DocketNumber: Appeal, No. 369
Judges: Frazer, Kephart, Sadler, Schaefer, Schapper, Simpson, Walling
Filed Date: 6/24/1922
Status: Precedential
Modified Date: 10/19/2024
Opinion by
W. E. Campbell, out of the distribution of whose estate the present controversy arises, died December 18, 1918, leaving a will, bequeathing all his property to a daughter, Ruth C. Bryson. On December 5, 1918, being sick in Pittsburgh with the illness from which he subsequently died, he asked a friend named Richards, who had called
The evidence discloses nothing further with reference to the check or pass book after it was placed in decedent’s satchel by Richards on December 5th until it was presented to the bank in Pittsburgh on which it was drawn by A. Earl Campbell on December 19, 1918, the day following decedent’s death, on his way through Pittsburgh from Akron to attend the funeral.
A. Earl Campbell claimed in the court below the check was a gift inter vivos to him by his brother of the sum it represented, or, if not a gift, that, being for the exact amount of the deposit, the check constituted an equitable assignment. The amount of the check, with interest, aggregating about half of the estate, was awarded to claimant, the court rightly holding that, as the deposit
To maintain his claim to the deposit, appellee necessarily relies upon the delivery of the check to him by the decedent in his lifetime. “Without a complete delivery during the lifetime of the donor, there can be no valid gift inter vivos. Though every other step be taken that is essential to the validity of the gift, if there is no delivery, the gift must yield. Intention cannot supply it; words cannot supply it, actions cannot supply it; it is an indispensable requisite, without which the gift fails, regardless of consequence”: 2 Thornton on Gifts, page 105. Ordinarily mere possession of the property is not sufficient evidence of a gift, for this may be consistent with a mere custody or agency: Reading Trust Co. v. Thompson, 254 Pa. 333, 337. “A gift may be defined as a voluntary transfer of a chattel completed by the delivery of possession. It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and therefore irrevocable contract......There must be a purpose to give......and it must be executed by the actual delivery of the thing given to the donee or some one for his use”: Cooper’s Est., 263 Pa. 37, 46. 'To establish a gift inter vivos, two essential elements must be made to appear; an intention to make the donation then and there, and an actual or constructive delivery at the same time, of a nature sufficient to divest the giver of all dominion, and invest the recipient therewith: Yeager’s Est., 273 Pa. 359; Northern Trust Co. v. Huber, 274 Pa. 329. , Where the relation of the parties is such as here appears, mere possession of personal property shown to have formerly belonged to another is not in itself sufficient to raise a presumption that title was transferred: Ibid.
After December 5th, when Richards put the check and deposit book in the satchel of decedent, and before De
Were we compelled to pass upon this question in order to decide the ease, it would not be free from difficulty, as we have held that a witness under this act is incompetent to testify concerning “any matter occurring before the death of the other party” (Sutherland v. Eoss, 140 Pa. 379; Arrott v. Way Mfg. Co., 143 Pa. 435; Crothers v. Crothers, 149 Pa. 201; Baldwin v. Stier, 191 Pa. 432; Myers v. Litts, 195 Pa. 595; Brown v. Marmaduke, 248 Pa. 252); but we are not called on to decide it, because
In McConville v. Ingham, 268 Pa. 507, 519, we held that the endorsement of a check absolute in form is sufficient to give rise to a presumption of a gift of the check. A stronger presumption arises from the drawing of a check to the order of one who. sets up a gift of it. Under the testimony of Richards, there can be no question but that the decedent intended his brother should receive the money represented by the check. The circumstances occurring subsequent to the death of the decedent, — the fact that appellee at the time of his brother’s death was in Akron and that the day after the death, without having thereafter been at decedent’s home or at the place where he died, appellee presented the check at the bank on which it was drawn, — negative the idea that claimant obtained the check after the brother’s death and support the contention that it came into his possession prior thereto, and this without considering appellee’s own testimony of his visit to the decedent at Cresson. • The case at bar is readily distinguishable from Isett v. Maclay, 265 Pa. 165, in which the testimony disclosed no possibility of delivery of the note there in question before the death of the maker.
Mrs. Bryson, the appellant, recognized the validity of the gift, as is shown by the uncontradicted testimony of appellee that he had a conversation with her after decedent’s death, when he turned over to her the check and bank book in question and three other bank books belonging to decedent, then in his possession; at which time appellant told him she was willing the check should be paid, and he gave it to her with the understanding that she was to hand it to the trust company, which was her coexecutor, and they were to pay it.
The decree of the court below is affirmed at the cost of the appellant.