We are of the opinion, that the evidence fails to show that there was any gift from the deceased, Mrs. Morgan, to the defendant, Croly, of the nine hundred and sixty-six dollars.
Judgment and order reversed and cause remanded for a new trial.
Myrick, Sharpstein, and MoKee, JJ., dissenting:
It is clear to us that A. may deliver to B. personal property with instructions that B. deliver the same to C., and'if such delivery to B. is with the intention on the part of A. to pass the title to B., so as to make it a gift, it is good, even though B. does not deliver the property to C. until after the death of A. If Mrs. Morgan delivered to the defendant the two thousand five hundred and forty-eight dollars for which this suit was brought, with instructions to deliver portions thereof to parties named by her (the aggregate of the portions not, however, amounting to the full amount), and if, at the time of such delivery, she intended that the title to the money should pass from her, the gift was complete as soon as the defendant had possession of the money. The findings of the Court below can be sustained upon the theory that Mrs. Morgan intended that so much of the money as she did not direct to be paid to the other persons named should be retained by the defendant. The Judge of the Court below must have believed such to have been her intention; and there is some evidence upon which to base such belief. The written reply of the defendant to the demand of plaintiff for the money does not necessarily negative an idea of a gift; it is merely a statement of the facts: “Previous to her death she gave me the sum of two thousand five hundred and forty-eight dollars, one thousand five hundred and eighty-two dollars of which has been paid out according to her directions previously given. A balance of nine hundred and sixty-six dollars still remains in the Odd Fellows’ Savings and Commercial Bank, less ten per cent., which I have drawn, and for which Mrs. Morgan gave me no directions as to the disposition.”