Carleton v. Lovejoy

54 Me. 445 | Me. | 1867

AppletoN, C. J.

This is an action of trover for various articles of personal property particularly described in the writ. The plaintiff claims title thereto under an alleged gift of the same from her sister, the wife of the defendant, made shortly before her decease.

The goods in controversy consist principally of articles of household furniture and of dress.. They were purchased by the wife before marriage, or since with the funds of her husband.

The marriage took place before the passage of auy Act conferring rights upon or removing the disabilities of married women. The title to the property in dispute must be determined by the rules of tho common law, as existing before they were changed or modified by statute.

By the common law, the personal property of the wife, in possession at the time of the marriage, in her own right, such as money, goods and chattels, and moveables, vested immediately and absolutely in the husband upon such marriage. 2 Kent, 143. The defendant is not shown to have parted with his title. His wife, then, had nothing to give.

If it were otherwise, a delivery is necessary to constitute a valid and effective gift, whether inter vivos or causa mortis. Without actual or constructive delivery, the title does not vest. The owner must part with all present and future dominion over the properly. Marston v. Marston, 1 Foster, 491; Dole v. Lincoln, 31 Maine, 422; Allen v. Polereczky, 31 Maine, 338. The proof fails to show any valid gift. The gift must be complete. Jones v. Lock, 1 Law Rep. Chy. Ap., 24. "To constitute a title of this kind,” remarks Sargent, J., in Cutting v. Gilman, 41 N. H., 151, "under a gift causa mortis, the donor must not only give, but he must deliver, and the delivery must bo actual when the subject matter of the gift is capable of actual transfer.”

It is in evidence that the wife of the defendant borrowed a fire-set of the plaintiff. When, it does not appear. The fire-set came rightfully into the defendant’s possession. No demand upon him for the property is shown. No act of conversion by him is established.

Exceptions overruled. —Wonsuit to stand.

CijtxiNG, Walton, Dickerson, Barrows and Taplby, JJ., concurred.