Shurtleff v. FrancisShurtleff v. Francis
- Reporters:
- ,
- Before:
- Morton
The testator executed assignments of certain mortgages held by him to the plaintiff. A part of the assignments ran to the plaintiff to his own use, a part to him as trustee of Helen Francis, and a part to him as trustee of Isabella Coolidge. The main question in this case is whether these assignments wеre delivered to the plaintiff so that the property in the mortgage debts passed to him before the death of the testator. If they were thus delivered, he would hold the property for the purposes and upon the trusts created or declared by the assignments ; if they were not dеlivered, the property remained undisposed of at the death оf the testator and would be subject to his will.
The question presented is purely a question of fact, and upon a careful consideration of all the evidence we are satisfied that there was no delivery. Tо constitute a delivery to the plaintiff, it is not enough to show that the assignmеnts passed into his hands; it must be shown that the testator delivered them to him with the intеntion to pass the property in the debts and mortgages to him. The plаintiff nowhere testifies that they were delivered to him as his property. He states that his father gave them to him at the dates of their respective acknowledgments, “ with instructions, in case he died before I did, to put them on record at once,” and that nothing else was said at the time. Thе inference is strong that it was not intended or understood that the assignments wеre to be operative until the death of the assignor, and the subsequеnt acts of both parties strengthen this inference. The plaintiff never exercised or pretended to have exclusive control of thе assignments. They were deposited in a safe to wMch his father had aсcess equally with himself, and were kept with the will of his father and other pаpers of which the son had no legal control. The notes, which were the principal, the mortgages being accessories, were never indorsed to the son, and were never in his possession. They were trеated by the father as his own property. He collected for his own use the interest on them, from time to time, as it fell due. The facts shown as to the previous assignments are very significant to show the intention and purposes of the assignments in question. The testator had previously made оther assignments of mortgages to *156the son, in the same manner and for like рurposes. He received the interest on those mortgages, in some cases received the whole or a portion of the prinсipal of the notes, and gave releases in his own name; in one сase released a portion of the land without receiving any сonsideration, and in one case entered and foreclosеd one of the assigned mortgages in his own name. It is clear that, both as tо the prior mortgages and the mortgages in question, the testator regаrded and treated them as his property as much after as beforе the assignments, and that the son claimed no control or dominion over them before his death. Upon the whole evidence we are sаtisfied that there was no delivery of the assignments, that it was not the intention of the parties to transfer the property to the plaintiff during the life of his father, but that the purpose of the transactions was that the transfer of the property should not take effect until after his death. As this purpose cannot be carried into effect consistently with our statute of wills, it follows that the assignments were to be treated as nullities, and the property covered by them is to be disposed of under the residuary clause of the will. Decree accordingly.