
    Thomas Kirk et al., Adm'rs, App'lts, v. Bridget McCusker, Resp't.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 10, 1893.)
    
    Gifts—Causa mortis—Evidence.
    In an action relating to the ownership of certain bank deposits defendant claimed them as gifts from plaintiff’s intestate. It appeared that intestate delivered three bank books to defendant, who thereafter returned one; that subsequently money was withdrawn from another bank in defendant’s presence, and that testatrix executed a paper stating that if anything happened she left all the money in bank to defendant. On the trial defendant was allowed to testify that she had the three bank books in her possession since the evening when it was shown they were given to her by the intestate. Held, that a judgment in favor of defendant could not be sustained.
    ' Appeal from judgment in equity.
    Action by administrators to recover assets of their intestate; defense, a donatio causa mortis. The supposed gift was by the delivery to the respondent of three bank books evidencing deposits in three different savings institutions.
    
      
      John McGinn (Edward W. H. Johnston, of counsel), for app'lts Peter Condon, for resp't.
   Pryor, J.

“ Soundpolicy requires that the law regulating gifts causa mortis should not be extended; and that the range of such gifts should not be enlarged.” Earl, J., in Bidden v. Thrall, 125 R Y„ 572, 581; 35 St. Rep., 913.

A gift imports ex vi termini a present transfer of the property and an executory gift is a legal absurdity. 2 Kent’s Com., 438=

lienee, an intention to give, no matter how absolute and explicit, is merely nugatory ; but, to a valid and effectual gift, delivery of the thing given, with the purpose and effect of passing the property as well as the possession, is an indispensable condition. Beaver v. Beaver, 117 N. Y., 421, 429; 27 St. Rep., 405; Young v. Young, 80 N. Y., 422; Jackson v. R. R. Co., 88 id., 520; Harris v. Clark, 3 id., 93. Such a delivery is as essential to a gift causa mortis, as to a gift inter vivos. Ridden v. Thrall, 125 N. Y., 572, 579; 35 St. Rep., 913; Harris v. Clark, 3 N. Y., 93, 113; Gescheidt v. Drier, 47 St. Rep., 410; Basket v. Hassellt 107 U. S.; 602; Conklin v. Conklin, 20 Hun, 278; Turner v. Brown, 6 id., 331, 333; 2 Kent Com., 448, 12th ed., rnarg. note by Judge Holmes. “ There must be a renunciation by the donor and an acquisition by the donee of all interest in and title to the subject of the gift.” Wetmore v. Brooks, 44 St. Rep., 328, N. Y. common pleas. By a gift causa mortis “ the title to the property passes from the donor to the donee at the time of delivery, defeasible only during the life-time of the donor.” 8 Am. and Eng. Ency. of Law, 1352.

“ To constitute a gift causa mortis, it is not only essential that delivery be complete, but possession must be retained by the donee until the donor’s death. If after delivery the donor again has possession, the gift is nugatory.” Dunbar v. Dunbar, 80 Maine, 152; 6 Am. St., 166; Craig v. Craig, 3 Barb. Ch., 78.

“ Death of the donor without revocation of the gift ” is requisite to the validity of a donatio causa mortis. Champney v. Blanchard. 39 N. Y., 111, 116.

The burden was upon the respondent to establish the gift she alleges against the apparent title of the appellants; and to establish it by clear and satisfactory proof. Develin v. GreenwichSavings Bk., 125 N. Y., 756; 35 St. Rep., 922; Wetmore v. Brooks, supra. If the evidence be insufficient as to any fact indispensable in the constitution of a gift causa mortis the judgment cannot stand ; and we must so decide, however repugnant the conclusion to the inclination of the court.

Assuming what, however, is extremely questionable, that the donor never resumed possession of the bank-books after their delivery to the respondent; the fact is uncontroverted that she subsequently appropriated to her own use a part of the very fund which is claimed to have been transferred to the donee by the alleged gift causa mortis. By the instrumentality of those books, in the presence and with the concurrence of the respondent, she drew six hundred dollars from the bank, and applied it to her own personal use. The alternative is inevitable, that the donor never meant to part with the present possession and dominion of the thing given; or else that, in the exercise of her unquestionable right, she revoked the intended gift; and either inference is fatal to the validity of the donation. By collecting and appropriating a portion of the fund which the delivery of the books is supposed to have destined to the donee, the donor unequivocally asserted possession and dominion of the thing given; asserted and exercised thejMs disponendi in its utmost plenitude. “ There can be no gift in law if one exercises dominion over the subject of the gift.” Dougherty v. Moore, 18 Atl. Rep., 35. “ Redelivery of the subject of the gift to the donor revokes the gift.” Wigle v. Wigle, 6 Watts, 522.

The donor’s act of reclamation, in itself, would operate to nullify her original intention, if such there was, to pass possession and property; but, indeed, it is not clear that she ever meant to relinquish dominion of the subject of the contemplated gift. The paper executed at the time of the transaction, otherwise unimportant, contains the most authentic exposition of her purpose; and by that she says, “ if anything happens, I leave all the money I have in the bank to Bridget McCusker.” Here, beyond question, is not a gift in prcesenii, defeasible upon a contingency, i. e., the recovery of the donor; but, an inchoate gift suspended in ■operation and effect upon a future event, i. e., “ if anything happens.”

In donatio causa mortis the condition is subsequent and operates to defeat a title already vested; while here the condition is precedent, and intercepted the transfer of title until the something “happens.” With this construction of the paper, the conduct of both donor and donee was in harmony. The donee, mindful of the wants of the donor, urged her to retain one of the books so that she might draw money for probable exigencies; and the donor did draw from the fund she intended as a gift to the donee.

If it be argued that as the money appropriated by the donor was drawn by two books and from two banks, the deposit in the other bank is unaffected ; we answer, that the gift was by one act and of an integral fund, not by several acts and in distinct parcels; that the same intention actuated and characterized the delivery of all the books; and that by necessary consequence, if dominion was reserved as to the deposits in two banks, it was reserved as to all; or if there was a revocation as two, there was a revocation as to all the deposits.

But, for another and independent reason, this pretended gift is manifestly void.

As its name imports, a gift causa mortis is made in contemplation of the death of the donor; and that it be so made is an indispensable condition of its validity. A gift upon any other contingency is not a donatio causa mortis.

Now the evidence utterly fails to show that it was an apprehension of death by the donor that prompted the delivery of the bank books to the defendant. True, Margaret Kirk was of infirm health ; and true also it is that on the occasion of the delivery of the books, she said the doctor had told her she “ was liable to go off at any time.” But, not for that did she deliver the books to the defendant. By the uncontroverted testimony, the testimony of defendant’s own witnesses, another motive than the fear of death actuated the delivery of the books.

Detailing the circumstances of the alleged donation, Petér Hughes testifies: “ As soon as I came in, she says, ‘Well, Bridgie’s employers have sent for her to go home; now, you know about that letter that my sister sent me, saying that Thomas Kirk would come on here and carry out his intention to burn the house; now, if Bridgie goes home and he comes and burns the house, I want her to have her share. * * * If he comes on, why, Bridgie, you have got this money; he cannot touch it; you have got it.’ * * * She said that if anything happened to her while Miss McCusker was away she would have something anyhow if Thomas Kirk, her brother, should come here and do any damage. * * * She said that Miss McCusker would have this if he would come on and do any damage.”

Kate Graughran testified: “ She said, I want to leave all the money in bank to Miss McCusker, in case anything should happen. * * " Well, if I don’t see Bridget any more, I am glad I got her to take the bank books home with her.”

What, then, is the inference from these repeated expressions of Margaret Kirk? That she delivered the bank books upon the -contingency of her death; or in apprehension of the threat of Thomas Kirk to burn or tear down the house ? That the latter was the event, and the only event, she had in mind, and intended to provide against, is manifest beyond the possibility of rational dispute.

Indeed, that Margaret Kirk was under no apprehension of imminent death is apparent, not only from the absence of satisfactory evidence to the contrary, but by the fact that, after the so-called gift causa mortis, she busied herself about the details of domestic economy, and in making improvements and additions to her house.

Mindful that the law regards gifts causa mortis with distrust, and exacts for their support clear and convincing proof, we are unable to find in the record sufficient evidence to uphold the judgment. Whatever our reprobation of the plaintiffs and sympathy with the defendant, our decision must still be in conformity with the rules of law.

Judgment reversed and new trial ordered, costs to abide event.

Daly, Ch. J.

The judgment appealed from will have to b<. reversed for error in the admission of testimony of the defendant concerning a transaction with the plaintiffs’ intestate. The issue in the case was whether the deceased had personally delivered her bank books to the defendant with the intention of making a gift to the latter of the money in the banks, and whether thereafter the donor had recovered possession of any of the books and. revoked the gift of the money, or any part of it The defendant’s witness, Peter Hughes, had testified to a transaction of February 12, 1892, between the deceased, Miss Kirk, and the defendant, in which the bank books were given to the latter; but he also testified that one of the books was handed back to Miss Kirk by defendant, who subsequently, after the death of Miss Kirk, took the book from the rooms of deceased. The defendant was then sworn on her own behalf, and was asked how long the three bank books had been in her possession. This was objected to by plaintiff as within the prohibition of § 829 of the Code, but the objection was overruled, and the plaintiffs excepted. The defendant then answered: “ Since the evening of February 12th of this year.” A motion by plaintiff to strike out the answer as relating to a transaction with a deceased person was denied, and exception taken.

The materiality of this testimony of the defendant was, that the personal transaction and communication between deceased and herself, as testified to by Hughes, might be inferred from it; and' she thus testified indirectly to both such transaction and communication. “ The fact she spoke of was in no just sense independent of and extrinsic to the personal transaction and communication, but derived its chief significance from its dependence1 upon and intrinsic connection with both.” Viall v. Leavens, 39 Hun, 291. The case cited resembles the present closely, and is an authority directly in point; for there the witness testified to-the possession of a deed, the delivery of which was in question.

In Spicer v. Spicer, 54 N. Y. Supr. Ct., 280, a defendant was asked how long a deed, alleged to have been obtained from the deceased by fraud and undue influence, had been in his possession. The evidence -was admitted on the ground that it may well have been that the deed was not delivered to the witness by the grantor personally.” In the present case the proof of such personal delivery is the basis of the witness’ claim to the possession of the books.

With respect to the merits of the case, it may be said that the decision of the trial judge might have been sustained in part, if not wholly, but for the error pointed out above. If the re-delivery of the Bleecker Street Bank pass book could be construed as a rescission of the gift, and its retention by the donor as a revocation, then it should be deemed a rescission or revocation of the gift of the money deposited in that bank, and not of the moneys deposited in the other banks, the books of which were never delivered back to the deceased.

But I do not think that the re-delivery of the Bleecker Street. Bank book affected the gift of the money in that bank in any particular. For the deceased never drew any of the money, and the book was reluctantly received by her at the urgent solicitation of the donor and as a provision for possible contingent needs only. Nothing in this transaction indicates the slightest desire, or intention, on the part of the deceased to take back what had been so freely given.

With respect to the subsequent withdrawal of money from the Emigrant Savings Bank, which Hughes says the defendant told him, “ she got Mag to draw to send to her sister in Ireland; ” that money could only have been drawn on presentation of the book in defendant’s possession, and it was so drawn in defendant’s presence, both'parties going to the bank together; and this withdrawal of the sum in question did not affect the ownership of the balance of the bank, the book being still retained by defendant.

As to the original gift, all the constituents of the donatio causa mortis are found in the detailed transaction. The illness or ailment of the donor, from which she never recovered before her death, which took place within six weeks; the gift in presentí of the bank books to the defendant, which is a delivery of the sums «credited therein, Ridden v. Thrall, 125 N. Y., 572; S. C, 35 St. Rep., 913; Walsh v. Bowery Savings Bank, 15 Daly, 403; 28 St. Rep., 402; Penfield v. Thayer, 2 E. D. S., 305; the words which accompanied the gift “ there is your fortune for you,” together with the whole conversation, make out a case beyond even a reasonable doubt.

The written paper which, at the time of the gift, the deceased «caused to be drawn up, and which she signed: “ I, Margaret Kirk, if anything happens, I leave all the money I have in the bank to Bridget McCusker,” confirms the gift. The contingency therein expressed referred to her death. She told them that the doctor told her that the sickness would take her off at any time. If she had apprehensions about her brother coming from Ireland, they must have related to his coming after her death, for his coming «during her lifetime would not affect defendant’s prospects of getting “ her share.” Nor does the contingency mentioned in the paper indicate that the gift was not to take effect immediately. The paper tersely expressed what the law implied in a gift causa mortis. “ Such gifts are inchoate, and not perfected until the death of the donor.” Parker v. Marston, 27 Me., 196, 203. JA Such a gift does not become perfect till the death of the donor.” Parish v. Stone, 14 Pick., 198, 203. “ A donatio causa mortis does not pass a title immediately, but it is only to take effect on the death of the donor.” Grover v. Grover, 24 Pick., 261, 266. The very terms of the paper signed by the deceased are singularly like the declarations of the donor in Wiliams v. Guile, 117 N. Y., 343, 348; 27 St. Rep., 253: “If anything happened to him, he should hand it (the policy and assignment) to Mrs. Guile; ” and upon these words the gift causa mortis was upheld. What Mrs. Kirk understood by the paper is plain enough. The witness, Hughes, said to her: “ If you want to leave the money, why don't you go down to the bank and give it to Bridget ? ” and she said, “ that would do just as well,” referring to the paper. This expression, with the delivery of the bank books, indicated that the witness understood that the disposition she had made was equivalent to drawing the money out of the bank and giving it to her niece. What room is there for doubt as to her intention?

There was evidence that Mrs. Kirk was entirely solvent at the time of- the gift, and retained sufficient property to pay her debts, and the gift cannot be attacked on the ground suggested by appellants, and claimed to be supported by Fox v. Moyer, 54 N. Y., 131.

The judgment, however, must be reversed for error in the admission of the testimony of defendant as above stated.

Judgment reversed, and new trial ordered; costs to abide event.

Bischoff, J., concurs‘in result.  