Smythe v. Sanders

• Decision Date: 29 September 1924
• Docket Number: 24159
• Citation: 101 So. 435,136 Miss. 382
• Court: Mississippi Supreme Court
• Parties: SMYTHE et al. v. SANDERS. [*]

101 So. 435

136 Miss. 382

SMYTHE et al. v. SANDERS. ^[*]

No. 24159

Supreme Court of Mississippi

September 29, 1924

Division B

Suggestion of Error Overruled Oct. 27, 1924.

APPEAL from chancery court of Attala county, HON. T. P. GUYTON Chancellor.

Suit by Mrs. Pauline Sanders against J. G. Smythe and others. From a decree overruling demurrer to complaint, defendants appeal. Reversed, demurrer sustained, and cause remanded.

Decree reversed, demurrer sustained, and cause remanded.

J. G Smythe and May, Sanders & McLaurin, for appellant.

It is elemental that to sustain a gift either inter vivos or causa mortis there must be a legal delivery of the thing given, and it has been universally held that the delivery of a check or a bank book which evidences the credit the donor had in the bank of deposit and discount is not such a delivery. 3 R. C. L. 927; 12 R. C. L. 945; Sullivan v. Sullivan, 7 L. R. A. (N. S.) 156; Myer v. Myer, 106 Miss. 638; Kingsburg, et al. v. Gastrell's Estate, 110 Miss. 96.

It is not charged in the amended bill that appellee was being paid for services rendered by her to her uncle, and in fact, the probated account sworn to by Mrs. Sanders and a part of the amended bill expressly states that it was a gift in recognition of her services to him and: "In recognition of her rights thereto in preference to others." The amended bill does not charge that the appellee is seeking to recover remuneration for her services. At best it only states that she rendered services to her uncle and that he attempted to make her a gift of two thousand dollars because of such services and because of relationship, and to right a wrong. It does not charge that the services were worth two thousand dollars or any sum approaching two thousand dollars. In fact, it does not charge that the services had any value at all, but the bill clearly seeks to make effectual a gift clearly and distinctly pleaded as a gift because she might have been entitled to pay for her services had she probated an account for such.

It is held by this court in Hoyle v. Smith, 113 Miss. 729, that before a claim for personal services should be allowed against the estate of decedent, there must have been either an express or implied contract to pay for such services.

J. D. Guyton, for appellee.

If it were true that the check in litigation is a gift pure and simple--a mere gratuity--then, under the authority of Woods v. Sturges, 116 Miss. 412, this court would likely hold, in common with most of the other courts of this country and England, that appellee has no case. But, the bill as amended in this case, shows that the "gift" of this check is not a mere gratuity; and "thereby hangs a tale." Every case must stand on its own facts. The general rule in regard to gifts of checks is stated in 28 C. J., sec. 130, pages 700, 701.

It is the special circumstances in the case at bar that make this case an exception to the general rule. There was the desire on the part of Mr. Portwood to right a wrong done Mrs. Sanders when he prevented his sister and her aunt who raised her, Mrs. Winters, from leaving Mrs. Sanders her estate a few years before by means of which Mr. Portwood was materially benefited and she was materially injured. Then there was the desire on the part of Mr. Portwood to remunerate Mrs. Sanders for the arduous and menial services she so generously rendered him in his last days. A court of equity is not so cold that it must be utterly bound by some inelastic general rule. It is the exceptions which prove the rule. Will this court commend Mr. Portwood for his act of repentance, this manifestation of his spirit of generosity and justice, and then say to him that your effort is in vain because is violates one of our general rules: especially when, as in this case, where the intention is clear and free from doubt, and where no specific bequest would be thereby denied or modified and no creditor would be denied his rights in whole or in part.

Notwithstanding the general rule mentioned, and the reasons given therefor, we find among the many cases on the subject of gifts, decisions that sustain checks as the subject of gifts although the checks were not cashed or accepted by the bank before death of the donor and although the bank knew of the death of the donor. One of the best considered and reasoned cases on this point is that of Elgin v. Gross-Kelly (N. M.), 150 P. 922, which is quoted at length in footnote in 7 C. J. 702, 703, and 704. It is here clearly shown by the authorities that where a check is given for a valuable consideration, it is then coupled with an interest, and death does not revoke it. This check can be sued on as could a note. It is further clearly shown that this provision of the negotiable instrument law is for the protection of the paying bank. In the case at bar, the check is given for a valuable consideration--services rendered--and the paying bank has waived whatever right it may have had to refuse payment when it accepted the check, and gave the drawee a deposit slip therefor. See, too, Estate of S. S. Taylor, deceased (Pa.), 18 L. R. A. 855; Rolls v. Pearce, L. R. 5 Ch. Div. 730, 46 L. J. Ch. 791; Estate of J. W. Collins Finney v. Attorney General, 36 Wash. 236, 78 P. 927, 68 L. R. A. 119; Annotated Note in 20 A. L. R. 177. In Carter v. Greenway, 238 S.W. 65, the Arkansas court sustains the delivery of a check as a good gift. In that case two checks were given, and both consumed the deposit of the maker.

Maine recognizes the general rule and is classed as adhering to the majority rule, yet, in Whithouse v. Whitehouse, 90 Me. 468, the court held the check delivered in that case to a third party for another was good though not even delivered until after death, there being a consideration to support the check--promise of marriage.

Minnesota recognizes the general rule, but in Varley v. Sims, 100 Miss. 331, a check was held good where delivered to a third party for another and being for the whole of the deposit. See, also, 1 Beach on Contracts, secs. 653 to 657, inclusive; Matter of Todd, 95 N.Y.S. 211; Lasher v. McDermott, 141 N.Y.S. 574; Wallace v. Schaud, 81 Md. 594, 32 A. 324; Graham v. Rapp, 105. Mo.App. 590, 80 S.W. 42; Snyder v. Guthrie, 192 Iowa 624, reported in 24 A. L. R. 950, and note following on page 962.

OPINION

SYKES, P.J.

This cause presents an appeal from a decree of the chancery court overruling the demurrer of appellants to the amended bill of complaint of appellee, and is here granted to settle the principles of the cause. The material averments of the bill are:

That Thomas J. Portwood died at the residence of the complainant who was a niece of Portwood, leaving a last will and testament under which appellants Smythe and Winters are named as executors. That complainant is one of the beneficiaries named in the will. Complainant was reared by her aunt, Mrs. Winters, who died intestate. Mrs. Winters was a sister of Portwood. That Mrs. Winters had no children, and looked upon this complainant as her child, and expected and desired to devise and bequeath her property to the complainant, but was prevented from so doing by the objection of Portwood. That Portwood for some years prior to his death was in feeble health, and lived near complainant, and was frequently visited, waited on, and cared for by complainant. That after the death of his sister, with whom Portwood lived, he lived alone until about two weeks before his death, when he became so helpless that in order to be better cared for he moved to the home of complainant, and there remained until his death, during which time complainant waited on him and nursed him, being prompted in doing so by the natural love she had for him and he in return had for complainant. That none of his other relatives came about him or nursed him. That...