Edwards v. Guaranty Trust & Savings Bank

THOMAS, J.

This is an action brought by plaintiff against defendant as executor of the estate of Benjamin Lezer Liveson, deceased, on a “rejected claim,” evidenced by a cheek given to plaintiff by the deceased on February 28, 1916, in the sum of four thousand dollars, and intended as a gift to plaintiff.

From the record it appears that on March

2,

1916, the plaintiff deposited the check in question with the National Bank of- Long Beach for collection; that on March 3, 1916, the check was presented to the bank on which it was drawn, and in which it is conceded the deceased had on deposit a sum approximating nine thousand dollars, and by said bank payment thereof refused, the cheek being returned marked

[87]

“signature incorrect”; and that on March 4, 1916, Liveson, the drawer, died.

The case was tried by the court without a jury, and findings and judgment were in favor of the plaintiff as prayed for. The appeal is from the judgment so entered, on the judgment-roll alone.

[1]

There is just one point, and that one of law, in this case. The question with which we are here confronted is: Can a check, given to the payee as a gift, and presented to the drawee prior to the death of the drawer, and not accepted or paid, but payment of which was rejected for any or no reason, constitute a valid gift

inter vivos

or a gift

causa mortisf

So far as material here, the court found as follows: That the deceased executed and delivered the said check as already stated; that at the time of the execution thereof deceased had a sum in excess of eight thousand dollars in the drawee bank, known as a “term account”; that the bank-book evidencing such account, in the possession of deceased at and prior to the time of his death, showed “that the bank reserved the right to require on term deposits six months’ notice of intention to withdraw”; that said bank refused to pay the check, giving as the sole and only reason for such refusal the fact that the signature of said Liveson on said check was “incorrect”; that said bank waived the provisions requiring six months’ notice of intention to withdraw from the funds of the said Benjamin Lezer Liveson, and waived the presentation of the pass-book; that the refusal to pay said check was not caused by any malicious intent of the defendant; and that said signature on said check was not incorrect.