Trubey v. Pease

Mr. Presiding Justice Adams

delivered the opinion of the court.

The facts disclosed by the evidence are few and simple. Mrs. Trubey was advised by Mr. Pease, her attorney, as he testified, that such gifts as she proposed to make must be delivered to the persons for whom they were intended. March 15, 1905, she turned the property intended as gifts over to Mr. Pease, giving him, at the same time, the names and addresses of the persons for whom it was intended, and directed Tiim to deliver the property to the persons named. Mr. Pease did not communicate with any of the persons whose addresses he had, nor did he deliver any of the intended gifts, and, June 3, 1905, Mrs. Trubey died.

The property has remained in Mr. Pease’s possession from the time it was turned over to him by Mrs. Trubey until the present time.

It is elementary law that delivery to the donee is essential to a valid gift. 2 Cooley’s Blackstone, 441; 1 Chitty on Contracts, 11 Am. ed. 60; 1 Parsons on Contracts, 234; 2 Kent’s Commentaries, 438; 1 Beach on Mod. Law of Contracts, 203; Barnnm v. Reed, 136 Ill. 388, 398; Telford v. Patton, 144 ib. 611, 619; Williams v. Chamberlain, 165 ib. 210, 218.

In Barnnm v. Beed the court say: “To constitute a valid gift inter vivos possession and title must pass to and rest in the donee irrevocably. In this respect, alone, a gift causa mortis differs from that of a gift inter vivos, as in the case of the former it is revocable on the recovery of the donor.”

In Telford v. Patton, supra, this language is used: “It is essential to a donation inter vivos, that the gift be absolute and irrevocable, that the giver part with all present and future dominion over the property given, that the gift go into effect at once and not at some future time, that there be a delivery of the thing given to the donee, that there be ‘such a change of possession as to put it out of the power of the giver to repossess himself of the thing given.’”

The law is the same in other jurisdictions. In Williams v. Chamberlain, supra, the court say: “It is not intended by anything said in the Otto-Beckwith case to change the rule, which we regard as settled law, that it is necessary to the validity of all gifts, whether inter vivos or causa mortis, that there be delivery of the subject of the gift or acts equivalent to a delivery.” Citing numerous authorities.'

Mrs. Trubey delivered to Mr. Pease the intended gifts, and directed him to deliver them to the persons whose names and addresses she gave to him, thereby constituting him her agent for the purpose of delivery to said persons.

In Jennings v. Neville, 180 Ill. 270, 277, the court say: “Delivery to the agent of the donor, to be by such agent delivered to the donee, is not effectual if the donor dies before the agent has carried out his instructions, as the death of the principal revokes the authority of the agent.” In that case there were peculiar circumstances distinguishing it from the present case. Joseph Jennings was the owner of a promissory note, and prior to his death, and while the note was in the custody of one Hamilton, he told Hamilton that he wanted to give the note to his son Wilford, and, by his direction, Hamilton wrote an assignment of the note to Wilford, which Joseph Jennings signed, and told Hamilton to hold the note for Wilford, and, subsequently, during the life of Joseph,Hamilton collected the annual interest on the note for two years, and paid the same to Wilford. Hamilton did business for both Joseph and his son, Wilford, and was entrusted with papers by each of them, and was therefore agent for each of them. Held, that Hamilton’s possession of the note was the possession of Wilford Jennings, his principal. “Where delivery is made to a third party, in order that the latter may deliver the subject of the gift to the donee, as agent of the donor, the gift is not complete until there is actual delivery to the donee; and until the gift is completed by delivery, the donor can revoke the agent’s authority and resume possession of the gift.” Telford v. Patton, 144 Ill. 611, 623; Sessions v. Moseley, 4 Cush. 87, 92; Thornton on Gifts, secs. 31 and 32.

Appellee’s counsel contend that Mrs. Trubey lost all control and dominion over the property when she delivered it to Mr. Pease. We fail to see how the case differs in this respect from any case in which the owner of property, intending to give it to another delivers it to an agent, with direction to deliver it to the person intended. The agent, in every such case, necessarily takes the property into his possession, and it is his duty carefully to preserve it till he can deliver it. It is contrary to the well settled law that on the agent taking possession of the property, for the purpose of delivery as directed, his principal loses control over it.

Appellee’s counsel also urge that it was Mrs. Trubey’s clear intention that the persons named as donees should have the property, and contend that Mr. Pease was a trustee for their use. Mrs. Trubey, without doubt, intended that Mrs. Peters, Mrs. Pfuhl and Mrs. Richardson should have the property; but while the intention to give is essential to a valid gift, delivery is absolutely essential. In Telford v. Patton, supra, it is said: “The intention to give is often established by most satisfactory evidence, although the gift fails. Instruments may be ever so formally executed by the donor purporting to transfer title to the donee, or there may be the most explicit declaration of an intention to give, yet, unless there is delivery, the intention is defeated.”

In Williams v. Chamberlain, supra, the court say: “The intention, without accompanying acts, avails nothing.” P. 217.

In Telford v. Patton, 144 Ill. 611, there was no actual delivery to Patton, who claimed as donee; but she claimed that Telford delivered the money to' the bank as trustee for her, in regard to which claim .the court say: “In the absence of any proof of declarations made by Telford to the bank, and in the absence of any proof as to his intentions in obtaining the certificate, it cannot be said that he was ever wholly divested of control and dominion over the deposit so long as the certificate remained in his possession.”

In Williams v. Chamberlain, supra, it was claimed that Williams, the alleged donor, created a trust in favor of Chamberlain. The court said of the claim: “Nor does the evidence show that Williams created a trust or constituted himself the trustee of the petitioners, and so held possession of the policies for them. That he might have done so is beside the question. It is sufficient that he did not do so, and we find no evidence in the record that he made the attempt. From a mere imperfect gift a trust cannot be deduced.”

In this case Mrs. Trabey declared no trust, nor did she use any language which can be construed as making Mr. Pease a trustee for the use of the intended donees.

The court did not err in overruling appellant’s motion to open the cause to admit additional evidence. ' In conclusion, we cannot refrain from expressing regret that Mrs. Trubey’s intention was not carried into effect. This, however, is the moral aspect of the question, and we are limited to consideration of the strict legal rights of the parties, and are not unmindful that hard cases make bad law. The judgment of the Circuit Court will be reversed and judgment will be entered here, and the judgment heretofore rendered, remanding the cause, will he vacated and set aside. Reversed cmd judgment here.