Weaver v. Weaver

• Decision Date: 16 October 1899
• Parties: WEAVER v. WEAVER.
• Court: Illinois Supreme Court

182 Ill. 287

55 N.E. 338

WEAVER

v.WEAVER.¹

Supreme Court of Illinois.

Oct. 16, 1899.

Appeal from appellate court, First district.

Interpleader between Fanny F. Weaver and Mary W. Weaver. From a judgment of the appellate court reversing a decree for the former (80 Ill. App. 370), she appeals. Reversed.

Rogers & Mahoney and Frederick A. Willoughby, for appellant.

Holden & Buzzell, for appellee.

WILKIN, J.

The parties to this litigation were interpleaders in the circuit court of Cook county upon the petition of the AEtna Life Insurance Company, each claiming the benefit of a policy of insurance upon the life of Edward L. Weaver, procured December 20, 1882. He died May 9, 1896, leaving appellant, his widow, and appellee, his mother, surviving him. The policy provided that ‘no assignment of this policy shall be valid unless made in writing and attached hereto, and a copy thereof furnished said company; and any claim against this company arising under this policy, made by any assignee, shall be subject to proof of interest.’ On October 8, 1892, about one year after his marriage to appellant, insured went to the office of the company in Chicago, and there filled out in duplicate an assignment to his mother, as follows: ‘For value received, I hereby transfer, assign, and turn over unto Mary W. Weaver, mother, all my right, title, and interest in policy of life insurance No. 35,856, issued by the AEtna Life Insurance Company of Hartford, Conn., and all benefit and advantage to be derived therefrom. Witness my hand and seal at Chicago, state of Illinois, this eighth day of October, 1892. Edward L. Weaver. [Seal.]’ This he acknowledged before a notary public on that day, and left one copy with the agent of the company, and took the other, with the policy, to his home. A short time previous to his death (May 9, 1896) he made another assignment to appellant, one copy of which was attached to the policy and delivered by him to her. The other she caused to be delivered to the company some days after his death. Upon a hearing in the circuit court, a finding and decree were rendered in favor of the wife, which, on appeal to the appellate court for the First district, was reversed for error in the exclusion of evidence, and the cause was remanded for further proceedings. On a second hearing the chancellor again found for the wife, and entered a decree in her favor, but that decree has been reversed by the appellate court, and the cause remanded, with directions to enter a decree in favor of the mother. To reverse that judgment, the wife prosecutes this appeal.

Both assignments are admitted by all parties to have been intended by the assignor as mere gifts. The contention on behalf of the mother, in the circuit and appellate courts and here, is that the assignment to her was a perfected gift, and the power of the insured to thereafter make an assignment of it exhausted; or, as it is sometimes expressed, after that assignment he was no longer in locus poenitentiae. And this position, though overruled by the circuit court, has been sustained by the appellate court. The correctness of the contention depends upon whether or not there was such a delivery of the assignment as to put the control of it and the policy out of the power of the assignor during the remainder of his life. It is conceded, as clearly it must be, that, unless there was such delivery, the gift to the mother was not so perfected inter vivos as to give it validity as against the second assignment; and, on the other hand, it is not denied that, if the first assignment was so far completed as to become a valid and binding gift upon the part of the donor, then the second subsequent gift to the wife is invalid for want of power to make it.

Turning, then, to the vital question in the case, was there a delivery of the assignment of October 8, 1892, to the mother? No controversy is made upon the proposition that an actual, manual delivery was not necessary, but it is admitted by counsel for appellant that a good delivery may be made by acts without words, by words without acts, or by both; that a delivery may be legally made to a third person for the benefit of a grantee, or, as in this case, the assignee. The usual mode of delivery is the mutual transfer from the grantor to the grantee. But it is too well understood to call for the citation of authorities that the declarations and conduct of the grantor in relation to the instrument may be such as to become equivalent to such actual delivery, and in every such case the crucial test is the intent with which the acts or declarations were made, and that intent is to be ascertained from the conduct of the parties, particularly the grantor, and all the surrounding circumstances of the transaction. Weber v. Christen, 121 Ill. 91, 11 N. E. 893. ‘Delivery is by words, acts, or both combined, by which a grantor expresses a present intention to devest himself of title to property described in a proper deed. No particular form of delivery is required. A deed may be manually given by the grantor to the grantee, yet manual delivery is unnecessary. The real test of delivery is this: Did the grantor, by his acts or words, or both, intend to devest himself of title? If so, the deed is delivered.’ 9 Am. & Eng. Enc. Law (2d Ed.) pp. 153, 154, citing Weber v. Christen, supra, and other Illinois decisions to like effect.

In Provart v. Harris, 150 Ill. 40, 36 N. E. 958 (on page 47, 50 Ill., and page 959, 36 N. E.), after citing authorities as to what will constitute a good delivery, we said: ‘While it may not be essential in all cases that the deed should be delivered into the actual possession of the grantee (Gunnell v. Cockerill, 79 Ill. 79), it is indispensable, whatever means may be adopted to accomplish its delivery, that the deed pass beyond the dominion and control of the grantor; for otherwise it cannot be correctly said to come within the power and control of the grantee. Their interests are diametrically opposed. Both cannot, consistently with its objects, have control of the deed at the same time, and, until the grantor parts with all control over it, that of the grantee does not attach. Cases supra. It is absolutely essential that the acts done or words spoken, or both, shall clearly manifest an intention on his part that the deed shall presently become operative to convey the estate therein described to the grantee, and that he has parted with all power of control and dominion over it(Bryan v. Wash, 2 Gilman, 557); for, as we have seen, if the grantor retains dominion and control over it, the deed is ineffectual for any purpose as a conveyance. In Cook v. Brown, 34 N. H. 460, the court, in passing upon this point, there said: ‘To make the delivery good and effectual, the power of dominion over the deed must be parted with. Until then the instrument passes nothing. It is merely ambulatory and gives no title. * * * So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it and can acquire none, and, if the grantor dies without parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it.’ In Prutsman v. Baker, 30 Wis. 644, it was said: ‘To constitute delivery, good for any purpose, the grantor must devest himself of all power and dominion over the deed. * * * An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is that there must be a parting with the possession and of the power and control over the deed by the grantor, for the benefit of the grantee, at the time of delivery.’ While the doctrine announced in these cases has not been universally adopted (1 Devl. Deeds, § 283), it is supported by the great current of authority,'-citing authorities.

In Walter v. Way, 170 Ill. 96, 48 N. E. 421 (on page 99, 170 Ill., and page 421, 48 N. E.), we again said: ‘It has also been said that a delivery may be by acts or words, or by both, or by one without the other. But it is well settled that several things are necessary to constitute a valid...