McCord's Administrator v. McCord, 77 Mo. 166 (Mo.)

Henry, J.

This is a suit by plaintiff, originally against Charles McCord, to recover the sum of $8,000, which, it is alleged, was the property of plaintiff’s intestate, and was wrongfully taken possession of by Charles McCord, and converted to his own use. After the death of the intestate, the money was equally divided by Charles McCord between himself and his co-defendants, who, on their motion, over plaintiff’s objection, were made parties defendant to the suit.' Charles McCord answers, in substance, that the intestate, his father, who was aged and infirm, and in daily apprehension of death, in his last illness delivered to defendant the sum of $1,400, to keep as his own, in case of the donor’s death, and the same amount for each of his children, Benjamin, Martha, Sarah and Mary, to he delivered to them respectively, in the event of his death,

and that after his father’s death, he made the distribution as directed. The answer of his co-defendants was substantially the same, and the replication was a general denial. The trial of the cause resulted in a judgment for plaintifl against Charles McCord, from which defendants have appealed.

It seems that there was no judgment for or against Charles McCord’s co-defendants, and all that appears is? that the court found that they were not necessary parties.

The only one of the numerous questions raised on the trial and argued in the briefs of counsel, which we deem it necessary to pass upon, is whether the intestate made a gift of the money in controversy to defendant, as alleged in the answer; in other words, whether there was a donatio causa mortis.

The defendant Charles McCord testified as follows : I was at home; pa died Tuesday morning; he had been at my house two or three months; he had $7,700 at my house; I saw the $7,700 when he gave it to me on Monday about a week before he died; he handed the package of money to me and told me to take care of it for him; he took it from under the head of his bed; it was wrapped in brown paper and securely tied; my wife was in the room at the time, and I just gave it to her and told her to put it away; I gave it to my wife to take care of; I think it was on Saturday before his death, I had gone to the timber, and I sent for a doctor to see him ; the doctor came while I was away; doctor was going away when I returned; he told me that he could not do anything for him ;• I went up to the room; no one was present; I spoke to him and asked him how he felt about dying ; he told me that he would rather live, but that he was ready,'that his business was all arranged with the exception of the money; I called my wife into the room. He said that in case he should not-got well to take the money, and, after paying the funeral expenses, which he did not want to cost less than $100, then to pay to mother the $600 for her lifetime interest in

the Kirtley farm, and put Mrs. Kirtley in possession of her farm, then to divide the balance equally between the five —Martha, Mary and Sarah, Frank and myself. He then said to join in and make Lucy Ann a deed to her farm in Jackson county. - I believe I asked him then what ho wished me to do with the fifty-five acre tract, the little farm in Jackson county. He said to sell it and pay expenses or debts or something; he was aware of the fact that he would not get well; he died on Tuesday next at eleven o’clock a. m.; he did not get out of bed again except to the chamber. I carried the instructions out. On the day of the funeral I told Robinson, at Lexington, that I wanted to see them before they left town; in the meantime brother had left town, also Mrs. Kirtley; I told Robinson and wife and Hill and wife what pa’s instructions were, and when it was convenient I would meet them at Robinson’s or Kirtley’s and distribute the money; that I had the money at home; a week or ten days after this I sent a note to Frank to meet me at Robinson’s; I met them, except Frank, at Robinson’s and delivered the money and took their receipts ; I gave them $1,400 each. I paid mother the $600. I paid his funeral expenses.

The testimony of Mrs. Frances McCord, wife of Charles McCord, was in substance the same as that of her husband. The coui’t admitted this testimony, but afterward declared, that Charles McCord and- wife were not competent witnesses and excluded it.

1. donatio causa mobtis. If what was testified to by McCord and wife, who were the only witnesses to prove the gift, does not estaba donatio causa mortis, then even if the court erred in rejecting their testimony, the judgment should be affirmed, because it is not claimed that there was a gift inter vivos, and no title, except by gift, is asserted. The distinctions on the subject of gifts of this character, are finely drawn, and a conflict is frequently declared between the authorities when it is more apparent than real. To constitute such a gift, it must be made in

the last illness of the donor, or in contemplation and expectation of death. There must be a delivery of the subject by the donor, and it is “ defeasible by reclamation, the contingency of survivorship, or deliverance from peril.” 2 Kent Com., 444; Nicholas v. Adams, 2 Whart. 17; Walter v. Ford, 74 Mo. 195. It must he a delivery as a gift, and such a delivery, as in case of a gift inter vivos would invest the donee with the title to the subject of the gift.

In the case at bar the delivery actually made was not in execution or contemplation of a gift, so far as the evidence discloses. It was delivered to Charles McCord to hold as a bailee, and the language of the intestate, in the last interview he had with his son on the subject, was in substance, “After my death take it.” The exact words were : “ If I should not get well, take the money,” etc. It was not: “ Take the money, and, if I get well,” make the disposition of the property I have directed.

And it will be observed that he not only attempted to make a testamentary disposition of the money, but of all the property he possessed. He directed that a deed should be made to his daughter of a tract of land in Jackson county; that not less than $100 of the money should be expended for his funeral expenses; that $600 should be given to his wife for her life interest in the Kirtley farm, of which Mrs. Kirtley was to be put in possession. It was a nuncupative will, made without the observance of 'the formalities required by the statute, and bequeathing an amount largely in excess of that of which the statute authorizes a disposition in that manner. If such a transaction is to be hold a donatio causa mortis, the section of the statute in relation to nuncupative wills, and that requiring other wills to be in writing, signed by the testator, etc., have no force whatever.

All the statements with respect to the disposition of his property, made by the intestate, and testified to by McCord and wife, are to be taken as constituting one transaction. We can no more sever what was said in relation

to the cash, from what was said concerning the farms, and $600 to the wife, and funeral expenses, than one of those items can be dissevered from the other. Each was not a single transaction, standing alone, but all together constituted an entirety and were a testamentary disposition of all the property he owned, so far as the evidence shows, and even providing for the payment of debts, by directing the sale of the fifty-five acre tract for that purpose.

In the view we take of the case it is unnecessary to pass upon the competency of Charles McCord and wife as witnesses, and we, therefore, decline to do so.

The court should have rendered a judgment, either for or against the co defendants of Charles McCord, or as to them dismissed the suit. As they were not necessary parties to the suit, and on their own motion were made co-defendants, for a reason which can only be conjectured, and plaintiff has not appealed, complaining that no judgment was rendered against them, we shall reverse the judgment and remand the cause, with directions to the court below to enter a judgment in favor of plaintiff on the finding against Charles McCord, and dismiss the suit as to his co-defendants. •

All concur.