56 Me. 324 | Me. | 1868
— Grifts causa mortis are not favored in law. They are a fruitful source of litigation, often bitter, protracted and expensive. They lack all those formalities and safeguards which the law throws around wills, and create a strong temptation to the commission of fraud and perjury. Lord Hardwick declared, more than a hundred years ago, that it was a pity the statute for the prevention of frauds and perjuries did not set aside all such gifts. Justinian was so justly apprehensive of fraud with respect to them, that he required them to be made in the presence of five witnesses. If the law limited such gifts to articles of small value, and required the gift to be executed in the presence of disinterested witnesses, they would be less objectionable.
Unfortunately the common law has not adopted any of these precautions. It does not require the gift to be executed in the presence of any stated number of witnesses; nor does it limit the amount of property that may be thus disposed of. But it does require clear and unmistakable proof, not only of an intention to give, but of an actual gift, perfected by as complete a delivery as the nature of the property will admit of. It not only requires the delivery to be actual and complete, such as deprives the donor of all further control and dominion, but it requires the donee to take and retain possession till the donor’s death. Although the delivery may have been at one time complete, yet this will not be sufficient, unless the possession be constantly maintained by the donee. If the donor again has possession, the gift becomes nugatory. And public policy requires these rules to be enforced with great stringency, otherwise the wholesome safeguards of our testamentary laws become useless. It is far better that occasionally a gift of this kind fail, than that the rules of law bo so relaxed as to encourage fraud and perjury.
The plaintiff claims title to the property sued for by gift. In support of her claim, she testifies that, some two or three weeks before the Doctor died, he told her to take his trunk and money and put it in her room and keep it; that he did not think he should ever be any better. But there is no evidence that either the trunk or the money Avas then present, or that she then, or at any subsequent time, actually took them into her custody or keeping. Here, then, is no evidence of delivery. Nor does the language used, if accurately reported, necessarily import even an intention to give. The witness swears that he said nothing more. It seems to us quite as probable that nothing more was meant by this simple request than that his trunk, containing not only his
Rut it is said that, if what took place at the time above referred to, was not sufficient to establish the alleged gift, what was said and done the night before the Doctor died was sufficient. To this transaction the plaintiff and her brother are the only witnesses. The plaintiff testifies that the Doctor told her to bring his'trunk; that she did so, and placed it on the table beside him; that he and her brother then looked it over together; that he then told her brother to take care of it for her; that it was for her; that he wanted him to take care of it for her; that he charged him, as he hoped for prosperity in this world and peace in heaven, to do right by her; that her brother took the trunk and put it into a closet in the Doctor’s room ; that this closet was used by the Doctor as a clothes press; that the trunk remained there till after the Doctor’s death. The plaintiff admits, on cross-examination, that " the Doctor had other papers in the trunk.”
Giving full credit to this statement, does it show such a delivery, such a continued possession in the donee, as the law requires to sustain a gift causa mortis9 Clearly not. The trunk, with all its contents, was left in the Doctor’s possession. Its place of deposit.was the Doctor’s own clothes press, in his own room, and under his own eye ; and there it remained till after his death, when it was taken by the defendant, (afterwards appointed administrator,) without objection from any one. While the Doctor lived, the trunk and its contents were legally and actually in his possession ; as much so as they could be, unless he actually held them in his hands.
Bunn v. Markham, 7 Taunt., 224, (2 E. C. L., 81,) was much stronger for the donee than this, and yet the Court
In Powell v. Hellicar, 26 Beavan, 261, the deceased, immediately before her death, told one to take the key of a dressing case and box, containing a watch and trinkets, and immediately upon her death to deliver' them to the plaintiff, but it was held that this did not constitute a valid'gift, causa mortis, there being, during the life of the donor, no delivery to or for the donee. .Delivery of the key was not sufficient..
Chancellor Kent says delivery is essential, whether it be a gift inter vivos or causa mortis; that the delivery must be actual; that the necessity of such a delivery has been maintained in every period of the English law; that donatio perficitur possessione accipientis was one of its ancient maxims ;
The property claimed to have been given, in this case, was gold coin, greenbacks, and government bonds, articles ca.~ pable of a perfect and complete delivery. ■ The Doctor took the gold, and the greenbacks, and the bonds, into his own hands, and looked them over, and could have delivered them into the hands of the donee if he had chosen so to do; but he did not. So far as appears, not one of the bonds, or one of the greenbacks, or a piece of the coin, was ever in her hands, or the hands of her brother. The Doctor replaced the whole in his trunk, locked it, and the trunk was then placed in his own clothes press in his own room, where it remained till after his death.
True, the plaintiff swears, that the Doctor passed the trunk into her brother’s hands when he said " this is for Mary Ann, take care of it for her;” but the brother swears that the Doctor " locked the trunk and gave him the key,” and said " I want you to keep.it for Mary.” Which is right, the plaintiff-or her brother? It is not material. If it was the trunk, as the plaintiff swears, the possession was not retained by the brother; it was but momentary; for it was immediately placed in the Doctor’s own closet, where it remained under his own eye, and under his dominion and control, till his death. If it was the key only, as the brother swears, then very clearly there was no delivery or possession given, even for a moment. For, although delivery of the key of a warehouse, or other place of deposit, where •cumbrous articles are kept, may constitute a sufficient cou
But we think the testimony of the plaintiff and her brother is not reliable. It is so at variance with their conduct and declarations, that it is impossible to credit it. If the plaintiff understood this property had been given to her, how was it possible for her to write such a letter as she did to John Atkinson?
" The Doctor was never afraid to trust us with any of his property. He gave brother the keys to take care of until some one had a right to search his things.”
Is not this language utterly inconsistent with the idea that the Doctor gave William the key and told him to take care of it for the plaintiff? Again :
" He [the Doctor] always told me I should be provided for when he was taken away; and the night before he died he looked up to me and said, ' Mae,’ (that is what he called me,) ' I have done better by you than you have any idea of,’ and several other things, that I knew he left something for me; but nothing has come to light yet, and, if Thomas has got it, I dout think it ever will; but I shall always think there is something for me.”
Always think there was something for her! Why, if she and her brother were eye and ear witnesses to the gift now set up, a gift consisting of gold coin, greenbacks, and gov
The defendant came to the house a week .after the Doctor died and remained there a fortnight. He came for the avowed purpose of looking after the Doctor’s property and settling the estate. If it was true that this property had been given to the plaintiff, why did she not notify the defendant of the fact? Why did she remain silent when it was so important to herself, as well as others, for her to speak?
Feeling the force of these inquiries, she undertakes to excuse herself by saying that the defendant did not give her a chance to converse with him. But this seems to us a very flimsy excuse. They were in the house a fortnight together, and she admits she mentioned to him some things in the room that the Doctor gave her; that she told him the Doctor gave her the secretary and a map. It is not true, therefore, that she did not have an opportunity to converse with him. She not only had such an opportunity, but did in fact converse with him. Was it any more difficult to inform him of the money and bonds than it was of the map and the secretary?
If it be true that her brother was a witness to this gift, and had been made the depositary of it, under a solemn charge to keep it for the plaintiff, " as he hoped for prosperity.in this world and peace in heaven,” why did he surrender the property to the defendant without a single word of protest, and without even informing him of the fact that it had been given to Mary, and entrusted to his care for her ?
There is but one rational answer to these inquiries; the pretended gift was an afterthought. The testimony in relation to it is so improbable in itself, so hopelessly irrecon
Motion sustained.
Verdict set aside.
New trial granted.