4 A. 796 | N.H. | 1885
It is contended on the part of the defendant that the transaction in Vermont, whereby the defendant became possessed of the bond, was a donatio causa mortis, valid as an executed contract under the laws of Vermont, and therefore valid here. The plaintiff contends that the transaction was in the nature of a testamentary disposition of property, and if valid in Vermont as a donatio causa mortis, it is not valid in this state because it was not proved by the testimony of two indifferent witnesses upon petition by the donee to the probate court to establish the gift, filed within sixty days after the decease of the donor. G. L., c. 193, s. 17. The domicile of the parties at the time of the delivery of the bond to the defendant, and ever afterwards, to the death of the donor, being in this estate, it is claimed that the neglect of the defendant to establish the gift in the probate court is fatal to her right to retain the bond. Every requisite to constitute a valid gift causa mortis under the laws of Vermont, where the parties were temporarily residing at the time of the delivery of the bond, was complied with. Holley v. Adams,
A gift causa mortis is often spoken of in the books as a testamentary disposition of property, or as being in the nature of a legacy. Jones v. Brown,
A gift causa mortis resembles a testamentary disposition of property in this, — that it is made in contemplation of death, and is revocable during the life of the donor. It is not, however, a testament, but in its essential characteristics is, what its name indicates, a gift. Actual delivery by the donor in his life-time is necessary to its validity, or if the nature of the property is such that it is not susceptible of corporeal delivery, the means of obtaining possession of it must be delivered. The donee's possession must continue during the life of the donor, for recovery of possession by the latter is a revocation of the gift. But in case of a legacy, the possession remains with the testator until his decease. The title to a gift causa mortis passes by the delivery, defeasible only in the lifetime of the donor, and his death perfects the title in the donee by terminating the donor's right or power of defeasance. The property passes from the donor to the donee directly, and not through the executor or administrator, and after his death it is liable to be divested only in favor of the donor's creditors. In this respect it stands the same as a gift inter vivos. It is defeasible in favor of creditors, not because it is testamentary, but because, as against creditors, one cannot give away his property. A gift causa mortis is not subject to probate, nor to contribution with legacies in case the assets are insufficient, nor to any of the incidents of administration. It is not revocable by will, for, as a will does not operate until the decease of the testator, and the donor, at his decease, is divested of his property in the subject of the gift, no right or title in it passes to his representatives. The donee takes the gift, not from the administrator, but against him, and no act or assent on the part of the administrator is necessary to perfect the title of the donee. Cutting v. Gilman,
A gift causa mortis in some respects may be said to resemble a contract, the mutual consent and concurrent will of both parties being necessary to the validity of the transfer. 2 Kent Com. 437, *555
438; 1 Pars Cont. 234. Contracts are commonly understood to mean engagements resulting from negotiation. 2 Kent. Com. 437. And in Peirce v. Burroughs,
Prior to the passage of c. 106, Laws of 1883, the law required a will to be executed according to the law of the testator's domicile at the time of his death. Saunders v. Williams,
As to the sum of $280, the money was delivered to the defendant as gifts causa mortis to sundry persons then and now residing in this state designated by the donor, to be by the defendant delivered to them after his decease. Delivery to a third person for the donee's use is as effectual as delivery to the donee. Cutting v. Gilman,
The question as to mode of proof remains to be considered. In the first case, it has not been shown and it does not appear that injustice will be done by excluding the defendant from testifying. G. L., c. 228, ss. 13, 16, 17. As that question has not been passed upon at the trial term it is still open, and the ruling of the judge will be subject to exception and revision. The written memorandum on the envelope containing the bond, signed by the plaintiff's intestate and produced by the defendant, reads as follows: "Given to Hannah K. Clough on condition if I regain my health it is to be returned to me in good faith, otherwise the gift is absolute. William Emery." This memorandum is evidence sufficient to establish a gift causa mortis. Curtis v. Portland Savings Bank,
In the second case, the defendant is a nominal party. The real defendants are the donees. The facts stated show no reason why she should not be allowed to testify, and injustice might be done if she were excluded. Drew v. McDaniel, Adm'r,
Case, discharged.
BINGHAM, J., did not sit: the others concurred.