The opinion
Action by executors of John W. Clarke, Sr., deceased, against the Placer County Bank, a corporation, to recover one thousand dollars alleged to have been deposited by the decedent with the defendant and to have remained on deposit at the time of the decedent's death. Judgment was rendered for defendant, and plaintiffs appeal from the judgment. The case was tried without a jury and upon an agreed statement of facts.
In the month of November, 1897, the decedent had twelve hundred dollars on deposit in the bank of respondent. He wished to make a gift of one thousand dollars to his son John W. Clarke, Jr.; and for that purpose, in said month, he drew the following check on the respondent: "Pay John W. Clarke, Jr., or bearer, ($1000) one thousand dollars," and gave the check to John, Jr., saying he "could get the money from the bank." The following appears in the statement of facts: "However, after delivering the check he stated that he wished his son John, Jr., would not present the check until after his, John W.C., Sr.'s, death, and John, Jr., in consideration for his father's wish, kept the check and did not present it for payment until the morning after the death of his father, John W.C., Sr." Clarke, Sr., died on the 29th of September, 1898; and the next day the check was presented by John, Jr., to the bank and it was by the latter paid. At that time the respondent knew of the death of Clarke, Sr.
It is obvious that no importance attaches to the fact that "after delivery of the check" the drawer expressed his wish that the check would not be presented until after his death. Clarke, Jr.'s, rights, whatever they may be, were fixed by the delivery of the check and were not affected by what his father said afterwards; he could have cashed it immediately, and did not even say that he would not do so. We have therefore the simple case of a negotiable check on a bank made and delivered to the payee in the lifetime of the drawer, and not presented for payment until after the latter's death; but actually paid on presentation.
Appellants contend that the foregoing facts did not constitute *Page 180
an executed gift, but was merely a promise to give because the drawer retained the power to substantially revoke it by drawing out the money before the presentation of the check given to his son, and because the money might have been levied upon by the drawer's creditors before such presentation. Some authorities in other jurisdictions are relied on; but they are mostly cases where insolvency had occurred between the drawing of a general check and its presentation, and creditors, receivers, etc., had intervened and prevented its payment; and it was held that such general check, unpaid and not certified by the drawee, did not create a preferred equitable lien on a special fund. We have been referred to no case where it was held that a negotiable check was not good merely because the drawer had died before presentation and payment. The check was itself property. If it had been presented the day before the drawer's death, the bank, of course, would have had no legal cause to refuse its payment; and what legal cause did it have for such refusal when it was presented the day after his death? How did his death affect the validity of the negotiable instrument in question? No rule like that which obtains in cases of agency can be here invoked. Of course, in such cases, when the principal dies the agency ends; but there is no relation of principal and agent between the parties to a negotiable instrument; it is the same after as before the death of the maker. It is said that Clarke, Sr., could have drawn the money from the bank at any time before Clarke, Jr., had presented the check in question. Certainly he had the naked power to perform that wrongful act, although he could not have done so rightfully; and in that event, if the bank, having no knowledge of the former check, had paid the second check of Clarke, Sr., as it might safely have done, then Clarke, Jr., would have been put to his remedy on his check against the drawer. But Clarke, Sr., did not do that act. When Clarke, Jr., presented the check, no other check having been presented, the bank would have had no defense for a refusal to pay it.
Our conclusion is, that the delivery of the check gave Clarke, Jr., who could have cashed it at any time, such immediate possession and control of the thing intended to be given as constituted a completed and perfected gift.
The judgment appealed from is affirmed.
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