STEINERT and ROBINSON, JJ., dissent. *Page 550 This action was brought to strike certain United States savings bonds from the inventory of the estate of Charles A. Marino, deceased, and to require the delivery of the bonds to the plaintiff. The defendant, as administrator of the estate of Marino, resisted the action in his answer, and, by cross-complaint, sought a judgment requiring the plaintiff to collect the bonds from the Federal government and turn the money over to him as administrator. Both parties moved for judgment on the pleadings, with the result that the judgment entered struck the bonds from the inventory, from which judgment the defendant appealed.
At various times during the years 1935 and 1936, Marino purchased from the treasury department of the United States bonds of the total value of $1,050, and in November of the latter year, he died. The bonds were issued under regulations promulgated by the treasury department, pursuant to an act of Congress approved September 24, 1917, as subsequently amended. Each bond recites:
"THE UNITED STATES OF AMERICA, For Value Received, Promises to Pay to Mr. Charles A. Marino, Payable on Death to Mrs. May Decker."
The bonds, under the regulations of the department, were not transferable, and no substitution could be made for the person named therein as beneficiary. The *Page 551 regulations further provide that the bonds are payable at the option of the owner prior to maturity, but not within the sixty days after the issue date, at the appropriate redemption value, as is shown on each bond. In this case, the owner of the bonds, Marino, did not call for their payment prior to his death. The regulations provide that, in case of the death of the owner, bonds are payable to the beneficiary named therein; in this case, Mrs. Decker.
The question is whether Marino, during his lifetime, had made a valid gift of the proceeds of the bonds to Mrs. Decker in the event of his death without having called for payment.
[1] In order to constitute a gift of personal property, one of the things necessary is that there must be a delivery, and that delivery must be such as will divest the donor of the present control and dominion over the property absolutely and irrevocably, and confer upon the donee the dominion and control.In re Slocum's Estate, 83 Wash. 158, 145 P. 204; In reMcCoy's Estate, 189 Wash. 103, 63 P.2d 522. As stated, the bonds were not transferable, and there could not be any substitution for the named beneficiary.
[2] In the case of Shaw v. Camp, 160 Ill. 425,43 N.E. 608, it was held that a promissory note, made payable after the death of the maker and delivered during his lifetime irrevocably to a trustee for the payee and intended as a gift, was "a mere promise to make a gift in the future, which is not enforcible." It may be that the analogy between that case and the one now before us is not complete, but to this extent there is an analogy. In that case, the promise to pay was evidenced by a promissory note. In this case, the promise to pay was evidenced by a bond. Not only this, but the owner of the bond, during his lifetime, had a right to take payment thereof before maturity. *Page 552
In Hicks v. Meadows, 193 Ala. 246, 69 So. 432, a party deposited in a bank six hundred dollars, payable to himself, "or in case of his death, to Joe and Judge Meadows," twelve months after date, with interest to maturity at a certain rate. After the death of the maker, the question arose whether there had been a valid gift, and it was held that there had not, because, in order to perfect such a gift, it was necessary that it be made irrevocable.
In that case, there was a direction to a third party to pay the amount specified in the certificate at the death of the owner. Likewise, here, there is a direction to the Federal government, in the case of the death of Marino, to pay to Mrs. Decker. But this is subject to the contingency that Marino had not elected to take payment of the bonds before his death. The right of Mrs. Decker to remain as beneficiary until the bonds were either paid before or after the death of their owner, is not controlling, inasmuch as Marino had the right, during his lifetime, to call for the payment of the bonds, and, having this right, the proceeds of the bonds had not passed beyond his dominion and control during his lifetime.
It is true that the bonds were not payable after the death of Marino to anyone except Mrs. Decker, so far as the Federal government under its contract is concerned. But the fact that they were made payable only to her as beneficiary after the death of Marino and were non-transferable was in accordance with regulations which, undoubtedly, were intended for the convenience of the Federal government and to avoid numerous transfers. It was no concern of the Federal government to whom the money might belong after it was paid.
In the case of Warren v. United States, 68 Court of Claims Reports 634, it was held that war savings certificates *Page 553 were payable to the beneficiary named therein after the death of the owner. But that case does not hold that the beneficiary was entitled to the money in absolute right.
In the case of In re Cross' Estate, 152 Wash. 459,278 P. 414, the question was to whom went war risk insurance after the one taking out the policy had died. That case, however, is not here in point. There, the court was considering an insurance policy and who were the beneficiaries thereof. Here, the court is considering a contract under which money had been loaned to the Federal government.
The appellant was entitled to a judgment in this case, directing the respondent to collect the money on the bonds from the Federal government and turn it over to the appellant, as administrator, as part of the assets of the estate of the deceased.
The judgment appealed from is reversed, and the cause remanded with direction to the superior court to enter a judgment as herein indicated.
BLAKE, C.J., JEFFERS, MILLARD, GERAGHTY, and SIMPSON, JJ., concur.