In re the Estate of Brown

Ladd, J.

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*353 Money had been kept on deposit by deceased in the bank of L. Schoonover for many years, evidenced by 'Certificates of deposit in the name of John or Mary Brown. The certificates in controversy were issued October 15, 1896, to John and Mary Brown. According to the banker, they were so drawn that in event of Brown’s sudden death his widow, rather than administrator, might obtain the money. lie appears to have made the deposits, but she to have taken care of the certificates. The source of this money is not disclosed, though she testified to having bought 120 acres of the farm 25 years prior to the trial; and Schoonover, to his understanding that it belonged to her husband. Maurice, the son, relates seeing his father deposit money, and states generally that it was earned on the farm. 'Conceding all said, save Schoonover’s undterstanding, which can be given no weight, to be true, and it is not in any way inconsistent with the joint ownership indicated by these certificates. Nor do we think the deceased parted with his interest therein during his lifetime. It appears to have been "his design to have the certificates so drawn that he might have and control them while living, and that upon his death they might pass eo instante to his wife. Schoonover testified: “The reason he gave for having the certificates drawn to himself and her was that if he died she would draw the money. * * * When he first put money in there he seemed to have a fear that he might drop off, and then she •could get the money, and no one else, and if he wanted it he could come and get it himself.” The witness advised1 that he would pay either on the presentation of the certificates. *354 This indicates no intention to part with the title or control during life. If not, then the transaction fell short of a gift, as there was no present delivery. True, the certificates were placed in the wife’s keeping, but not with the purpose of transferring title. Each still had the right to draw the money. In order to constitute a gift, there must be an actual transfer by the donor of all right and dominion over the thing given. If this is to happen in the future, it amounts to no more than a promise without consideration, and may .be disregarded. Furenes v. Fide, 109 Iowa, 511 . In the authorities cited by appellee a present delivery was intended, or else the instrument had been left with a third party, without reservation or right of recall, to be delivered at death. See Guinan’s Appeal, 70 Conn. 342 ( 39 Atl. Rep. 482 ) ; Schollmier v. Schoendelen, 78 Iowa, 426 ; Dettmer v. Behrens, 106 Iowa, 585 . Nor can it be saidl that the money was left with Schoonover as trustee. There is nothing to-indicate that his obligation was other than as stipulated in the certificates of deposit... And by these he was payor to the joint payees therein named, with liability similar to that of maker in a promissory note. Mereness v. Bank, 112 Iowa, 11 . Under the evidence the deceased and his wife were joint owners of these certificates at the time of his death, and his undivided one-half interest therein should1 be distributed as a part of his estate.

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*354 II. The report, including the entire amount of the certificates as property of the estate, filed in February, 1898, was approved in May of that year, the widow having withdrawn exceptions previously filed. As part of the relief prayed in her objections to the final report, she asked that the above order of approval be set aside, and the executor, Maurice Brown, be required to account to her for the money represented by the certificates. Evidently fhis woman of 7& years, unable to read or write, confided in her son implicitly in the management of the estate, and, if she is to be believed as against him, was induced to sign the agreement withdraw *355 ing the exceptions to the report without hearing it read, and! without understanding that the $1,000 of the proceeds of the certificates were being turned over to him as executor of the estate. Without reviewing the evidence, it is enough to say that we are content with the conclusion of the district court that the order should be vacated. See Dorris v. Miller, 105 Iowa, 565 . But this money was not used for the benefit of the estate. The executor, Maurice Brown, paid it for his sister’s interest in the estate, taking title in himself individually. That an action may not be maintained against an executor under such circumstances was settled in Valley Nat. Bank v. Grosby, 108 Iowa, 651 . The mere fact that he reported it as property of the estate does not make it such. To hold otherwise would permit him, by_including private indebtedness in his report, to saddle his individual obligations on the estate, and this, possibly, at the expense of his bondsmen. It is said that enough was contained in the objections filed to warrant such relief. But these were directed at the final report, which proceeded on a theory such that acquiescence therein by the widow would have been fatal to any claim against the executor individually. The office of exceptions to such reports is not to demand affirmative relief, but to call the attention of the court to errors of omission or commission in the statements of account. The report and the objections form the issues to be tried to the court, and involve no more than the correctness of the account presented by the executor as such. His individual liability is not involved. The claims of the widow against her son individually must be determined in a jurisdiction other than the court of probate.

Our conclusion, briefly stated, is that the executor should be charged with one-half of the face of the certificates1, with the interest accrued up to the time he received ■ the money; and as he made use of that received, in his own business, he should account for interest thereon at the rate of 6 per cent, per annum, with annual rests. The remaining one- *356 half of the certificates and interest belongs to Mrs. Brown individually,• to whom her son is accountable individually for the portion in his hands, and not as executor. The judgment as thus modified is affirmedl; the costs in both courts to be paid from the funds of the estate. — Modified and affirmed.