
    Levi C. Van Vleet, as Executor, etc., of Sophronia Pettibone, Deceased, Pl’ff, v. Lucinda McCarn, Def’t.
    
      (Supreme Court, Special Term, Allegany County,
    
    
      Filed September, 1888.)
    
    1. Gifts—Causa mortis—What necessary to be shown to sustain—Requisites of.
    The law permits the disposal of property causa mortis, but does not favor such disposition, and requires one claiming property under such a gift to establish it by the clearest, strongest and most unequivocal evidence. To sustain a gift causa mortis, there must be such a delivery of the article donated as vests in the donee control and dominion over the property. A mere symbolical delivery will not answer The donee must either have possession of the article donated or the means of obtaining it.
    
      2. Same—When not established.
    After a careful review of the facts of this case as they appeared by the evidence, Meld, that they failed to establish a gift causa mortis within the above rules.
    The plaintiff, as executor of the will of Sophronia Pettibone, brought action against the First National Bank of Hornellsville to recover $500 deposited in that institution June 9, 1884, by Mrs. Pettibone. The defendant, claiming this money under and by virtue of a gift causa mortis, an order was made at the request of the bank, substituting the defendant in its stead. Upon the trial of the issues at a circuit the defendant obtained a verdict. This is a motion by the plaintiff for a new trial upon the case and exceptions. Mrs. Pettibone, on the 9th day of June, 1884, deposited in the Hornellsville Bank $500, and the cashier, using one of the bank’s deposit slips, gave Mrs. Pettibone a memorandum of such deposit, in the following words and figures:
    “Deposited in the First National Bank of Hornellsville, by Sophronia Pettibone, June 9, 1884, $500.”
    This memorandum was not signed by anyone. Mrs. Pettibone was a resident of Andover, Allegany county, was a childless widow, and was at the time of her death nearly eighty years of age. She had been during the latter part of her life somewhat intimate with the defendant, and entertained the opinion, without, so far as the case disclosed, much evidence to base it on, that the defendant was in some way related to her and was her only blood relative then living Mrs. Pettibone had been in poor health for a number of years prior to her death, which occurred in 1886. She was afflicted' with rheumatism. She seems to have entertained the idea along in the spring and summer of 1885 that she would not live long; that she would probably die before the following spring. She was, however, after expressing this opinion, in better health. Her health was so far restored that she was able to make a visit to the Chautauqua Assembly. She had property consisting of money, promissory notes, pension certificates, etc., of the value of about $2,000. She kept this property mainly in a small box or trank. About the month of July, 1885, she asked a neighbor, a Mrs. Updyke, if she would accommodate her by taking the box and keeping it for her.
    Mrs. Updyke says: “She told me she wanted I should take it and take care of it for her, and when she was gone, to deliver it to Mrs. McCarn. She wanted to know if I would accommodate her to take this box; described what it was; I never had seen it; and wanted to know if I would accommodate her to take this box and keep for Mrs. McCarn; that Mrs. McCarn was the only relative she knew of she had, and she thought she was some blood relation; that she was the only one she knew of that was, and she wanted she should, have that after she was gone.”
    She said she brought it over to her about two months after this conversation: “It was a small box with a wrap about it; she told me she wanted I should take it and take care of it and when she was gone, to deliver it to Mrs. McCarn, because that was her wishes that she should have it; she gave it to her; I told her if I took it in my care to take care she would get it, as far as I had anything to do with it, just as she left it; I took it and put it away just as she told me to; she talked when she first left the box there; that her health was getting very poor, and she was feeble; she could not get around any more much; she would like to have the box near by because she was feeble and could not get anywhere; if she wanted to see anything, I suppose; she said there were some papers and things in the box that she had given to Mrs. McCarn and she wanted she should have what was in the box.”
    Mrs. Updyke upon taking the box, informed the deceased where it would be kept. The key was at first put in a wrap which surrounded the box. At the suggestion of Mrs. Updyke that it was not safe to leave the key with the box, Mrs. Pettibone took the key and retained it until she died. Mrs. Pettibone visited the box occasionally, opened it, exainmed its contents, and after it was delivered to Mrs. Updyke, as above stated, Mrs. Pettibone took possession of the box; had it at her home; retained it a number of months, and while thus m her possession, she took therefrom forty dollars and paid a bill she was owing her doctor. She thereafter sent the box again to Mrs. Updyke and afterwards told her she wished her to retain it as she had before. Very soon after the box was first left with Mrs. Updyke, Mrs. Pettibone made a will disposing of her entire estate and, among other bequests, gave the defendant the sum of §100 After Mrs. Pettibone’s death the key to the box was found upon her person. Upon the box being opened it was found to contain some promissory notes, pension certificates and currency, amounting in all in value to fourteen or fifteen hundred dollars; and also a check or deposit slip issued by the bank. All of the contents of the box, including the deposit ticket were taken possession of and retained by the defendant.
    
      L. C. Van Vleet, in person, and Rufus Scott, of counsel, C. A. Dolson, for def’t, and James H. Stevens, of counsel.
   Lewis, J.

I was impressed upon the trial of this action that the defendant had failed to make out a defense and that the plaintiff was entitled to a verdict for the amount of the money in controversy; and a further examination which I have given this case has confirmed my first impressions. The plaintiff, as executor, was entitled to the money, unless the defendant established a donation of it to her casua mortis. The statute, for very apparent reasons, requires great formality in a will disposing of property. The law, however, permits the disposal of property causa mortis, but does not favor such disposition of property, and requires one claiming property under such a gift to establish it by the clearest, strongest and most unequivocal evidence. Grey v. Grey, 47 N. Y., 556; Kenney v. Public Administrator, 2 Bradf., 320, 321; Delmott v. Taylor, 1 Redf., 423; Champney v. Blanchard, 39 N. Y., 116.

The ease with which frauds may be perpetrated in. such cases has led to the adoption of this rule. Mrs. Pettibone, at the time of the alleged gift, was old and infirm; but it is not made to appear that she apprehended that death was near at hand. She said, along in the summer of 1885, and about the time it is claimed this gift was made, that she feared she would not live through the next winter; that the doctor had told her that she might die at any moment; but after the making of these declarations her health was much better, so that she was able to leave her home m Allegany county and visit the Chautauqua Assembly at Chautauqua. She did not die until the 10th day of September, 1886, some fourteen months after the making of the alleged gift. She had ample time and opportunity, and was fully competent thereafter to dispose of her property by a formal will, as she in fact did do, a short time thereafter.

The defendant failed to show a gift under apprehension of immediate death, or expectation that .death was near at hand, and failed to bring her case within the rule laid down in Daniel v. Smith, (64 Cal. Reports, 349), and Gourley v. Linsenbigler (51 Penn. St., 345).

It 'was incumbent upon the defendant to show that Mrs. Pettibone died of the disease with which she was afflicted at the time of the gift. Grymes v. Hone, 49 N. Y., 17.

She was not shown to have had at that time any disease except rheumatism, which is a common ailment with persons of her advanced age. The infirmities of old age seem to have been her main trouble and the cause of her apprehension of her death. A sudden and acute attack of trouble in her stomach, or side, was, in fact, what caused her death.

She had been for some time immediately before her death visiting at the defendant’s home; had concluded her visit; was fully dressed prepared to return to her home, and was suddenly and violently attacked with her mortal sickness, without, so far as the case shows, any premonition or reason to expect such sickness. She died quite suddenly. The evidence did not warrant the inference that her death was caused by any disease that she had at the time of the alleged gift.

To sustain a gift causa mortis, there must be such a delivery of the article donated as vests in the donee control and dominion over the property. Harris v. Clark, 3 N. Y., 93. And this brings us to another fatal defect in the defendant’s case. I assume that the deposit slip was in the box at the time it was first delivered to Mrs. Updyke, and. remained in it until after the death of Mrs. Pettibone. And as we have seen, it came into the hands of the defendant after the death of Mrs. Pettibone. But the possession of this deposit slip was of no avail to the defendant. Had stie presented it to the bank where the money was on deposit, it would not in any respect have aided her in obtaining the money. It was simply a memorandum, not signed by any one, not binding any one, and was not even evidence of the fact that the bank had the money. The money was in the bank, subject only to be drawn out upon Mrs. Pettibone’s check before she died. The bank had not made the return of the deposit slip a condition precedent to the payment of the money. It did not require it to be returned to the bank; it took no account of it. It was simply a memorandum which would inform Mrs. Pettibone of the time and amount of money she liad deposited in the bank. It was not evidence of any obligation on the part of the bank to Mrs. Pettibone. Had the defendant obtained possession of the deposit slip during the life of Mrs. Pettibone, the bank would have paid the money upon the presentation of Mrs. Pettibone’s check.

Mrs. Pettibone continued through her life to have full and complete control over the money, without reference to the deposit slip. How then can it be said that the defendant ever obtained control or possession of the money in controversy ? And that under the authorities is an essential element of a gift causa mortis; as much so as in case of a gift inter vivas. It is important that this wholesome rule should not be relaxed. A mere symbolical delivery will not answer. , The donee must either have possession of the article donated or the "means of obtaining it. Curry v. Powers, 70 N. Y., 212.

In Basket v. Hassell (107 U. S. S. C., 614) Matthews, J., laid down the rule governing the delivery of choses in action as follows: “The point which is made clear by this review of the decisions upon the subject as to the nature and effect of the delivery of a chose in action is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee so as to vest him with the equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably in case of gifts inter vinos, but upon the recognized conditions subsequent in case of gifts casua mortis; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation according to its terms will not suffice.”

In the case of The Bank v. Clark (5 N. Y. State Rep., 262) the court held that a certificate of deposit signed by the cashier of the bank, prima facie represented an undertaking on the part of the defendant to pay the sum mentioned in it to the depositor on demand. The instrument not containing any absolute agreement to pay on the part of the bank, the court held that the law supplied by implication such undertaking. But the deposit slip- in this case lacks the essential element of the cashier’s signature. Cases holding that the delivery of a savings bank pass book passes the possession of the fund are not authority for the defendant in this case. The rules of these savings banks require the presentation of these books upon the payment of the money, and authorize the bank to make payment to anyone presenting the book.

The defendant, I think, failed to establish any defense to this action. The plaintiff was entitled to a verdict and a new trial must be granted, with costs to abide the result of the case.  