Provident Inst. for Sav. in Jersey City v. Sisters of the Poor of St. Francis

• Decision Date: 30 April 1917
• Docket Number: No. 39/65.,39/65.
• Citation: 87 N.J.Eq. 424,100 A. 894
• Parties: PROVIDENT INSTITUTION FOR SAVINGS IN JERSEY CITY v. SISTERS OF THE POOR OF ST. FRANCIS et al.
• Court: New Jersey Court of Chancery

100 A. 894

87 N.J.Eq. 424

PROVIDENT INSTITUTION FOR SAVINGS IN JERSEY CITY

v. SISTERS OF THE POOR OF ST. FRANCIS et al.

No. 39/65.

Court of Chancery of New Jersey.

April 30, 1917.

Proceedings between Provident Institution for Savings in Jersey City and the Sisters of the Poor of St. Francis and others, contesting claimants to fund in savings bank, after decree of interpleader. Conclusions in favor of Provident Institution for Savings.

John Milton, of Jersey City, for Sisters of the Poor of St. Francis. Benjamin A. Vail, of Elizabeth, for executor.

STEVENSON, V. C. An old lady, Mrs. Hannah L. Bowdoin, 86 years of age, died in the hospital in Jersey City kept by one of the claimants, the Sisters of the Poor of St. Francis, on the 9th day of September, 1914. The day before she died, when she was in a feeble condition of body and mind, she gave a check upon her savings bank account with the Provident Institution for Savings of Jersey City for $3,000 to the claimant, the Sisters of the Poor. At the same time she gave a check to her executor and business agent, Mr. Mead for $2,000. Both of these attempted transfers of money are conceded to have been without any legal consideration, or, in other words, must stand, if they stand at all, as pure gifts. The total amount of the deposit, as Mrs. Bowdoin knew, was $5,700, so that if we deduct the amount of these two alleged gifts from that deposit, there was still $700 left which belonged to Mrs. Bowdoin and passed to her executor upon her decease. Mr. Mead has made no attempt to claim anything upon the check for $2,000, which was given to him, but has included that amount in the item of his inventory which exhibits the amount of money which Mrs. Bowdoin's estate owns on deposit with the Provident Institution for Savings.

1. The main question toward which the testimony offered on each side and the arguments of counsel were directed was whether this old lady was competent to make this gift, and in fact knew what she was doing, and made the donation without pressure or undue influence of any kind. I recall a considerable number of weighty considerations on each side of this question. It may be noted in favor of the gift that for all that appears Mrs. Bowdoin had few, if any, relatives dependent upon her; that the gift, or alleged gift, of $3,000 transferred less than an eighth of her estate; that she had been cared for in the hospital of the Sisters of the Poor for some time, and, according to the testimony of her executor and man of business, Mr. Mead, had formed the purpose two or three months before her death of making a suitable donation to the hospital. On the other hand, Mrs. Bowdoin was 86 years of age, and although she talked about making a gift from time to time through a period of some months, she did not take measures to effect such gift until she was in an extremely feeble condition, in fact on her dying bed, the day before her death. Mrs. Bowdoin also was in the custody and under the control of the active agents of the alleged donee, and her memory had greatly failed. The circumstances under which this gift was made, made it the duty of the claimant, the donee, to produce all the testimony obtainable to show that Mrs. Bowdoin was competent to make the gift, and in fact knew what she was doing and acted without undue influence from the agents of the donee. The fact that neither the Mother Superior nor the other Sister who took part in this transaction was produced as a witness has weight against the validity of the alleged gift, although reasons of course may be surmised why these ladies were reluctant to go upon the stand.

I am glad that I am able to avoid the perusal and study of the entire testimony as written out by the stenographer, in order to answer the questions indicated above, because I am satisfied that under our law of gifts, so far as the same has been declared, no gift of the $3,000 in question was effected, assuming that the alleged donor was competent to make the gift and in fact acted intelligently and voluntarily when not subjected to any undue influence. I understand that counsel agree that if this gift was made it was a gift inter vivos and not a gift causa mortis, notwithstanding the fact that the alleged donor was on her dying bed, and if she understood her condition must have known that she had not long to live. Alleged gifts made by old and feeble persons and persons stricken with fatal illness, if valid, often must be classified as gifts inter vivos, nevertheless, being asserted after the death of the alleged donor, they seem to be in many respects in the same category with gifts causa mortis in respect of the safeguards and protective conditions which the law should throw around the transaction. There seems to be as much danger in permitting a person to establish a gift inter vivos to himself by producing a key or a savings bank book obtained from the deathbed of an alleged donor as there is in permitting a person under such circumstances to establish a gift causa mortis.

Under the facts as we are now assuming them to be, there can be no question about the donative purpose of Mrs. Bowdoin in giving to this hospital her check for $3,000. While this check was a gratuity, it was also a recognition of the kindness with which she had been treated, and the evidence shows that she had been contemplating making a gift of some sort to the hospital for over two months before this check was delivered. Whether she failed to make up her mind what she would do as an expression of her gratitude, and postponed the determination of the matter until it was too late, is one of the questions the consideration of which I have avoided.

The narrow question which is now under consideration in this case is whether the delivery of the check with donative purpose, and the delivery of the savings bank book in order to enable the payee to cash the check, effected a complete donation. In other words, was the external form of the gift, or attempted gift, sufficient to pass the legal test? The evidence as to the delivery of the passbook to the representative of the hospital when the check was delivered, or as a part of the same transaction, is meager and is rendered more unsatisfactory because the Mother Superior, who received the check, and the other Sister who was present, were not put on the stand. The same day when the check was given (September 8, 1914) a representative of the hospital presented the passbook and check to the savings bank, and thereupon payment was refused, not necessarily I think absolutely, but for the time being until investigation could be made. An officer of the bank promptly visited Mrs. Bowdoin at the hospital and testified as to her condition. Mrs. Bowdoin, as stated, died the next day before any further efforts had been made to collect the check.

There can be no possible escape, in my opinion, from the conclusion of fact that no gift of the savings bank book as a chattel was made, or intended to be made, by Mrs. Bowdoin. The title to this book as a chattel remained vested in Mrs. Bowdoin until her death, and then passed to her executor. What Mrs. Bowdoin did or intended to do under the facts as we now assume them to be was to give this check for $3,000 to the Mother Superior with intent that it should be cashed for the benefit of the hospital, and to give or permit the Mother Superior to take the savings bank book in order that the bank might honor the check in accordance with its rules. It was conceded at the argument, whether it appears to have been proved in the evidence or not, that the rule of the bank absolutely required the presentation of the passbook with any check on the account.

In the absence of any evidence to show an intention on the part of Mrs. Bowdoin to vest the title in the passbook as a chattel in the contemplated donee, by delivery of the same, the inference that there was no such intention is unavoidable. Mrs. Bowdoin, at the same time when she gave or attempted to give $3,000 of her bank account to the hospital, gave or attempted to give $2,000 of the same bank account to her business agent and executor, Mr. Mead, and also retained $700. The situation would not have been different legally if she had attempted a distribution of $5,000 of this money to 50 different persons in $100 checks, and allowed the donee of the first check to take the passbook. The inference from such a proceeding is absolute that the intention is that the recipients of the checks shall go together or in succession to the bank and have the use of the passbook for cashing their checks, and after that the passbook is to return to its owner. At most in this case the passbook was lent There was a mere bailment.

It is well settled that a gift cannot be effected by the delivery of a check upon an ordinary bank of deposit where the drawer's account is good for the amount. The reason is that until the check is cashed the drawer may stop payment. In such a case the donative purpose may be absolute when the check is given, and ten minutes, or ten hours, or ten days later, at any time before the check has been cashed, such donative purpose may be wholly changed and abrogated. The fundamental principle of the law of gifts is that the gift, to be effective, must place the thing donated beyond the control of the donor. Where a check on a bank of deposit is given for value, it often operates as an equitable assignment, but such is not the case where a check is given to the payee as a pure donation. Hopkinson v. Foster, L. R. 19 Eq. 74; 3 Pom. Eq. (3d Ed.) § 1284. See section 1148, page 2238, note 3; Beaumont v. Ewbank, [1902] 1 Ch. 889; Harris v. Clark, 3 N. Y. 93, 51 Am. Dec. 352.

While the capacity to acquire property in all lawful ways is a right which all men enjoy, in a narrow sense it may be said that no one has any legal right to have an intended or attempted gift to him carried into effect. With an exception so rare that it need not...