Opinion
No. 6890.
May 24, 1950.
APPEAL FROM THE CIRCUIT COURT, IRON COUNTY, EDWARD T. EVERSOLE, J.
J. Arthur Francis, Ironton, for appellant.
Parke M. Banta, Ironton, Edgar Banta, Ironton, for respondents.
Mary Lee Trask instituted this action against Arcadia Valley Bank and Maurice T. Wallen, Administrator of the estate of J. B. Wallen, deceased, to establish a gift causa mortis in the sum of $5,362.61, being monies on deposit in said Arcadia Valley Bank in the name of J. B. Wallen, at the time of his death. The cause was tried before the court and judgment rendered for defendants. From this judgment plaintiff appeals to this court.
Plaintiff's petition alleged that on the 14th day of July, 1948, J. B. Wallen died intestate; that he, on that date, had on deposit in the Arcadia Valley Bank on checking account the sum of $5,362.61; that this was the property of plaintiff, having been given to her in a form of a gift mortis causa a few days previous to the death of J. B. Wallen. The petition states defendant, Maurice T. Wallen, was duly appointed and acting as administrator of said estate and took charge of the checking account in the Arcadia Valley Bank. The petition states that said sum should not be included in the inventory, it being the property of plaintiff. The petition states that J. B. Wallen, being a very sick man and under the apprehension of death, took plaintiff to the bank and informed the officer in charge that he was a very sick man and if anything happened to him he wanted Mary Lee Trask to have what money he had in the bank and wanted the bank to turn it over to her. This took place a few days before the 14th day of July, 1948, the date of the death of J. B. Wallen. The petition stated that deceased turned over a deposit slip to plaintiff for a deposit of $2500 in the Arcadia Valley Bank. The petition alleged that demand was made for the money upon both defendants and demand refused.
The defendants filed separate answers. The bank filed a general denial and the administrator filed a general denial and an affirmative answer stating he was the duly appointed administrator of the estate of J. B. Wallen and qualified to act as such; that at the time of the death of J. B. Wallen he was the owner of $5,362.61, on deposit in the Arcadia Bank in his name and that this defendant, as administrator of said estate, took possession of said deposit as the personal property of the deceased and included it in the inventory of the estate accordingly.
At the close of the testimony plaintiff was permitted to amend her petition by interlineation, by adding after the word "causa", page one, paragraph 2, line 6, the following: "or an executed parol trust created."
We adopt the statement of facts set out in appellant's brief, which is as follows:
"O. R. Robinson, cashier of the Arcadia Valley Bank, testified that three or four days before J. B. Wallen died, he came to the bank in company with Mary Lee Trask, the plaintiff; that Mr. Wallen called him back in the private office of the back, and he said, `Roy, I am going to the hospital and I am going to die, I am not coming back home, I want you to do something for me. If I die, I want Miss Trask to have this bank account.' Mr. Wallen said that he didn't want to transfer it then, he didn't want her to know anything about it or have anything to do with it until after he was dead. I said, `That is rather unusual Jim; I don't know whether I can do that or not.' He said, `You can do anything.' I said, `We will take care of that situation when it comes up.'
"Lee Ogles, in testifying for the plaintiff, said he had known Mr. J. B. Wallen about five years; that he also knew Miss Trask; that he and Mr. Wallen had been in business together; that Mr. Wallen furnished the money and that he bought cattle and hogs; that Mr. Wallen had told him two or three times he was going to leave the old girl a little money, but he wasn't going to feather her nest."
We find the only issue in this case to be the sufficiency of the delivery of the gift. The first two assignments of error in appellant's brief complains that the judgment of the court was against the evidence and the law in the case. With this contention, we cannot agree.
To establish a gift causa mortis of the bank deposit in this case, appellant relies upon the testimony of two witnesses. The cashier of the bank testified that J. B. Wallen, deceased, had a deposit of $5,362.61 in the bank; that three or four days before his death he came with appellant to the bank and, out of the presence of the appellant, called the cashier back in a private office and informed him that he was going to the hospital and was going to die. Deceased stated to the cashier that he wanted appellant to have the money on deposit in the bank after he died. The cashier asked deceased if he wanted to make the transfer now and the deceased said no, that he wanted the transfer made after his death, that he didn't want appellant to know anything about it. When the cashier informed deceased that he did not know whether he could make such a transfer, deceased told him that he could do anything. When Wallen died the money was still in the bank in his name.
The only other testimony offered was that of Lee Ogles, who said that deceased had told him two or three times he was going to leave the old girl a little money but he wasn't going to feather her nest.
We hold this testimony wholly fails to establish a gift causa mortis or an executed parol trust for the reason that there was not sufficient delivery of the gift.
Appellant cites two Missouri cases in her brief, to sustain her contention. McBride v. Mercantile-Commerce Bank Trust Co., 330 Mo. 259, 48 S.W.2d 922, 929. This case does not support appellant's contention. Here the deceased had bonds and stocks in lock boxes in two separate banks and had the keys to the lock boxes in his pocket. In the presence of a number of witnesses he gave one key to each of his two step-children and told them that the contents of the boxes were theirs. This transaction completely divested the donor of control of the property and constituted a valid gift. In this case the step-children bore the relation to the donor of father and child and the testimony revealed that the father intended to convey the property to the two said step-children. The testimony further showed that the father realized, at the time of the gift that he was suffering from cancer and going to die.
Harris Banking Company v. Miller, 190 Mo. 640, 89 S.W. 629, 1 L.R.A., N.S., 790, cited by appellant, likewise, does not sustain appellant's contention. This was an equity case where the deceased placed in a bank, on time deposit, $8,080.91; that he informed the banker and his son that he wanted Helen A. Miller to have the money. He asked the banker how to place the money in the bank so as to convey it to her. The banker told deceased to deposit the money in his name and endorse the time certificate on the back to the donee. The banker prepared the endorsement and the donor signed it in their presence. He asked the banker to keep the certificate and to not pay the money to anybody else, excepting the donee. The banker refused to keep the certificate. The testimony then shows that the donor, deceased, gave the endorsed certificate of deposit to the donee and she read it, then he took it back and kept it in his possession until death, stating to donee that the money was hers but that he wanted to collect the interest during his lifetime.
The facts show that the donee here had waited on and cared for donor and his brother for five or six years and that this gift was made in appreciation of such service.
The appellate court held that the trial court erred in finding this to constitute a gift causa mortis because delivery of the possession of the property was not made in the lifetime of the donor to the donee. But the court held, being an equity case, it did constitute the consummation of an express parol trust, that there was an actual delivery made to the banker of the personal property in question and that the only right reserved to the donor was the right to collect the interest during his lifetime and to renew the time certificate when it became due. Even in the case of an express trust, there must be an absolute delivery of the property and a divesting of the control by the donor.
Appellant cites some authority from other states but we find that the law covering this case has been fully settled by decisions of the courts of last resort in this state.
In Genteman v. Sutter, Mo.Sup., 215 S.W.2d 477, 478 we believe the law has been fully determined.
The facts in the case are very similar to the ones at bar. Florence Genteman instituted the action against Sutter, administrator of the estate of Bertha Bauermeister, deceased, to establish a gift causa mortis totalling $13,294.10, being monies on deposit in the banks to the credit of said deceased at her death.
The trial was before the court without a jury and the principal issue was the sufficiency of the delivery. The facts in the case disclose that the donor and the donee were close personal friends; that the donor had on deposit, in different banks, the money in question; that the donee and donor went into a room to prepare clothing for donor to go to the hospital, she being 71 years of age, and, while in the room, the donor took from a mental box, three bank books and handed them to the donee and said, "These are my bank books and if I do not come back they are yours." Donee took the books and put them in the donor's pocketbook, assuring her that she would come back home. The donor also gave plaintiff her safety deposit box key but donee told donor that no one could enter the box and put the key in a top drawer of a chest where it remained. The bank books and key remained in the possession of the deceased until death. The Supreme Court affirmed the judgment for the defendant and declared the law as follows:
"So far as material under the instant facts, we quote from 38 C.J.S., Gifts, § 82, page 903: `Since a donation causa mortis is ambulatory, and, as discussed infra § 108, the donor may annul the gift by retaking possession of the subject matter, there must not only be an actual and complete delivery of the property to the donee, but he must retain possession of it without interruption until the death of the donor.' Gifts inter vivos, gifts between living persons, become effective in the donor's lifetime, immediately and irrevocally upon delivery; whereas gifts causa mortis, gifts in prospect of death, may be revoked at any time before death, are defeated by the recovery or survival of the donor and do not pass an irrevocable title on delivery. 38 C. J.S., Gifts, §§ 4, 73, 108, pages 782, 896, 916, 28 C.J. 685, § 94, 697, § 119; 24 Am. Jur. 732, § 4, 761, § 61; Albright v. Davis, Mo.App., 64 S.W.2d 121, 124(4); Northrip v. Burge, 255 Mo. 641, 653, 164 S.W. 584, 586(1). The delivery of a gift causa mortis must be such as would invest the donee with title in case of a gift inter vivos. * * The test of delivery is: `Has the delivery of possession been such as to put it out of the power of the donor to repossess the property?' Reynolds v. Hanson, Mo.App., 191 S.W. 1030, 1031(5). This requirement of delivery is based upon public policy to prevent mistake, imposition and prejury. Napier v. Eigel, 350 Mo. 111, 117, 164 S.W.2d 908, 912(8)."
The court held in this case that the donor had control and dominion over the bank books at the time of her death; that she was conscious of the control because she expressed concern of whether or not they were safe in the table by her bed and that there was not sufficient delivery to constitute a gift causa mortis. The court cites numerous authorities from other states under this holding.
In this case the court distinguishes it from the cases holding the delivery may be to a third person, trustee for the donee, and cites McBride v. Mercantile-Commerce Bank Trust Co., supra.
In this case the court declares the law on the burden of proof in the following words: "In the circumstances at least clear and cogent proof was required to establish the gift causa mortis" and cites numerous cases in Missouri holding that to be the rule.
Under the law we find the facts fail to show sufficient delivery to constitute a gift causa mortis or an executed parol trust. There was no delivery. The property and title thereto, remained in J. B. Wallen till death. He expressly told the cashier he did not want to transfer title to appellant until after death.
Appellant's third assignment of error to the effect that the court's findings of fact is insufficient, because it fails to state any of the findings of the issues involved and wholly fails to state any conclusion of law applicable to the issues involved is wholly without merit.
The record discloses that appellant did not ask the trial court for a finding of fact or declaration of law. The trial court is not required to make findings of fact or declarations of law unless requested to do so by the party. General Code for Civil Procedure, Section 114, Laws of Missouri 1943, Mo.R.S.A. § 847.114.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.