22 N.Y.S. 780 | New York Court of Common Pleas | 1893
Lead Opinion
“Sound policy requires that the law regulating
gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged.” Earl, J., in Ridden v. Thrall, 125 N. Y. 572, 581, 26 N. E. Rep. 627. A gift imports, ex vi termini, a present transfer of the property, and an executory gift is a legal absurdity. 2 Kent, Comm. 438. Hence an intention to give, no matter how absolute and explicit, is merely nugatory; but, to a valid and effectual gift, delivery of the thing given, with the purpose and effect of passing the property as well as the possession, is an indispensable condition. Beaver v. Beaver, 117 N. Y. 421, 429, 22 N. E. Rep. 940; Young v. Young, 80 N. Y. 422; Jackson v.
The burden was upon the respondent to establish the gift she alleges against the apparent title of the appellants, and to establish it by clear and satisfactory proof. Devlin v. Bank, 125 N. Y. 756, 26 N. E. Rep. 744; Wetmore v. Brooks, supra. If the evidence be insufficient as to any fact indispensable in the constitution of a gift causa mortis, the judgment cannot stand; and we must so decide, however repugnant the conclusion to the inclination of the court. Assuming what, however, is extremely questionable, that the doner never resumed possession of the bank books after their delivery to the respondent, the fact is uncontroverted that she subsequently appropriated to her own use a part of the very fund which is claimed to have been transferred to the donee by the alleged gift causa mortis. By the instrumentality of those books, in the presence and with the concurrence of the respondent, she drew $600 from the bank, and applied it to her own personal use. The alternative is inevitable,—that the donor never meant to part with the present possession and dominion of the thing given, or else that, in the exercise of her unquestionable right, she revoked the intended gift; and either inference is fatal to the validity of the donation. By collecting and appropriating a portion of the fund which the delivery of the books is supposed to have destined to the donee, the donor unequivocally asserted possession and dominion of the thing given; asserted and exercised the jus disponendi in its utmost plenitude. “There can be no gift, in law, if one exercises dominion over the subject of the gift.” Dougherty v. Moore, (Md.) 18 Atl. Rep. 35. “Redelivery of the subject of the gift to the donor revokes the gift.” Wigle v. Wigle, 6 Watts, 522. The donor’s act of reclamation, in itself, would operate to nullify her original intention, if such there was, to pass possession and property; but, indeed, it is not clear that she ever meant to relinquish dominion of the subject of the contera plated gift. The paper executed at the time of the transaction,
But, for another and independent reason, this pretended gift is manifestly void. As its name imports, a gift causa mortis is made in. contemplation of the death of the donor, and that it be so made is an indispensable condition of its validity. A gift upon any other contingency is not a donatio causa mortis. Now, the evidence utterly fails to show that it was an apprehension of death by the donor that prompted the delivery of the bank books to the defendant. True, Margaret Kirk was of infirm health; and true, also, it is, that on the occasion of the delivery of the books she said the doctor had told her she “was liable to go off at any time.” But not for that did she deliver the books to the defendant. By the uncontroverted testimony,—the testimony of defendant’s own witnesses,—another motive than the fear of death actuated the delivery of the books. Detailing the circumstances of the alleged donation, Peter Hughes testifies:
“As soon as I came in, she says: ‘Well, Bridgie’s employers have sent for her to go home. Now, you know about that letter that my sister sent me, saying Thomas Kirk would come on here, and carry out his intention to bum the house. Now, if Bridgie goes home, and he comes and burns the house, I want her to have her share. * * * If he comes on, why, Bridgie, you have got this money. He cannot touch it. You have got it.’ * * * She said that, if anything happened to her while Miss McGusker was away, she would have something anyhow, if Thomas Kirk, her brother, should come here and do any damage. * * * She said that Miss McGusker would have this, if he' would come on and do any damage.”
Kate Gaughran testified:
“She said: T want to leave all the money in bank to Miss McGusker, in case anything should happen. * * * Well, if I don’t see Bridget any more, 1 am glad I got her to take the bank books home with her.’ ”
Judgment reversed, and new trial ordered, costs to abide event.
BISOHOFF, J., concurs in result.
Concurrence Opinion
(concurring.) The judgment appealed from will have to be reversed for error in the admission of testimony of the defendant concerning a transaction with the plaintiffs’ intestate. The issue in the case was whether the deceased had personally delivered her bank books to the defendant, with the intention of making a gift to the latter of the money in the banks, and whether, thereafter, the donor had recovered possession of any of the books, and revoked the gift of the money, or any part of it. The defendant’s witness Peter Hughes had testified to a transaction of February 12, 1892, between the deceased (Miss Kirk) and the defendant, in which the bank books were given to the latter; but he also testified that one of the books was handed back to Miss Kirk by defendant, who subsequently, after the death of Miss Kirk, took the book from the rooms of deceased. The defendant was then sworn on her own behalf, and was asked how long the three bank books had been in her possession. This was objected to by plaintiffs as within the prohibition of section 829 of the Code, but the objection was overruled, and the plaintiffs excepted. The defendant then answered, “Since the evening of February 12th of this year.” A motion by plaintiffs to strike out the answer, as relating to a transection with a deceased person, was denied, and exception taken. The materiality of this testimony of the defendant was that the personal transaction and communication between deceased and herself, as testified to by Hughes, might be inferred from it; and she thus testified indirectly to both such transaction and communication. “The fact she spoke of was in no just sense independent of, and extrinsic to, the personal transaction and communication, but derived its chief significance from its dependence upon, and intrinsic connection with, both.” Yiall v. Leavens, 39 Hun, 291. The -case cited resembles the present closely, and is an authority di
With respect to the merits of the case, it may be said that the decision of the trial judge might have been sustained is part, if not wholly, but for the error pointed out above. If the redelivery of the Bleecker Street Bank pass book could be construed as a rescission of the gift, and its retention by the donor as a revocation, then it should be deemed a rescission or revocation of the gift of the money deposited in that bank, and not of the moneys deposited in the other banks, the books of which were never delivered back to the deceased. But I do not think that the redelivery of the Bleecker Street Bank book affected the gift of the money in that bank, in any particular; for the deceased never drew any of the money, and the book was reluctantly received by her at the urgent solicitation of the donor, and as a provision for possible contingent needs only. Nothing in this transaction, indicates the slightest desire or intention on the part of the deceased to take back what had been so freely given. With respect to the subsequent withdrawal of money from the Emigrant Savings Bank, which Hughes says the defendant told him “she got Mag to draw to send to her sister in Ireland,” that money could only have been drawn on presentation of the book in defendant’s possession, and it was so drawn in defendant’s presence, both parties going to the bank together; and this withdrawal of the sum in question did not affect the ownership of the balance in the bank, the book being still retained by defendant. As to the original gift, all the constituents of the donatio causa mortis are found in the detailed transaction. The illness or ailment of the donor, from which she never recovered before her death, which took place within six weeks; the gift in praesenti of the bank books to the defendant, which is a delivery of the sums credited therein, (Ridden v. Thrall, 125 N. Y. 572, 26 N. E. Rep. 627; Walsh v. Bank, [Com. Pl. N. Y.] 7 N. Y. Supp. 669, and 8 N. Y. Supp. 344; Penfield v. Thayer, 2 E. D. Smith, 305;) the words which accompanied the gift, “There is your fortune for you,” together with the whole conversation,—make out a case beyond even a reasonable doubt. The written paper, which at the time of the gift the deceased caused to be drawn up, and which she signed, “I, Margaret Kirk, if anything happens, I leave all the money I have in the bank to Bridget McCusker,” confirms the gift. The contingency therein expressed referred to her death. She told them that the doctor told her that the sickness would take her off at any time. If she had apprehensions about her brother coming from Ireland, they must have related to his coming after her death, for his coming during her lifetime would not affect defendant’s prospects of getting “her
Judgment reversed, and new trial ordered; costs to abide event.