Day v. Richards

• Decision Date: 01 January 1908
• Citation: 83 N.E. 324,197 Mass. 86
• Parties: DAY v. RICHARDS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 86

83 N.E. 324

DAY v. RICHARDS.

Supreme Judicial Court of Massachusetts, Essex.

January 1, 1908

COUNSEL

D. W. Quill, for plaintiff.

Guy C Richards, for defendant.

OPINION

KNOWLTON C.J.

This is an action of contract to recover a sum of money deposited in a savings bank by the defendant's intestate and standing in his name in the savings bank book at the time of his death. The only question in the case is whether the book passed to the plaintiff from the defendant's intestate as a donatio causa mortis. Upon the evidence and the facts found by the Chief Justice of the superior court he ruled that it did not. He found 'that the intestate intended to make a gift of the book to Mrs. Day.' But his ruling upon the other findings and on the evidence rests undoubtedly, on the ground that there was no proof of a delivery.

That an actual delivery of the property, such as completely to transfer the dominion and control of it in the lifetime of the donor, must be proved, to establish the validity of such gift, has often been declared by this court. Coleman v Parker, 114 Mass. 30; McGrath v. Reynolds, 116 Mass. 566-568; Pierce v. Boston Savings Bank, 129 Mass. 425, 37 Am. Rep. 360; Debinson v. Emmons, 158 Mass. 592, 33 N.E. 706; Scollard v. Brooks, 170 Mass. 445, 49 N.E. 741; Duryea v. Harvey, 183 Mass. 429, 67 N.E. 351.

In this case the defendant's intestate had no conversation with the plaintiff herself in regard to making her a gift, and the property was not at any time in his presence after his determination to give it. He expressed his purpose to the plaintiff's daughter, and told her in general language where the property could be found, and handed her a bunch of keys, one of which unlocked the building in which it was, and said to her, 'Go out in the shop and you will find it in the north corner.' He made no statement more definite than this as to its location. The plaintiff's daughter went to the shop and searched for it unsuccessfully, and reported the fact to him; he again made the same general statement as to where it was and she went a second time with her brother and made another search without success. Upon telling him again that she could not find it, he said: 'You will; you will.' After his death her brother found it locked in a trunk, about which the intestate had said nothing. One of the keys in the bunch that the intestate passed to the plaintiff's daughter fitted...