134 Mass. 138 | Mass. | 1883
A husband may make a gift of personal property to his wife, which, after his decease, will give her a valid title to the property against his heirs. To accomplish this result, there must be an actual delivery of the property to the wife, with the intention to give it to her, a retention of the custody of the property by the wife, separate and distinct from other property of the husband, and rights of creditors of the husbahd must not be impaired. McCluskey v. Provident Institution for Savings, 103 Mass. 300. Fisk v. Cushman, 6 Cush. 20. Adams v. Brackett, 5 Met. 280.
Actual delivery to the wife of property which passes by delivery, and retention of the custody by her, are equivalent to the deposit of money, or the taking of certificates of stock or a promissory note, in her name. The title and possession of the property remain in the husband, during his life, the possession of the wife being in legal contemplation the possession
The case is not affected by the Gen. Sts. c. 108, § 10, which did not restrict the rights of husband and wife as they existed before, but only provided that a husband should not give property to his wife, so that it should become her sole and separate property, like gifts from other persons. Whitney v. Wheeler, 116 Mass. 490. Towle v. Towle, ubi supra.
A husband may make a valid gift causa mortis to his wife, Whitney v. Wheeler, ubi supra, and between husband and wife the requisites and effects of gifts inter vivos and causa mortis are nearly identical. To establish gifts of this description, there should be clear, satisfactory and incontrovertible evidence, not only of the gift and delivery of the property, but óf the separate custody of it by the wife. Herr’s appeal, 5 Watts & Serg. 494. George v. Spencer, 2 Md. Ch. 353.
In the case at bar, everything necessary to constitute a gift, perfected in the wife, is found to have been established.
Decree affirmed.
