Summary
Appeal from Jackson Circuit Coitrt. — Hon. T. A. Gtll,. Judge.
Ti-ie action is in replevin for certain promissory notes, amounting, in total value, to about $35,000. The answer is a general denial.
Plaintiff is administrator of the estate of Francis F. Ford, deceased. The notes belonged to the latter in his-lifetime.
The defendant is a nominal party or mere stakeholder, the real party interested adversely to plaintiff being Henry T. Ford, brother to the deceased.
The latter claims title to the notes under the following instrument, viz.:
'“Know all men by these presents, that I, the within-named F. F. Ford, in consideration of $1 to me in hand paid, and the further consideration of love and affection, have assigned, and do by these presents transfer and assign, to my brother, H. T. Ford, or his assigns, the following described personal property, to-wit” (Here occurs a detailed description of some twenty odd notes of various makers).
“Now, I do by these presents assign to said H. T. Ford, or his assigns, the foregoing described notes and all sums of money due or that may become due on the same. And I do authorize the said H. T. Ford in my name to demand, sue for, recover and enjoy the moneys due or to become due on the aforesaid notes.
“ Witness my hand and seal this ninth day of January, A. D. 1886.
“ [ Signed.] F. F. Ford (Seal).
“Attest: D. Ellison.”
The cause was tried with the aid of a jury.
It appeared that defendant had had the custody and care of many of the papers of F. F. Ford for some time before the occurrences out of which this action arose. His testimony contained in a deposition read by plaintiff at the trial was (in substance) this: He had some of the notes sued for and a part he never had ; those he had were taken for land sold and money lent. F. F. Ford was in Kansas City for about three months prior to his death. He had no office. He was in witness’ office a good deal. About January 5, 1886, he was taken sick. Some ten days before, he told witness he proposed to give his brother “Thornton” (H. T. Ford) these notes and most of his personal property. He spoke to witness about drawing up the instrument three or four days after he was taken sick; he spoke of it, January 7, and witness finished it on the ninth. Witness asked deceased “what he wanted done with the paper,” and he said, “put it among the papers,” or “ with my other papers.” Ford signed the paper on the ninth and died about two weeks afterwards. When the paper was signed, witness had the other papers of ■deceased in the safe of witness in his office, in an envelope all together; that when H. T. Ford came to Kansas City a few days later (and before F. F. Ford died) witness told H. T. Ford that witness had it (the instrument), and II. T. Ford said for it to remain in the safe just as it was; afterwards he came over (before his brother died) and told witness he accepted of the assignment; that witness had, ever since then, had possession of the papers mentioned.
The witness was a lawyer and knew that the two' brothers were jointly interested in Kansas City land. Witness had acted as agent of F. F. Ford in selling land and loaning money and had learned from him of the terms of deceased’s will; that F. F. Ford said he was going to give his notes and most of his personal property to his brother; that he sent for witness on being taken sick and told witness what to do; that, when the first draft of the paper was made, Mr. Ford noticed the omission of some notes ; they were hunted' up and inserted ; the instrument was then finished ; read to him ; he made some change in it and then signed it, making the statement already mentioned as to its disposition.
What then followed is thus stated :
“Q. And you took the paper and put it in your safe? A. Yes.
“ Q. What papers were in that envelope ? A. The notes in my possession were in that envelope.
“Q. And you put it along with those notes?' A. Yes.
“ Q. Do you know how H. T. Ford ever came to know of it ? A. I told him myself ; he may have known of it from other sources, but I told him I had the assignment here, soon after he came.
“ Q. What did he say ? A. He said to let it be in the safe just as it was.
“ Q. Would you at that time, from what the deceased had told you, prior to the sickness, of what took place at the time of the execution of the instrument, would you have delivered it? A. Yes.
“ Q. If he had asked for it? A. Yes; I wanted to turn it over to him.
“ Q. Did you say you offered to deliver it to him ? A. Well, I think I did. He promptly said, ‘let it be in the safe.’ ”
The witness got the data for the description of the various notes from a book, kept by deceased in a valise at his room.
In the course of the trial, evidence was given tending to show that, at the time, F. F. Ford executed the instrument, above described, he was of sound mind, and there was also evidence to the contrary.
It further appeared that F. F. Ford had made a will, January 25, 1884, with due solemnities. It was received in evidence. Its general features were that his widow was to have the use of the homestead, and also one-fourth of net annual income of the estate; their only child to have $10,000 worth of the real estate at twenty-one; $20,000 more of it at twenty-five ; $25,000 more at thirty; $45,000 more at thirty-five, and the remainder at forty-five ; that H. T. Ford should have, for life, one-eighth of the net annual income of the estate, excluding the homestead, and be discharged of all debts due by him to deceased. There were other dispositions of property and directions regarding its management that are not material to the present case.
Among other evidence the defendant produced and read the following letter to H. T. Ford from the deceased, received by the former about the time of its date, viz.:
“ 601 Del. St. Kansas City, January 4, 1885.
“Dear Brother: — Your last at hand a day or two since; glad to hear. My health has not been as good in some respects as before. Thought it was inflammation, of the lungs, but Dr. Porter thinks it is my heart; and now think so myself; am much troubled with shortness of breath and great weakness. I refer it all to my mental suffering for the past year or so. I have felt all along it was killing me. My previously weakened heart could not withstand it. Still I manage to keep on my feet and attend to business as well as I can. Am feeling some better now for a few days. I am not yet through with repairs on hotel, and cannot yet report expense.”
(Then follows a long statement of particulars regarding the management, repairs, etc., of real estate in Kansas City, after which the letter proceeds thus ): “ Have had a talk with Ellison about my health, and property in his hands, i. e., notes, mortgages, etc., to deliver direct to you in case of accident. I have, all told, $35,000 to $40,000 ; do not be alarmed by these statements ; they are only precautions; they are not in my will which I carry with me. Will make full report of expenses when I get through. Hope In. will write when he gets to Washington. Weather very mild; take care of your health and not overwork. Affectionately. P. F. Ford.”
The case was submitted to the jury under instructions of the court, referred to in the opinion, and a verdict for the plaintiff followed. After the necessary motions and exceptions defendant appealed to the supreme court. The other material facts appear in the opinion.
(1) The claim of H. T. Ford to the notes sned for is based upon a writing, clear in its terms, reciting a consideration and under seal. There is no question as to its execution, or as to its meaning. It was made in pursuance of a fixed purpose* evidenced by a letter from deceased to his brother as well as by a talk with defendant. (2) The whole question in each case of a gift causa mortis is whether the gift is complete, in so far as the donor is concerned. William t>. Giles, 117 N. Y. 343; Dalton v. Wobam, 24 Pick. 261 ; Grymes v. Hone, 49 N. Y. 17. (3) There is no dispute about the facts as to delivery. It is simply a question of law. They ■show such a delivery as is required, which must be such as will place the property within the dominion and control of the donee with intent to confer title upon him. Buffleld r. Elwes, 1 Bligh. N. R. 497; Stephenson's Adm'r r. King, 81 Ky. 430; Harris' Appeal, 5 Watts and S. 498 ; Crawford’s Appeal, 61 Pa. St. 6; Ellis v. Secor, 31 Mich. 186; Shackelford ». Brown, 89 Mo. 546. It was said in Somers r. Pumphrey, 24 Ind. 240: “The law does not prescribe any particular form of words or actions, as necessary to consummate delivery. Anything done by the grantor from which it is apparent that a delivery is intended, either by words or acts, or by both combined, is sufficient.” Folly v. Vantryl, 4 Halst. 158 ; Hillibrant r. Bretoer, 6 Texas, 51 ; Barney v. Ball, 24 Ga. 514 ; Standiford r. Standiford, 97 Mo. 231. (4) If there was no delivery a trust was created in the deceased for his brother as to the property described in the writing under seal. Helfanstein's Estate, 77 Pa. 331; Bund r. Bumbing, 78 Pa-210 ; Boone r. Bank, 84 N. Y. 83 ; Minor , r. Rogers, 40 Conn. 512; Ellis v. Secor, supra. (5) Defendant should have been allowed to testify. The statute ought to have been liberally interpreted, as its object is to remove and not to impose restrictions. Nailor r. Williams, 8 Wall. 109.
(1) To constitute a valid donatio causa mortis, the-donor must part with all dominion over the property to the donee, to belong to him presently, as his own property, in case the donor should die without making any change in relation to it. Huey r. Huey, 65 Mo. 689; Cooler. Brown, 34 N. II. 460; Walter r. Ford, 74 Mo. 195; McCord's Adm'r r. McCord, 77 Mo. 188; Standiford r. Standiford, 97 Mo. 231; Weisinger v. Cooks, S. Rep. June 11, 1890, p. 494; Brewr. Hagerty, 81 Me. 231 Appeal of Walsh, 122 Perm. St. 177; Taney r. Field, 8 S. E. Rep. 721. (2) A gift which is to take effect only upon the death of the donor is not valid, but a testamentary disposition of property, and in violation of the statutes. McGrath v. Reynolds, 116 Mass. 566 ; Haskett v. Hassell, 107 U. S. 602; Rowell v. Hellicar, 26 Beav. 261 ; Reddel ®. Hobree, 10 Sim. 244 ; Farquaharson v. Case, 2 Colly. C. C. 356; Hatch ®. Atkinson, 56 Me. 324; Bunn ®. Markham, 7 Taunt. 224; Coleman v. Parker, 114 Mass. 30; Wings. Merchant, 57 Me. 383 ; Me Willis s. Van Vacter, 35 Miss. 428 ; Hdgerton ®. Hdgerton, 17 N. J. Eq. 419 ; Michener s. Bale, 23 Pa. St. 59. (3) A written assignment of personal property by way of a gift causa mortis to a person named therein which is never delivered to such person, but is detained by the party who executes the assignment or his agent for him, does not create a trust in favor of the. person designated as beneficiary in the assignment. Trough s Estate, 75 Pa. 115 ; Zimmerman v. Streeper, 75 Pa. St. 147. (4) The appellant was properly not permitted to testify against the administrator in favor of himself as to a transaction had with the testator.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
