Noble v. Garden

This action was brought to obtain a decree that twenty-nine shares of the capital stock of the San Joaquin Valley Building and Loan Association is the property of the estate of Deborah H. Lee, deceased. Findings were filed upon which judgment was entered for defendants. This appeal is from the judgment on the judgment-roll and a bill of exceptions.

The question is as to whether or not the title to the property in controversy passed by a gift causa mortis during the last illness of deceased. The facts are substantially as follows: On October, 1892, deceased was ill, suffering from a paralytic stroke, and under the care of a nurse and physician. She sent for Arthur M. Noble, told him that she had about fifteen thousand dollars in moriey, and wanted his advice as to what was best “for her to do so as to produce her some income and still have control of it while she lived.” Noble advised her to take stock in the San Joaquin Valley Building

Among the certificates were Nos. 467, 468, and 481, being those in controversy, 481 being for twenty-five shares of the capital stock, and 467 and 468 for ten shares each. On the back of certificate 481 was the following writing: “For valuable consideration I do hereby transfer and set over unto Clara D. L. Garden 25 shares of the stock of the San Joaquin Valley Building and Loan Association standing in my name as per the books of the corporation. Certificate No. 481, issued October 17, 1902. Witness my hand this 17th day of October, 1902.’’ The same being duly signed by deceased and witnessed. The certificate also contained the clause: “No transfer shall be valid unless the passbook of the shareholder transferring is also surrendered, and the association is not bound except for the value of the shares as shown by the pass

In the early part of February, 1903, Noble took all the certificates and went to see deceased, who was still bedridden and rapidly failing. He then at her request paid her the accrued dividends oh the entire stock ($159), and she surrendered and had canceled two of the certificates, one for one hundred dollars and and the other for one thousand dollars, and received the money therefor. She handed the remaining certificates back to Noble and asked him to keep them safely for her, and in case of her death to deliver them to the persons to whom they were respectively assigned.

On March 12, 1903, deceased died, without having revoked said assignments or any of them. The certificates were then in the safe in the possession of Noble, who afterwards delivered them to the parties named in the respective assignments.

Gifts donatio mortis causa had their origin in the civil law, and were adopted with slight modifications into the common law. (Ward v Turner, 2 Ves. Sr. 431.)

Justinian defines a donatio mortis causa as “that which is made to meet the case of death, as where anything is given upon condition that, if any fatal accident befalls the donor, the person to whom it is given shall have it as his own; but if the donor should survive, or if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given.”

It was much doubted by the early jurists whether such disposition of property should be considered as a gift or as a legacy. In some respects it is similar to a legacy. A legacy is always given in view of the possible death of the donor, and so must a gift causa mortis be given; but in the former case the donor need not be sick and in present peril of death, while in case of the latter it must be given in anticipation of a speedy death from a present sickness or impending peril. In either case the absolute tide to the property does not become vested in the donee, and in either case the gift or legacy may be revoked at any time before the death of the donor.

In the early case of Ward v. Turner, 2 Ves. Sr. 431, it was held that an actual delivery is indispensable to vest the property, if the subject-matter is capable of delivery. The lord chancellor traces the rule in its early stages and concludes: “Therefore from the authority of Swinburne, and all these eases the consequence is, that by the civil law, as received and allowed in England, tradition or delivery is necessary to make a good donation mortis causa.”

In Keniston v. Sceva, 54 N. H. 36 , the court said: “The essential requisites of a valid gift causa mortis are well known and perfectly understood. They have in no respect changed since they were established and declared by the civil law, except in this particular, that under the civil law delivery of the property was not absolutely essential to the validity of the gift—an element which, in our law, cannot be dispensed with. (Sander’s Justinian, 228, 229; 1 Williams on Executors and Administrators, pt. 2, b. 2, ch. 2, sec. 4, p. 544; 1 Story’s Equity Jurisprudence, sec. 607a; Smith v. Kittridge, 21 Vt. 244 .)”

In Basket v. Hassell, 107 U. S. 602 , the question is elaborately discussed and the authorities collected. The supreme court of the United States there said: “If the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will. . . . But there must be delivery of possession. The contract must have been executed. The thing given must be put into the hands of the donee, or placed within his power by delivery of the means of obtaining it. . . . Without delivery the transaction is not valid as an exe

It follows that the judgment should be reversed.

Gray, C., and Harrison, C., concurred.

For the reasons given in the foregoing opinion the judgment is reversed. Angellotti, J., Shaw, J., Van Dyke, J.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank.