On the Merits.
BREAUX, C. J.[2] The forced heirs of the late Catherine Meyer née Houskneclit, widow by first marriage of Edward Boyle, by second marriage of G. Meyer, opposed the application of Josephine Boyle, wife of James D. Connell, daughter of Catherine Meyer, on the ground that she did not have the business qualifications or experience necessary to administer the estate of her late mother; that she, Josephine Connell, is indebted to the estate of her late mother in a large sum which she failed to include in the inventory; that Mrs. Catherine Meyer, the deceased, was over 70 years of age at the date of her death, and that prior thereto her daughter, Mrs. Josephine Connell, exerted an influence over the mother to the extent that she obtained a full power of attorney from her to sign and execute checks and to do other acts in the name of the mother, who had an amount deposited in the Commercial-Germania Trust & Savings Bank.
As to the manual gift claimed by Mrs. Connell to her by her mother:
The order is inserted here in full for the reason that it is of some importance in deciding the point, that relating to the alleged manual gift. It reads as follows:
*824“To the Commercial-Germania Trust & Savings Bank, New Orleans. No. 7823. Dec. 21st, 1912. I hereby authorize Mrs. Josephine Connell to withdraw any money she may wish from my account in the Commercial-Germania-Trust & Savings Bank at any and all times. Account of Mrs. Meyers.”
Two witnesses signed this order.
The bank on this power of attorney delivered to Mrs. Connell the amount in bank to the credit of Mrs. Meyer, which amounted to $1,535.38, balance on deposit.
As to this order, Mrs. Connell testified that the amount thereunder was a manual gift of her mother; she testified:
“I don’t know'exactly how much money she had in the bank until Mr. Blafier gave me the check to draw, put it in my name; that my mother said to me, ‘Josephine, take this letter to Mr. Blaffier, let him give you this money to put it in your own name because I want you to have it for yourself.’ ”
The witness also stated, contradicting the foregoing, that she had never used the power of attorney; that she had never drawn a cent from the bank other than “those hundred dollars which I just mentioned, which I drew before Christmas.”
Mrs. Connell was appointed administratrix on the 8th day of October, 1913.
Opponents ask at this time that she be dismissed as administratrix.
We decline to grant that prayer. In few words we hold that the settlement of the succession is near the end. It would serve no useful purpose to dismiss the administratrix at this time. It would only delay the settlement and add to the costs.
Now as to the manual gift:
On January 10, 1910, the late Mrs. Meyer wrote to the cashier of the Commercial-Ger-mania Trust & Savings Bank to transfer her account to her daughter, Mrs. Connell, to use as she sees fit.
The evidence shows that Mrs. Meyer, the decujus, was exceedingly anxious to avoid court costs, apprehensive that the end was near, and seemed concerned about the devolution of her property after her death.
Judgment on the motion to compel Mrs. Connell to place the amount of $1,535.38 on the inventory was rendered on the 8th day of October, 1913. The rule applied for in this motion was denied.
In the motion to have this amount deposited, the heirs, other than Mrs. Connell, alleged that she had an amount of $1,535.38 in her possession which belonged to the succession, the sum having been transferred to Mrs. Con•nell by the Commercial-Germania Trust & Savings Bank. .
The transfer was made, as before stated, on the power of attorney to Mrs. Connell by the late Mrs. Meyer, her mother.
■There were premium bonds for an amount over $4,000 and a small tract of land also belonging to the succession. The bonds are deposited in the depository of the court.
Edward Boyle, one of the heirs, testified that Mrs. Meyer supported Mrs. Connell for a number of years. On the other hand, Mrs. Connell testified that she supported her mother, for which the mother was grateful, and frequently said that her daughter should have some compensation for hér services, and for that reason the manual gift was made.
The power of attorney which Mrs. Connell held was not an act of donation, nor does it prove in itself an intention on the part of the- asserted donor, Mrs. Meyer, to donate the amount. The testimony upon the subject is direct enough, but it does not prove that the donor did actually hand over the amount to the donee. She authorized her to withdraw any money which she may wish for my account. That does not have the appearance of an actual gift as intended by the law upon the subject. In other words, the donation was not complete.
In the case reported in City of Baltimore, *826etc., v. Merryman, 86 Md. 584, 39 Atl. 98, there was a complete donation of the cheek.
We do not attach the greatest importance to this decision, although we state that f-rom the point of view of the appellee it was a complete assignment of the definite amount from the moment of the assignment. .
The French authorities, construing the corresponding articles of our Code, hold that the manual gift can have for object only corporeal movables. This is the view expressed by Laurent, § 274.
In Huc, vol. 6, p. 242, it is stated more broadly that incorporeal things can be the subject of a donation. A title to a holder, for instance, is treated as a corporeal movable.
In the present case, there was no title to an incorporeal thing; only a power of attorney which directed the agent under the power of attorney to withdraw any money she might wish from the account at any and all times. It does not authorize Mrs. Connell to do as she pleases with the amount she withdraws. It is a power of attorney only, and the agent, it is presumed, must account to the principal. It is not to be presumed for an instant that one who is appointed agent by inference has the right to retain an amount that comes into his hands.
[3] The right recognizing manual gifts is an important one. Movable property is easily given; very little or no formality is required. From, that point of view, it should be made to appear without the least doubt that the intention was to give the property. Proof of that intention must be made to appear by the manual gift itself, and not by statement of conversations held with the donee before or after the gift.
This article of the Code was adopted before movable property had the great value it has . at this time. It was deemed that it •could be disposed of without all the formalities required when realty is donated. For that reason, the manual gift of movable property must be considered at the present time to be as important in many instances as the donation of immovable property.
Moreover, under our system of laws, in the interest of the family, it is said an owner cannot dispose always of all his property without regard to the laws ^elating to the disposable portion.
If a manual gift can be made by a mere power of attorney without its being certain that the principal intended a donation, it would be easy at times to dispose of property without regard to others than the principal who also are interested in the disposition of property made, let us say, by the head of the family.
We have to reverse the decision of the district court and direct the donee to return the amount of $1,535.38, before mentioned, to the succession to be divided among the heirs.
It is therefore, ordered, adjudged, and decreed, as relates to the administratrix, that the judgment appealed from' be affirmed, and she be permitted under the provisions of law to settle finally the succession of Mrs. Catherine Housknecht. To that extent the judgment appealed from is affirmed. It is further ordered, adjudged, and decreed that Mrs. Connell shall return to the succession the sum of $1,535.38, to be divided as before mentioned. It is further ordered, adjudged, and decreed that the appellee pay the costs of appeal and of the district court. The costs in so far as relates to the rule taken on March 13, 1913, to compel Mrs. James Connell to place the amount on the inventory to be paid by appellee also. The costs of the district court in matter of the opposition to the appointment of Mrs. Connell as administratrix to be paid by the opponents.