33 N.Y.S. 317 | N.Y. Sup. Ct. | 1895
Lead Opinion
Under the release of May 15, 1891, the only parties having a pecuniary interest in this litigation are St. John’s Guild and the residuary devisees and legatees, unless it should happen that a division, under the alleged trust, of the proceeds of the 1,000 shares among the 10 corporations would give every one of the 9 corporations mentioned in the codicil a greater sum than would the division of $100,000 among said nine corporations. The plaintiffs and Charles B. Fosdick are interested simply in carrying out the wishes of Elizabeth Fogg, and in relieving themselves from liability. There is no evidence&emdash;and, indeed, it is not asserted&emdash;that Exhibit No. 3 was ever delivered to Charles B. Fosdick, or that he ever saw it until after the death of the testatrix, unless he saw it when the codicil was drafted; but at about
“From the proceeds thereof, I desire that you do appropriate the sum of $100,000, in the name of Elizabeth Fogg, in sums of $5,000 each, to various charity organizations, of which a list is hereto annexed.”
No list was ever annexed to this letter, and no list naming 20 corporations was ever made by or for Mrs. Fogg. Mr. Fosdick testified that this letter was devised by himself, and copied by his bookkeeper; that he (Fosdick) stopped at Mrs. Fogg’s on his way down town on the morning of December 20th, when the letter was signed. Therefore, he must have been informed December 19th of her purpose to divide $100,000 among 20 charitable corporations. Mrs. Fogg and Miss Norton spent the night of December 19th and 20th in a vain attempt to name 20 charitable corporations which should receive the sum, but abandoned the attempt, and Mrs. Fogg concluded to divide the sum among 10 corporations. In order to uphold the trust declared by the judgment of the special term, the letter of December 20th must be eliminated from the case, as it is entirely inconsistent with the trust adjudged to exist The only evidence left of an intent to establish a trust consists of the transfer of the shares of stock of Exhibit No. 3, and the testimony given by Miss Norton. From the time Mrs. Fogg’s pastor wrote for her that wThich subsequently became the caption of Exhibit No. 3, down to the time when her codicil was executed, the idea of Mrs. Fogg, plainly disclosed by the evidence, was to bequeath the shares or the avails of them to charitable corporations, which she finally did. That which was done by the testatrix during the night of December 19th and 20th, and during the day of the 20th, was preparatory to the execution of the completed codicil; and perhaps she was in hopes that, in case she died before the codicil was executed, her wishes would in some
"During that night she was apprehensive of dying before morning. That is what she said, and so expressed herself to me, although I personally did not think there was any immediate danger of her death. She did, however, express a danger of dying before morning. She was then in bed, and she remained continuously in bed until the time of her death, on the 3d of January, 1891. She had been in bed several days previously. Q. And she died during this same illness? A. Yes. Q. "Without ever recovering? A. Yes. Q. Attended by both night and day nurses right along? A. Yes. Q. And continuously failing, to the end? A. Yes.”
“Sound policy requires that the laws regulating gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged.” Ridden v. Thrall, 125 N. Y. 572, 581, 26 N. E. 627. Such gifts are not favored by the courts. Delmotte v. Taylor, 1 Redf. Sur. 417; Bockwood v. Wiggin, 16 Gray, 402; Michener v. Dale, 23 Pa. St. 59; Hatch v. Atkinson, 56 Me. 326. The presumption is that a gift made during a last sickness is intended to take effect at the donor’s death, even though it be not so declared. Pom. Eq. Jur. § 1146. If there was a gift, it was made in apprehension of death,—a gift donatio causa mortis. Such a gift can be revoked by the donor in his lifetime. Merchant v. Merchant, 2 Bradf. Sur. 432, 444; Bloomer v. Bloomer, Id. 339, 347; Parker v. Marston, 27 Me. 196; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct 415; Pom. Eq. Jur. § 1146; 3 Redf. Wills (3d Ed.)
Concurrence Opinion
I concur in the result. I do not think there is any sufficient execution of the trust declaration by the delivery of the list. I think that the evidence shows that the creation of the trust was never completed, and it was abandoned, and the codicil to the will took its place.
O’BRIEN, J., concurs.