158 Mass. 592 | Mass. | 1893
As the case was heard upon its merits by a justice of the Superior Court' and is here only by appeal, with no statement of rulings made or of facts found, but with the evidence taken under the rule, the question is whether, giving due weight to the decision of the court below so far as findings of fact are involved, the decree clearly appears to be erroneous. If not, it is to stand. Reed v. Reed, 114 Mass. 372. Montgomery v. Pickering, 116 Mass. 227, 230. Allen v. Allen, 117 Mass. 27, 29. Andrews v. Gilman, 122 Mass. 471. Newton v. Baker, 125 Mass. 30, 33. Holmes v. First National Bank of Fall River, 126 Mass. 353, 358. Boston Music Hall Association v. Cory, 129 Mass. 435. Rau v. Von Zedlitz, 132 Mass. 164. Chase v. Hubbard, 153 Mass. 91. The doctrine that gifts mortis causa take their effect from delivery, and require actual delivery or its equivalent, what is commonly spoken of as symbolical 'or constructive delivery not being sufficient, is well settled, (see McGrath v. Reynolds, 116 Mass. 566, and cases cited, and Fearing v. Jones, 149 Mass. 12,) and we assume that it was applied by the justice who heard the evidence. It is not contended that any required element of a valid gift mortis causa is wanting except actual delivery. The question therefore is whether a finding of an actual delivery of the bank-books was clearly erroneous upon the evidence.
These cases are always more or less suspicious, and the reading of the reported evidence in this case leads to a surmise that possibly there was no such scene as that related by the plaintiff and her witnesses. But all the witnesses were produced before the justice who heard the case, and were cross-examined at great length and on different days. If upon the whole the presiding justice had not deemed them worthy of credit he could not have so found the facts as to authorize a decree for the plaintiff. Assuming that their story is substantially true, there is ample evidence to support a finding of an actual delivery of the books. As stated in Coleman v. Parker, 114 Mass. 30, 33, the “ term
The defendant contends that the gift was invalid because it attempted to dispose of the donor’s whole estate, citing Marshall v. Berry, 13 Allen, 43. But, fairly construed, the evidence shows a gift only of specific articles, two trunks and their contents. This question does not appear to have been raised at the hearing below. Although some expressions of the donor may be taken as declarations that all her property was in the trunks, they may also mean that all that was in the trunks belonged to her. The question of fact involved must, upon the theory that the presiding justice applied the law as stated in the decisions of this court, have been decided in favor of the plaintiff. We cannot say that it was erroneously decided, and so are not called upon to reconsider the statement contained in the opinion in the case on which the defendant relies.
Decree affirmed.