Westerlo v. De Witt

35 Barb. 215 | N.Y. Sup. Ct. | 1861

Lead Opinion

Clerke, P. J.

The law is wisely jealous of all dispositions of property made by persons in extreme illness, and particularly in the immediate prospect of death. Knowing their probable mental debility and susceptibility at this dread hour, it requires, as a general rule, that their property should be disposed of in writing according to certain forms and solemnities, and in the presence of at least two witnesses. When it recognizes any other disposition of it, it requires positive and unequivocal proof of the gift. The intention must be clear and undisputed. Any other rule would expose dying persons to imposition and importunities, and their estates to encroachments, which the common law, even more than the civil law, has always carefully endeavored to prevent.

The law, then, requiring this positive and unequivocal proof of the intention, has such proof been adduced in this case ? Taking all that Miss Westerlo has testified as true and uncontradicted, I cannot think it warranted the conclusion at which the referee has arrived. Where is the clear and unequivocal proof which the law requires, that Mrs. Clinton intended to make a donation to Miss Westerlo of the certificate? Miss Westerlo testifies that Mrs. Clinton told her to bring from the pocket of one of her dresses, in a closet, a roll of paper ; that she brought the parcel to her; that Mrs. Clinton opened the parcel, counted over the bills, opened the certificate and read it, then rolled them together in the same paper and pinned them together : she then called Miss Westerlo to her and handed the parcel to her, and said, “Nelly, I give this to you; this is for yourself; no one knows any thing about it, and I do not wish to tell of itshe then told her to put the parcel away where she had found it. There were about six hundred dollars in the roll of bank bills. She never said a word specifically of the certificate, but told Miss Westerlo, in the first instance, to bring her a roll of paper from the closet. Several items of indebtedness had accrued during her illness which she was anxious should be particularly attended to, and that Mrs. Jones, at whose house she was staying, should be at no expense for her. She first gave Miss Westerlo ten or twelve dollars out of a drawer, to pay for things as they were needed, but items to the amount of one hundred and twelve dollars had accrued, or were accruing, which Miss Westerlo afterwards paid out of the six hundred dollars. Now, I can very well conceive that this dying woman, anxious to avoid inconvenience and expense to her hostess, and desirous that the most trifling items incurred by her at this time should be promptly paid, without being compelled to wait until the executors could pay such claims in the due administration of the estate, intended to hand Miss Westerlo this roll of bills, and to allow her, in consideration of her attention and kindness, to keep the balance for her own use. But I cannot believe, if she intended to make a gift of the certificate, that she would not have specifically said so. Instead of this, as we have seen, she never said a word about it; she did not even use the word certificate, or make, any allusion whatever to her deposit in the New York Life Insuranee and Trust Company. Whatever may be the legal effect of handing to Miss Westerlo a certificate of deposit, if the intention was unequivocally manifested, without indorsement or assignment, Mrs. Clinton must have known, as a woman accustomed to affairs of this nature, that without such indorsement and assignment, it would have given her donee at least a great deal of trouble to realize it; and, to my mind, it is clear, if she intended to make a gift of the certificate, she would have done every thing necessary to make it undoubted and effectual, on the supposition that she retained her mental faculties. On the other hand, if her faculties were impaired, she was not in a proper condition to make such a gift, and if so, it ought not to be sustained. This, I think, is the safe conclusion to arrive at, even from the solitary testimony of Miss Westerlo herself. But when we consider that at this time Mrs. Clinton was laboring under an attack of paralysis, which always more or less impairs the mind; that it was with great difficulty she could articulate, being in the habit of calling things and persons by the wrong name; that she was, in short, extremely ill; and, according to the testimony of Mrs. Jones, De Witt Clinton Jones and Mr. De Witt, that Miss Westerlo herself doubted whether Mrs. Clinton intended to make a gift of the certificate, I have little hesitation in saying that the referee was not warranted in his conclusion, that Mrs. Clinton did intend to make a gift of it.

If this view of the case should prevail, it is unnecessary to consider the other questions presented to us.

The judgment should be reversed; a new trial ordered, costs to abide the event.

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Dissenting Opinion

Leonard, J. (dissenting.)

The main question in this case is whether there was a valid donatio causa mortis made by Mrs. Clinton to Miss Westerlo.

1st. As to the subject of the gift, and whether transferable by mere delivery. It consisted of a certificate of deposit, payable to Mrs. Clinton, her special attorney, representatives or assigns.

In the following cases, bonds and mortgages have been held to be well transferred by delivery only, as a gift causa mortis. (Duffield v. Elwes, 1 Bligh, N. S. 497. Hurst v. Beach, 5 Madd, Ch. R. 351. Duffield v. Hicks, 1 Dow & Clark’s Rep. N. S. 1.)

The promissory note of a third person, not payable to bearer, not so indorsed as to transfer the legal title, also secured by a mortgage, has, together with the mortgage, been held to be the subject of a valid gift causa mortis. (Brown v. Brown, 18 Conn. R. 410.)

These authorities seem quite sufficient to warrant the conclusion that the gift in question may be valid notwithstanding there was no transfer of the certificate in writing, signed by the donor.

2d. Was there an actual delivery of the certificate donatio causa mortis ?

On this point the referee has found in favor of the plaintiff. The only grounds for doubt here, arise from the request of Mrs. Clinton, after declaring that she gave the contents of a certain package to Miss Westerlo, then handed to her, including the certificate, that Miss Westerlo should put the package in the pocket of her silk dress as a safe place for keeping it; and also because Miss Westerlo stated that she was certain Mrs. Clinton intended to give her the money, but was not positive as to the certificate.

The observation of Mrs. Cinton did not manifest an intent to impose a condition on her gift, or to withhold actual delivery thereof. It related only to the safety of the package.

The doubt of Miss Westerlo could not have referred to what was said by Mrs. Clinton in making the gift. If her doubts originated there, they would have related also to the money, inasmuch as both the money and the certificate were given at the same time, by the same declaration of Mrs. Clinton. I think her doubt arose from the form of the certificate, and the want of any wilting.

[New York General Term, September 16 1861.

When asking the advice of Mr. De Witt, she exhibited the certificate and stated the facts. There was nothing to give rise to any other doubt. The advice of Mr. De Witt, that the title of Miss Westerlo to the certificate was not good, seems to "have been founded on this legal defect in the transfer of the certificate. He informed her that it could only he collected through the executor. In this advice he was, I ' think, mistaken. It is of no consequence whether the defendant was a lawyer or layman. He obtained possession through a mistake, which he and Miss Westerlo both made in respect to her rights. He has collected the money, and the gift being valid, he is liable to refund it.

The transfer of this claim to the plaintiff, from Miss Westerlo, is valid, and vests the right to collect it in the plaintiff.

The judgment should he affirmed with costs.

Judgment reversed, and new trial granted.

Clerke, Ingraham and Leonard, Justices.]

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Concurrence Opinion

Ingraham, J. concurred.