Lounsberry v. Boger, 200 Ill. App. 466 (1916)

Aug. 10, 1916 · Illinois Appellate Court · Gen. No. 6,249
200 Ill. App. 466
Benjamin Lounsberry, Appellant, v. George Boger, Executor, Appellee

Benjamin Lounsberry, Appellant, v. George Boger, Executor, Appellee.

Gen. No. 6,249.

(Not to be reported in full.)

Appeal from the Circuit Court of DuPage county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1916.

Certiorari denied by Supreme Court (making opinion final).

Affirmed.

Opinion filed August 10, 1916.

Statement of the Case.

Action of replevin by Benjamin Lounsberry, plaintiff, against George Boger, as executor of the estate of Albert Smart, deceased, defendant, to recover possession of a promissory note which plaintiff claimed was donated to him by decedent prior to his death and wrongfully withheld from him by defendant, as executor.' From a judgment for defendant, plaintiff appeals.

The legal questions involved are practically the same as were passed on in Lounsberry v. Boger, 193 Ill. App. 384, a related case.

*467Abstract of the Decision.

1. Gifts, § 30 * —what constitutes valid gift causa mortis. To make a valid gift causa mortis, the owner must not only part with the possession but all control and dominion of the property.

2. Gifts, § 34*—what does not constitute gift causa mortis. There is no parting with the control or dominion of a note by a decedent during his lifetime so as to constitute a valid gift causa mortis where a donor of a note—which contained an indorsement signed by the donor that if the note was not paid before his death, it should be paid to the donee, and which was included with other papers in a tin box, to which the donor had the key— called the donee into his room and expressed his intention of giving him the note after his death and instructed another person to give it to him after the funeral, and gave such other person the keys, and possession of the entire contents of the box was obtained by the executor of deceased after his death.

Bunge & Harbour, for appellant.

S. L. Rathje and T. H. Slusser, for appellee.

Mr. Presiding Justice Niehaus

delivered the opinion of the court.