118 Mass. 154 | Mass. | 1875
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 were 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 delivered, the property remained undisposed of at the death of 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. To constitute a delivery to the plaintiff, it is not enough to show that the assignments passed into his hands; it must be shown that the testator delivered them to him with the intention to pass the property in the debts and mortgages to him. The plaintiff 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. The inference is strong that it was not intended or understood that the assignments were to be operative until the death of the assignor, and the subsequent acts of both parties strengthen this inference. The plaintiff never exercised or pretended to have exclusive control of the assignments. They were deposited in a safe to wMch his father had access equally with himself, and were kept with the will of his father and other papers 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 treated 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 other assignments of mortgages to