85 Me. 227 | Me. | 1892
Some of the facts of this case should be stated in order to appreciate the pending questions. Thomas Pemberton, over whose pi’operty controversy has arisen, died at Sabattusinthis State in May, 1891, then seventy-two years old. He never was married, and he left no will. Jane Pemberton Goulding, his illegitimate daughter, born in England and living there until she became thirty-four years old, in April, 1890, came to this country to live with him. At the time of his death he owned a small house in Sabattus, all of which he rented excepting the basement which was his kitchen and the attic room in which he and his daughter slept in sepai’ate beds. He was for a life-time industrious and saving, being evidently a man of miserly habits, and up to the time of his death had amassed an estate amounting to fifteen thousand dollars or more, consisting mostly of stocks, bonds and savings bank books. In a corner of this attic room was a small portable cupboard, so called by the witnesses, brought by him from England when he first came to this country thirty to forty years ago, in which he kept his valuables of a moneyed kind and any other papers he had. His habit was to keep the cupboard locked with the key in his pocket.
He was taken sick on a certain Saturday and died on the Wednesday following, occupying his bed from the first to the last of his sickness. The plaintiff claims that on Sunday during his last sickness, while expecting and awaiting death, he gave her about fourteen thousand dollars worth of stocks, bonds
Her testimony is lengthy, but the most material portion of it is presented here, as follows : "I wasjust giving him [her father] a cup of tea and he got hold of his pants that were on his bed and he felt in his pockets and took his two old wallets out and the key of the corner cupboard. He said, 'Here, Jane, take these,’ he says, and take this key of the corner cupboard. It is thine: and all that is in the corner cupboard is thine, and don’t let any one take it from thee for thou art mine and I am thy father.’ . . . He said, 'Now, Jane, don’t let no one take them off thee, they are thine, and put thy foot down and say that everything of thy father’s is-thine, and don’t let any one take them of thee.’ . . . I just went to the cupboard and looked in and took them in my arms and looked them over, and all the bonds were lying on the bottom of the cupboard and I looked at them and put them back again. Then I got the bank books and looked at them and put them back again. There was a bundle of papers all strung up -with strings and I did not unfold them and did not examine them, but I put them back again; and I never troubled them afterwards until Mr. Levi Wooley came.”
She further testified that after locking the cupboard, she placed the wallets, containing about one hundred dollars in money, and the key in her own pocket where they remained until her father died ; that she had never had the key before this' in her possession, but had been sent with it by her father to get papers from the cupboard for him ; and that she placed some valuables of her own in the cupboard the same Sunday after the donation was made. Of this latter matter she said: " In the afternoon I went to my trunk and I put my two bank books in the cupboard. I thought I would lock them all up together; my father was so sick; there wasn’t any safe place only this in the bedroom, in that corner cupboard.” On cross-
It cannot be pretended that there was any unnaturalness in his giving her the bulk of his estate. She had for many years been acknowledged by him as his daughter. He visited England several times to see her and her mother, tarrying with them there for months at a time. His letters express great sympathy and affection for his child. And they contain many intimations, if not avowals, that she might expect to receive his property at some time. He imparts to her confidential information, in his indirect way of saying and doing things,'as to the amount of his property, an admission which he says he never made to any one else. The free interchanges in their correspondence resulted in her hastening to join her father in this country as soon as she got released from obligation to remain Avith her mother in England. Before she came here he had placed fifteen hundred dollars at interest in the other country, the income of which she received for the benefit of herself and her mother. And on leaving this country in 1888, for a visit across the water, he left a written order to a savings bank Avhere he had four thousand dollars on deposit, besides accumulated interest due thereon, directing how the funds should .be appropriated in case of disaster to him before his return, which paper may as Avell be incorporated herewith as reference Avill be made to it again ; the paper running thus :
"dec 27, 1888
to Androscoggin County Savings Bank Lewiston Maine to the President and Trustees and treasurer Mr. frank w. Parker
i Thomas. Pemberton of Sabattus maine i am sefcing sail for England on the 27 of december 1888, and if i do Not Land Safe Back to Sabattus Please Pay the whole amount of my deposits and interest due me in this County Saving Bank to my order in
In sustaining gifts causa mortis where the question of delivery is depending, it is a relief to feel that the donor had, for some time before the act was done, intended to make the gift; and it adds very much to the judicial confidence when that intention is manifested by some writing signed by the donor. Where the intent of the donor is proved under his own hand, the danger or likelihood of perjury is very far less than when the gift is claimed upon parol evidence unsustained by any writing. A court would be disposed to examine the one case less critically than the other. See Brinckerhoff v. Lawrence, 2 Sand. Ch. 400, 406.
It cannot be denied that Thomas Pemberton not only intended to bestow the most of his estate upon his daughter, but that he died with the belief that he had done so ; unless we accept the theory of the defense, ably presented at the argument, that all his declarations apparently to that effect, made after that Sunday, referred to the paper lodged with the Androscoggin County Bank, with his supposed meaning of that paper, and not to the transaction testified to by the plaintiff. Her conduct after her father’s death gives a good deal of plausibility at least to the defendant’s position in that respect. Still, the testimony of the two neighbors of the deceased who were called in by him on the day before he died, and that of the attending physician, as to his declarations on this matter, corroborated as such testimony is by the same conception expressed in his letters, furnishes evidence of a contrary character not to be easily overcome. At all events, the letters present impregnable proof that the donor during a long period in his life-time contemplated making the daughter the principal, if not the sole, recipient of his estate.
The defense contends that, whether there was any intention to give or not, there was no perfected gift, even if the plaintiff’s testimony be fully believed; that any such intention was
"You must determine precisely what significance shall be attached to that act of delivering to her the key, with the remarks made in connection with it. The mere delivery of the key as a symbol of the property would not be a sufficient delivery, but only as a means of transferring the possession; when it is actually used for that purpose and the possession is actually transferred, that would constitute a valid and sufficient delivery.”
The defense relies on a series of decisions in our own State, the last of which is the case of Drew v. Hagerty, 81 Maine, 231, where all the preceding authorities are cited, as establish
By these practical standards, therefore, must the plaintiff’s very important claim stand or fall. If we give full faith and credit to that portion of her testimony which has been already herein quoted, the court is of opinion that her claim may be
Here the gift was a natural one, and had been evidently contemplated for many years before the donor’s final sickness. His letters repeatedly intimated if they did not promise some considerable gift. And during his last sickness he declared and emphasized his intention in the presence of some of his neighbors. The only real question must be whether there were acts enough done to constitute actual manual delivery within the letter and spirit of the rule hereinbefore enunciated. The donee received the wallets, a portion of the property given, from her father’s hand and transferred them to her pocket. She took from him the key with which she unlocked and afterwards locked the little private cupboard. The donor had strength enough to have done those acts himself. But they were done before his eyes and by his direction. The articles within the cupboard were taken up and handled by the donee. And she knew at least in a general way what the articles were. She placed within the same receptacle on the same day certain savings bank books of her own, which before that time she had kept in a small tin trunk owned by her. She kept the key ever afterwards until the donor died, exercising the same care and dominion over the cupboard and contents as any owner would. To be sure, there might have been a little more formality observed by his taking the papers in his own hands first and then passing them to her. The distinction is, however, a delicate one, and under all the circumstances may be regarded as unessential. Any lacking of the strictest formality is made up by the corroboration before mentioned.
We think the instruction, in the light of the facts we have reviewed, was correct. The judge stated what would be the consequence of such a delivery of the articles, "if accepted by
Any formality omitted in the delivery by him was made up in the acceptance by her in his presence. The substance of the rule, if not its strictest letter, was respected in the transaction.
But it is strongly contended by the defendant’s counsel that the plaintiff’s testimony is not trustworthy, and that her conduct and conversations subsequently to the death of her father were so inconsistent and conflicting with her present story that the alleged gift cannot be considered, as it must be to be valid, as established by clear, convincing and conclusive evidence. There is no doubt that a serious question of fact is involved in a determination of the case, but space cannot be spared in a judicial opinion to present the evidence or argument on that issue. It is sufficient here to say that the court, with some hesitancy on the part of some of its members, is of the belief that the necessary facts are proved to entitle the plaintiff to retain the verdict which the jury accorded her.
Another question arose at the trial, the defendant contending that the action should, even if the gift is to be regarded as proved, be brought against him in his representative capacity as administrator of the donor instead of against him personally. That position cannot be safely admitted. The consequences would in many cases be very harsh and unjust were that principle to prevail. The defendant must administer upon the donor’s property and not upon the donee’s. Your executor or administrator is entitled to the possession of your and not my property.
Another question was an incident of the trial, the counsel for the defendant insisting that, as the question of title is one between the donee and the heirs of the donor, both parties claiming under the same person, the donee was not a competent witness in her own behalf to testify to any facts occurring before the death of the donor, and that the litigation is the same in effect as if it were between the plaintiff and the administrator. There is confessedly a good deal of force in this position. But it is now a settled question, and will probably remain so unless
Motion and exceptions overruled.