Clough v. Clough

• Decision Date: 14 January 1875
• Parties: Louise E. Clough v. Benjamin F. Clough
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 83

Louise E. Clough v. Benjamin F. Clough

Supreme Court of Massachusetts

January 14, 1875

Middlesex. Contract for money had and received. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows:

The plaintiff is the widow of Charles H. Clough and administratrix of his estate; he left a minor son, his only heir, and also a father, mother and one sister and several brothers, of whom the defendant is one. The defendant admitted at the trial that he had received about $ 800 from his deceased brother, but as to all except $ 400, he pleaded payment and offered evidence in support of the plea. As to the remaining $ 400, the defendant answered that he received that from his brother, the plaintiff's intestate, as a donatio causa mortis; and offered evidence in support of this part of his answer, that his deceased brother, during his last sickness and a few days before his death, gave and delivered to him the $ 400 in trust for his minor son, with instructions to invest and hold the same until the son should be twenty-one years of age, and then to pay the same with all its accumulations over to the son; but should the son die before reaching the age of twenty-one, he directed that the $ 400 with its accumulations should thereupon be paid over in equal parts to the mother and only sister of the intestate that the defendant accepted the trust and took the money and retained it in his possession until after the death of the donor, and then deposited it in a savings bank, in his own name, as trustee for the minor son of his deceased brother where the money has ever since remained.

At the close of the evidence and arguments in the case, the plaintiff requested the judge to instruct the jury "that if they found that the deceased directed the defendant in case he died to keep the money and give it to the child if he lived to be twenty-one years of age, and, if he did not, to divide it between the mother and sister of the deceased, that would not be in law a gift to the child, mother or sister and that such a disposition could only be made by will." The judge declined to give the instruction as prayed for but, after having instructed the jury upon other parts of the case in a manner not objected to, instructed them, that, to establish a donatio causa mortis, there must be shown a clear and manifest intention on the part of the owner of the property to make the gift, a subject capable of passing by delivery and an actual delivery at the time, in contemplation of impending...