In Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh-Day Adventists, Inc., 179 Miss. 642, 176 So. 534 (1937) the decedent had delivered money to a friend to be sent to appellee in event of decedent's death.Summary of this case from Greer v. Hampton
October 25, 1937.
The act of decedent in leaving money with assistant bank cashier to be sent by assistant cashier to organization as a gift from decedent in event of her death did not effect valid gift, because of lack of delivery, where assistant cashier placed money to credit of decedent at bank, where it could have been withdrawn at any time by decedent, without liability on part of bank to organization.
One of essentials of valid "gift causa mortis," as well as of "gift inter vivos," is that the property must be delivered in such manner that donor retains no control or dominion thereover.
3. EXECUTORS AND ADMINISTRATORS.
A gift causa mortis otherwise valid is ineffective where it is needed for paying debts of donor's estate.
APPEAL from the chancery court of Wilkinson county. HON. R.W. CUTRER, Chancellor.
W.F. Tucker, of Woodville, for appellant.
The court erred in admitting and considering the unsigned statement of appellee's probated claim against the estate, "Exhibit No. 3," over the objection of the appellant.
Section 1671, Code of 1930, Chapter 304, Laws of 1934.
This court held in Bankstone v. Coopwood, 99 Miss. 511, 55 So. 48, that an itemized account is sufficiently signed when creditor signs the affidavit attached to the account. This is a sound decision.
The statement probated does not state any claim against the deceased; it says that the one hundred and sixty dollars was deposited by the deceased with Miss "Annie" Miller and was by Miss Miller to be sent to the creditor on the death of Mrs. Yates, that said amount was in the hands of Miss Miller at the time of the death of the deceased, that said amount was a gift by the deceased to the creditor and that said amount is the property of said church. This is a good unsigned statement of a claim against Miss Annie Miller, but the statement fails to state how the money got out of the hands of Miss Annie Miller and into the hands of the administrator of the estate of Mrs. Annie E. Yates, deceased. The statement says that the said money was in the hands of Miss Miller on the death of Mrs. Yates and the statement fails to show that the said money came into the hands of the administrator of the estate of Mrs. Yates. The creditor here files an unsigned statement against Miss Annie Miller, who according to the statement still has the money in hand and still refuses to give same to creditor. The affidavit avers the annexed claim is against the estate of Annie E. Yates for one hundred and sixty dollars, but the annexed statement in no way connects the estate of Mrs. Yates or the administrator of said estate with having or possessing said money, or liable for same.
The said probated statement or claim fails to show that the estate of Mrs. Annie E. Yates is liable to the appellee for the one hundred and sixty dollars, the amount probated and allowed by the clerk against the said estate.
This court has repeatedly held that said Section 1671, Code of 1930, should be strictly construed against the creditor and that the provisions of said section are mandatory.
McWhorter v. Donald, 39 Miss. 779; Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Walker v. Nelson, 87 Miss. 268, 39 So. 809; Saunders v. Stephenson, 94 Miss. 676, 47 So. 783; Lehman v. Power, 95 Miss. 446, 49 So. 622; McMahan v. Foy, 104 Miss. 309, 61 So. 421; Stevens v. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160; Persons v. Griffin, 112 Miss. 643, 73 So. 624; Levy v. Bank Trust Co., 124 Miss. 325, 86 So. 907; Jennings v. Lowery Berry, 147 Miss. 673, 112 So. 692; Wilson v. Yandell, 174 Miss. 713.
The written instruction, Exhibit "A," if anything, is an instrument purporting to be a donation of an unmentioned sum of money to appellee. This instrument appears to be a secret codicil to a will then in existence.
It seems from this instrument that some money, amount not named, at some time, no date mentioned, was given by some person, instrument bears no name or signature, to Miss Miller to send the seventh day conference, Meridian, after the death of the person writing the instrument. There must have been, when the instrument was written, a will of this person and donor in existence, for the donor says "I do not want it in the will," the money was to be sent to the creditor if the donor died.
This instrument donating an unknown sum of money is the basis of appellee's claim against the appellant, but it carries no name, except Miss Miller's, no amount of money and no date is mentioned in said instrument.
In the case at bar the statements emanating from the brain of the appellee and probated and allowed for one hundred and sixty dollars is a claim against Miss Miller and not the said estate; the statement by the donor contains so many elements of uncertainty that, if relied upon by the court, will be taking money from the appellant on a probability and not on the preponderance of evidence, as required by said statute. But, if the money referred to in the said instrument of donation was this particular one hundred and sixty dollars, then it was a donation causa mortis to a religious or ecclesiastical society or corporation, and brings said gift under the statutes of mortmain, Sections 3564-3565, Code of 1930, Sections 269-270, Constitution of 1890 of the State of Mississippi, and the probated claim is invalid.
There is nothing in this record to show that the said one hundred and sixty dollars was deposited by Mrs. Yates, or by the assistant cashier, as a special deposit, or that the deposit was considered by any one as trust fund, until after the death of Mrs. Yates, and until the bank was forced to account to the administrator for said money.
It will be a broad open door of fraud if this court should hold that, after the death of a depositor holding a certificate of deposit, evidencing a general deposit of money in a bank to the deceased's checking account, such a deposit could be called a trust fund or a special deposit on the bare and simple parol testimony of an officer of the bank.
This court has held in a number of cases that a certificate of a special deposit should bear some earmark that the deposit was intended for a special purpose or was intended to be paid back in kind.
A deposit is presumed to be general unless expressly made special and specific.
Love v. Little, 167 Miss. 105, 148 So. 646; Moreland v. Peoples Bank of Waynesboro, 114 Miss. 203, 74 So. 828; Miss. Central R.R. Co. v. Conner, 114 Miss. 63, 75 So. 57; Rice v. Webb, 141 Miss. 66, 105 So. 854; Adler v. Interstate Trust Banking Co., 166 Miss. 215, 146 So. 107; 3 R.C.L. 517, secs. 146-148; American Jurisprudence, sections 420-424; C.J., sec. 323, page 639; Washington Shoe Mfg. Co. v. Duke, 126 Wn. 510, 218 P. 232, 37 A.L.R. 611.
We submit that the decree rendered by the Chancery Court is contrary to the law and the evidence in this case, is without equity, and that this case should be reversed and judgment entered here for the appellant.
Bramlette Bramlette, of Woodville, for appellee.
Appellant assigned for error that the court below erred in admitting appellee's claim because appellant argued that it was not signed. The affidavit to this claim is duly signed and executed by the President of the corporation, appellee. This Honorable Court in Bankston v. Coopwood, 99 Miss. 511, decided that such signing amply complied with the statute.
This $160 was never properly a part of the estate and possession thereof was wrongfully taken by the administrator. Miss Dannie C. Miller, assistant cashier, took extraordinary steps to avoid criticism and seems to have incurred same in trying to discharge an obligation in which she had absolutely no personal interest. The deceased, Mrs. Yates, during her lifetime, made an irrevocable gift of $160 to Miss Dannie C. Miller with oral instructions and subsequent written instructions in regard to same and the said amount of money was not owned by Mrs. Yates at the time of her death but she had parted with same unconditionally.
We respectfully submit that decedent, Mrs. Yates, had the right to comfort her soul in her declining years by making a gift during her lifetime to the church of her choice, and the final decree of the Chancellor being the only fair, just and proper solution of this controversy, on the facts as shown by the evidence, should be affirmed.
Argued orally by W.F. Tucker, for appellant, and by David C. Bramlette, for appellee.
This appeal is by the administrator of the estate of Mrs. Annie E. Yates, deceased, from a decree of the chancery court of Wilkinson county allowing a probated claim against the estate in favor of the Alabama-Mississippi Conference Association of the Seventh-Day Adventists, Inc., with headquarters at Meridian, Miss. The claim is for a sum of money left by Mrs. Yates with Miss Dannie C. Miller, assistant cashier of the Commercial Bank, at Woodville, Miss., on May 22, 1936, to be sent by Miss Miller to the said Alabama-Mississippi Conference Association of Seventh-Day Adventists, Inc., as a gift from Mrs. Yates in the event of her death. A duplicate deposit slip was issued to Mrs. Yates by the said assistant cashier at the time the money was left with her at the bank, showing that this money was deposited to the credit of Mrs. Yates, where it remained on deposit until after her death on June 27, 1936, and was later paid to the administrator, who had found the deposit slip in the purse of the deceased after her death.
Shortly after leaving the money at the bank, Mrs. Yates sent an unsigned communication to Miss Miller, but admittedly in her own writing, to the following effect: "Miss Miller no one knows I left the money with you. If anything happens to me please do this favor for me. Send it to the Seventh-Day Conference, at Meridian, Mississippi. Take a dollar for your trouble. Let no one know. Send it in your name. You just write a few lines and tell I left it for them. I don't want it in the will. Wish you would go to Centerville and mail it there. I would be glad, so no one here would know. If I die, do this for me, please."
There is no question as to what Mrs. Yates intended should be done. But the question is: Did she accomplish under the law what she intended? It does not appear that during the life of the donor Miss Miller sustained any relation whatever to the donee, such as solicitor of funds, agent, or employee, so as to render the delivery of the money to her a delivery to such donee, although she may have become a trustee of the money, at the death of Mrs. Yates, for the use and benefit of such donee, if the same had remained in her possession or under her control until the death of the donor. But the fact is that upon the delivery of the money to her, Miss Miller placed it to the credit of Mrs. Yates at the bank, where it could have been withdrawn at any time by the depositor at pleasure, without liability on the part of the bank to the donee. In other words, there was no delivery of the purported gift during the lifetime of the donor; and one of the essentials of a valid gift causa mortis, as well as a gift inter vivos, is that the property must be delivered in such manner that the donor retains no control or dominion over it. Johnson v. Grice, 140 Miss. 562, 160 So. 271; Pace v. Pace, 107 Miss. 292, 65 So. 273; Meyer v. Meyer, 106 Miss. 638, 64 So. 420; McWillie v. Van Vacter, 35 Miss. 428, 72 Am. Dec. 127.
In the Pace Case, supra, the court held that the delivery of the donor's bank book was not sufficient to sustain a gift causa mortis of his credit with the bank, by which it is meant to say that the question of intention is not always controlling.
Section 94, Corpus Juris, pp. 685, 686, reads as follows: "While gifts causa mortis are in the nature of testamentary dispositions and have several characteristics in common with legacies, they differ from the latter in in many important respects. A gift causa mortis resembles a legacy in that it is made in contemplation of death, is ambulatory, incomplete, and revocable at the option of the donor at any time during his life. On the other hand it differs from a legacy in several important particulars. Possession must be delivered to the donee and retained by him during the life of the donor, whereas in case of a legacy the possession remains with the testator until his decease; the claim need not be proved in a court of probate; the title of the donee becomes by relation complete and absolute from the time of delivery; no consent or other act on the part of the personal representative is necessary to perfect the title of the donee. It is a claim against the personal representative; a legacy is a claim from and through him. Although the donor has made a will disposing of all his personal property, a donation of this sort is good."
Furthermore, it is agreed in the record in this case that Mrs. Yates left a last will and testament, executed subsequent to leaving this money at the bank, to wit, on June 24, 1936, and duly admitted to probate, whereby she disposed of all of her estate, both real and personal, without making any reference to the purported gift, that is to say, the money in question had not been delivered to the donee, Alabama-Mississippi Conference Association of Seventh-Day Adventists, Inc., or to any agent thereof, and was to the credit of the donor under the relationship of debtor and creditor at the time of her death.
And the record is silent as to whether or not the money purporting to have been given to the said Alabama-Mississippi Conference Association of the Seventh-Day Adventists, Inc., may be needed for paying the debts, if any, owing by the estate. If the fund in question should be needed for such purpose, a gift causa mortis, otherwise valid, could not be effective, and the administrator in such case could not be required to pay the probated claim. Johnson v. Grice, 140 Miss. 562, 106 So. 271; 28 C.J., p. 699, section 125; and also 12 R.C.L., p. 968, section 40.
Other questions are briefed and argued on this appeal, but, because of the views herein expressed, it is sufficient to say that the probated claim should have been disallowed.
Reversed, and decree here for appellant.