Daggett v. Simonds
| Decision Date | 18 May 1899 |
| Citation | 53 N.E. 907,173 Mass. 340 |
| Parties | DAGGETT v. SIMONDS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hesseltine & Hesseltine, for plaintiff.
E.C Bumpus and C.W. Rewley, for defendant.
This is an action against the executor of the will of Esther L Robbins to recover the amount of a promissory note made by the testatrix. The evidence tended to show that this note and three other notes, payable to different persons, were sealed up in an envelope by the testatrix before her death, and handed to one Hattie A. Ray, who had been employed by her for 13 years, and was on intimate terms with her, working about the house and assisting her in different ways. The witness Ray testified that, when the testatrix handed her the note she said: The person referred to as Aunt Angie is the plaintiff, and Simonds is the defendant. This note was sealed in a small envelope, with the letters "A.D." upon it. There was evidence from other witnesses tending to show that the testatrix delivered the note to Miss Ray, to be kept until the death of the testatrix, and then to be handed to the plaintiff. There was no direct testimony as to whether she intended to reserve to herself a right of revocation; but it was in evidence that Miss Ray kept the notes all the time until after the death of the testatrix, and then opened the large envelope, and delivered them to the persons for whom they were intended.
The defendant made eight requests for rulings, all of which were refused, subject to his exception. Most of these could not properly have been given in the form in which they were presented. The second was in these words: "That if Esther L. Robbins made the note in suit, intending to keep it in her possession, either in her personal possession or in the possession of her agent or servant during her lifetime and that should she not change her mind, and destroy the note before her death, her agent or servant should deliver said note after her death to the plaintiff; that if said Robbins did keep said note in her possession, or that of her servant or agent until her death, and if after her death her servant or agent, pursuant to oral directions given her by said Robbins, delivered said note to plaintiff, the plaintiff not having theretofore at any time been in possession of said note, the plaintiff cannot recover in this action." The evidence and the requests call for a statement of the law in regard to the kind of delivery required to give a promissory note validity. From the testimony of the different witnesses the jury might have found that the testatrix intended merely to put the note in the custody of her servant in the same way as much of her other property was in the servant's custody, and wished it to be held under her direction without a change of the possession, and to be delivered after her death in execution of her order. If this was the arrangement, it is clear that there was no delivery, and that the authority of the servant terminated with the death of the testatrix, and left the notes a part of her estate to be administered by her executor. On the other hand, the evidence would have well warranted a finding that the notes were delivered to Miss Ray in escrow, to be held by her as a third person, as if she were not in the service of the testatrix, and with an intention on the part of the testatrix that her possession should be for the benefit of the plaintiff, and that she should deliver the note to the plaintiff on the death of the maker. If this was the arrangement, she having accepted the possession, and having delivered the note after the death of the maker to the plaintiff, and the plaintiff having then accepted it, there was a good delivery in escrow, and the second delivery related back and took effect from the time of the first delivery. The general doctrine applicable to a delivery in escrow was stated by Chief Justice Parsons in Wheelwright v. Wheelwright, 2 Mass. 447, and was referred to in Hatch v. Hatch, 9 Mass. 310, and in Foster v. Mansfield, 3 Metc. (Mass.) 412. In the latter case the grantor made a deed, and delivered it to a third person, with a request that he would deliver it to the grantee after his (the grantor's) decease, which he did. It was held that the deed took effect by relation at the time of the first delivery. Chief Justice Shaw says in the opinion: ...
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