Loucks v. Johnson — 53 N.Y. St. Rep. 670

Majority

p. 670

Addison Loucks et al., Adm’rs, Resp’ts, v. Lewis L. Johnson et al., Impl’d, App’lts.

(Supreme Court, General Term, Third Department,

Filed July 8, 1893.)

Headnote

1. Gifts—Causa mortis —Delivery.

Plaintiffs’ intestate, being ill and in expectation of death, personally delivered to one of tlie defendants her savings bank book, and told him that after paying her doctor’s bill and funeral expenses, the balance was to be equally divided between him and the other defendants, and shortly after died of the illness of which she was suffering, without having revoked the gift. Held, that tlie-delivery of the bank book was such a surrender and parting with dominion over the deposit as to constitute a valid gift causa mortis, and vest the possession and title in defendant.

2. Same.

Such gift is not invalidated by the fact that the property was to be divided with others.

Appeal from judgment in favor of plaintiff.

Seymour Van Santvoord, lor app’lts; B. C. Strait (H. W. Mc Clellan, of counsel), for resp’ts.

The plaintiffs, as administrators of Christina an to recover a sum of money on deposit in said bank to the credit, of their intestate.

The defendants were substituted as defendants by an order of ‘ interpleader, and in their answer claimed ownership of the money in the savings bank by reason of a gift causa mortis thereof from said Christina Loucks; judgment was rendered in favor of the: plaintiffs, and from that judgment the defendants appeal to this, court.

We are relieved from the solution of many questions arising out of alleged gifts causa mortis by reason of the findings of fact in this case by the trial court, and which findings seem to be sustained by the evidence.

The trial court found that on about the 17th day of July, 1861,. Christina Loucks deposited a sum of money in the Albany Savings Bank, which, on the 1st day of July, 1891, with its-accumulated interest, amounted to the sum of $988.38.

That on the 15th day of April, 1891, the said Christina Loucks being ill, and in expectation of death, personally delivered and handed over to the defendant, John J. Johnson, the bank book issued to her by the Albany Savings Bank, which bank book showed a then existing balance to her credit; that at the time of delivering said bank book to the defendant Johnson she said to-him that, after the payment of her doctor’s bill and funeral expenses, the balance of the money was to be equally divided between his sister and brother (who are the other defendants in this case) and himself.

The defendant Johnson then and there accepted the gift, and has since retained possession of said bank book.

That Christina Loucks died on or about April 16th, 1891, of the ailment or peril in view of which said gift was made by her, without having revoked said gift.

p. 671

The court further found that in making such delivery of the bank book it was the intention of Christina Loucks to create a valid gift causa mortis of the moneys on deposit in said bank, and that such gift was not made with the intention of defrauding any of her creditors.

To constitute a valid gift causa mortis, the property must be actually delivered; the donor must surrender the possession and dominion thereof to the donee. Ridden v. Thrall, 125 N. Y., 572 — 79 ; 35 St. Rep., 913 .

The delivery of the savings bank book was such a surrender, and parting with dominion, and vested the possession of and title to the money on deposit in the bank in the donee. Id.. 572.

In Young v. Young, 80 N. Y., 428 , and Curry v. Powers, 70 id., 212, the alleged gifts causa mortis were held invalid because the court found there was no parting with the possession of, or title to, the property by the donor.

In this case, as we have seen, there was an actual delivery to the donee, and an acceptance by him of the bank book, so that within the case of Ridden v. Thrall the donor parted with the possession and title to the money on deposit in the savings bank, and. the donee took such possession and title.

The plaintiffs, however, contend that the direction by the donor to divide the property, after the payment of funeral expenses, between himself, his brother and sister, renders the gift invalid; no authority, however, is cited to maintain that contention.

It has been held that a gift causa mortis may be made to one in trust for a third person, Clough v. Clough, 117 Mass., 83 ; Sheedy v. Roach, 124 id., 472; and also that a gift providing for a division of the property between specified persons after the payment of bills and expenses is a 'valid gift causa mortis. Pierce v. Boston Savings Bank, 129 Mass., 425 -440.

Judgment should be reversed and a new trial granted, with costs to abide the event.

Mayham, P. J., and Putnam, J., concur.