442 S.E.2d 690 (Va. 1994)
William D. Yee and S. Hing Woo, unmarried residents of Chesterfield County, maintained an intimate relationship for almost twenty years until Yee died intestate in March 1989.1 Two days before his death, Yee handed Woo three personal checks payable to her order in the amounts of $80,000, $42,700, and $1,900 drawn on his accounts at Signet Bank and Central Fidelity Bank.2 The day after Yee's death, Woo presented the $42,700 and $1,900 checks for payment and received the proceeds, but the $80,000 check was never presented because it represented savings account funds and there were insufficient funds in the checking account to cover it.3
In May 1989, John S. Smart qualified as administrator of Yee's estate.4 In December 1989, Smart filed a bill of complaint for declaratory judgment against Woo alleging that the three checks were not effective gifts because they were not presented and paid prior to Yee's death.5 The administrator sought a declaration that Woo was not entitled to any part of the estate to satisfy the $80,000 check and requested judgment against Woo for $44,600 representing the proceeds of the two cashed checks.6 The complaint further alleged that Yee owned securities valued at $53,165 registered in his name alone and sought a declaration that Woo had no interest in those securities.7
In her second amended answer and cross-bill, Woo admitted receipt of the checks and asked the court to declare that she was entitled to the proceeds as gifts causa mortis or upon a constructive trust theory.8 She also sought a declaration that she was entitled to at least one-half the value of the securities due to contributions she made to the stock account during their confidential relationship.9 The chancellor received testimonial and documentary evidence during an ore tenus hearing.10
In a February 1993 final decree, the chancellor entered judgment against Woo in the amount of $44,600 plus interest after ruling that she was not entitled to the check proceeds and had failed to establish entitlement to any portion of the securities or accounts listed in Yee's name at death.11 Woo paid the judgment amount to the administrator pending appeal, and the Supreme Court of Virginia granted her appeal from the decree.12
Whether the trial court erred in ruling that the donee of three checks is not entitled to the check proceeds as gifts causa mortis?13
In Virginia, two kinds of gifts are recognized: gifts inter vivos and gifts causa mortis. The distinctive elements of a gift causa mortis are well settled. First, there must be an intent to make a gift. Second, the gift must be of personal property. Third, the gift must be made while the donor is under the apprehension of imminent death, upon the essential condition that the property shall belong to the donee if the donor dies as anticipated leaving the donee surviving, and the gift is not revoked in the meantime. Fourth, possession of the property given must be delivered at the time of the gift to the donee, or to someone for the donee, and the donee must accept the gift. The donee must establish the gift causa mortis by clear and convincing evidence.14
No. The trial court correctly applied these elements to the established facts when it found that William D. Yee fully intended to make gifts of money to S. Hing Woo, that the attempted gifts of money as personal property were made while Yee was under the apprehension of immediate death, and that the gifts were upon condition that the property belong to Woo if Yee died as expected.15 The chancellor further determined that the gifts failed only because delivery of the checks did not constitute delivery of the object of the gifts themselves, that is, the money in the bank.16
This conclusion follows directly from the requirement that possession of the property given must be delivered, as the facts show Yee handed over three personal checks but no money was ever delivered prior to his death.17
The trial court therefore did not err in ruling that the donee of the three checks is not entitled to the check proceeds as gifts causa mortis. The judgment against Woo for the amount of the cashed checks must stand.18
Whether delivery of the donor's own checks to the donee satisfied the delivery requirement for valid gifts causa mortis of the underlying funds?19
The narrow question is whether possession of the property given, the money, was delivered to the donee at the time of the alleged gift.20 A donor's own check drawn on a personal checking account is not, prior to acceptance or payment by the bank, the subject of a valid gift causa mortis.21 The Uniform Commercial Code makes clear that transfer of a check does not operate as an assignment of money on deposit.22 The required delivery must be actual and complete, such as deprives the donor of all further control and dominion.23 Until the check is paid, the donor retains control and dominion over the funds and the gift is incomplete.24
No. Delivery of the donor's own checks to the donee did not satisfy the delivery requirement for valid gifts causa mortis of the underlying funds.25 The facts establish that Yee handed Woo the three checks two days before his death, yet none of the checks had been cashed at the time of death, and the $80,000 check was never presented because it represented savings account funds with insufficient checking account coverage. Under the UCC provision applicable here, a check does not of itself operate as an assignment of any funds in the hands of the drawee, so mere delivery of the checks left Yee with full power to stop payment or write other checks, and his death revoked the command to the banks.26 No money was delivered, and therefore no money can be claimed as a gift causa mortis.27
Delivery of the checks alone therefore failed to meet the essential element of delivery of the property, and the attempted gifts causa mortis were invalid.28
Whether a constructive trust should be imposed on the proceeds of the three checks in favor of the donee?29
To impose a constructive trust under these circumstances would eviscerate the doctrine of gift causa mortis and eliminate delivery as an essential element.30 Intent to make a gift causa mortis, no matter how clear, cannot overcome the lack of delivery and validate the gift under the guise of imposing a constructive trust.31
No. A constructive trust should not be imposed on the proceeds of the three checks in favor of the donee.32 The facts present a sympathetic case, as Woo received the proceeds of two checks the day after death and the relationship lasted nearly twenty years, yet imposing a constructive trust would nullify the delivery requirement that the chancellor correctly found was not satisfied.33 The alternative theory of constructive trust cannot substitute for the missing delivery of the actual funds.34
The trial court therefore properly refused to impose a constructive trust on the check proceeds.35
Whether the donee established entitlement to at least one-half the value of securities and accounts registered solely in the decedent's name based on her contributions during their relationship?36
The trial court made the factual finding that the donee failed to carry her burden of proving what amounts she contributed to the subject securities and accounts.37 Those securities and accounts were intended to be joint property.38 The record fully supports the trial court's finding, which is binding on appeal.39
No. The donee did not establish entitlement to at least one-half the value of securities and accounts registered solely in the decedent's name based on her contributions during their relationship.40 The established facts show the parties maintained separate accounts in their individual names, that each occasionally deposited money into the other's account, and that Yee alone had always paid taxes on the income from the accounts in his name.41 The chancellor found after the ore tenus hearing that Woo failed to prove the amounts contributed or any intent that the securities and accounts become joint property, and this factual determination binds the appellate court.42
The trial court therefore correctly ruled that the donee has no interest in the securities valued at $53,165 registered in the decedent's name alone.43