I regret my inability to concur in the majority opinion in this case. With the general legal principles therein announced I am in full accord. The divergence of views arises upon their application to the case in hand.
In Drew v. Hagerty, 81 Me. 231, 17 A. 63, 64, 3 L.R.A. 230, 10 Am.St.Rep. 255, cited with approval in Barnes v. Barnes,174 Ala. 166, 56 So. 958, 959, is this observation: "Gifts causa mortis ought not to be encouraged. They are often sustained by fraud and perjury. It was an attempt to sustain such a gift by fraud and perjury that led to the enactment of the statute for the prevention of fraud and perjury. * * It is far better that occasionally a gift of this kind should fail than that the rules of law be so relaxed as to encourage fraud and perjury."
And this thought is in harmony with the general current of authority, 12 R.C.L. 956; 28 Corpus Juris 686, as well as those of our own. Barnes v. Barnes, supra; Collins v. Baxter,231 Ala. 247, 164 So. 61, requiring strict proof.
And it is important that this rule be observed, for it was for the protection of estates of deceased persons, and to prevent fraud and perjury, that our statutes have so carefully guarded this character of disposition of property.
A will must be in writing and attested by two witnesses. Section 10598, Code. However carefully drawn, and however honestly and openly attested by one witness, it will not suffice, and the testator's clear intention cannot be fulfilled. And as to unwritten and nuncupative wills there are restrictive conditions prescribed by statute, confined to personal property of value not exceeding $500. Sections 10602, 10603, Code of 1923.
Of course all of this is quite familiar, but some of the cases refer to these matters as indicative of the reason of the strictness of the rule. Clearly enough this court favored no relaxation in that regard. Barnes v. Barnes, supra. *Page 593
There the donee already had the possession with knowledge and consent of the donor, and was told to keep them and reiterated the statement after the donee had offered to hand the papers back. Said the donor: "You keep them; I have been thinking for some time, for two weeks, to let you have the papers to take care of. You keep them. You keep them; collect the money. You take your half, and give the other half to Jesse, provided I don't come back." The delivery was held insufficient and the gift failed. The court quoted approvingly the following rule: "Where a person delivers property to his own agent or bailee, and, without absolutely surrendering dominion over it, directs that, in the event of his death, it shall be delivered to an intended donee, the transaction is regarded as an attempted testamentary disposition." And the cases cited in Barnes v. Barnes, supra, clearly indicate the judicial thought then prevailing in this court.
As an illustration, take the case of Walter v. Ford,74 Mo. 195, 41 Am.Rep. 312. There Walter, the deceased, delivered to Ford four checks duly signed with the payees named therein, with directions to deliver them to the payees if he, Walter, should die, but, if he recovered, to return them to him. The court said: "All the authorities agree that there must be an actual delivery of the subject of the gift by the donor. It only differs from a gift inter vivos, in that it is 'defeasible by reclamation, the contingency of survivorship, or deliverance from peril.' Nicholas v. Adams, 2 Whart. [Pa.] 17. Was there a delivery of the subject of the gift to the payees of the check by Walter in his lifetime? His injunctions to Ford were that they were not to be delivered unless the donor died, and were to be held by Ford to be redelivered to the donor, if he recovered. Ford was the agent of Walter and bound to obey his instructions, and so doing, could not have delivered the checks to any one while Walter lived. If they had been given to Ford to be held for the payees at all events, the authorities cited to show that a delivery to an agent or trustee of the beneficiaries is a sufficient delivery, would be in point, but that is not this case. The checks were given to Ford, not to be delivered in the lifetime of Walter, but after his death. It was in the nature of a testamentary disposition, and possessed none of the elements of a donatio causa mortis."
And in Smith v. Ferguson, 90 Ind. 229, 46 Am.Rep. 216, the gift failed for the reason that it did not show that the deceased "parted, or intended to part, during her lifetime, [italics supplied] by gift inter vivos or causa mortis, with her title to or right to the possession of the notes in controversy or the proceeds thereof. Notwithstanding all that was said or done by or between her and the appellee, of and concerning such notes or their proceeds, they remained her property and estate, we think, until and at the moment of her death."
Another interesting case cited in Barnes v. Barnes, supra, is that of McCord's Adm'r v. McCord, 77 Mo. 166, 46 Am.Rep. 12, wherein the court said, speaking of the question of delivery: "It must be a delivery as a gift, and such a delivery, as in case of a gift inter vivos would invest the donee with the title to the subject of the gift." There the deceased gave other directions as to the management of his affairs, just as in this case, and the court concluded with the observation: "If such a transaction is to be held a donatio causa mortis, the section of the statute in relation to nuncupative wills, and that requiring other wills to be in writing, signed by the testator, etc., have no force whatever."
But perhaps the clearest and most able treatment of the subject is found in Basket v. Hassell, 107 U.S. 602, 609,2 S.Ct. 415, 27 L.Ed. 500, quoted and approved by this court in Barnes v. Barnes, supra. The majority opinion would distinguish the case for the reason it involved the indorsement of a deposit slip rather than a note. But the opinion in the Basket Case expressly discloses the same principle is applicable to notes, as is shown by the following excerpt from the opinion on page 616 of 107 U.S., on page 424 of 2 S.Ct.: "The case is not distinguishable from Mitchell v. Smith, 4 De Gex, J. S. 422, where the indorsement upon promissory notes claimed as a gift was, 'I bequeath — pay the within contents to Simon Smith, or his order, at my death.' Lord Justice Turner said: 'In order to render the indorsement and delivery of a promissory note effectual they must be such as to enable the indorsee himself to indorse and negotiate the note. That the respondent, Simon Smith, could not have done here during the testator's life.' It was accordingly held that the disposition of the notes was testamentary and invalid."
Certainly the quotation from the Basket Case, supra, found in the majority opinion, in no wise reflects upon this express statement of the court. Indeed, the value of the Basket Case is in the lucid discussion of the *Page 594 fundamental and underlying principle of a gift causa mortis. It demonstrates beyond all doubt that upon the question of delivery there is no distinction between a gift inter vivos and one causa mortis. They differ only in these respects. A gift causa mortis is subject to be revoked by the donor, or by his surviving the apprehended peril, or outliving the donee, or by a deficiency of assets necessary to pay the debts of the deceased donor. The opinion then proceeds: "These conditions are the only qualifications that distinguish gifts mortis causa and inter vivos. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will." The court proceeds to point out that the delivery of a chose in action must be such as divests the donor of all present control and dominion over it, absolutely and irrevocably in case of gifts inter vivos, but upon recognized conditions subsequent, in case of gifts mortis causa; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation according to its terms will not suffice. A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character and not good as a gift.
The facts of the Basket Case, supra, were as follows: One Chaney had in his possession a time certificate of deposit in excess of $23,000 in the bank, which during his last sickness, and in apprehension of death, he delivered to Martin Basket, with the following indorsement thereon: "Pay to Martin Basket, of Henderson, Ky.; no one else; then, not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. H. M. Chaney." The litigation was between Basket, the donee and who held the certificate when the donor died, and the administrator of the donor's estate. The fund went to the administrator, and the clear purpose of the donor was defeated.
The majority opinion in the instant case makes reference to the right of revocation on the part of the donor. But that is one of the conditions subsequent to such gifts. It bears no relation to conditions precedent that there shall be such a delivery as to pass from the donor all right and dominion over the subject matter of the gift during his lifetime. The authorities hold the dominion and control and title must pass to the donee during the lifetime of the donor.
We would emphasize the words during the lifetime of thedonor, a part of the underlying principle of law that we feel the prevailing opinion has overlooked.
The Basket Case, supra, answers all of this in the concluding paragraph of the opinion as follows: "It cannot be said that the condition in the indorsement which forbade payment until the donor's death was merely the condition attached by the law to every such gift; because the condition which inheres in the gift mortis causa is a subsequent condition, that the subject of the gift shall be returned if the gift fails by revocation. In the mean time the gift is executed, the title has vested, the dominion and control of the donor has passed to the donee. While here the condition annexed by the donor to his gift is a condition precedent which must happen before it becomes a gift, and, as the contingency contemplated is the donor's death, the gift cannot be executed in his lifetime, and consequently, can never take effect."
The authorities all agree that, as the circumstances under which such gifts are made necessarily vary, each case must be determined upon its own peculiar facts and circumstances. 12 R.C.L. 961; 28 Corpus Juris 691. Numerous cases found cited in the notes to 60 A.L.R. 1055, 40 A.L.R. 1250, and 3 A.L.R. 902, have been examined.
Perhaps that of Duryea v. Harvey, 183 Mass. 429, 67 N.E. 351, is here more nearly in point. The decision is by a court of high repute, but it appears to be here ignored. There, as here, there was involved an instrument which was a written promise to pay by one Harvey to deceased, Simpson. By separate instruments Simpson assigned the same to Miss Duryea, and ordered the amounts paid to her, in one of them saying: "Whether I am alive or dead." The papers were placed in a sealed envelope and delivered by Simpson to one Scheider and Duryea was the intended donee.
In the instant case the papers were also in a sealed envelope, where was the letter of instructions, all save the Lewis note handed to Dr. Cameron simultaneously with the sealed letter, and the directions in the sealed letter made specific reference to the Lewis note. It is of course clear, and not otherwise insisted, that the delivery of the Lewis note and the letter constituted one *Page 595 transaction, and the fact therefore that this note was not also inclosed in the letter is a matter of no consequence. The Lewis note bore the following indorsement: "10/23/31. In the event of my death pay to the order of Dr. T. C. Cameron. D. J. Caddell." Upon the delivery of the letter to Dr. Cameron, decedent requested it not to be opened until after his death.
So, likewise, in the Duryea Case, supra, the papers were in a sealed envelope and delivered by decedent to Scheider, with Duryea the intended donee, and on the envelope was written: "To be opened by Jacob Scheider * * * or Miss May Duryea, * * * only by my direction or on my death."
It appears, therefore, that the similarity between the two cases is extremely close, for, clearly, when Caddell handed the sealed envelope with accounts and directions not to be opened until after his death, it was in substance and effect exactly what Simpson wrote on the back of the envelope in the Duryea Case, supra. The donor no more lost dominion and control of the papers during his lifetime in the one case than the other. The Massachusetts court, under the circumstances above outlined, answering the insistence there was a gift inter vivos, said: "From the language used by him, it is plain that he did not intend that the envelope should be opened during his life without further directions from him. There was no delivery to the plaintiff, or to Scheider for her. Scheider held the papers during the life of Simpson subject to his orders, and not for the plaintiff. * * * There being no delivery during his life to the plaintiff, or to anybody for her, there was no gift inter vivos."
And answering the contention that the gift may be upheld as one causa mortis, the court continued:
"Here, however, as elsewhere in the case, the lack of delivery to the donee, or to some one for her, passing the title to her during the lifetime of the donor, is fatal. In the case of a gift mortis causa, as well as in that of a gift inter vivos, such a delivery is necessary to the validity of the gift. In Basket v. Hassell, 107 U.S. 602, 609, 2 S.Ct. 415,27 L.Ed. 500, Matthews, J., in the course of an elaborate and instructive opinion upon this point, uses this language: 'A donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the conditions subsequent; that is, upon actual revocation of the donor or by the donor's surviving the apprehended peril of outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and inter vivos. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will.' This principle has been frequently recognized in our own decisions, McGrath v. Reynolds,116 Mass. 566, and cases cited, and is sustained by the great weight of authority. A good collection of the cases is contained in 14 Am. Eng. Ency. of Law (2d Ed.) p. 1056-1058. While the delivery may be made by the donor to some one for the donee, and in such a case is good even although not transmitted to the donee until after the death of the donor, still the delivery must be such as to transfer the title during the lifetime of the donor; a title defeasible, it is true, but complete in the donee until so defeated; the only difference in this respect between the gift inter vivos and the gift mortis causa being that the former is indefeasible, while the latter is defeasible.
"It follows that the intention of the deceased cannot be carried out upon the ground of a gift or contract. So far as the act related to what should take place after his decease, it was of a testamentary character, and, not being attested as required by law, it must fail of its purpose as such."
If this is a sound decision, it controls this case, and I respectfully submit it is sound and based upon the fundamental principle of gifts causa mortis, that is, that delivery must be such as to pass dominion and control and the title from the donor during his lifetime. There are no authorities cited in the prevailing opinion here to sustain the conclusion reached on the peculiar circumstances of this case, and, indeed, our search discloses none.
On the other hand, a contrary view is sustained in principle in the Basket Case, supra, and altogether in the Duryea Case, supra, from Massachusetts.
True, the majority holding carries out the purpose of the donor, but a gift is more than a purpose to give, however clear and well settled the purpose may be. As said in Walsh's Appeal,122 Pa. 177, 15 A. 470, 1 L.R.A. 535, 9 Am.St.Rep. 83, cited in our *Page 596 Barnes Case, supra: "It is a purpose executed." It cannot be doubted that during the lifetime of Caddell he still held dominion and control over these papers, and that Dr. Cameron held them, during that period, only as his bailee. What was to be done could only take place after his death, and was of testamentary character only.
The purpose of the donor should not be carried out at the sacrifice of so salutary a principle underlying gifts causa mortis, nor should the field for such gifts be thus enlarged.
A reading of the directions in the letter to Dr. Cameron will readily disclose how closely they favor directions in a will. Cameron held the notes and accounts as agent of Caddell, to distribute the proceeds of their collection pursuant to given directions, as said in Taylor v. Harmison, 179 Ill. 137,53 N.E. 584, 585, "for the purpose of obviating an administration of his estate."
I forego further discussion. But the decision appears to be upon a matter of so great importance I have felt impelled, at too great length I confess, to state my views.
I respectfully dissent, and am authorized to state that Mr. Justice KNIGHT concurs in the foregoing opinion.