Walter et al., Appellants, v. Ford

Supreme Court of Missouri1881-10

74 Mo. 195

Summary · law.co

Holding. The court reversed the judgment and remanded the case, holding that the checks did not constitute valid gifts causa mortis because there was no actual delivery of the subject of the gift to the payees during the donor's lifetime; instead, the conditional instructions to the administrator regarding delivery only upon death rendered the transaction testamentary in nature.

Heirs of David Walter sought to compel the estate administrator to inventory $4,000 in checks as estate assets. The deceased had given the administrator four checks totaling $4,000 with instructions to deliver them to named payees only if Walter died, and to return them if he recovered. Walter died nine days later, and the administrator delivered the checks to the payees. The heirs argued the checks should be treated as estate property, while the administrator claimed they constituted valid gifts.

The court examined whether the checks qualified as gifts causa mortis (gifts made in contemplation of death). Such gifts require actual delivery of the gift to the recipient during the donor's lifetime, though they remain revocable if the donor recovers. Here, the court found no valid delivery because the administrator held the checks with explicit instructions not to deliver them during Walter's lifetime—they were to be returned to him if he survived. The conditional nature of the delivery, combined with the administrator's duty to obey Walter's instructions, meant the payees never received actual possession or control while Walter lived. The court noted this arrangement resembled a testamentary disposition rather than a true gift causa mortis.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether conditional delivery of checks to an agent, with instructions to deliver only upon the donor's death, constitutes a valid gift causa mortis
Whether actual delivery to beneficiaries is essential to gifts causa mortis
Probate court jurisdiction to inventory estate property allegedly transferred outside probate

Procedural posture

The heirs appealed from a circuit court judgment in favor of the administrator, which upheld the validity of the transfers and denied the heirs' request to include the checks as estate assets.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Henry, J.

This was a proceeding in the probate court of Andrew county by plaintiffs, who are heirs at law of David Walter, to compel the administrator to inventory $4,000 as assets of said estate. The following are the facts upon which they rely: On the 12th day of May, 1873, the deceased, David Walter, requested Eord to fill up four checks on the State National Bank for $1,000 each, payable, one to Catharine M. Sigrist, one to Durham, one to Louisa Gicke, and the other to Ed. Walter. These checks were then signed by Walter, and delivered to Eord, with directions to him to deliver them to the parties in whose favor they were respectively drawn, if he, Walter, should die, but, if he recovered, to return the checks to him. Eord held the checks until the death of Walter, which occurred on the 21st of May, nine days after the checks were made, and then delivered them to the payees thereof, who drew the money on them at the bank.

The question is, were these valid as gifts causa mortis? In the 2nd volume of his Commentaries, page 444, Chancellor Kent says: “Such gifts are conditioned . .. ,. like legacies, and it is essential to them that the donor make them in his last illness or in contemplation and expectation of death ; and, with reference to their effect after his death, they are good notwithstanding the previous will; and, if he recovers, the gift becomes void.” Judge Story says: “ To give it effect there must be a delivery of it by the donor, and it is subject to be defeated by his recovery, or escape from the impending peril of death.” 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 “defeasable by reclamation, the contingency of survivorship, or deliverance from peril.” Nicholas v. Adams, 2 Whart. 17. Was there a delivery of the subject of the gift to the payees of the check, by Walter in his lifetime? Ilis injunctions to Ford were that they were not to be delived 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 whileWalter 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.

It is unnecessary to determine whether a donatio causa mortis can be made of checks on a bank.

The probate court had jurisdiction of the cause. Overton v. McFarland, 15 Mo. 313; Caldwell v. Hawkins, 73 Mo. 450. Ford had advertised his final settlement. On delivering the checks m question to the payees he required, and they executed to him, a bond of indemnity. The controversy could, with less delay and more appropriately, be determined on the final settlement, than in a suit on the bond. At any time be fore a final settlement, the probate court has jurisdiction to compel the administrator to inventory any property of the estate which has been overlooked or omitted.

Nor is there anything in the position taken by respondent’s counsel, that this court cannot review the action °f the circuit- court, because no declarations of law were asked or given. The facts were not in dispute. There was no trial by jury, and the court could not have reached its conclusion without determining, as a matter of law, that on the facts, the gifts were causa mortis. The judgment, which was for defendant, is reversed and the cause remanded, to be proceeded with as herein indicated.

All concur.