Telford v. Patton

• Decision Date: 03 November 1892
• Citation: 144 Ill. 611,33 N.E. 1119
• Parties: TELFORD v. PATTON.
• Court: Illinois Supreme Court

144 Ill. 611

33 N.E. 1119

TELFORD

v.PATTON.¹

Supreme Court of Illinois.

Nov. 3, 1892.

Appeal from appellate court, fourth district.

Replevin by Livonia J. Patton against Matthew Telford to recover a certificate of deposit. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Reversed.Albert Watson and George B. Leonard, for appellant.

F. F. Noleman and Casey & Dwight, for appellee.

The other facts fully appear in the following statement by MAGRUDER, J.:

This is an action of replevin begun on January 14, 1891, in the circuit court of Jefferson county by the appellee against the appellant, who is the administrator of the estate of Samuel Telford, deceased, to recover the possession of the certificate of deposit hereafter described. The declaration contains four counts, two of which are in trover. The pleas are non cepit, non detinet, not guilty, and special pleas alleging property in Samuel Telford at the time of his death, and in his said administrator since his death; the certificate was placed in the hands of the clerk of the court, to be held subject to the order of the court. The case was tried before a jury, who found the issues for the plaintiff, and that the right of possession of the certificate and of property was in the plaintiff. By the judgment of the circuit court, which has been affirmed by the appellate court, the clerk was ordered to deliver the certificate to the plaintiff. The case is brought here by appeal from the appellate court.

The certificate in question is as follows: ‘First National Bank of Springfield, Mo. May 1st, 1889. L. J. Patton has deposited in this bank $2,600.00, payable to the order of himself, in current funds, on return of this certificate, one year after date, with six per cent. interest for the time specified, and no longer. A. J. Clements, Cashier. No. 2,603.’ The proof tends to show that on May 1, 1889, said Samuel Telford deposited $2,600 of his own money in said bank, and received therefor said certificate; that on January 15, 1890, said Samuel Telford died intestate at Eureka Springs, Ark., a bachelor, [144 Ill. 614]and 65 years old; that this certificate, so far as is known, never left his possession from the day of its date to the day of his death, and was found, together with other certificates of deposit issued to him in his own name, aggregating over $12,000, and some notes, mortgages, etc., in a pocket book taken from the inside pocket of a vest which he wore when he died; that he never communicated to the bank officers or to any other person any facts concerning said certificate, or his intentions in relation thereto; that he never wrote or spoke to appellee about it, and that she had no knowledge of its existence until after his death; that he was one of a family of 8 or 9 children, who lived in Marion county and the adjoining counties, and had at one time acted for 3 or 4 years as deputy sheriff of Marion county; that he was a peculiar man, living most of the time away from his relatives, economical, reticent, and so secretive that even his most intimate friends knew nothing about his business or affairs; that he had known appellee, now over 48 years old, from her girlhood; that for 20 years before his death he visited her, wrote to her when he was away from her, sent her his photograph, paid no attentions to any other woman, she receiving no attention from any other man, though there is nothing to show that any engagement of marriage ever existed between them; that his effects at the time of his decease amounted to about $27,000, including said certificate; that a few days before his death he was observed to ‘sign or indorse some papers-bank papers of some kind,’ saying that he was doing so in order that the money might be drawn without the appointment of an administrator, but he made no indorsement or memorandum of any kind upon the certificate in question; that he kept a daily expense account, and made annual statements of his assets, investments, gains, and expenses, etc.; that about two weeks before his death he made such a statement, found in his pocketbook, showing that he was worth $27,140.46; that amount corresponding with the notes, certificates, money, etc., found in his room by including the amount of the certificate therein. The proof also tends to show that the appellee herein has a brother named Lewis, J. Patton living in Kansas. This brother, however, testifies that he is not the L. J. Patton referred to in the certificate; that he never made a deposit in said bank; that he never had any business with deceased, and makes no claim to the money. The appellee, Livonia J. Patton, claims that she is the person referred to in the certificate, although it recites that it is payable to the order of ‘himself’ and not ‘herself.’ The cashier of the bank, who testifies that he kept the books, and that deceased had $10,000 on deposit on May 1, 1889, and $5,000 when he died, says: ‘The money cannot be drawn on the certificate from the bank without its presentation indorsed by the party in whose favor it is issued. I do not know who made the deposit, but think it was one Samuel Telford, from evidence obtained since the deposit was made, and since the death of the party. It is customary to obtain signature of depositors when deposit is made. We have no signature of L. J. Patton. Have no knowledge of or acquaintance with L. J. Patton, * * * for our bank had no dealings with or knowledge of Miss Livinia J. Patton before the death of Samuel Telford.’

Upon the trial the court refused all the instructions asked by both plaintiff and defendant, and gave one of his own motion, the third paragraph of which is as follows: ‘If you believe from a preponderance of the evidence that Samuel Telford, on the 1st day of May, 1889, deposited in the First National Bank of Springfield, Mo., the sum of $2,600 in the name of and for the use and benefit of the plaintiff, and received from the bank a certificate of deposit, payable to the plaintiff, then such money and the certificate representing it would be the property of the plaintiff, and she would be entitled to recover the possession of such certificate after demand.’

MAGRUDER, J., (after stating the facts.)

The questions of law in the case are raised by the third paragraph of the instruction given by the court. There are no material facts in the record, except those in the statement preceding this opinion, which explain the reason why Samuel Telford procured the certificate to be issued in the name of L. J. Patton, or which tend in any way to solve the question whether the certificate belongs to the appellee or to the administrator of the deceased. The certificate of deposit may be considered either as a promissory note or as the written evidence of a deposit, like a bank pass book or deposit book. We have decided that a certificate of deposit, such as the one above set forth, is ‘in fact and in law a promissory note for the payment of money.’ Bank v. Farnsworth, 18 Ill. 563;Laughlin v. Marshall, 19 Ill. 390; Hunt v. Divine, 37 Ill. 137. A promissory note is not the subject of disposal as a gift, either inter vivos or mortis causa, unless there is an actual delivery of it. Blanchard v. Williamson, 70 Ill. 647;Badgley v. Votrain, 68 Ill. 25;Bank v. Strang, 72 Ill. 559. Here, if it be conceded that the note or certificate was payable to the order of appellee, there was no actual delivery of it to her. It never passed out of the possession of Samuel Telford, and was found upon his person when he died. Title in appellee cannot be supported upon the theory that there was a gift causa mortis. There are three requisites necessary to constitute a donatio causa mortis: (1) The gift must be with a view to the donor's death; (2) it must have been made to take effect only in the event of the donor's death by his existing disorder; (3) there must be an actual delivery of the subject of the donation. 1 Story, Eq. Jur. 607a; Kenistons v. Sceva, 54 N. H. 24;Roberts v. Draper, 18 Ill. App. 167;Barner v. People, 25 Ill. App. 136;Ridden v. Thrall, 125 N. Y. 572, 26 N. E. Rep. 627. The deposit was made and the certificate was issued on May 1, 1889, and if there was any deliver, either constructive or in trust, for the benefit of appellee, it must have taken place at that time. There is, however, no proof tending to show that the deceased was then under the apprehension of death from any existing disease or other impending peril. He lived for more than eight months thereafter, and the record is barren of any evidence whatever that the certificate was to be operative only in the event of his death from a disorder existing when the deposit was made. It follows that there are lacking the first and second requisites of a gift causa mortis.

Was there a gift intervivos? It is essential to a donation intervivos that a gift be absolute and irrevocable; that the giver part with all present and future dominion over the property given; that the gift go into effect at once, and not at some future time; that there be a delivery of the thing given to the donee; that there be ‘such a change of possession as to put it out of the power of the giver to repossess himself of the thing given.’ Pars. Cont. marg. p. 234; Dole v. Lincoln, 31 Me. 422; Robinson v. Ring, 72 Me. 140; Northrop v. Hale, 73 Me. 66; Grover v. Grover, 24 Pick. 261. The delivery must be made with the intent to vest the title in the donee. Jackson v. Railway Co., 88 N. Y. 520. As a verbal gift is an executed contract, delivery of the subject-matter of the gift is of the essence of the title. Grover v. Grover, supra; Wilson v. Keller, 9 Ill. App. 347. The delivery may be constructive, as of a key, or of a part for the whole. 1 Pars. Cont. 234. The delivery may be to a third person for the benefit of the donee instead of being made directly to the donee himself.Dole v. Lincoln, supra; Barnes v. People, supra. It has been held in some ca...