and had the same deposited to his own credit but contemporaneously therewith gave his brother a check for the amount of the certificate, failure to present the check for payment, until after the death of the holder of the certificate, did not operate as a revocation of the gift.

John McCullough, after living in Texas for some years, unexpectedly came to the home of his brother Enoch McCullough in Polk county, Ga., on the 26th of June, 1904. He was in bad health, and was suffering from an incurable disease. At the dinner table, his brother and his brother's wife and son being present, on the day of his arrival, he stated to his brother and family that he had come back from Texas to his brother's home where he wanted to remain until he died; that he was in bad health, and did not expect to recover, and that he wanted his brother and family to take care of him and nurse him as long as he lived; that he had, besides a small amount of cash, a certificate of deposit issued to him by the First National Bank of Terrell, Tex.; that he wanted his brother to take the certificate of deposit, pay the expenses of his sickness and burial in the event of his death, which he expected to occur as a result of his physical condition in a short time; and that the balance of the money represented by the certificate he wanted him to have. Several days after this first conversation he again told his brother about the certificate of deposit, and delivered it into the possession of his brother, telling him that, after paying the expenses of his sickness and funeral, he was to keep the balance of the proceeds of the certificate as his own. He did not, however, indorse the certificate but delivered it unindorsed to his brother. His brother called in his wife, gave her the certificate and told her to put it in her trunk and keep it. John McCullough appeared to be in bad health, and was despondent and hopeless of his ultimate recovery, but his mental condition was entirely normal. He continued to grow worse, and, about a week after his arrival, called in the family physician, Dr. W. F. Goldin, who treated him from then until he died on the 21st of July, 1904. This physician testified as to his physical condition, and stated that his mental condition was unaffected by his disease; that he talked as intelligently as any man he had ever talked to; and that there was no indication of mental weakness until just a few days before his death. One day while the doctor was present, the deceased told him about the certificate of deposit on the Texas bank, and that he had intended to make a deposit of the certificate in one of the banks of Atlanta, but that he had neglected to do so, and said: "I understand you are interested in a bank, and I want you to take it down there and deposit it for me. I gave it to Enoch, the proceeds of it, and I want you to have your pay. I want you to take it down there and have it collected for him." The doctor suggested to him to have it deposited in the bank at Temple in his own name; that he would then have the bank at Temple to send him a check for the amount of the certificate and make it payable to his brother, Enoch, and he could give this check to his brother. Mrs. McCullough, wife of Enoch, at the request of her husband, got the certificate and delivered it to the doctor. He saw that the certificate of deposit was made payable to John McCullough and was not indorsed by him, and he called attention to this fact. John McCullough was in bed and was nervous, and he asked the physician to write his name for him on the back of the certificate, which the physician did in his presence and in the presence of his brother and his wife. The physician took the certificate, inclosed it in a letter, and sent it to the bank at Temple, and personally directed the cashier of the bank to deposit the certificate in the name of John McCullough and to send it on to Texas for collection, and to prepare a check payable to the order of E. E. McCullough covering the amount of the certificate. This was done by the cashier. The check was taken to John McCullough by the physician and delivered to him, and he asked the physician to sign his name to the check, which the physician did, in his presence, and John McCullough then delivered the check into the possession of his brother Enoch. The certificate of deposit issued by the Texas bank was deposited at the Temple bank on the 12th of July, 1904. The check drawn by John McCullough on the Temple bank was dated July 13, 1904, and on that day was delivered by John to his brother Enoch. John McCullough died on the 21st of July thereafter, and Enoch McCullough presented the check to the bank on August 15th. Was then paid by the bank a small amount in cash, and deposited the balance of the check amounting to $1,050 to his own credit in the bank. The certificate of deposit issued by the bank in Texas is as follows: "No. 9461. The First National Bank of Terrell, Texas. June 21st, 1904. John McCullough has deposited in this bank $1092 21/100, payable to the order of himself on the return of this certificate properly endorsed. E. S. Morrow, Assistant Cashier. Negotiable at any bank. Certificate of deposit." Indorsed, "John McCullough, W. F. Goldin." The check drawn by John McCullough on the bank at Temple is as follows: "Temple, Ga. July 13th, 1904. The Temple Banking Company. Pay to the order of E. E. McCullough $1092 21/100, one thousand and ninety two dollars and twenty one cents. John McCullough." Indorsed, "E. E. McCullough, W. F. Goldin."

Some time after the occurrences above narrated, J. H. Philpot, as administrator of John McCullough, brought suit in the city court of Polk county against E. E. McCullough, W. F. Goldin and the Temple Banking Company, the purpose of the suit being to recover the sum of $1,092.21 collected by the bank as the proceeds of the certificate of deposit from the Texas bank, which sum, on the day of John McCullough's death, was on deposit with the Temple Banking Company to the credit of the deceased. In the suit by the administrator, it was alleged that the title to this money was in the estate of John McCullough; that the heirs at law of John McCullough were his brother, Enoch McCullough, and Florence Doster, a minor child who is the granddaughter of the sister of John McCullough. The petition charged that Enoch McCullough unlawfully secured said $1,092.21 from the Temple Banking Company after the death of his brother; that the Temple Banking Company having actual notice of John McCullough's death, and of the fact that no administrator had been appointed on his estate, unlawfully turned over said money to Enoch McCullough, and that the said money was secured by Enoch McCullough and Dr. W. F. Goldin from the bank with the understanding that Goldin, who was the president of the bank, could use a large part of said fund. On the trial of the case the gift by John McCullough to his brother Enoch was attacked on the ground that the gift was incomplete, and not consummated prior to the death of John McCullough; that the check on the Temple Banking Company which John McCullough had made and delivered to his brother, not having been presented for payment prior to the death...

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