Kenistons v. Sceva , 54 N.H. 24 ( 1873 )

Foster, J.

The first question is, whether the transaction between Enoch F. Sceva and the appellants, on the 24th day of April, 1872, a memorandum of which is expressed in the writing of that date, signed and sealed by said Sceva, constitutes a valid gift causa mortis.

If the whole transaction be expressed in writing, it is not invalidated by the fact that it is a written instead of a verbal transaction, if all the essential requisites to such a gift are found to exist. It is not necessary that such a gift should be expressed by writing, but it may he so constituted; and if the writing embodies and expresses the intention of the party executing it, it will serve to explain and characterize the transaction.

M., being desperately sick, in prospect of death, executed to his wife a deed in common form of all his real estate, and, at the same time, executed a separate deed to her of all his personal property, consisting of stock on his farm and dioses in action. Both deeds were duly recorded. M. continued hopelessly sick for a little more than a month after the execution of the deeds (like the intestate in this case), when he died. Upon a bill for specific performance, it was held that the deed of the personal property was valid as a donatio mortis causa. And Redfield, O. J., said, — “Upon principle, it would seem there could be no objection to creating the gift by deed * * It is far less liable to perversion or abuse than any mere parol gift, with the most ceremonious delivery.” Meach v. Meach, 24 Vt. 591, 598. And in Tate v. Hilbert, 2 Ves. Jr. 180, Lord Chancellor Loughborough speaks of a deed or writing as a substitute for manual delivery. Especially, it would seem, must this be so in the case of things incapable of manual delivery, as of a ship, for example.

But the appellants do not rely solely upon the writing. They claim, also, as we understand it, that a valid donation causa mortis was made, independently of the written memorandum, which may be entirely disregarded without affecting their rights, — in short, that their claim is established by proper proof of what was said and done concerning the money and note mentioned and described in the paper. The case finds that “ on the same day, and before the execution of this paper, but as part of the same transaction, the intestate, in the presence of said three witnesses, and Jonathan Keniston, the father of the appellants, who was also present when said paper was executed, stated to them the same as appears in said paper, and showed them said cash and note,” and that the note was at the same time indorsed by the said Sceva, and, with the cash, delivered to one of the appellants.

The case also finds that all this was done while the intestate was sick of the disease of which he subsequently died, and in expectation of death; and that the intestate had real estate and other personal property, of which he made no disposition by will or otherwise.

The essential requisites of a valid gift causa mortis are well known and perfectly understood. They have in no respect changed since they were established and declared by the civil law whence they were derived, except in this particular, that under the civil law delivery of the property was not absolutely essential to the validity of the gift — an element which,in our law, cannot be dispensed with. Sanders’s Justinian 228, 229; 1 Williams on Executors and Administrators, pt. 2, B. 2, ch. 2, sec. 4, p. 544; 1 Story’s Eq. Jur., sec. 607, a; Smith v. Kitiridge, 21 Vt. 244.

By our law, then, to constitute a donatio mortis causa there must be three attributes: (1) the gift must be with a view to the donor’s death ; (2) it must be subject to the condition that it shall take effect only on the donor’s death by his existing illness; and (3) there must bes a delivery of the subject of the donation. See the above authorities, and Bouv. Law Die.

No particular form of words is necessary to give effect to the transaction, if the evidence of that which was said and done establishes the requisitions for its validity.

The admitted facts, in the present case, establish beyond question two of the essential attributes required: (1) the gift was made in expectation of death; (2) there was a delivery of the subject of the donation.

The doctrine is very clearly established, that a negotiable note, payable to bearer or indorsed in blank, and bank-notes, may be the subjects of a donatio causa mortis. 1 Story’s Eq. Jur., sec. 607 a; Drury v. Smith, 1 P. Wms. 405. And the donor in fact died of his then existing disease.

The remaining essential requisite to the validity of the gift is, that it be conditioned to take effect only on the donor’s death. The condition is, that if the donor should survive, or if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given. Sanders’s Justinian 228.

Was the gift accompanied by this condition ? It is not expressed in those words in the writing, nor was it essential that it should be, even if the writing were alone to be resorted to for the interpretation of the transaction.

It is a question resting not in formal verbal expression nécessarily, but in understanding and intention. It is a question of fact, concerning the proper solution of which, under proper legal instructions, there can be no difficulty.

The jury may or may not resort to the writing in order to settle this point. In Meach v. Meach, before cited, Judge Bedfield said, — “ In examining the case, it occurred to me that some one might object to this deed as a gift mortis causa, inasmuch as it does not, in terms, very explicitly provide that the gift should only take effect after the donor’s death. In a mere oral gift this is often implied from the attending circumstances, as is very obvious in the present case. But the gift being by deed, we are, in a measure, confined to its terms, construed with reference to the attending circumstances.”

The appellee contends that, by the manner of proof prescribed by the statute, unwritten evidence seems to have been alone contemplated. Evidence of what ? Clearly, at most, by the terms of the statute, of one thing merely — of one only of the essentials to the validity of the gift — namely, the delivery of the property, which the legislature has said, in effect, shall not be perfected merely by deed. “ No gift in expectation of death, often called donatio mortis causa, shall be valid, unless the actual delivery of the property to the donee shall be proved by two other indifferent witnesses [that is, two indifferent witnesses other than or besides the donee], upon petition of the donee to the judge of probate to establish such gift, fried within sixty days after the decease of the donor.” Gen. Stats., ch. 174, sec. 17.

Except with regard to the single matter of delivery, the proof of the transaction is unlimited by statute. And it would - seem too clear for argument, that not only the fact of delivery may be shown by two indifferent witnesses who may have seen the manual tradition of the property, but also by evidence of the same character of the admissions of the intestate that he had delivered it.

The declarations of an intestate are admissible against his administrator, or any other claiming in his right. 1 Gr. Ev., sec. 189.

The learned counsel for the appellants has, with much industry and ability, raised and combated many other objections to the validity of the gift in question, which the learned counsel for the appellee has not deemed it advisable to argue or suggest, and which, of course, it is not our duty to consider. It is quite sufficient for the court to dispose of the questions raised by the case. Having endeavored, we hope, successfully to do this,

The case is now discharged.

An auditor was appointed to determine and report the facts in this case ; and, upon the return of his report, a decree was made reversing the decision of the probate court, and establishing the gift as a valid donatio causa mortis.