Pullen v. Placer Country Bank

This cause was submitted to the superior court upon an agreed statement showing the following facts, — viz.: In November, 1897, John W. Clarke, Sr., had on deposit with the defendant the sum of twelve hundred dollars, which remained on such deposit until after his death. During that month, for the purpose of making a gift of one thousand dollars to his son, John W. Clarke, Jr., he drew a check upon the defendant for that amount of money, and delivered it to his son, saying that he could get the money from the bank; but, after delivering it to him, stated that he wished he would not present it until after his death. The son complied with his wish, and did not present the check until the morning after his father's death. He died September 29, 1898, and on September 30th the son presented the check to the bank, and it was paid. The bank had, however, been informed of the death of the father before the check was presented for payment. The present *Page 170 action is brought to recover from the bank the amount of the check as money deposited with it by the deceased, and held on deposit at the time of his death. The superior court rendered judgment in favor of the defendant, and the plaintiffs have appealed.

The question presented upon the appeal is whether under the above facts the intended gift of the father to the son had become complete before his death, or whether it was merely inchoate. If the transaction between them constituted a completed gift, the money represented by the check belonged to the son, and the bank was justified in paying it to him, while, on the other hand, if the gift had not been perfected, but was incomplete at the time of his death, the money in the bank belonged to his estate and descended to his heirs, and its payment by the bank was unauthorized.

Section 1146 of the Civil Code defines a gift to be "a transfer of personal property made voluntarily and without consideration"; and under section 1147 a verbal gift is invalid unless accompanied by a delivery to the donee of the thing given, if it is capable of delivery, or of the means of obtaining its possession and control. "There can be no gift without an intention to give and a delivery, either actual or constructive, of the thing given. There must be both a purpose to give and the execution of this purpose. The purpose must be expressed — either orally or in writing — and it must be executed by the actual delivery to the donee of the thing given, or of the means of getting possession and enjoyment thereof. It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and complete gift." (Knight v. Tripp, 121 Cal. 674.) A gift vests the donee with the absolute property in the thing given, and it is no longer subject to the control of the donor. If, on the other hand, the thing given remains under the control of the donor, or (except in the case of a gift causa mortis) is subject to his revocation, his gift is not complete. There is no difference, however, in this particular between a gift intervivos and a gift causa mortis. In either case it is not complete unless there is either an actual or symbolic delivery to the donee of the thing to be given. (Knight v. Tripp, 121 Cal. 674.) In the present case the gift was verbal, and the property which the father intended to *Page 171 give to his son was money on deposit in the bank. The check was not itself the property which the father intended to give, but was merely a direction to the defendant to pay one thousand dollars to the son. It indicated the amount to be given and the place at which the money was to be delivered. The check was not a symbolic delivery of the money, but it was a delivery of the means by which the son could obtain possession of the money. It was, however, subject to revocation by the father at any time before its presentation to the bank, and was in fact revoked by his death. The request of the father that the son would not present the check until after his death did not affect the sufficiency of the gift. If the gift were complete by his delivery of the check, such subsequent request would not destroy its validity, and if not then complete, this request would not have the effect to dispense with its presentation for the purpose of making it complete. By the failure of the son to present the check, there was no delivery of the money during the lifetime of the father, and the gift was therefore not complete.