Steuer v. Lang

There is no doubt that the facts in this case fully sustain the findings of the trial court that, "under the apprehension of death, Lang wrote the letters set out [in the majority opinion]; that he died from the operation referred to;" which findings, in my opinion, sustain the conclusion of law by the trial court that Lang gave and delivered a $5,000 interest in and to the note and mortgage to respondent. To my mind, there was an intended giftcausa mortis. There was as complete a delivery of the thing given as was possible under the circumstances. The nature of the thing given and the situation of the parties did not permit of actual delivery. The parties were at a great distance apart; the giver was at a great distance from his property. The property itself was not in his own personal custody, but was in the custody of others. It was impossible to deliver either money, or the proceeds of the property referred to, to the donee. Lang supposed that he had fully accomplished his intended purpose. Of course, we regard with favor the right to dispose of one's own property as he will and when he will. Jackson v. Lamar,67 Wn. 385, 121 P. 857. And where the circumstances show that the donor has done all that, in his opinion, is necessary to accomplish his purpose, the intent of the donor will answer as an act of delivery.MacKenzie v. Steeves, 98 Wn. 17, 167 P. 50.

When the circumstances were such that none but a constructive delivery could be made, the question of whether the delivery was sufficient is one of justice and common sense, and the will of the deceased should not be thwarted by any technical discussion of definition of delivery. Phinney v. State ex rel. Stratton,36 Wn. 236, 78 P. 927, 68 L.R.A. 119.

In my opinion, this case falls within the class of cases illustrated by In re White's Estate, 129 Wn. 544,225 P. 415, and Phinney v. State ex rel. Stratton, supra, and not within that class of cases cited in the majority opinion.

The findings, conclusion and judgment of the trial court were right and should be affirmed. For these reasons, I dissent.