Jones v. Weakley , 99 Ala. 441 ( 1892 )

STONE, C. J.

This case was tried by the court without a jury, and presents a single question: Does the testimony prove that the deceased, Nat Jenkins, made a valid, executed gift causa mortis to John H. Jones, the plaintiff, of the money he had on deposit with the First National Bank of Birmingham? There is no material conflict in the testimony.

The First National Bank of Birmingham was a bank of issue, discount and deposit, and was not a savings bank. Nat Jenkins was a colored man, was lying seriously wounded from a railroad disaster; believed he would die of his wounds, and did in fact die therefrom two days afterwards. He had a deposit account with the First National Bank. He had in his possession a pass book, in which was an account with the caption, “Dr. The First National Bank in account with Nat Jenkins, Or.” In this pass book, were items of debit and credit, but the account was not balanced. There was in fact a balance due the depositor of near nine hundred dollars.

Jones was nephew of Jenkins, and was visiting the latter as he lay in the hospital, the effect of his injuries. He gave Jones the key to his box, and requested him to go and bring to him his pass book and other articles. On the next day, and in the presence of witnesses, Jenkins, after stating he was going to die, “handed to plaintiff (Jones) the bank book, keys and papers, and said to him: . . . take this book. I give you this money and all I have got — go and get it. I don’t want the old man, or any of his folks, to have any thing that I have got. All I want is for you to see that I am decently buried.” Jones took possession ef the tendered pass book, keys and papers, and retained them. After Weakley was appointed administrator, he checked the money out of the bank, and this action was brought by Jones to recover the same as so much money had and received for his use.

The general rule is, that to constitute a valid gift, whether inter vivos, or causa mortis, the donor must part with dominion over the thing attempted to be given; must do the act or acts which are, or appear to be, the most pronounced and decisive of the intention to part with possession and control; and the acts must of themselves amount to a parting with the possession and control. Authorities on this question are very abundant, and they cover almost every conceivable phase of the question.—McHugh v. O'Connor, 91 Ala. 243; Dacus v. Streety, 59 Ala. 183; 8 Amer. & Eng. Encyc. of Law, 1341 et seq.; and the numerous authorities cited by counsel.

The direct question presented by this record has been many times considered. A pass-book issued by a savings bank, it is held, rests on a peculiar footing. Such book is the record of the customer’s account, and its production authorizes control of the deposit. Like the key of a locked box, its delivery is treated as a delivery of ■ all it contains. It follows that the delivery in this case, accompanied by the declared intention to give, if the deposit had been in a savings bank, would have been a valid gift causa mortis of the money on deposit, of which it was the evidence. It would furnish the key to the locked Contents. 8 Amer. & Eng. Encyc. of Law, 1824-5; Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425; 37 Amer. Rep. 371; Curtis v. Portland Savings Bank, 77 Me. 151; 52 Amer. Rep. 750; Hill v. Stevenson, 63 Me. 364; 18 Amer. Rep. 231; Camp’s Appeal, 36 Conn. 88.

Not so, however, with the present book. The First National Bank, as we have seen, was a bank of issue, discount and deposit. The money-could be withdrawn from the bank, not by the production of the pass-book, but on the check of the depositor. ' It was not the best delivery available under the circumstances. It did not give dominion 1 and control of the money, the thing- claimed to have been given ; for the money was as subject to check without the production of the book as with it.—Thomas, Aclmr. v. Lewis, 15 S. E. Bep. 389 ; Dole v. Lincoln, 31 Me. 422; Hillebrant v. Brewer, 6 Tex. 45; Noble v. Smith, 2 Johns. 52; Jones v. Brown, 34 N. H. 445; Beak v. Beak, L. R. 13 Eq. Cas. 489; 8 Am. & Eng. Encyc. of Law, p. 1345, note 2.

There is no error in the record.

Affirmed.