Duryea v. Harvey , 183 Mass. 429 ( 1903 )

Hammond, J.

William L. Simpson, fearing that his physician would advise him that a surgical operation would be necessary to prevent a fatal result from a disease from the effects of which he believed himself to be suffering, and thinking that he might commit suicide rather than to submit to such an operation, put the papers upon which the_plaintiff relies in an envelope, which having sealed he caused to be placed in the hands of Jacob Seheider. Upon the outside of the envelope he wrote: “To be opened by Jacob Seheider, . . . or Miss May Duryea, . . . only by my direction or on my death.”

From the language used by him, it is plain that he did not intend that the envelope should be opened during his life without further direction from him. There was no delivery to the plaintiff or to Seheider for her. Seheider held the papers during the life of Simpson subject to his orders, and not for the plaintiff. Simpson had written the requests to Harvey, it is true, but the fact was not known to Harvey or to the plaintiff, and Simpson’s intention plainly was to keep to himself during his lifetime the power to make a delivery of them. There being no delivery during his life to the plaintiff or to anybody for her, there was no gift inter vivas. Sessions v. Moseley, 4 Cush. 87, 92.

It is contended however that the transaction can be supported as an equitable assignment to the plaintiff upon a valuable consideration, consisting of an alleged debt due her for money loaned to Simpson. Even if it be assumed that there was such a debt and that one of the purposes of Simpson in drawing up the request to Harvey was to pay or secure that debt, still we are met by the same difficulty about delivery. There was no deliveiy during the life of Simpson, and he did not intend that there should be, without further direction from him. Everything was incomplete. Seheider was merely his depositary. There being no delivery there was no contract arising therein during his life. The case is Clearly distinguishable from Hewins v. Baker, 161 Mass. 320, and other similar cases cited by the plaintiff.

But the trial judge has found, and this finding is amply justified by the evidence, that, although at the time the papers were placed in Scheider’s hands Simpson had not fully determined to commit suicide, still he was considering suicide, and he intended that if he should commit suicide the plaintiff should have the benefit and rights for which he had made provision in the papers. Upon these findings the plaintiff contends that the transaction can stand as a gift mortis causa.

Here, however, as elsewhere in the case, the lack of delivery to the donee or to some one for her, passing the title to her during the lifetime of the donor, is fatal. In the case of a gift mortis causa, as well as in that of a gift inter vivas, such a delivery is necessary to the validity of the gift. In Basket v. Hassell, 107 U. S. 602, 609, Matthews, J., in the course of an elaborate and instructive opinion upon this point, uses this language : u A donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vivas, subject to be divested by the happening of any of the conditions subsequent, that is, upon actual revocation by the donor, or by the donor’s surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and inter vivas. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will.” This principle has been frequently recognized in our own decisions, McGrath v. Reynolds, 116 Mass. 566, and cases cited, and is sustained by the great weight of authority. A good collection of the cases is contained in 14 Am. & Eng. Encyc. of Law, (2d ed.) 1056-1058. While the delivery may be made by the donor to some one for the donee, and in such a case is good even although not transmitted to the donee until after the death of the donor, still the delivery must be such as to transfer the title during the lifetime of the donor, a title defeasible, it is true, but complete in the donee until so defeated, the only difference in this respect between the gift inter vivas and the gift mortis causa being that the former is indefeasible while the latter is defeasible.

It follows that the intention of the deceased cannot be carried out upon the ground of a gift or contract. So far as the act related to what should take place after his decease, it was of a testamentary character, and, not being attested as required by law, it must fail of its purpose as such.

In view of the want of delivery necessary to create a gift mortis causa, it becomes unnecessary to consider whether the other objections raised by the defendant, namely, that the property was not the subject of such a gift, and further that such a gift cannot be lawfully made in contemplation of suicide, are well founded.

Decree affirmed.