Elmira College v. Fidelity Union Trust Co. , 50 N.J. 192 ( 1967 )

Hall, J.

(concurring). While I agree with the court’s conclusion that no effective gift of her entire art collection was made by Mrs. Dodge, I would reach that result by a substantially different path.

The College’s claim has to rest on the informal letter of May 16, 1961. If that document is legally insufficient to accomplish the asserted object, the claim must fall. The alleged nature of the gift was a then transfer of ownership of all her art objects, subject to the right to retain possession thereof, if she so desired, “as long as I am able to enjoy them.” The claimed gift was at best, therefore, that of the remainder interest. The theory of this suit, accepted by the trial court in its judgment, is that the adjudication of Mrs. Dodge’s incompetency established the permanent lack of ability to enjoy the art objects except those on display in the mansion house at Madison where her condition confined her. The possessory interest in the objects elsewhere was thereby terminated, with that in those displayed in the Madison home to continue until her death.

The opinion of the trial judge, 90 N. J. Super. 198 (Chan. Div. 1966), decided that a valid and effective gift can be made of a remainder interest in personal property. This court’s opinion assumes the same proposition and I concur. Ooncededly, however, two of the generally recognized requisites of an inter vivos gift of personal property, at least where the whole bundle of rights therein is purported to he transferred, are missing here, i. e., actual or symbolic delivery of the subject matter and absolute relinquishment of ownership and dominion, at least to the extent practicable or possible considering the nature of the thing given. The trial judge held that these requisites are not appropriate in the instant situation because the gift was of the remainder interest, subject, at the outside, to a retained life estate. The trial judge also concluded that an enforceable gift of a remainder interest, with a retained estate in the donor, can he accomplished by a writing not under seal despite the absence of any delivery and the retention of some rights of dominion over the subject matter. While this court’s opinion indicates it is not passing on these questions, its underlying thesis assumes that the letter on its face and in and of itself was sufficient to constitute an effective gift of the remainder interest, but not enforceable for another reason.

Without entering into a lengthy discussion, my view is that a gift of a remainder interest in personal property ought to be held effective in this day and age without formal, ritualistic requisites. I would think it enough that there be an informal, unsealed writing, without, in view of the nature of the gift, any delivery or other manifestation of relinquishment of dominion and control. Cf. Foster v. Reiss, 18 N. J. 41, 56 (1955) (dissenting opinion). I do not feel that anything of value is added in this state today by a typed or printed <rL.S.” after the signature or even by impressing a gold wafer and affixing a red ribbon. But such a writing must be so unequivocally plain and clear on its face and standing alone that there cannot be the slightest doubt of the donor’s intent to make a present, irrevocable gift and the detailed terms and conditions thereof. If such is not readily apparent, it seems to me that ought to be the end of any claim of valid gift, all the possible supplementary oral evidence notwithstanding. This suggested thesis would seem to be the real rationale of the decisions elsewhere holding that an outright inter vivos gift may be made by the donor’s instrument under seal, without any delivery of the thing given. It also meets the most fundamental requirement applicable to all gifts that they must be established by clear, cogent and persuasive evidence. Farris v. Farris Engineering Corp., 7 N. J. 487, 501 (1951). Such a requirement applies whether the donor is living and competent or dead or incompetent at the time of the contest. Incidentally, I doubt that anything is added by the “clear and convincing proof” requirement of N. J. S. 2A:81-2 where the claim is asserted against a donor who has since died or become a lunatic. Of course, even if an informal writing is as unequivocal and complete as I urge it must be, an attack upon it would still be open on the basis of incompetency when made, undue influence, lack of understanding of the document or its effect, fraud or other equitable reason.

It is certainly unquestionable to me that the letter of May 16, 1961 is not the unequivocally plain and clear document that I would require. Prepared by the donee, even in the form in which it was rather offhandedly revised by a nonpracticing lawyer, it is confusing, if not internally inconsistent, and could well be understood by a layman to mean nothing more than an expression of intent only to give art objects to the College to the extent and when the signer might decide during lifetime. The formal and unfamiliar language of conveyance of title could reasonably be overshadowed by the provision for retention of possession “as long as I am able to enjoy them” — putting aside the difficult matter of what that phrase means and how it could possibly be objectively determined — and by the provision for relinquishment of possession “as I desire.” As a matter of fact, Mrs. Dodge’s subsequent conduct clearly demonstrates that she did not conceive of the writing as anything more and there is no doubt that the College’s conception of its intended effect was not expressly or adequately called to her attention at any time.

I would consequently disagree with the finding of the trial court that the letter is “a clear statement by Mrs. Dodge of her donative intent.” 90 N. J. Super., at 209. On its face I think it certainly is not and the oral testimony the court referred to did not make it so. Even more fundamentally, it does not, as a matter of law, meet the previously sketched criteria I would insist upon as a sine qua non. Thus to me the case is ended and I would decide it for the defendants on this basis without more.

This court’s opinion chooses, rather, to reach this result on an approach which I believe is not fully warranted. My evaluation of all the evidence leads me to the view that a rationale of a long term, unprincipled scheme, participated in by the President of the College and trustees Shoemaker and McGraw, to deceive Mrs. Dodge into making gifts, culminating in the May 16, 1961 letter and the claim based thereon, is not a justifiable one and that many of the characterizations expressed in its development are too condemnatory and unfortunate. I cannot agree with the portrait of an aged, helpless, deteriorating lady who was unable to resist, doing what she did for Elmira not because she genuinely wished to but only by reason of improper pressures and impositions.

I am convinced that Mrs. Dodge was an intelligent, able, strong-minded woman, exceptionally so for her age. The evidence to me is clear enough that mental deterioration did not set in until the second half of 1962 and I think it is idle to intimate that she was approaching incompetencv in the winter of 1961. In this connection it may be noted that she made three substantial donations to Elmira after the letter of May 16, 1961, which are not questioned by the guardians. A couple of months thereafter she gave $30,000, matching a gift of Mr. McGraw, toward refurnishing the President’s home. In January 1962, she selected and shipped to the College from her collection of bronzes, items appraised at $77,000, and in June of that year she sent her check for $25,000 with a letter stating that the money could be used for whichever of several buildings then under construction the President liked best.

Mrs. Dodge had always taken an active part in the management of her capital, annual income of over a million dollars and physical properties, even more so after the death of her manager, Mr. Patterson, in February 1960, and was certainly knowledgeable in worldly and business matters. She was long used to caring for her own affairs completely independent of her husband. While undoubtedly sheltered and perhaps lonesome, in the sense that persons who are publicly known to have great means and large physical establishments necessarily become, she was no mental recluse. I am convinced she was never, even at the age of 79 or 80, “taken in” by anyone and in the final analysis made her own decisions as her personal interests and wishes dictated.

She was also laudably conscious of an obligation to contribute heavily to worthwhile civic, educational and other enterprises according to her interests as she determined them. Beyond a lifetime interest in the acquisition of art and the dog world, she had been a large donor over the years to local charities and improvements and certain educational institutions long before Elmira came into the picture. The extent of her contributions is illustrated by the figures in the record which show that in each of the years from 1959 through 1962 she gave to charity between approximately $150,000 and $300,000, the figure in two of those years exceeding the permissible deduction for federal income tax purposes. She was certainly accustomed to solicitations, and, 1 am sure, to continual cultivation, or attempts at it, by many seekers of funds for worthy causes. Bequests were made at the rate of 40 to 50 a week and the problem was to select those she thought were worthwhile. She obviously was a discriminating giver and one can be sure she readily recognized cultivation. She was certainly no “easy mark” and it was natural that prospective donees would seek to approach her through friends, for she obviously could not open her door to every stranger.

I am positive that when she was approached in the late fifties on behalf of Elmira by Messrs. McGraw and Shoemaker, whom she had known for some time, she fully appreciated they were after “big money” and would strongly seek to elicit her favorable interest over a considerable period of time. The testimony of Mr. Shoemaker, which rings very true to me, supports this view completely:

“A. I told Mrs. Dodge very frankly very early in starting about Elmira College that I said, ‘Mrs. Dodge, we have had a very pleasant relationship with respect to Overlook Hospital.’

I said, T don’t want any misunderstandings between us at all, because I think a great deal of you and I am interested in Elmira College. I am on the board of trustees of Elmira College and I am going to do everything I can to whet your interest in Elmira College.’ And she smiled and she said, ‘When it is a worthwhile enterprise that is exactly what I would expect you to do.’

Q. Did she give you any indication that she might be in a position to make a contribution to Elmira? A. Well, she gave me every encouragement to believe that she could be persuaded to make a gift or gifts to Elmira if she were convinced that it was a worthwhile cause.

Q. Did she indicate to you that she had any family responsibilities that might impede making a contribution?

A. To the contrary, Mrs. Dodge spoke about that upon at least three occasions to me and said that, ‘You know, Mr. Shoemaker, I have no children to leave my money to, only some distant relatives. I would like to think that some of my worldly goods at least are going to be used for something worthwhile rather than be sent to Washington.’ ”

There can be no doubt that Messrs. Shoemaker, McGraw and President Murray made continuous efforts to solicit and increase Mrs. Dodge’s interest over a period of several years. They were certainly men sincerely devoted to the welfare and improvement of their institution. Mr. McGraw, a wealthy man himself, had personally contributed half a million dollars. I cannot conceive that they pursued Mrs. Dodge with any design to deceive or misrepresent. While one might not like their method, it cannot be branded as illegal or nefarious or the individuals as fraudulent schemers. Mrs. Dodge did not rebuff them, as I am sure she was fully capable of and experienced in doing. Rather she developed what I am certain, from evidence beyond the statements in many of Mr. McGraw’s seemingly overenthusiastic reports, was a genuine interest in the College. What spawns or motivates interests in people of her status can never be decided with complete assurance. It may be vanity derived from an honorary degree or a building named for the person, rivalry with some other benefactor, inward appreciation of attention paid, or a dozen other things. But to me, that is immaterial and I see nothing wrong.

The evidence is further unquestionable that Mrs. Dodge herself first broached the matter of gifts of her art objects. Her general interest in the College rather early became particularized, quite naturally in view of her extensive collection, in the art program and curriculum at Elmira. I am satisfied, again from evidence other than the words of the College people, that as early as 1958, she talked about giving some of her collection, which led to consideration of a suitable building and resulted in the delivery of $48,000 worth of porcelains in May 1960 and a pledge of $250,000 a month or so later (with a payment thereon of $100,000 in September 1960, and a like amount in January 1961) “to erect a building to house all art objects that I have given and may give in the future.”

I am fully convinced also that by or in the winter of 1961 she was considering giving, at some time or times, all of her art objects to the College. This is clear from the testimony of her companion that Mrs. Dodge had so told her. It is only reasonable, therefore, to believe the testimony of the College representatives that she had spoken likewise to them and I am inclined to believe that she went so far as to have said to them that “I am giving it.” The difficulty of course is that expressions by a lajunan in this field are susceptible of several meanings, both on the part of the speaker and the hearer. See Mechem, The Requirement of Delivery in Gifts of Chattels, 21 Ill. L. Rev. 341 (1926). They can be meant or understood as either a present gift or a mere expression of intention to make a gift at some future date. By reason of this, I would not think it unreasonable for Messrs. McGraw, Murray and Shoemaker, in good faith, to believe that Mrs. Dodge’s intention was to make a present effective gift, with delivery thereof from time to time as she desired.

The original form of the May 16, 1961 letter given to Mrs. Dodge by Mr. McGraw in April, was prepared by President Murray, a layman. In view of the revision made by Mr. Winding, the lawyer-trustee, for the reason that it did not carry out her believed intention of a present gift as relayed to him by Dr. Murray, it is a fair inference that Dr. Murray and Mr. McGraw thought the original form did carry out this conception of Mrs. Dodge’s intent and accomplished a present effective gift, with later delivery when she so wished. Mrs. Dodge, in telling Mr. McGraw in April that it was just what she wanted, obviously thought it meant no more than an expression of intent or desire to make a gift as she should choose in the future. This is demonstrated by her conduct after she signed the revised letter, which completely evidences that this was her true inward intent throughout, no matter what expressions she might have used in conversation.

I do feel, however, that Mr. McGraw had a positive obligation to fully explain to Mrs. Dodge the meaning and intended effect, as far as the College was concerned, of the revision in the letter, even if he felt it did no more than put in legal terminology his conception of the intent of the original draft. While I do not think he ought to be charged with fraud in not doing so, nonetheless, there was an equitable duty to be absolutely certain, in view of the change in language, that Mrs. Dodge fully understood and acquiesced in the legal effect of what she was being asked to sign. The failure in this respect, especially in the light of the unclear and confusing language of the letter as a whole, to which I have previously adverted, leads to the conclusion that the purported gift of the remainder interest should not be enforced. If the rationale of decision is to be on a factual approach, I do not think a reasoned evaluation of all the evidence fairly justifies condemnation beyond that set forth in this paragraph.

I concur in the reversal of the trial court’s judgment and in the direction for the entry of judgment in defendants’ favor.

Jacobs and Hall, JJ., concurring in result.

For reversal — Chief Justice Wbintkaub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman — 7.

For affirmance — Hone.