Teixeira v. Estate of Markgraf

[Indexed as: Teixeira v. Markgraf Estate]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O., van Rensburg and Trotter JJ.A.

October 26, 2017

137 O.R. (3d) 641 | 2017 ONCA 819

Case Summary

Gifts — Inter vivos gifts — Delivery — Deceased giving applicant cheque in mistaken belief that she had enough funds in her account to cover it — Applicant unable to cash cheque and deceased dying before becoming aware of shortfall — Gift by cheque not complete until cheque is cashed or has cleared — Sufficient act of delivery not occurring — Gift not valid — Estoppel by convention not applying as applicant did not change his position in reliance on assumption that deceased had sufficient funds in her account.

Shortly before her death, M decided to reward her neighbour, the applicant, for his kindness to her. She wrote him a cheque for $100,000 and instructed her stepson to deliver it to him. When the applicant went to M's bank and presented the cheque, the bank employee told him that they would have to investigate and returned the cheque to him. The employee did not tell him that M had insufficient funds in her account to cover the cheque. M, who was unaware of the shortfall, died six days later. The bank froze her accounts. When the applicant tried to deposit the cheque at his own bank, it was returned marked "funds frozen". The applicant sued M's estate for the value of the cheque. The application judge dismissed the claim, finding that there was no evidence of a contract between the applicant and M, that M had intended to make a gift to the applicant, that the applicant had accepted the gift and that the gift failed for lack of delivery. The claim was dismissed. The applicant appealed.

Held, the appeal should be dismissed.

The cheque was not enforceable by virtue of the Bills of Exchange Act, R.S.C. 1985, c. B-4. As between the immediate parties, the failure or absence of consideration is a complete defence to an action on a bill of exchange. The application judge's findings of fact that there was no consideration or contract were determinative of the applicant's arguments under the Bills of Exchange Act.

The application judge was correct in holding that the cheque was a gift inter vivos. The necessary elements for a valid inter vivos gift are (1) an intention to donate; (2) an acceptance; and (3) a sufficient act of delivery. The first two elements were made out. However, a gift by cheque is not complete until the cheque has been cashed or has cleared. Since M did not have sufficient funds in her account, she could not deliver the gift. The gift was not perfected and was not valid.

Estoppel by convention had no application in the circumstances of this case. While everyone thought that M had the funds to satisfy the gift, the applicant did not change his position in reliance on that assumption.

APPEAL from the judgment of Whitten J. (2017), 136 O.R. (3d) 143, [2017] O.J. No. 327, 2017 ONSC 427 (S.C.J.) dismissing the claim against the estate.

Counsel:

Don Morris, for appellant.

Andrew L. Keesmaat, for respondents.

The judgment of the court was delivered by

STRATHY C.J.O.:

A. Overview

[1] The appellant, Arlindo Teixeira ("Arlindo"), was a good neighbour to Mary Markgraf ("Mary") for nearly 15 years. He helped her with household maintenance, drove her about and assisted with chores like groceries and banking.

[2] Shortly before her death, Mary made a will. She made a bequest to Arlindo of $100,000. She also wrote out a cheque to him for $100,000. She asked her stepson to give it to Arlindo with instructions that he should take it to her bank the next day.

[3] Cheque in hand, Arlindo went to Mary's bank the next day. After inspecting the cheque and making some inquiries, the bank employee told him that they would have to investigate and returned the cheque to him.

[4] What the bank employee did not tell Arlindo was that Mary had insufficient funds in her account to cover the cheque. The balance in her account was only $81,732.75. But Mary had over $200,000 in other funds on deposit at the branch. Without her specific instructions, however, the bank could not transfer money to her chequing account to make up the shortfall.

[5] Mary died six days later. The bank was notified of her death the following day and froze her accounts. Arlindo then attempted to deposit the cheque at his own bank, but it was returned, marked "funds frozen".

[6] Mary's stepson, her estate trustee, told Arlindo that he would be receiving $100,000 from the estate and another $100,000 to cover the cheque. However, after obtaining legal advice, the estate trustee ultimately took the position that the cheque was an imperfect gift that was not legally enforceable. Arlindo received Mary's $100,000 bequest under the will.

[7] Arlindo sued Mary's estate for the value of the cheque. The application judge dismissed his claim, finding that the gift failed for lack of delivery.

[8] These reasons explain why I agree with the application judge and would dismiss the appeal.

B. The Decision in the Court Below

[9] The application judge made the following central findings of fact. First, Arlindo had acted as he did towards Mary without thought of compensation. Second, there was no evidence of a contract between Arlindo and Mary. Third, Arlindo had not acted to his detriment in anticipation of receiving Mary's cheque.

[10] The application judge correctly identified the essential elements of a gift as being (a) the donor's intention to make a gift; (b) acceptance of the gift by the donee; and (c) delivery of the gift to the donee.

[11] He found the first two requirements had been met. Mary intended to make a gift of $100,000. She had the necessary mental capacity to make the gift and she believed she had the money in her account. Arlindo had accepted the gift, which he attempted to realize by taking the cheque first to Mary's bank, then to his own.

[12] But the application judge held that the third requirement -- delivery -- had not been established. The gift had not been perfected by delivery because Mary did not have sufficient funds in her account. She could not give what she did not have. While she did have sufficient funds in other accounts, the bank could not have transferred those funds without direction from her.

[13] The application judge also rejected Arlindo's argument that the cheque was payment for services rendered. His good acts could not be characterized as "consideration" and there was no evidence of a contract.

[14] The application judge also held that the doctrine of estoppel by convention did not apply on the facts of the case. The test in the leading case of Ryan v. Moore, [2005] 2 S.C.R. 53 was not made out because Arlindo had not changed his legal position in reliance on a shared assumption.

[15] Consequently, the application judge held that the gift of $100,000 by cheque was not enforceable. He dismissed Arlindo's application, with costs of $14,000.

C. The Appellant's Submissions

[16] The appellant advances a number of alternative submissions, in an attempt to avoid what he submits is an unfair result.

[17] First, he advances a claim in contract, arguing that his good deeds provided some consideration.

[18] Second, he submits that the cheque was enforceable by virtue of the Bills of Exchange Act, R.S.C. 1985, c. B-4 ("BEA"). As part of this argument, he submits that the cheque was dishonoured when it was taken to Mary's bank, giving him an immediate right of recourse.

[19] Third, the appellant renews his argument that the gift by cheque was perfected by delivery.

[20] Fourth, he relies on equity. He invokes estoppel by convention and the principle that "equity will not strive officiously to defeat a gift".

[21] Finally, the appellant seeks leave to appeal the costs award in the court below.

D. Analysis

[22] I will deal with the appellant's submissions in the order set out above.

(1) The claim in contract

[23] The claim based on contract fails because of the application judge's findings that there was no contract between the parties and that Arlindo's acts were done gratuitously. These findings of fact are unassailable. The appellant has demonstrated no palpable and overriding error in the application judge's assessment of the evidence.

[24] Arlindo's good deeds were performed with no expectation of compensation. They could not provide consideration for a non-existent contract.

(2) The claim under the Bills of Exchange Act

Absence of consideration

[25] The application judge's findings of fact that there was no consideration or contract are also determinative of the appellant's arguments under the BEA.

[26] It is settled law that, as between the immediate parties, the failure or absence of consideration is a complete defence to an action on a bill of exchange.

[27] In The Law of Banking and Payment in Canada, looseleaf (2016-Rel. 1, Vol. 3) (Toronto: Thomson Reuters, 2015), Bradley Crawford describes the effect of this defence as follows, at p. 26-35:

Both total failure of consideration and complete absence of consideration (as, for example, where a gift is made by cheque of the donor but not completed by payment upon presentment) are defences to actions upon the engagements of immediate parties to a bill, cheque or note. A gratuitous promise of payment does not become binding at the suit of the immediate promisee merely because it is expressed formally in a negotiable instrument.

(Emphasis added; footnotes omitted)

See, also, Benjamin Geva, "Absence of consideration in the law of bills and notes" (1980), 39 (2) Cambridge L.J. 360; Bradley Crawford, Crawford and Falconbridge on Banking and Bills of Exchange, 8th ed. (Toronto: Canada Law Book, 1986), at pp. 1429-30.

[28] The appellant acknowledges that a total absence of consideration would be a defence to an action on the cheque, but argues that in this case his good deeds provide partial consideration. There is nothing in the application judge's reasons to support the appellant's claim that there was some, but inadequate, consideration for the cheque. This is a case of complete absence of consideration. That would have been a defence to an action against Mary and it is a defence to an action against her estate.

[29] This case is very similar to Peden v. Gear (1921), 50 O.L.R. 384. The daughter of the deceased sued on a promissory note given to her by her father before his death. It was admitted that there was no consideration for the note, which was given solely for natural love and affection. Logie J. dismissed the claim, stating, at p. 385 O.L.R.:

There cannot possibly be any claim by way of action on a promissory note by the original payee to whom the promissory note was given, if she never gave any consideration for it; she is not a creditor of the deceased; and the enforcement of such promises by law, however plausibly reconciled by the desire to effect all conscientious engagements, might be attended with mischievous consequences to society, one of which would be the frequent preference of voluntary undertakings to claims for just debts, to the prejudice of real creditors.

The temptations of executors would be much increased by the prevalence of such a doctrine, and the faithful discharge of their duty be rendered more difficult.

Accordingly neither the fact that the deceased was apparently distributing a large portion of his estate among his children by gifts inter vivos, nor the plaintiff's plea that her father is dead and the claim is resisted only by his executors, should receive any consideration. The executors are entitled and in duty bound to set up the want of consideration. The authorities are clear that a cheque not paid either actually or constructively during the lifetime of the drawer is not capable of being the subject of a donatio mortis causa: Chalmers, 8th ed., p. 289; Re Bernard (1911), 2 O.W.N. 716.

The donor's own promissory note given voluntarily is in no better position. A cheque is no more than an order to obtain a certain sum of money. A promissory note is no more than a promise to pay a certain sum of money. I find no case to sustain the contention that the delivery of the maker's own voluntary note is a valid gift either as a donatio mortis causa or as a gift inter vivos. See Rupert v. Johnston (1876), 40 U.C.R. 11.

[30] In order to rely on the provisions of the BEA, the appellant had to establish that the cheque constituted something other than a gift. As stated in Crawford and Falconbridge on Banking and Bills of Exchange, at p. 1419:

Where the donor is the drawer or maker and the donee is the payee, the gift will fail if the donee requires the assistance of the court to enforce it, as, for example, after a change of heart and countermand or receipt by the drawee of notice of the drawer's death. However, where the gift is completed by delivery and the cheque is collected before the drawee learns of the drawer's death, it may be an effective means of transferring the value intended to be given.

The case is quite different where a cheque or note is made payable to a person for valuable consideration.

(Footnotes omitted)

[31] The BEA did not impose an independent legal obligation on Mary merely because she wrote a cheque. If she had changed her mind and refused to transfer sufficient funds into the account, or had she revoked the cheque by issuing a "stop payment order", she would not have been bound to pay Arlindo. Her death did not change the underlying nature of the cheque. Possession of the cheque, without more, does not allow Arlindo to successfully sue for its value.

Dishonoured cheque

[32] I turn to the appellant's alternative submission that the cheque was dishonoured when he presented it to Mary's bank, before her death, giving rise to a cause of action.

[33] This argument was not made in the court below. This explains why there are no pertinent findings of fact made by the application judge. There is insufficient evidence in the record to permit us to make that determination.

[34] Assuming for the purposes of argument that the cheque was dishonoured, the reason was evidently that there were insufficient funds in the account. Despite her good intentions, Mary could not give what she did not have and the appellant had no cause of action on the cheque. Unlike Swinburne (Re), [1926] 1 Ch. 38, there was no evidence that the bank here would honour the cheque if a customer had sufficient funds to do so in their other accounts. The evidence in this case was to the contrary. The bank could not transfer funds to cover the cheque without the customer's authority.

[35] If the appellant had brought an action on the cheque, either after he first went to the bank or after the cheque was returned "funds frozen", he would have been met with a defence of lack of consideration.

(3) Gift

[36] The application judge was correct in holding that the cheque was a gift inter vivos and that the law of gifts applied to the facts of this case.

[37] The absence of consideration is one of the central indicia of a gift at law. By its very nature, a gift is a voluntary transfer of property to another without consideration: McNamee v. McNamee (2011), 106 O.R. (3d) 401, 2011 ONCA 533, at para. 23. In Peter v. Beblow, [1993] 1 S.C.R. 980, McLachlin J. (as she was then) described the "central element of a gift at law" as the "intentional giving to another without expectation of remuneration": at pp. 991-92 S.C.R.

[38] The three elements of a legally valid gift identified by the application judge and referred to at para. 10, above, are well established: (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration; (2) an acceptance of the gift by the donee; and (3) a sufficient act of delivery or transfer of the property to complete the transaction: McNamee v. McNamee, at para. 24. All three requirements are essential: Mary Jane Mossman and William F. Flanagan, Property Law: Cases and Commentary, 2nd ed. (Toronto: Emond Montgomery Publications Limited, 2004), at p. 441.

[39] The first two elements are not at issue on this appeal. The central issue here is whether the delivery of the cheque for $100,000 into the hands of the appellant could be a sufficient act of delivery of the gift. The wrinkle in this case is that there were insufficient funds in Mary's account.

Delivery

[40] The delivery requirement has been a part of the modern law of gifts since the seminal case of Irons v. Smallpiece (1819), 2 B. & A. 551. The delivery requirement is an important distinguishing feature of gifts as compared to other methods of transferring property, such as by contract. As Mossman and Flanagan note in Property Law: Cases and Commentary, at p. 442:

The delivery requirement marks an important difference between contract law and the law of gifts. A contract involves an exchange of promises. A gift, a unilateral promise, does not. Contract law will enforce an exchange of promises (a "bargain" promise) with expectation damages. On the other hand, the law of gifts attaches no significance to a unilateral promise to pay in the absence of delivery.

[41] The delivery requirement in the law of gifts continues to serve several important functions. It forces a would-be donor to consider the consequences of their expressed intention to make a gift and it furnishes tangible proof that a gift has in fact been made: see Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), at pp. 161-62. See, also, Philip Mechem, "Requirement of Delivery in Gifts of Chattels and of Choses in Action Evidenced by Commercial Instruments" (1926), 21 Ill. L. Rev. 341, at pp. 348-52.

Indicia of delivery

[42] The most obvious form of delivery is the actual physical transfer of the subject matter of the gift from the donor to the donee such that the gift is literally given away: see Ziff, at p. 161.

[43] However, in certain circumstances, such as where the item is unwieldy, courts have acknowledged that constructive delivery will suffice. In these cases, the critical questions have been whether or not the donor retained the means of control and whether all that could be done had been done to divest title in favour of the donee: see Ziff, at p. 165.

[44] Ultimately, in order for a gift to be valid and enforceable, the donor must have done everything necessary and in his or her power to effect the transfer of the property: Kavanagh v. Lajoie, [2014] O.J. No. 1120, 2014 ONCA 187, 317 O.A.C. 274, at para. 13.

Gifts by cheque

[45] A gift of cash can be readily effected by delivery to the donee. But a gift of money by cheque can be problematic, due to the nature of a cheque. A cheque is not money. Nor is it a transfer of property. It is a direction by the drawer (the bank's customer) to the drawer's bank to pay a sum of money to the payee: Bernard (Re), [1911] O.J. No. 792, 2 O.W.N. 716 (Div. Ct.), at p. 717 O.W.N. The direction can be revoked by the drawer at any time -- for example, by a "stop payment" order, referred to in s. 167 of the BEA as "countermand". Under s. 167, the bank's authority to pay the cheque is terminated by countermand or when the bank receives notice of its customer's death: McLellan v. McLellan (1911), 25 O.L.R. 214, [1911] O.J. No. 30 (Div. Ct.), at p. 216 O.L.R.; Beaumont (Re), [1902] 1 Ch. 889, at p. 894.

[46] For these reasons, a gift by cheque is not complete when the cheque is given to the donee. It is only complete when the cheque has been cashed or has cleared: see Ziff, at p. 166. Thus, in Campbell v. Fenwick, [1934] O.R. 692, [1934] O.J. No. 285 (C.A.), a cheque given to the donee three days before the donor's death and cashed a day before her death was found to be a valid inter vivos gift of the amount of the cheque.

[47] In Swinburne (Re), above, a case strikingly similar to this one, the Court of Appeal for England and Wales held that the death of the donor ruins a gift inter vivos by way of cheque if the cheque is not deposited before the donor dies. There, the donor had given the defendant a cheque shortly before her death. The bank refused to honour the cheque because of concerns about the validity of the signature. Before anything else could be done, the donor died. On the date the cheque was presented, the donor had insufficient funds in her current account, on which the cheque was drawn, but sufficient money to cover the cheque in her deposit account. In light of evidence given by the bank that it might honour a cheque in such circumstances, the court considered the case as though the whole amount was in the current account.

[48] Nonetheless, the court held that a gift inter vivos was not made out. In reaching this conclusion, Warrington L.J. wrote, at p. 44 1 Ch.:

[I]n order to make an effectual gift inter vivos there must be an actual transfer of the subject of the gift or of the indicia of title thereto. A cheque is not money. It is not the indicia of title to money. A cheque is nothing more than an order directed to the person who has the custody of the money of the [donor] requiring him to pay so much to the person in whose favour the cheque is drawn.

[49] Similarly, in Bernard (Re), above, the deceased had written a cheque for $1,000 payable to her sister and put it in her "cash box" with a note that her sister should present the cheque one month after her death. She gave the key to the box to her niece, with instructions to give it to her solicitor after her death. The box was duly opened after her death and the cheque was discovered. Chief Justice Mulock held that the donee could not enforce her claim, stating, at p. 717 O.W.N.:

A cheque is not a chose in action, but merely a direction to some one, who may or may not have in his possession funds of the drawer authorising him to pay to the payee a certain sum of money. Death of the drawer before presentation revokes such authority. Thus in this case the claimant is met with two difficulties, each fatal to her claim: one being that the cheque not having been acted upon by acceptance or payment, never lost its primary character of a mere cheque, which is not a chose in action, and is not the subject of donatio mortis causa; and the other being that the testatrix's death revoked the banker's authority to pay the cheque.

[50] The appellant argues that death only terminates the bank's authority to pay on a cheque, not the drawer's duty to pay, citing Crawford's The Law of Banking and Payment in Canada. While this statement of the law is correct with respect to the authority of the bank, there must still be some independent duty to pay in order for the payee to be able to enforce a claim against the estate. As Crawford goes on to state, in the same passage cited by the appellant, at p. 34-54.1:

However, since the bank has no duty to anyone but its customer to pay, unless it has certified the cheque . . . , the only recourse available to the holder is action against the estate, assuming that the liability continues under the applicable provincial law dealing with successions. If the holder is not a holder for value, as where a gift or donatio mortis causa has been attempted, he may retain proceeds collected before the bank learned of its customer's death, but will be unable to compel completion by payment thereafter, at least in any common law province.

(Footnotes omitted)

[51] The appellant also cites Campbell v. Fenwick, above, in support of the contention that death terminates any power of revocation of a cheque by the estate of the donor and leaves the original gift in full vigour and effect. However, in Campbell v. Fenwick, the donee had successfully deposited the cheque the day before the death of the donor and the estate was trying to recover the funds. The gift inter vivos was therefore complete and death did not intervene. Indeed, the donee in that case had learned that a cheque would be revoked by death and knew the importance of having the cheque cashed during the donor's lifetime. She deposited the cheque the day after she received it for this reason.

[52] I conclude that the application judge was correct. The purported gift of $100,000 by way of cheque failed because it was not delivered before the bank received notice of Mary's death.

(4) Equitable principles

Estoppel by convention

[53] Estoppel by convention is an equitable doctrine that holds parties to the facts or law or other assumption they have agreed to as the basis for a transaction to which they are parties: Halsbury's Laws of Canada, "Estoppel", 1st ed. (Toronto: LexisNexis, 2016 Reissue), at HES-55. The nature of estoppel by convention was discussed by the Supreme Court in Ryan v. Moore. Bastarache J., at para. 4, said that

Estoppel by convention operates where the parties have agreed that certain facts are deemed to be true and to form the basis of the transaction into which they are about to enter. If they have acted upon the agreed assumption, then, as regards that transaction, each is estopped against the other from questioning the truth of the statement of facts so assumed if it would be unjust to allow one to go back on it.

(Citations omitted)

[54] Bastarache J. set out the following criteria for the application of the doctrine, at para. 59: (1) the parties' dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly); (2) a party must have conducted itself, i.e., acted in reliance on such shared assumption, its actions resulting in a change of its legal position; (3) it must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

[55] The application judge referred to this test. He found that the appellant did not meet the test because he did not act in reliance on an assumption that Mary's cheque would be honoured. There was nothing unfair in the outcome because Mary could not give him what she did not have.

[56] The appellant argues that the parties shared a common assumption that Mary had the necessary funds in her account and that her cheque to Arlindo would be honoured.

[57] That may be true, but the assumption was made after Mary's cheque was delivered to Arlindo. Everyone assumed that the cheque was good. Arlindo did not change his legal position as a result of that assumption. He simply hoped that he would receive Mary's gift.

[58] In my view, the doctrine of estoppel by convention does not assist the appellant.

"Equity will not strive officiously to defeat a gift"

[59] The appellant relies on the principle that "equity will not strive officiously to defeat a gift": see Pennington v. Waine, [2002] EWCA Civ. 227, [2002] 1 W.L.R. 2075, at paras. 54-59, 60-67, 115-117. This is in contradistinction to the somewhat more familiar maxim, "equity will not assist a volunteer".

[60] In support of this submission, the appellant cites Ziff, at p. 163. Referring to T. Choithram International S.A. v. Pagarani, [2001] 1 W.L.R. 1, [2000] UKPC 46 (P.C.), the author suggests that an imperfect gift, which is not perfected by a transfer of possession to the donee, may nevertheless be effective where the donor retains possession of the gift but makes a declaration evidencing an intention to hold the property in trust for the donee. That is clearly not the case here.

[61] The other authorities cited by the appellant, the decision of this court in Bank Leu AG v. Gaming Lottery Corp., [2003] O.J. No. 3213, 231 D.L.R. (4th) 251 (C.A.), and the decision of the British Columbia Supreme Court in Mordo v. Nitting, [2006] B.C.J. No. 3081, 2006 BCSC 1761, at paras. 271-72, do not refer to the equitable principle invoked by the appellant. The former endorses the principle that a transfer of shares may be effective as between donor and donee notwithstanding that further acts might be required to make the transfer effective in law. The latter case was one in which everything necessary had been done to create a valid trust. Pennington v. Waine was also a case involving shares. T. Choithram International S.A. v. Pagarani was a trust case in which property was given to an already constituted trust.

[62] In Pennington v. Waine, Lady Justice Arden observed, at para. 62, that "[t]here must also be, in the interests of legal certainty, a clearly ascertainable point in time at which it can be said that the gift was completed, and this point in time must be arrived at on a principled basis". I respectfully agree with that observation in the context of this case, which involves the well-settled law concerning the delivery of a gift by way of cheque. The temptation to "temper the wind to the shorn lamb", the allegory used in that case, should be resisted when it conflicts with settled law. I see no basis for its application in this case.

(5) Costs

[63] The application judge's costs order was discretionary. He considered the relevant principles with respect to costs, including those set out in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He also considered the principles set out in the leading case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), and the "modern approach" to costs in estate litigation expressed in McDougald Estate v. Gooderham, [2005] O.J. No. 2432, 255 D.L.R. (4th) 435 (C.A.). He noted as well the appellant's refusal of what he described as a "generous offer" of settlement. The appellant has demonstrated no basis on which this court could find an error in the exercise of the application judge's discretion with respect to costs. I would not grant leave to appeal costs.

E. Disposition

[64] For these reasons, I would dismiss the appeal, with costs to the respondents in the amount of $15,000, inclusive of disbursements and all applicable taxes.

Appeal dismissed.

Notes

1 Under the BEA, it is not the death of the customer, but notice of the death to the bank, that operates to revoke the bank's authority to pay. Where a cheque is cashed after the death of the donor, but before the bank received notice thereof, it has been held that the gift is valid and complete: Kendrick v. Dominion Bank (1920), 47 O.L.R. 372, [1920] O.J. No. 148 (H.C.).