Smith v. Sandt

CIRILLO, President Judge Emeritus,

concurring and dissenting.

I agree that Mr. Kressley is entitled to receive the 1966 Corvette as a direct gift under the decedent’s will. I vehemently disagree, however, with the majority’s incomplete analysis and inaccurate conclusion that the decedent made valid gifts causa mortis of the four checks. For this reason, I would reverse that portion of the trial court’s decree affirming the gift of the cheeks to the intended donees.

A recitation of the details behind the death of the decedent is needed for a complete understanding of the lack of the proper dona-tive intent for valid gifts causa mortis. On May 7, 1994, appellant’s husband, Mr. Alfred E. Smith, committed suicide in the basement of the their Allentown home. Decedent’s expired body was found lying on a 3 x 6 foot piece of carpet, his head resting on a throw pillow.

Prior to his death, decedent wrote four checks to four different individuals in varying amounts. He left two of the checks on a kitchen table, under a pizza box, in the home of one of the donees. The remaining checks were mailed to the donees by the decedent. All four checks were dated May 5,1994; two of the donees received their checks on May 7th, the remaining on May 10th. On May 9th, two donees cashed their checks, another donee cashed hers on May 10th and the last cashed her check on May 11th. Each recipient, at the time she cashed her check, knew that Mr. Smith had passed away.

After Appellant discovered that decedent had issued the four cheeks, she, as adminis-tratrix of decedent’s estate, requested that the recipients return the check proceeds to the estate. When the four donees refused, Appellant instituted a civil action alleging conversion and seeking restitution.

On December 12, 1996, Judge Robert Young entered a decree determining, among other things, that the four contested checks were valid gifts causa mortis.¹ Appellant and cross-appellant filed exceptions to the decree nisi, see Pa.R.CJP. 227.1, which were denied.

In reviewing this appeal, I am mindful of our court’s standard of review: when reviewing a final order of the Orphans’ Court, we accord the decision the same weight as that of a jury verdict. In re Estate of Fleigle, 444 Pa.Super. 632, 664 A.2d 612 (1996) (en banc). “[A]s an appellate eourt[,] we can modify an Orphans’ Court decree only if the findings upon which the decree rests are not supported by competent or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent evidence.” Id. at 637, 664 A.2d at 615 (citation omitted).

The question of whether the evidence of a gift satisfies the legal standard is always a question of law for the court’s determination. Titusville Trust Co. v. Johnson, 375 Pa. 493, 100 A.2d 93 (1953). To constitute a complete “gift,” there must be a purpose to give, expressed in words or signs and executed by the actual delivery of the thing given to a donee or someone for the donee’s use. Id. at 496-98, 100 A.2d at 96. A gift causa mortis is defined as:

A gift made when the donor believes he is about to die, ... and a gift made by a person in his last illness, or in danger of death, subject to the implied condition that if the donor shall recover, of if the donee diets] first, the gift shall be void, ... and a gift made in contemplation of death with the right to revoke if the donor should survive.

17 P.L.E. § 11 (emphasis added). A claimant of a gift causa mortis has the burden of proving the requisite elements of such a gift by clear, direct, precise, and convincing evidence. In re Ream’s Estate, 413 Pa. 489, 198 A.2d 556 (1964). A gift causa mortis differs from other gifts, namely inter vivos gifts, only in that it is made when the donor believes he is about to die and is revocable if he survives. Titusville, 375 Pa. at 493, 100 A.2d at 93. Accordingly, the element of delivery requires the same proof for an inter vivos gift or a gift causa mortis. McHale v. Toole, 258 Pa. 293, 101 A. 988 (1917).

The testimony reveals the following uncon-troverted facts: all four cheeks were written by decedent before his death; all four checks, before decedent’s death, were either put into the U.S. mail or left in a donee’s home, by decedent, for the donees; there was no consideration given for the checks; all donees knew of the decedent’s death at the time they cashed the checks; and, the checks were not cashed until after the decedent’s death.

In In Fleigle Estate, 13 Fid.2d 141, affirmed on other grounds, 444 Pa.Super. 632, 664 A.2d 612 (1995) (en banc ),² the court of common pleas was faced with a situation factually similar to the present case. In Fleigle, the decedent had committed suicide and left a gift of two checks, to donees, on the counter in his own apartment. The court found that the checks, which were not negotiated by the donees until after the death of the decedent, were sufficiently delivered and that a valid gift causa mortis existed. Accordingly, the Fleigle estate was not entitled to recover the funds represented by the checks.

The court of common pleas’ decision in Fleigle’s Estate, while not binding authority on this court, is the only Pennsylvania case addressing the situation of a gift causa mor-tis where the donor has died by committing suicide. Although the appellant and the trial court fail to discuss whether a decedent who commits suicide can have the requisite intent necessary to feel that he or she is making a gift “in contemplation of death,” I find that an answer to this question is central to a determination of whether a gift causa mortis was made in the present case. It is the majority’s cursory reference to this issue that compels me to dissent and express my views on the far-reaching and negative effects that this case will have on the law of this Commonwealth.

It is well established that a gift causa mortis is premised upon the fact that the donor/decedent must be making the gift while in his last illness or in “periculo mortis.”³ Michener v. Dale, 23 Pa. 59 (1854). Our supreme court has held that a conditional gift made by a soldier going off to war is not a valid gift causa mortis; such a donor is not “under apprehension of death.” Linsenbigler v. Gourley, 56 Pa. 166 (1867). A gift while a donor is in full health has also been declared void for purposes of establishing a gift of bonds as a donatio causa mortis. Stockham’s Estate, 6 Dist. 196 (1897). It should be noted, however, that in order for a donor to be “in apprehension of death,” one’s illness need not be so extreme as in the case of proving an oral will made by a testator in his last sickness, before witnesses, and then later reduced to writing. See Stackhouse’s Estate, 23 D. & C. 322 (1935) (even though decedent was optimistic concerning her recovery from illness at the time she gave a car as a gift to a donee, decedent did “act in apprehension of death” and gift was valid donatio causa mortis when donor died two days later); see also Lawrence v. Hartford Nat. Bank and Trust Co., 24 Conn.Supp. 419, 193 A.2d 506 (1963) (gift need not be made while decedent confined to bed; valid gift cama mortis made when 72 year-old woman, suffering a serious hip fracture, died after having surgery; surgery was made necessary by a present disease).

Because the intention to commit suicide may be readily abandoned at one’s own will, courts from other jurisdictions have taken the position that the contemplated or intended suicide of a donor is not a “peril, ailment or disease” which can serve as the foundation of a gift causa mortis. 60 A.L.R.2d § 2 at 577; see also Ray v. Leader Federal Savings & Loan Assoc., 40 Tenn.App. 625, 645, 292 S.W.2d 458, 467 (1958) (“[s]ickness, peril and danger, as used in definitions of donations causa mortis we believe to mean something other than a determination of an individual who is presumed to be well, physically and mentally, to take his life.”).⁴ See also 38 Am.Jur. 2D Gifts § 10 (1968); Black’s Law Dictionary 1286 (5th ed. 1979) (suicide is “[s]elf-destruction; the deliberate termination of one’s existence.”). Courts, therefore, have found that gifts made in contemplation of suicide are against public policy and should not be enforced. See, e.g., Ray, supra.

The Pennsylvania Supreme Court has held that the law does not look with favor upon gifts causa mortis; these gifts are often made without the regular safeguards afforded by the law for the disposition of property in an executed will. Hawn v. Staler, 208 Pa. 610, 57 A. 1115 (1904). In keeping with this view, strict proof is required to find that such gifts exist.⁵

Without any instructive guide from case law of this jurisdiction on the issue of gifting in contemplation of suicide, I am forced to broaden my search and delve into Pennsylvania’s general public policy with regard to condoning the commission of suicide. My research locates a case which briefly discusses this jurisdiction’s view on suicide. In Commonwealth v. Root, 191 Pa.Super. 238, 156 A.2d 895 (1959), the court, in dicta, outlined the civil ramifications of suicide and the general policy concerns behind taking life at one’s own hands. The Root court stated:

If a man’s negligence contributes to his injury or death, he, or those claiming under him, cannot recover damages in a civil suit. It has long been the policy of the common law that one who fails to look out for his own safety is not entitled to demand in court that he be compensated for the consequences of his failure.... The policy of the law is to protect human life, even the life of a person who wishes to destroy his own.

Id. at 244, 156 A.2d at 899-900 (emphasis added).

Pennsylvania’s policy of protecting human life is further evidenced by the criminalization of assisted suicide in our Criminal Code. See 18 Pa.C.S.A. § 2505 (causing or aiding suicide). Unlike the majority, I find that it would be prudent to adopt the reasoning of other jurisdictions that render alleged gifts causa mortis void when they are made in contemplation of suicide. I find further support for adopting this view in light of the strict proof requirement promulgated by our highest state court in order to establish a valid gift causa mortis, as well as the disfavored disposition of property outside of a will. Such suicide gifts are not intended to be in apprehension of an impending illness; rather, they are completely voluntary, controlled by the will of the donor, and easily subject to change by the decision to not take one’s own life.

In line with my conclusion, I cannot agree with the majority’s convoluted reasoning, contained in a mere footnote, which states that:

We believe that by considering gifts made in contemplation of suicide to be gifts causa mortis, we further the public policy against suicide since the donor may retrieve the gifts if the suicide is not completed.

By upholding and validating gifts made in contemplation of suicide, the majority rewards the donor and his or her donees for the intended and successful completion of a self-destructive act. Furthermore, in response to the majority’s above-quoted language, I find that it is just as reasonable to conclude that a donor’s intent to commit suicide while in the process of disposing of his or her property is as strong as, if not stronger than, his or her intent to retrieve and repossess the gifts upon a change in one’s will to commit the act. The majority’s holding cuts against the notion that courts prefer the reliable disposition of property through a will or by the well-expressed intentions in a living person’s inter vivos transfer.

I, therefore, respectfully dissent.

1 . The terni "causa mortis" is Latin for "in contemplation of approaching death." Black’s Law Dictionary 200 (5th ed. 1979).

2 . On appeal in Fleigle’s Estate, our court did not address the issue of whether the trial court properly determined the existence of a valid gift causa mortis. Instead, the appellant presented the following issues to our court:

(1) Whether the executor had standing to appeal the Orphan’s Court order, and

(2) Whether the Orphans’ Court erred in ruling that the decedent's handwritten note was not a codicil to his will.

3 . This term is Latin for "in danger of death.”

4 . I recognize that there are jurisdictions that would find that contemplation of suicide is sufficient for purposes of proving an element of a gift causa mortis. See Scherer v. Hyland, 75 N.J. 127, 380 A.2d 698 (1977); see also Berl v. Rosenberg, 169 Cal.App.2d 125, 336 P.2d 975 (1959) (public policy against suicide will not invalidate and otherwise valid gift causa mortis)-, In re Van Warmer’s Estate, 255 Mich. 399, 238 N.W. 210 (1931) (melancholia ending in suicide sufficient to sustain a gift causa mortis). These courts have focused on the fact that according to modem human psychlogical principles, the utter despair attendant upon one contemplating suicide may reasonably be viewed as even more imminent than a person struggling with a fatal physical illness. Such reasoning is attenuated, at best, in fight of this Commonwealth's consistent views disfavoring suicide.

5 . In this case, the trial court stated that:

The holographic Will, the method of preparing for his [Alfred E. Smith’s] death with a pillow and carpeting, the suicide note and these checks all point to the conclusion that these were gifts in causa mortis. See Fleigel’s [sic] Estate, 13 Fid.2d 141 (1993) and supporting cases cited in the Sandt/Youpa Brief. The Civil Action is therefore dismissed.

The trial court’s reference to Fleigle is misplaced. Fleigle never attempts to analyze the issue of whether a gift made by a donor who commits suicide is valid for purposes of establishing a gift cause mortis. Rather, the court summarily states that "under the particular circumstances of the instant case decedent, aware of his imminent death, effectuated constructive delivery by his act of leaving the checks on the counter, next to his last Will and Testament, in the apartment he shared with [donee], where [donee] would be most likely to find the checks.” Fleigle, 13 Fid.2d at 147. Other than a singular sentence stating that "at four o’clock a.m. on May 4, 1990, decedent took his fife," there is no other evidence of the circumstances surrounding the decedent’s suicide in Fleigle. Hawn, supra. See also Titusville, supra (in determining whether a donor believed that he was going to die and was likely to die soon in order to fulfill an element of a gift causa mortis, all attendant circumstances, including the nature and extent of the donor’s sickness or injuries, his physical condition, his conduct, and anything said to or by him should be considered).