Miller v. Medford Nat. Bk. , 115 Or. 366 ( 1925 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] AFFIRMED. COSTS TAXED. This is a suit to enforce an alleged gift causa mortis and grew out of the following facts: On March 29, 1922, one Mary Sevedge was the holder of five certificates of deposit for $200 each, which had been issued and delivered to her by the defendant bank, and for safekeeping had been left in the custody of the bank at Medford, Oregon, where it conducts its business; she was a resident of Medford, Oregon, and was suffering with cancer from which she died on April 8, 1922, while in the State of California, where she had gone for medical treatment. Plaintiff was a brother of decedent, and Otis E. Sevedge, one of the defendants, was a foster-son. While in California, and on March 16, 1922, she made her last will and testament, naming said defendant as the sole devisee of all of her property, both real and personal, and as executor of said will. The will has been admitted to probate in Jackson County, Oregon, and letters testamentary have been issued to said defendant. On said March 29, 1922, while decedent was in California and said certificates were in the bank at Medford, Oregon, she signed and delivered to plaintiff two written instruments, of which the following are copies:

"Medford, Oregon, Mar 29 1922 No. 6

"THE MEDFORD NATIONAL BANK after my death

"Pay to the order of F.S. Miller $1000.00 One thousand ..................................... Dollars "MARY SEVEDGE."

"Medford, Oregon, Mar 29 1922 No. ____

"THE MEDFORD NATIONAL BANK

in case of my death please turn my time deposit acc't over to my Brother F.S. Miller.

"MARY SEVEDGE."

Subsequent to the death of decedent and in May, 1922, plaintiff presented the above instruments to the bank and demanded delivery and payment to him of the certificates, and upon the bank's refusal to comply with his demand, instituted this suit, alleging that the transaction of decedent's execution and delivery of the writings accompanied by her declaration that she made him a gift of the money constituted a gift causa mortis and entitled him to the payment thereof.

The answer puts in issue all of the allegations of the complaint relating to the making of the alleged gift and affirmatively sets up the execution of the will, the order admitting the same to probate, and said defendant's ownership of the money under the provisions of the will. The sole question is whether the transaction referred to constitutes a gift causamortis.

It clearly appears from the pleadings and proof that there was no delivery by the alleged donor to the alleged donee of the certificates or of the money represented thereby. Without a delivery of the thing given, either actual or constructive, a gift causa mortis or inter vivos cannot be consummated. Without such delivery the gift is incomplete, and an incomplete gift is nothing.

To consummate a gift there must be a transfer of possession and of the dominion over the subject of the gift. The law on this subject has been stated and restated so often by this court that it would answer no useful purpose to again restate it. The following cases are conclusive upon this question: Liebe v.Battmann, 33 Or. 241 (54 P. 179, 72 Am. St. Rep. 705);Deneff v. Helms, 42 Or. 161 (73 P. 390); Waite v.Grubbe, 43 Or. 406 (73 P. 206, 99 Am. St. Rep. 764); Baker v. Moran, 67 Or. 386 (136 P. 30); Baber v. Caples, 71 Or. 212 (138 P. 472, Ann. Cas. 1916C, 1025); Hillman v. Young,64 Or. 73 (127 P. 793, 129 P. 124); Allen v. Hendrick,104 Or. 202 (206 P. 733).

Plaintiff further contends that by executing and delivering the writings to plaintiff decedent did everything that it was possible for her to do to place it within the power of plaintiff to obtain the delivery and payment of the certificates by the bank, and that this constituted a sufficient delivery to sustain a gift causa mortis. Without the words "after my death" the instrument first referred to would be in the usual form of an ordinary check, but with these words inserted on the face of the instrument the bank was precluded from complying with the directions of the maker to pay the money during her lifetime.

The rule in this state is that a check of itself does not operate as a legal or equitable assignment of the amount for which it was given until the bank has either paid or obligated itself to pay it, unless it is a certified check: Hunt v.Security State Bank, 91 Or. 362 (179 P. 248).

Where a check operates as an assignment the death of the drawer will not revoke it, but where it does not operate as an assignment the authority to pay the check is revoked upon the death of the drawer.

The general rule is that revocation of an agent's authority by the death of his principal takes effect as to the agent only from the time the agent has notice of it: 1 Morse on Banks and Banking (5 ed.), § 400.

By inserting into the check the direction to pay the same after the death of the maker thereof, which precluded the bank from paying it before her death, the bank was precluded from paying the check at all, for the rule is as stated by Mr. Morse in the section referred to, "But if the bank knows of the death of the drawer its right to pay his check has vanished, so say the authorities that do not regard a check as an assignment."

By the terms of the second instrument the bank was directed to turn over to plaintiff decedent's time deposit account in case of her death. The authority of the bank to make delivery of the certificate was thereby expressly conditioned upon the death of decedent, and the directions could not, by the terms thereof, be complied with during her lifetime. This, and a similar direction contained in the first instrument, prevented the delivery to plaintiff of the subject of the gift during the lifetime of the donor which is also essential to a gift causamortis as held by this court in the authorities above cited. These directions precluded the execution of the gift or its going into immediate effect during the lifetime of decedent. "A giftcausa mortis, like a gift inter vivos, must be completely executed and go into immediate effect." Baber v. Caples,supra.

An attempted gift causa mortis which is not to be consummated until after the death of the donor is clearly void, unless it is given by a written will attested by witnesses and executed in the manner required by the statutes prescribing the manner and method of executing a will. The law does not permit such a testamentary disposition of property to be made, as was attempted in this case, in any other manner than by the duly executed will of the owner. Under the transaction proven the title remained in the donor up to the time of her death and was to pass after her death and clearly showed an intention upon the part of the donor to make a void testamentary disposition of her property by merely directing the disposal of it after her death.

The trial court held that the title to the property in question did not pass during the life of the donor, and that no valid gift was consummated. With this conclusion we agree, and for the reasons stated the decree entered in the court below must be affirmed.

AFFIRMED. COSTS TAXED.

McBRIDE, C.J., and BURNETT and BROWN, JJ., concur.