Opinion
May 29, 1951. Rehearing Denied July 5, 1951.
Appeal from the Circuit Court for Volusia County, F.R. Hocker, J.
Charles E. Booth, Daytona Beach, for appellants.
Alfred A. Green, Daytona Beach, for appellee.
The record in this case discloses the following factual situation: On September 29, 1946, Robert H. Trowbridge and wife, Marjorie K. Trowbridge, borrowed from C.P. Hull, Jr., the sum of $6,000. The indebtedness was evidenced by a promissory note in the sum of $6,000, due and payable three years after date, and secured by a mortgage deed describing certain real estate owned by the Trowbridges situated in Ormond, Florida. The note and mortgage were in the usual form and executed by Robert H. Trowbridge and wife, Marjorie K. Trowbridge, as required by law. The mortgagee, C.P. Hull, Jr., was an uncle of Robert H. Trowbridge.
On January 7, 1947, the mortgagee, C.P. Hull, Jr., executed a release or satisfaction of the above described note and mortgage, which was in approved form and by him executed as prescribed by law. The release or satisfaction of mortgage was by the mortgagee placed in an envelope and duly sealed and written across the face of the envelope in the mortgagee's handwriting was the following inscription: "Jan. 11/47. The property of Robert H. Trowbridge and Marjorie Trowbridge his wife. To be delivered at the time of my death. (Signed) C.P. Hull, Jr." On many occasions C.P. Hull, Jr., was a visitor in the home of the Trowbridges at Ormond, Florida.
Interest was paid to C.P. Hull, Jr., on the note and mortgage by the mortgagors, as disclosed by the records kept by C.P. Hull, Jr., viz.: The sum of $180 on April 14, 1947; the sum of $90 on October 23, 1947; the sum of $90 on April 14, 1948. Under date of July 31, 1948, C.P. Hull, Jr., compiled a statement of his assets and liabilities and listed the $6,000 mortgage on the Ormond property. A similar statement was later compiled under date of August 31, 1948, and each of the statements was in the handwriting of C.P. Hull, Jr., and found among his private papers after death. Hull died testate on December 19, 1948.
On June 28, 1948, C.P. Hull, Jr., executed his last will and testament. It consisted of several pages and reflects a careful consideration of numerous details. He disposed of such articles as clothing, jewelry, china and silverware, photographs of members of his family, and other personal effects. Real estate, stocks, bonds and other investments are disposed of by the terms of his last will and testament. The will is silent as to the disposition of the $6,000 note and mortgage on the Ormond property as given to the testator by his niece and nephew, the appellants. Paragraph One of the will is viz.: "I, Courtlandt P. Hull, Jr., being of sound and disposing memory, hereby make, publish and declare this to be my last Will and Testament, hereby revoking any and all Wills and Codicils by me at any time heretofore made." (Emphasis supplied.) The testator named the Guaranty Trust Company of New York, appellee in this cause, as executor of his last will and testament.
The Guaranty Trust Company opened a letter bearing the signature of the testator (identified as Exhibits "J" and "K") and above the testator's signature is the following note of instruction: "Washington, April 23, 1941. The enclosed diagram will enable you as executor and trustee to locate and open the secret drawer in the bookcase in the entrance hall and in the corner cabinet in the living room of Apartment #501, 1302, 18th St., N.W., Washington. (Signed) Courtlandt P. Hull, Jr." (Emphasis supplied.) The secret drawer, supra, as kept by the testator, was known to his nephew, Robert H. Trowbridge, but unknown to others. An agent of the Guaranty Trust Company and Robert H. Trowbridge, after the death of the testator, opened the secret drawer and found therein only an envelope which had been sealed and enclosed by sealing wax, and the envelope contained the following words or inscription: "To be delivered to Robert H. Trowbridge and Marjorie K. Trowbridge. Property of Robert H. Trowbridge and Marjorie K. Trowbridge to be delivered to them at the time of my death. (Signed) C.P. Hull, Jr." In the above mentioned envelope was the release and satisfaction of the note and mortgage involved in this suit, and it is conceded that the writing on the envelope was made by the testator, C.P. Hull, Jr.
In a second amended bill of complaint filed in the Circuit Court of Volusia County, Florida, by Robert H. Trowbridge and wife, Marjorie K. Trowbridge, under the provisions of Chapter 87, F.S.A., against the Guaranty Trust Company, executor of the C.P. Hull, Jr., estate, it was contended, because of the above statement of facts, the satisfaction or release of the mortgage by Hull placed in a sealed envelope with his written instruction thereon constitutes, in law, a full release and discharge of the note and mortgage given by the Trowbridges to C.P. Hull, Jr. The amended bill prayed for the entry of a final decree cancelling of record the note and mortgage above described.
The answer of the executor denied that the plaintiffs-appellants were, because of the above statement of facts, as a matter of law, entitled to a decree cancelling of record the involved note and mortgage, but that the same was an asset of the Hull estate to be administered upon by the executor. In a counterclaim the executor sought a foreclosure of the note and mortgage and moved for a dismissal of the amended bill of complaint praying for legal directions in the premises. The amended bill of complaint was dismissed, a decree of foreclosure was entered under the counterclaim of the defendant-executor, and the plaintiffs below appealed.
Counsel for appellants contend that from the facts above outlined and inferences reasonably to be drawn therefrom, there was a lawful delivery of the satisfaction of the note and mortgage on the part of the testator, and a decree should have been entered below cancelling of record said note and mortgage of the appellants. Counsel for appellee contends: (1) that the facts developed by the parties fail to show a delivery of the satisfaction of mortgage within the meaning of our adjudications; (2) the words of the testator appearing on the envelope containing the satisfaction of mortgage are not a testamentary disposition thereof because it is not in the form prescribed by statute; and (3) if in the form as provided by statute, it was revoked by the Last Will and Testament of the testator dated June 28, 1948.
Counsel for appellants relies heavily on our holding in the recent case of Harvey v. Hubbard, Fla., 38 So.2d 303. We have reviewed the facts in the cited case and the rule enunciated therein. It cannot be said that this Court in the cited case departed from our previous holdings on the point in issue. See Jones v. Ferguson, 150 Fla. 313, 7 So.2d 464; Leonard v. Campbell, 138 Fla. 405, 189 So. 839; Roe v. Roe, 98 Fla. 840, 124 So. 734, and Fritz v. Fernandez, 45 Fla. 318, 34 So. 315. It appears from the evidence that the mortgagee listed the note and mortgage as an asset of his estate, collected installments of interest thereon, and the satisfaction piece was never delivered but it was in testator's possession at the time of his death. No delivery was to be made during the life of the testator, but only at the time of his death, hence there was no gift inter vivos. In gifts causa mortis the law requires a delivery so that the donor loses dominion and control over the gift.
We fail to find error in the record.
Affirmed.
SEBRING, C.J., concurs specially.
TERRELL, THOMAS and ADAMS, JJ., concur.
HOBSON and ROBERTS, JJ., dissent.
I concur in the opinion prepared by Mr. Justice CHAPMAN. For there to be a gift inter vivos, there must be an intention of the donor to relinquish dominion over the subject matter of the gift and a delivery of the gift to the donee. Jones v. Ferguson, 150 Fla. 313, 7 So.2d 464 For there to be a gift cause mortis, there must be an intention to make the gift, a delivery of the subject matter so that the donor loses dominion over the gift and the donee retains possession until the donor's death, and a contemplation of death from present illness or impending danger. Leonard v. Campbell, 138 Fla. 405, 189 So. 839. As to both types of gifts, a delivery of the subject matter is essential. In the case now before us, a delivery of the subject matter has not been shown. Therefore, the decree appealed from should be affirmed.