Hart v. Ketchum

HARRISON, J. The plaintiff seeks hy this action to recover from the defendant certain moneys claimed to belong to the estate of James Preston, of which he is the administrator. The defendant claims a right to the money by virtue of a gift causa mortis from the intestate. Judgment was rendered in favor of the plaintiff, and the defendant has appealed.

On the nineteenth day of March, 1897, James Preston, being ill and expecting to die from his illness, placed in the hands of the defendant two savings hank hooks, saying; “I want you to draw this money and pay it out as I wish to have it done, to different parties. I want you to draw the money and pay Damas Sirard one thousand dollars; pay John Sherman, in North San Juan, for one week’s hoard, about six dollars, I suppose, and pay to A. J. Grimes ten dollars. Then he said, ‘You select some charitable institution and give or send [428]■to them one hundred dollars from this money/ That was the talk right then. He said nothing to me about any balance, if any should remain. He did not specify any charitable institution, but told me to select one, and I asked him what one, and he said he did not Imow—that I should select one and 'suit myself.” He also said that he wanted the defendant to pay his funeral expenses. “He wanted me to pay all—to pay. these parties certain amounts, and pay all his little bills he might be owing, and all expenses and everything of that kind.” Orders upon the banks for the money were then prepared by the defendant and signed by Preston, and the defendant said to Preston: “How, Jim, if you get well, I will keep this money safely for you and you shall have every nickel of it back. You need not be afraid of losing any of it through me.” The orders were sent to the banks at San Francisco and Sacramento, and subsequently the money represented by them was received by the defendant. * Preston died on the 22d of March. The court found that in the making of said orders and delivery of said bank books the deceased did not intend to make a gift of his property to any one, or to transfer the title to said property to any one, but intended to retain his right and dominion over it during his lifetime; “that in the delivery of said bank books and making of said orders it was intended by said Preston to constitute said Ketchum his agent for the purposes above set forth, and it was intended by said Preston that such disposal of his said property should only take effect at the time of his death,” and thereupon rendered judgment in favor of the plaintiff.

Money deposited in a savings bank may be the subject of a gift causa mortis, if it appears from the transaction that the donor intended thereby to confer upon the donee a present right to the money, and, at the same time, clothed him with the means of obtaining it. The delivery, however, must be as a gift in presentí, and not for the purpose of making a future disposal of it under the directions of the donor. If the donee is merely empowered to draw the money, and is thereafter to dispose of it in accordance with instructions from the donor, he is only an agent of the donor and his agency terminates with the death of the donor. It is essential to a gift