Allen v. Polereczky

A gift of pergonal property inter vivos, in order to be effectual, must be absolute, and the donor must, at the time of the gift, part -with all present and future dominion orar it.

Assumpsit for money had and received to the use of Went-worth Allen, the plaintiff's intestate. Wentworth Allen was a shipmaster. He returned from Mexico with health somewhat impaired. He, however, performed several coasting voyages afterwards. On starting upon one of these voyages, he placed in the defendant’s hands $950, to be deposited in the savings bank. The defendant deposited the same to his own credit, taking a certificate thereof in the form, commonly called a bank book, which he lodged with his daughter Nancy, for safe keeping. There was evidence tending to show, that an engagement of marriage between the intestate and said Nancy had subsisted for three or four years ; that, on his return from-that voyage, she showed to him the bank book; that he examined it, handed it back to her with a statement, in substance, that if he should die, before having made any different disposition of the money, it should be hers. He died soon afterwards, having done no further act in relation to the subject. The jury were instructed that, if that testimony was believed, the plaintiff would not be entitled to recover. To that instruction, the plaintiff, (the verdict being against him,) excepted. If the money can be withheld from the plaintiff, it must be either as a gift inter vivos ; or as a donatio causa mortis, or by a nuncupative will. There was no such delivery, as to constitute a valid gift inter vivos. It was not to take effect while the donor lived. The delivery of the bank book was not a delivery of the money, even symbolically. The book contained no contract. It was a mere abstract of the bank records. It was in itself of no value. The act of the intestate was testamentary. At most, it exhibited a mere intention of making a gift at some future time. There was a locus penitentice, during the whole residue of his life. 2 Kent’s Com. 438; Noble v. Smith, 2 Johns. 52; JBac. Abr. 4, c. 110, a. <§» 1, 4. 2. The act was wholly inoperative as a donation causa mortis. 2 Kent’s Com. 444, 445; Weston v. Might, 17 Maine, 287 ; 2 Blackstone’s Com. 441; Waldron v. Dixon, 5 Monro, 170. 3. Neither was there a nuncupative will. E. S. e. 92, <§ 9, 10 and 11. 1. The defendant never appropriated the money. He was a mere messenger to deposit it. True, he deposited it in his own name. But the intestate ratified the act, and after-wards appropriated the money. 2. The intestate divested himself of the ownership. The book contained a contract, assignable by delivery. It represented the money, and stood in lieu of it. He gave it to Nancy. In the gift, there was no eontingencjr. It was a valid Irrevocable gift, effectual at the time. Accordingly, he never afterwards spoke upon the subject. We make no claim under a nuncupative will or as a donatio causa mortis. It is sufficient for us, that there was a valid gift inter vivos.