The Gammon theological Seminary v. Robbins

• Decision Date: 22 April 1891
• Docket Number: 15,936
• Citation: 27 N.E. 341,128 Ind. 85
• Parties: The Gammon Theological Seminary v. Robbins et al
• Court: Indiana Supreme Court

27 N.E. 341

128 Ind. 85

The Gammon Theological Seminary v. Robbins et al

No 15,936

Supreme Court of Indiana

April 22, 1891

From the Henry Circuit Court.

Judgment affirmed, with costs.

M. E Forkner, for appellant.

A. L Nichols and C. S. Hernley, for appellees.

OPINION

Olds, C. J.

John Robbins, late of Henry county, Indiana, died intestate leaving no widow or children surviving, but leaving remote heirs.

A. R. A. Thompson was appointed administrator of his estate, collected what was due the estate, and filed a final settlement report, showing a balance of $ 571.21 in his hands for distribution, concluding his report with the statement "that the amount shown herein in his hands he pays into court; that the Gammon School of Theology, of Atlanta, Georgia, is claiming the money; that he does not know who is entitled to the money, or who the heirs are, and he therefore pays the same into court for whoever may be entitled to the money."

Among the assets of the estate was a note, dated August 4th, 1887, given by one William J. B. Lather to the decedent for $ 700, borrowed money due in three years, which note was collected by the administrator, and constituted a part of the general funds of the estate, of which there remained the balance as stated.

The appellant filed a petition, making the legal heirs parties, alleging facts which it is claimed constituted the appellant the owner of the note for $ 700 by gift from the decedent during his life, and asked that it be decreed to be the owner of the fund, and that the clerk be ordered to pay the same to it and its board of trustees.

To this petition appellees demurred, and the demurrer was sustained and exceptions reserved. The appellant refused to plead further, final judgment was rendered on demurrer against the appellant, from which judgment it appeals, and assigns such ruling as error.

The question presented by the demurrer and discussed by counsel is as to whether or not, under the facts alleged, the title to the note, or the proceeds thereof, passed to the appellant by gift from Robbins.

On the 14th day of September, 1887, Robbins executed and delivered to one Rev. James C. Murray, the duly authorized agent of the board of trustees of the plaintiff, a written instrument, of which the following is a copy:

"State of Indiana, Henry County, ss.:

"I, John Robbins, of the county and State aforesaid, hereby give to the trustees of the Gammon School of Theology, situated at the city of Atlanta, State of Georgia, organized (or to be organized) under the laws of the said State of Georgia, and under the control and management of the Freedmen's Aid Society of the Methodist Episcopal Church, the principal of a note for seven hundred dollars ($ 700), dated August 4th, 1887, due three years after date, and signed by W. J. B. Lather, in trust for the endowment of a perpetual scholarship in said Gammon School of Theology, to be known as the John Robbins Scholarship; said sum of seven hundred dollars to be given in trust to the said trustees when the said note falls due, on the 4th day of August, 1890, and to be by them invested according to their best judgment, and the income to be devoted each year to the support of a student in the said Gammon School of Theology, under the direction of the faculty of the same.

"In testimony whereof I have hereunto set my hand and affixed my seal this 14th day of September, in the year of our Lord, one thousand eight hundred and eighty-seven.

"John Robbins. Seal. his mark."

This writing was attested by two witnesses, and acknowledged before a justice of the peace.

The note was retained by Robbins, and never was delivered. The question presented is as to whether or not the execution of this writing perfected the gift and transferred the title to the principal of the note without a delivery of the note.

The universal rule is, that there must be a delivery of the article during the lifetime of the donor to constitute a valid gift inter vivos.

In the case of Smith v. Dorsey, 38 Ind. 451, this court said: "To constitute a valid gift inter vivos it is essential that the article given should be delivered absolutely and unconditionally. The gift must take effect at once and completely, and when it is made perfect and complete by delivery and acceptance, it then becomes irrevocable by the donor. Gifts inter vivos have no reference to the future, but go into immediate and absolute effect. A court of equity will not interfere and give effect to a gift that is inchoate and incomplete."

It is contended that this instrument does make an absolute gift and transfer of the promissory note, and it being declared in writing, and the writing being delivered, it operated to pass the title to the property; that a promissory note may be transferred either by an endorsement upon the note or by a separate written instrument.

Admitting this to be true in case of a sale and transfer for value of a promissory note, it has no such application in case of a gift. One may make a valid parol contract for the sale of personal property under fifty dollars in value without delivering the property, or the payment of any earnest money, or reducing it to writing, but to constitute a valid gift inter vivos of personal property, even though it be under fifty dollars in value, the property must be delivered. In case of a gift the same principle applies whether the property be of great or small value. A party may make a valid sale or gift of a note by delivery without endorsement so as to transfer the equitable title.

If in this case Robbins had endorsed the note on the back to the appellant, and retained the note, the gift would be incomplete; it would lack the element of delivery to make it valid. One can not make a valid gift of a horse or a promissory note by saying, "I give the horse or the note to A." It lacks the element of delivery to make it a valid gift.

The well-settled rule is that there must be a delivery of the property, with an intention to give. Delivery is absolutely necessary to the validity of a gift.

The owner must part with his dominion and control of the article before the gift takes effect; mere words alone convey no title, and a present gift must be intended; the donor must intend to part with the title and control of the thing at the time of making the gift. A gift to take effect in the future is void. While a delivery is absolutely necessary to the validity of a gift, yet it is not necessary that there should always be a manual delivery of the thing given. It will be sufficient if the delivery be as complete as the thing and the circumstances of the parties will permit. If the article given be too bulky to admit of a manual delivery, but there is a surrender of the possession and control by the donor to the donee, with a clear expression of the intention of the donor to give, and the donee accepts the gift, and assumes control of the property, it will be sufficient. In case of a gift of an article of personal property by the father to his...