Bliss v. Fosdick ( 1895 )

FOLLETT, J.

Under the release of May 15, 1891, the only parties having a pecuniary interest in this litigation are St. John’s Guild and the residuary devisees and legatees, unless it should happen that a division, under the alleged trust, of the proceeds of the 1,000 shares among the 10 corporations would give every one of the 9 corporations mentioned in the codicil a greater sum than would the division of $100,000 among said nine corporations. The plaintiffs and Charles B. Fosdick are interested simply in carrying out the wishes of Elizabeth Fogg, and in relieving themselves from liability. There is no evidence&emdash;and, indeed, it is not asserted&emdash;that Exhibit No. 3 was ever delivered to Charles B. Fosdick, or that he ever saw it until after the death of the testatrix, unless he saw it when the codicil was drafted; but at about 9 a. m., December 20th, he did see and hold in his hands for a few moments the three pieces of paper, the contents of which were afterwards, and on the same day, copied onto Exhibits No. 3 and L. In reaching the conclusion that the list of beneficiaries was delivered to Mr. Fosdick, the learned trial court must have held (1) that the three pieces of • paper were handed by Mrs. Fogg to him; and (2) with the intent on her part to deliver them to him for the purpose of effecting a gift by means of the transfer of the shares of stock and those papers. The fact that the three papers were subsequently copied and burned in the presence of Mrs. Fogg militates against the theory that she understood that they had been delivered to Mr. Fosdick, and formed part of a completed transaction. Mr. Fosdick testified on this trial, as he did on the first trial, that he did not consider that the list had been delivered to him, but supposed that the codicil would do away with all that had been done between them. The first paper relied on to establish a trust is the transfer of the shares, which is absolute in form. The second paper is the letter of December 20th, signed by Mrs. Fogg, and addressed to Mr. Fosdick. The first paragraph of this letter refers to the transfer made the day before,, which Mr. Fosdick had with him when the letter was signed and delivered. The second paragraph reads as follows:

“From the proceeds thereof, I desire that you do appropriate the sum of $100,000, in the name of Elizabeth Fogg, in sums of $5,000 each, to various charity organizations, of which a list is hereto annexed.”

No list was ever annexed to this letter, and no list naming 20 corporations was ever made by or for Mrs. Fogg. Mr. Fosdick testified that this letter was devised by himself, and copied by his bookkeeper; that he (Fosdick) stopped at Mrs. Fogg’s on his way down town on the morning of December 20th, when the letter was signed. Therefore, he must have been informed December 19th of her purpose to divide $100,000 among 20 charitable corporations. Mrs. Fogg and Miss Norton spent the night of December 19th and 20th in a vain attempt to name 20 charitable corporations which should receive the sum, but abandoned the attempt, and Mrs. Fogg concluded to divide the sum among 10 corporations. In order to uphold the trust declared by the judgment of the special term, the letter of December 20th must be eliminated from the case, as it is entirely inconsistent with the trust adjudged to exist The only evidence left of an intent to establish a trust consists of the transfer of the shares of stock of Exhibit No. 3, and the testimony given by Miss Norton. From the time Mrs. Fogg’s pastor wrote for her that wThich subsequently became the caption of Exhibit No. 3, down to the time when her codicil was executed, the idea of Mrs. Fogg, plainly disclosed by the evidence, was to bequeath the shares or the avails of them to charitable corporations, which she finally did. That which was done by the testatrix during the night of December 19th and 20th, and during the day of the 20th, was preparatory to the execution of the completed codicil; and perhaps she was in hopes that, in case she died before the codicil was executed, her wishes would in some way be carried out. The codicil refers expressly to the shares as those transferred to Mr. Fosdick, and it names every person and corporation mentioned on Exhibits No. 3 and L, except St. John’s Guild, which, for some reason, she omitted from the list of her beneficiaries. The interview between Mrs. Fogg and Mr. Fosdick on the morning of December 20th occupied about one half hour, in which time, according to the theory of the respondents, she completed the execution of a trust in favor of the 10 corporations mentioned on Exhibit No. 3, and during the same half hour executed a declaration of trust, dividing the avails of the shares, “in sums of five thousand dollars each, to the various charity organizations of which a list is hereto annexed.” Thus in the same half hour an attempt was made to establish two wholly inconsistent trusts. Trusts are not to be established by such evidence. The evidence, read in the light of the circumstances surrounding the transaction, does not support the conclusion that Mrs. Fogg intended absolutely to vest the title of the shares in Mr. Fosdick, as trustee, for the benefit of St. John’s Guild and the other corporations mentioned in Exhibit No. 3. But assuming that, at the close of the interview between Mrs. Fogg and Mr. Fosdick on the morning of the 20th, she intended to vest him with the title of the shares, for the purpose of giving the proceeds to the. 10 corporations after her death, the judgment cannot be sustained. It is not asserted, and cannot be successfully maintained, that Mrs. Fogg intended this gift to take effect in her lifetime. Miss- Norton testified that, during the night of December 19th and 20th, Mrs. Fogg believed that she was about to die, and expressed the opinion that she would not live until morning. The witness testified:

"During that night she was apprehensive of dying before morning. That is what she said, and so expressed herself to me, although I personally did not think there was any immediate danger of her death. She did, however, express a danger of dying before morning. She was then in bed, and she remained continuously in bed until the time of her death, on the 3d of January, 1891. She had been in bed several days previously. Q. And she died during this same illness? A. Yes. Q. "Without ever recovering? A. Yes. Q. Attended by both night and day nurses right along? A. Yes. Q. And continuously failing, to the end? A. Yes.”

“Sound policy requires that the laws regulating gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged.” Ridden v. Thrall, 125 N. Y. 572, 581, 26 N. E. 627. Such gifts are not favored by the courts. Delmotte v. Taylor, 1 Redf. Sur. 417; Bockwood v. Wiggin, 16 Gray, 402; Michener v. Dale, 23 Pa. St. 59; Hatch v. Atkinson, 56 Me. 326. The presumption is that a gift made during a last sickness is intended to take effect at the donor’s death, even though it be not so declared. Pom. Eq. Jur. § 1146. If there was a gift, it was made in apprehension of death,—a gift donatio causa mortis. Such a gift can be revoked by the donor in his lifetime. Merchant v. Merchant, 2 Bradf. Sur. 432, 444; Bloomer v. Bloomer, Id. 339, 347; Parker v. Marston, 27 Me. 196; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct 415; Pom. Eq. Jur. § 1146; 3 Redf. Wills (3d Ed.) 343; 2 Kent, Comm. 444. A revocation can be effected by a change of purpose, and undoing what has been done. Mrs. Fogg had burned the papers which were shown to Fosdick December 20th, and the copy (Exhibit No. 3) had been altered by writing the word “No” against the words “St. John’s Guild,” which, under the circumstances, was as potent evidence of her intent to revoke the gift previously intended, or made to that corporation, as though the word “Revoked” had been written in the place of “No,” or the exhibit burned. The stock certificate and the transfer indorsed thereon were then locked in her private box in the safe-deposit company, and were as effectually in her possession and under her control as they would have been had they láin under her pillow. She declared in her codicil that the assignment of the shares to Mr. Fosdick was intended as a power to transfer them, and Fosdick testified that the codicil was read to him before it was executed, and that he assented to its terms. Under the evidence, we think, assuming that Mrs. Fogg intended on December 20th to make a gift to St. John’s Guild of $10,000, by means of a trust to take effect after her death, that it was effectually revoked on December 21, elS90. It does not seem necessary to discuss the question whether a gift causa mortis may be made subject to a trust. Story, Eq. Jur. (13th Ed.) § 607. The judgment should be reversed, and a new trial granted, with costs to the appellants, to abide the event.