McGrath v. Reynolds
116 Mass. 566
Mass.
1875
Check Treatment
Wells, J.

The writing signed by Reynolds cannot operate as a will, for want of attestation. The testamentary purpose, however, is so manifest, especially in connection with the attending circumstances and the declarations of Reynolds, as to forbid giving it effect as a transfer by way of gift inter vivas. It can be regarded only as an attempt to make a gift mortis causa; and it is so set forth in the bill.

As a gift mortis causa, it is not aided by the execution of the written instrument, except so far as that may contribute to greater certainty in the proofs. Such gifts cannot be effected by formal instruments of conveyance or assignment. They are manifested by, and take their effect from, delivery. They can therefore only be of such articles of personal property as are capable of transmission by delivery alone, so far at least as to confer a right or title which equity will protect and enforce. They require actual delivery or its equivalent. Symbolical or constructive delivery is not sufficient. Parish v. Stone, 14 Pick. 198, 203. Sessions v. Moseley, 4 Cush. 87, 92. Rockwood v. Wiggin, 16 Gray, 402. Marshall v. Berry, 13 Allen, 43. Coleman v. Parker, 114 Mass. See also cases cited in 2 Redfield on Wills, 302 & seq., and 1 Lead. Cas. in Eq., 583, notes to Ward v. Turner.

The greater part of the subject of the gift in this case was in money. There was no maüual tradition of the money, and the *569occurrences at the time of the supposed gift do not furnish an equivalent for delivery. The donor informed the donee where it was, and that his sister, who was present, would give it to him. But there was no change of possession or control until after the death of the donor, when it was too late to make a delivery under the authority which the words of the donor would imply. Even if we regard the sister as the agent of the donee to receive and hold the money for the purposes of the intended gift to him, it does not relieve the difficulty; because she did not assume the possession and control of the money until after the decease of the donor. It does not follow because it was in her own house, where her brother was a boarder, that it was virtually in her possession at the time ; and that inference is excluded by the fact that it was in a pocket in his personal clothing; and by the affirmative statement that she “ had previously been informed by Reynolds where the money was.”

We are forced to the conclusion, therefore, that there was a failure to make the intended gift effectual in law, by reason of an omission to perfect it by delivery of the money. As there was no intention to make the gift otherwise than as a whole, the failure of the principal part must defeat the whole. We cannot regard the delivery of the bank books as a delivery of part in the name of the whole so as to make the whole gift effectual. We need not consider the question whether the deposits in the savings banks would pass as donatio causa mortis, by delivery of the books with the order of payment or the assignments, if disconnected from the rest of the scheme. The intended gift was not of those deposits or books specifically, but of a definite larger fund; and the books were delivered merely as means in part to carry out the entire purpose. That purpose failing, there is no intended gift of which the delivery of those books is an appropriate manifestation.

The result is, that the plaintiff must hold the funds as administrator. Instructions accordingly.