Barnes v. Barnes, 174 Ala. 166 (Ala. 1911)

SIMPSON, J.

This is an action of detinue, brought by the appellee, as administrator, to recover a certain certificate of deposit, issued by a bank in favor of said William Barnes.

The facts are that, while said William Barnes, deceased, was sick, the wife of the defendant, according to her testimony, picked up the certificate of deposit under the bed of said William Barnes, gave it to her husband, the defendant; that, when said Williams Barnes Avas about to be removed to Montgomery (for what purpose it does not appear), he called the defendant to his bedside, and said: “Jesse, they are,going to take me away, and I don’t want to go. I have decided

what I am going to do with all my papers; keep these, and if I never get back I give you half, and give Jesse-the other half; give Jesse the other half.”

Said witness testifies further that the “defendant offered to W. W. Barnes the paper back, and he said:‘No; you take them, collect the money, and if I never get back give Jesse half.’ He said not to let anybody have them and collect the money, and 'if I never get. back take half and give Jesse half. Divide it equally.’ ’' Also that said William W. Barnes said to defendant, when he offei’ed to return the certificate: “You keep-them; I have been thinking for some time, for two weeks, to let you have the papers to take care of. You keep them; collect the money. You take your half, and give the other half to Jesse, provided I don’t come back.”'

It is not shown whether William W. Barnes ever returned from Montgomery, nor when he died. This of itself shows that there is an entire failure of proof to-sustain either a gift inter vivos or causa mortis; but, pretermitting the proof of the condition of the mind of said William W. Barnes, and admitting that the meaning of the ill testate was that he expected to die at Montgomery, and that he did do so, the evidence is not sufficient to establish a gift causa mortis.

“A gift causa mortis is a gift of personal property made in the immediate apprehension of death, subject to the conditions, expressed or implied, that if the don- or should not die, as expected, or if the donee should' die first, or if the donor should revoke the gift before-death, the gift should be void” (14 Am. & Eng. Ency. Law [2 Ed.] 1052) ; or a gift made “in expectation of' death, then imminent, and upon the essential condition-that the property shall belong fully to the donee, in case-the donor dies, as anticipated, leaving the donee sur

viving him, and the gift is not in the meantime revoked, hut not otherwise.” — 20 Cyc. 1228.

It is essential to the validity of a gift causa mortis that the property he delivered to the donee, either actually or constructively. — 20 Cyc. 1231; Basket v. Hassell, 107 U. S. 609, 2 Sup. Ct. 415, 27 L. Ed. 500. In the case just cited, the intestate, ju.st before his death, indorsed upon a certificate of deposit the words: “Pay to M. B. of H., Ky.; no one else; then not till my death. My life seems uncertain. I may live through this spell. Then I will attend to it myself” — signed and delivered it to B., and it was held that B. acquired no title; the court saying: “A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift.” — 107 U. S. 614, 2 Sup. Ct. 422, 27 L. Ed. 500.

Where the alleged donee of a gift causa mortis resided with the donor, and had a key to the office, and the donor stated to the donee that he gave him “all the office furniture,” it was held that it was not enough that the donee had a previous and continuous possession. There must be a delivery at the time of the donation. “There was,” says the court, “no visible change of possession, by symbol or otherwise.” — Allen v. Allen, 75 Minn. 116, 77 N. W. 567, 74 Am. St. Rep. 442.

“Where a person delivers property to his own agent or bailee, and, without absolutely surrendering dominion over it, directs that, in the event of his death, it shall be delivered to an intended donee, the transaction is regarded as an attempted testamentary disposition.” —Smith v. Ferguson, 90 Ind. 229, 46 Am. Rep. 216; McCord v. McCord, 77 Mo. 166, 46 Am. Rep. 9; Walter

v. Ford, 74 Mo. 195, 41 Am. Rep. 312; Walsh’s Appeal, 122 Pa. 177, 15 Atl. 470, 1 L. R. A. 535, 9 Am. St. Rep. 83; Drew v. Hagerty, 81 Me. 231, 17 Atl. 63, 3 L. R. A. 230, 10 Am. St. Rep. 255.

In the present case, there was no change of possession, no indorsement of the paper, nor delivery in any way. The language of the intestate showed that he merely permitted the alleged donee to retain the possession of the paper for the donor, and authorized him, in the case the donor failed to return from Montgomery (even if that meant in case of his death), to collect the amount due on the certificate of deposit, retain half of said proceeds,'and deliver the other half to the son of the intes-' tate.. This was not a gift causa mortis. The administrator of William W. Barnes was entitled to the possession of the certificate of deposit, and the court properly gave the general affirmative charge in favor of the plaintiff.

The judgment of the court is affirmed.

Affirmed.

Anderson, McClellan, Mayfield, Sayre, and Somerville, JJ., concur. Dowdell, C. J., not sitting.