Jones v. Brown

34 N.H. 439 | N.H. | 1857

Bell, J.

It does not appear, from the evidence laid before us, from what sources or from what- description of property the balance on the administration account was derived.

It does not appear that Mrs. Brown had at the time of her death any notes, except that for $40 or $50 against James Patten, which James Patten saw taken from the chest by Mr. Brown, on the day of the funeral, and a note left by Mrs. Brown with Mrs. Fitts for her nephew, E. Fifield.

It does not appear that any note, money, or security for money, was in the chest or drawers, except the Patten note.

If the delivery of the keys to Mrs. Fitts amounted to a gift of the things in the drawers and chest, and if the things in the house was broad enough to cover money or notes, or securities for money, the gift, upon the evidence before us, would apply only to the Patten note and the articles divided.

It does not even appear that Patten’s note forms part of the balance in question.

It would seem that a gift of "the key of the chest, accompanied by a direction that her things should be equally divided among her nieces, would be a valid donatio causa mortis of notes contained in the chest, because it Í3 conceded that there was nothing else in it of any value. 2 Kent’s Com. 446, 7, 2; Smith v. Smith, Strange 955.

If the husband survives his wife he is entitled to administration, and to recover and receive any property in her possession, or to which she is entitled, but which he had not reduced to his possession during her life, to his own use. Wells v. Tyler, 5 Foster 342.

During the life of the husband, it is not settled by decisions, that we are aware of, how far the power of the wife extends in giving away or disposing of her property.

It would seem a reasonable rule, that where the husband has failed to reduce the property to his possession, from inability, as from its situation, or from want of time, no assent of the husband could be presumed, and the wife would have no power to give away the property.

But where the wife has continued to retain the control and management of her property by the assent of the husband, there her sale or gift of the property inter vivos might be effectual.

On this principle her donatio causa mortis might be good in such a case, unless the rules applicable to legacies should be held to apply; and the gift of all the property (notes included,) which were secured by the keys given to Mrs. Fitts, might be valid, though this upon the proof would apply only to the Patten note.

But a donatio causa mortis is of the nature of a legacy. It becomes a valid gift only upon the decease of the donor.

Now a married woman, by her husband’s assent, may bequeath by will personal property in possession which belonged to her at her marriage, or which has fallen to her afterwards. Gutter v. Butler, 5 Foster 355. A general assent that the wife may make a will, is hardly sufficient. There must ordinarily be evidence of an assent to the particular will which is made by the wife. The assent may be proved by circumstances as well as by direct proof. Thus, if, after the wife’s death, the husband suffer the will to be proved, and deliver the goods accordingly, the testament is good. Ibid. 357. If these principles are applicable, as we think they are, to the case of a donatio causa mortis, the husband in this case would be bound by the gift, by his wife, of the things which he saw divided.

But there is no evidence of any assent to her gift of any notes. On the contrary, though his mode of manifesting his dissent was not very manly, yet his disagreement to his wife’s arrangements, so far as the notes were concerned, except that perhaps given to E. Fifield, was very clear and unequivocal.

His consent being necessary, the donation consequently fails entirely, and

The decree of the judge of probate must be affirmed.