Tucker v. Tucker

• Court: Iowa Supreme Court
• Writing for the Court: LADD
• Citation: Tucker v. Tucker, 138 Iowa 344, 116 N.W. 119 (Iowa 1908)
• Decision Date: 05 May 1908
• Parties: TUCKER v. TUCKER (TWO CASES).

138 Iowa 344

116 N.W. 119

TUCKER

v.TUCKER (TWO CASES).

Supreme Court of Iowa.

May 5, 1908.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Each action was for the recovery of the possession of a certificate of deposit. In the last, six shares of bank stock also were claimed. In each a verdict was directed for the plaintiff therein, and judgments entered accordingly. The defendant appeals. Affirmed.Charles W. Kepler & Son, for appellant.

Voris & Haas, for appellee.

LADD, C. J.

A. C. Tucker died testate May 15, 1906, leaving a widow, the executrix, and two sons, the respective plaintiffs, children by a former wife. On January11, 1905, he deposited in the Coggon State Bank the sum of $4,500, and a like sum March 9th of the same year, receiving certificates of deposit from the bank bearing interest at the rate of 5 per cent. per annum upon return after the lapse of a year. The cashier testified that about the middle of November, 1905, at deceased's request, he called at his house and wrote across the back of the certificates first mentioned, “Pay to George F. Tucker,” and on the back of the last, “Pay to John A. Tucker,” and signed each indorsement. As George was then in Colorado, he handed the one indorsed to him to John A. Tucker, with the request that the latter take care of it for his brother, and John then placed it in a safety box in the bank, where it remained until January 10, 1906, when A. C. Tucker removed it therefrom, and, in order to draw the interest thereon, surrendered it to the bank, which issued another, which was placed in the safety box, where it remained until his death. The certificate of January 10, 1906, was in words following: “The Coggon State Bank, Coggon, Iowa, Jan. 11, 1906. $4,500.00. No. 5,702. This certifies that there has been deposited in this bank forty-five hundred dollars, payable to the order of A. C. Tucker, or to George F. Tucker in case of death of A. C. Tucker, on the return of this certificate properly indorsed twelve months after date, with interest at 5 per cent. per annum. Interest to cease at maturity. N. B. Richardson, Cashier.” George was advised of this a couple of days later. The cashier also testified that at the same time deceased handed the certificate dated March 9th previous to John, saying that it belonged to him, and he also assigned to him six shares of stock in the bank, with authority to transfer on its books, and handed all these to John, who placed both the certificate of deposit and the certificate of shares in the safety box; that in passing the above papers deceased reserved to himself the interest on the two certificates and the dividends on the stock, stating that the principals were the boys'; that on March 9, 1906, deceased withdrew the certificate of deposit of that date a year before, and surrendered it in order to obtain the interest. Thereupon the bank issued another like it, save that it bore the above date, and after deceased had indorsed it, “Pay to the order of John A. Tucker,” it was placed in the safety box. Some months after the certificates first issued were surrendered, in order to aid the bank in keeping its records, John wrote his name on that claimed to have been given him, and the name of George on that held for him. The cashier farther testified that deceased had stated to him upon making the deposits that as he had acquired the money through their mother, he wished the money to go to his sons, and at the time the certificates were turned over to John he had said to the cashier that he wanted them to belong to the boys. The safety box had been assigned to deceased and a key thereto given him, because a director of the bank, but he had shared its use for several years with his son John. Upon his death these certificates, with some gold, were found in the box, the key to which was found on the person of deceased. There was testimony tending to show that he had procured the key of John a few days previous, and that shortly before he died he requested him to take it from his pocket, though this was in dispute. On this evidence the court directed a verdict for the plaintiff in each case.

Appellant insists that the issues should have been submitted to the jury. As only the cashier, John, and the deceased were present at the alleged delivery, there was no way to controvert the testimony of the cashier except by the circumstances and any inherent improbability of his story, for, as death had closed the mouth of deceased, the law had that of John. The cashier's testimony of the deceased's intention to make the gifts was strongly confirmed by the indorsements of the assignment on the back of the certificates and by the manner of the renewals, and was not contradicted by any circumstance in the case. So, too, was his statement with respect to the reservation of the income corroborated by the forms of the renewals, as these indicate a purpose to enable the sons to hold the principals. The use of the box by John may not have been extensive, but he had had papers in it with the consent of his father, and, besides, if the gifts had been completed, the certificates might have been left with deceased for safekeeping without impairing the title of the sons. The mere fact that the key to the box was found on the person of deceased is not of much significance under the circumstances, especially as he had procured it of John but a few days previous. No evidence inconsistent with the theory of gift was introduced, and, in so far as appears, the cashier was a disinterested witness. We are of the opinion that no other conclusion properly could have been drawn from the evidence than that the certificates of deposit and shares had been delivered, and therefore that the cases were rightly withdrawn from the jury.

2. To constitute a valid gift inter vivos, the intention to make it must be satisfactorily established, and this intention must have been executed by actual, constructive, or symbolical delivery of the thing proposed to be given without power of revocation. In other words, there is no gift until the intention of giving is fully consummated by the donor transferring all right to and dominion over the thing given to the donee. In re Brown's Estate, 113 Iowa, 351, 85 N. W. 617;Furenes v. Eide, 109 Iowa, 511, 80 N. W. 539, 77 Am. St. Rep. 545. This rule applies to choses in action duly assigned, and gifts of funds on deposit in banks, whether representedby passbook...