2 N.Y.S. 675 | N.Y. Sup. Ct. | 1888
I was impressed upon the trial of this action that the defendant had failed to make out a defense, and that the plaintiff was entitled to a verdict for the amount of the money in controversy; and a further examination which I have given this case has confirmed my first impressions. The plaintiff, as executor, was entitled to the money, unless the defendant established a donation of it to her causa mortis. The statute, for very apparent reasons, requires great formality in a will disposing of property. The law, however, permits the disposal of property causa mortis, but does not favor such disposition of property, and requires one claiming property under such a gift to establish it by the clearest, strongest, and most unequivocal evidence. Grey v. Grey, 47 N. Y. 556; Kenney v. Public Ad’mr, 2 Bradf. Sur. 820, 321; Delmotte v. Taylor, 1 Redf. Sur. 423; Champney v. Blanchard, 39 N. Y. 116. The ease with which frauds may be perpetrated in such cases has led to the adoption of this rule. Mrs. Pettibone, at the time of the alleged gift, was old and infirm; but it is not made to appear that she apprehended that death was near at hand. She said, along in the summer of 1885, and about the time it is claimed this gift was made, that she feared she would not live through the next winter; that the doctor had told her that she might die at any minute; but, after the making of these declarations her health was much better, so that she was able to leave her home in Allegany county, and visit the Chautauqua assembly at Chautauqua. She did not die until the 10th day of September, 1886, some 14 months after the making of the alleged gift. She had ample time and opportunity, and was fully competent thereafter, to dispose of her property by a formal will, as she in fact did do, a short time thereafter. The defendant failed to show a gift under apprehension of immediate death, or expectation that death was near at hand, and failed to bring her case within the rule laid down in Daniel v. Smith, 64 Cal. 349, and Gourley v. Linsenbigler, 51 Pa. St. 345. It was incumbent upon the defendant to show that Mrs. Pettibone died of the disease with which she was afflicted at the time of her gift. Grymes v. Hone, 49 N. Y. 17. She was not shown to have had at that time any disease except rheumatism, which is a common ailment with persons of her advanced age. The infirmities of old age seem to have been her main trouble, and the cause of her apprehension of her death. A sudden and acute attack of trouble in her stomach or side was in fact what caused her death. She had been for some time immediately before her death visiting at the defendant’s home; had concluded her visit; was fully dressed, prepared to return to her home, and was suddenly and violently attacked with her mortal sickness, without, so far as the case shows, any premonition or reason to expect such sickness. She died quite suddenly. The evidence did not warrant the inference that her death was caused by any disease that she had at the time of the alleged gift.
To sustain a gift causa mortis, there must be such a delivery of the article donated as vests in the donee control and dominion over the property. Harris v. Clark, 3 N. Y. 93. And this brings us to another fatal defect in the
NOTE.
. Gifts—Causa Mortis—Delivery. To constitute a valid gift causa mortis, there must be not only an actual and complete delivery, so as to deprive the donor of all further control or dominion over the property, but the donee must take and retain possession until the donor’s death. Dunbar v. Dunbar, (Me.) 13 Atl. Rep. 578. The delivery, must be as complete as the nature of the property will admit of. Gano v. Fisk, (Ohio,) 3 N. E. Rep. 532, and note; Lamson v. Monroe, (Me.) 5 Atl. Rep. 313. It must be such
A delivery to a third person, to be given to the donee on condition that he does not contest the donor’s will, is sufficient. Woodburn v. Woodburn, (Ill.) 14 N. E. Rep. 58. A certificate of deposit may be the subject of a gift causa mortis, though payable to the donor, and not indorsed by her. Conner v. Root, (Colo.) 17 Pac. Rep. 773. But delivery of his bank-book to a third person by the donor, with a request that it he kept for a designated donee, and delivered to her on the donor’s death, the latter not parting with the control of the book, is not a valid gift causa mortis. Daniel v. Smith, (Cal.) Id. 683; Appeal of Walsh, (Pa.) 15 Atl. Rep. 470. Nor is delivery of a memorandum disposing of certain personal property, neither the donees nor the articles mentioned being present. Trenholm v. Morgan, (S. C.) 5 S. E. Rep. 721. Gifts causa mortis are defined in Henschel v. Maurer, (Wis.) 34 N. W. Rep. 926; Parcher v. Savings Bank, (Me.) 7 Atl. Rep. 266.