Blazo v. Cochrane

• Decision Date: 18 December 1902
• Citation: 71 N.H. 585,53 A. 1026
• Parties: BLAZO v. COCHRANE et al.
• Court: New Hampshire Supreme Court

53 A. 1026

71 N.H. 585

BLAZO

v. COCHRANE et al.

Supreme Court of New Hampshire. Strafford.

Dec. 18, 1902.

Exception from superior court; Stone, Judge.

Petition in intervention by Charles Blazo against George Cochrane, executor of the estate of Rodney Cross, deceased, and Annie L. Cross, claimant. From an order directing the petitioner to turn the property in his possession over to the executor, the claimant brings exceptions. Exceptions overruled.

The petitioner, a physician, was called to attend Rodney Cross about 5 o'clock in the afternoon of February 15, 1901. Upon the arrival of the physician, Cross inquired who had sent for him, and said he was not sick. After the physician had proceeded with an examination, Cross stated that he had taken laudanum; that, if it did not kill him, he had something which would kill him quickly; that he had lived as long as he wanted to, and was not going to live any longer. Stimulants and antidotes were administered. During the visit, and while the physician was alone with Cross, the latter, who was in his right mind, took a package from his clothing, and said, "Here's a package I want you to deliver to Annie Cross,"—meaning the claimant, who at the time was living in Worcester, Mass. The physician took the package with him when he left the house, and retained possession of it until the trial of this action. After the physician had gone, Cross took nitric acid, and died between 6 and 7 o'clock the same evening. The evidence tended to show that his death was caused by nitric acid, and not by laudanum. The testimony was that when the physician made his visit it was his opinion that Cross had not taken sufficient laudanum to cause his death; that he would not have died so quickly from laudanum; that after the administration of the antidotes there was no reason for his death from the poison he had already taken; and that he would recover. The package contained $190 in bank bills and the petitioner's note for $1,200, dated August 5, 1901, payable to Cross, without interest The court ordered the property turned over to the executor of Cross' estate, and the claimant excepted.

John Kivel and George T. Hughes, for petitioner.

James A. Edgerly and George E. Cochrane, for executor.

William S. Pierce, for claimant.

BINGHAM, J. Gifts of unindorsed notes, either in apprehension of death or among the living, may be effected by a simple delivery of the property. Whatever doubt may have existed at one time in this state as to the kind of property capable of passing by delivery, to be valid as a gift (Gale v. Drake, 51 N. H. 78, 92; Flint v. Pattee, 33 N. H. 520, 522, 66 Am. Dec. 742; Sanborn v. Goodhue, 28 N. H. 48, 56, 59 Am. Dec. 398), it now appears by the reported decisions that land may be the subject of a parol gift, and that equity will compel a conveyance of the legal title, if the donee has taken possession and made valuable improvements (Seavey v. Drake, 62 N. H. 393); and that chattels (Cutting v. Gilman, 41 N. H. 147), bank notes, and municipal bonds (Emery v. Clough, 63 N. H. 552, 4 Atl. 796, 56 Am. Rep. 543), specie and unindorsed negotiable notes of a third person (Marsh v. Fuller, 18 N. H. 360; Marston v. Marston, 21 N. H. 491, 512), and an unassigned certificate in a relief association (Brown v. Mansur, 64 N. H. 39, 40, 5 Atl. 768), may be transferred by delivery. A written assignment is no more essential to give effect to a gift than to a chose in action. By delivery and acceptance of the security an equitable interest vests in the donee, and the donor or his legal representatives, in whom the legal interest or title remains, are mere trustees for the donee, and bound to permit the donee to use his or their names to enforce payment of the obligation. Parish v. Stone, 14 Pick. 198, 25 Am. Dec. 378; Grover v. Grover, 24 Pick. 261, 35 Am. Dec. 319; Chase v. Redding, 13 Gray, 418; Pierce v. Savings Bank, 129 Mass. 425, 37 Am. Rep. 371; Hopkins v. Manchester, 16 R. I. 663, 19 Atl. 243, 7 L. R. A 387; Brown v. Brown, 18 Conn. 410, 46 Am. Dec. 328; Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313; Druke v. Heiken, 61 Cal. 346, 44 Am. Rep. 553; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500. The money and the unassigned note stand upon the same ground. Both are susceptible of being presented as a gift by delivery. In this case it is important to keep in mind the elements essential to a gift causa mortis and a gift inter vivos. To establish the former, it must appear that the gift was made by the donor during an illness or impending peril of such a nature as to cause him to apprehend death therefrom; and, while it is not a legal requisite that he should die of the disease or peril from which he apprehends death, he must not recover from it, and his death must result from a disease or peril existing or impending at the time the gift was made. Cutting v. Gilman, 41 N. H. 147; Kenistons v. Sceva, 54 N. H. 24, 37; Weston v. Hight, 17 Me. 287, 35 Am. Dec. 250; Parcher v. Savings Inst., 78 Me. 470, 473, 7 Atl. 266; Larrabee v. Hascall, 88 Me. 511, 34 Atl. 408, 51 Am. St. Rep. 440; Irish v. Nutting, 47 Barb. 370; Grymes v. Hone, supra; Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11 L. R. A. 684, 21 Am. St. Rep. 758. A vague impression that death may occur is not sufficient The donor must be in a condition to fear approaching death from an existing illness or peril. Dexheimer v. Gautier, 34 How. Prac. 472; Gourley v. Linsenbigler, 51 Pa. 345; Smith v. Dorsey, 38 Ind. 451, 10 Am. Rep. 118; Thorn. Gifts & Adv. §§ 27, 33. "Such gifts are always made upon condition that they shall be revocable during the lifetime of the donor, and that they shall revest in case he shall survive the donee, or shall be delivered from the peril of death in which they are made." The title to the property passes by the delivery in the donor's lifetime, and becomes perfected in the donee by the death of the donor, which terminates his "right or power of defeasance." Emery v. Clough, supra. "It is not necessary that the donor should declare the condition" (Williams v. Guile, 117 N. Y. 343, 349, 22 N. E....