Augusta Savings Bank v. Fogg , 82 Me. 538 ( 1890 )

Haskell, J.

Bill of interpleader sent up on report to determine the title to a deposit in the Augusta Savings Bank..

It appears that one Hodgkins, now dead, in his lifetime made the deposit in account with Dorothy J. Dearborn, the claimant, or Amos C. Hodgkins, himself; that the deposit was made with the intention that, at his death, it should become the property of the claimant; that the book was not delivered to her until after his decease; that, until his death, it remained in a trunk in Mrs. Paul’s house, where he lived and died, and then was taken by his executor and delivered to the claimant, pursuant to the testator’s direction; that a few days before his death, conscious that his end was near, he called the executor, delivered to him a tin trunk, with directions as to the contents, and the key to the trunk in which the bank book was kept, with directions to give it to his sister after his decease; that his sister, the claimant, did not know of the intended gift to her during his lifetime, nor did the executor, when he received the key to the trunk that contained the book, know that the book was in it; he did not ascertain that fact until after the testator’s death.

The learned counsellors for the claimant set up her claim, “not by reason of any trust, nor of a donatio causé mortis, but of a valid gift inter vivos.”

The evidence shows an intention to give, but not during life. The gift would have been complete upon the delivery of the bank book. The testator retained the possession of it beyond all question, until a few days before he died. He then delivered the key of a trunk containing the book, not to the claimant, nor to any person to be forthwith delivered to her, but to the executor named in his will, for her, “at his decease.” Had he recovered, would the title of the deposit have gone from him? Was the gift complete in his lifetime ?

By giving the evidence the most favorable consideration, of which it is susceptible, in the claimant’s favor, she was only entitled to receive the bank book upon the contingency of the supposed donor’s decease. The end of his life was made a condition precedent to a complete transfer of the deposit to the supposed donee. Even, if the substituted delivery of the key to the trunk could take the place of an actual delivery of the bank book, which is stoutly denied, no gift inter vivos is shown. A gift of that sort must be complete between the living. It cannot be consummated after the death of a supposed donor. Sucb a disposition would be inoperative under the statute of wills. Donatio perficitur possessions accipienlis.

The authorities have been so diligently collected and thoroughly discussed by counsel, that it is unnecessary to cite them anew.

The bank should be allowed its costs from the deposit, and, on payment of the balance to the executor, should be discharged from all liability to both parties on account thereof. No further costs to be allowed.

Decree accordingly.

Peters, C. J., Walton, Virgin, Emery and Foster, JJ., concurred.