Debinson v. Emmons

• Decision Date: 04 April 1893
• Parties: DEBINSON v. EMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 592

33 N.E. 706

DEBINSON v. EMMONS.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1893

Plaintiff claimed to be the owner of the bank books by virtue of a gift causa mortis made to her by Julia Murphy an old lady 70 years old, who lived in plaintiff's family, and also occupied the same room with plaintiff. The bank books were kept by deceased in a trunk in her room. Defendant was appointed administrator of the deceased, and he afterwards took possession of the bank books contained in the trunk.

Plaintiff testified at the trial, inter alia, as follows "Question. How old was she? Answer. As near as we could come to her age it was seventy. Q. How sick was she during the six weeks? A. She wasn't so seriously sick. She never was obliged to keep to bed. The day before she died she ate downstairs, a hearty dinner, and said she would go up and come down to supper; but she never came down. Q. Tell the court what took place the day of her death. A. At 4 o'clock I arose and dressed, and Aunt Julia said, 'I slept very little last night, but I don't blame you for being restless; now I can go to sleep and have a good sleep.' I dressed, and closed the door, and I heard nothing more from Aunt Julia until my little girl cried out 'Come quick! Aunt Julia is very sick.' I went upstairs, and found Aunt Julia in a faint. Sister and the table girl ran after me. 'Get a glass of water,' I said. 'Run and get me a spoon.' My sister got a spoon, and I gave her a spoonful of water, and she came to. She sat up in the bed. 'Maggie, I am dying,' she says. 'You feel better now,' I said. I sent Mamie to go for a priest. 'Maggie,' she said, 'I tell you I am not feeling better.' I said, 'You will be better by and by.' When we was talking the priest came. I sat behind her, holding her up with her head on my arm. She reached up, and took the keys from under the pillow. 'Maggie, here is my keys, and there is everything in my trunks, and I worked hard for them, and a brother living never gave me a quarter. Now, Maggie, those trunks are yours, for a friend I never had but you; and now, Maggie, you hold on to them.' And taking her hand out of mine I put the keys in my breast; and that's all. Q. Who was present during this time? A. My sister and the table girl." Frances Gates, plaintiff's sister, testified as follows: "Question. And on the morning of January 9th, what took place, to your knowledge? Answer. I got up a little before 6 o'clock. I started to make a fire in the sitting room, and I had the baby in my arms. I asked Aunt Julia how she felt, and she said, 'Feeling nicely.' The baby began to cry, and she said, 'I will hold the baby,' and I said, 'No, no.' So I made the fire, and put the baby to sleep. Say about 7 o'clock my sister's daughter came to the head of the stairs, and my sister run up, and I run after her, and my sister got back of her on the bed, and I said to Maggie, 'She is dying without the priest and the doctor.' Maggie said, 'No, get some water.' So I got some water, and ran and got a spoon, and she gave her two spoonfuls of water; and by that time Mamie was around for the priest. So Maggie, sitting back on the bed, and she passes her hand under the pillows, and said, 'Maggie, I am dying.' And Maggie says, 'No, Aunt Julia; be patient.' 'I know, Maggie. Here is my keys. I don't want them; you take them; you and I was always the best of friends, and what is in my trunk is yours;' and she made the remark she had always worked hard, and had to work hard, and had to work for fifty cents a week, and her brother never gave her a dollar, and what she had was Maggie's, and for Maggie to hold on to it. Q. Did she give the keys to Maggie? A. Yes, sir. Q. What did Maggie do? A. Maggie put them right in her breast at the time." Kate McKenna, the table girl, testified as follows: "Question. Were you present in the room, as has been testified to by the others? Answer. Yes, sir. Q. And you, and Maggie, and who else was there? A. Maggie and Fannie, Mr. Murphy and Mrs. Murphy. Q. Now, will you state what you heard Aunt Julia say in regard to the keys? What was that conversation? What did you see her do, and what did you hear her say? A. She said, 'Here, Maggie, here are the keys,' said she. She got the keys out from under the pillows, and Maggie took the keys from her. Q. And what did she say about the trunks? A. 'The key of my trunk,' she says. 'Catch hold of my keys,' she says. And she took the keys. Q. And what did she say about the things in the trunk? A. Yes, sir.

Everything belongs to me in my trunk belongs to you,' says she, 'now.' Q. All the things? A. All the things. Q. 'All the things in the trunk belong to me, and now they belong to you.' Did she say that? A. She said like that. Q. And did Maggie take the keys? A. Yes, sir. Q. And Aunt Julia died that day? A. Yes, sir; she died at 10 o'clock. Q. Is there anything further that you recollect? Anything more that you recollect that was said or done there? A. No, sir; she didn't say anything more."

COUNSEL

Seth J. Thomas, for plaintiff.

John L. Bates, for defendant.

OPINION

BARKER J.

As the case was heard upon its merits by a justice of the superior court, and is here only by appeal, with no statement of rulings made or of facts found, but with the evidence taken under the rule, the question is whether, giving due weight to the decision of the court below so far as findings of fact are involved, the decree clearly appears to be erroneous. If not, it is to stand. Reed v. Reed, 114 Mass. 372; Montgomery v. Pickering, 116 Mass. 227, 230; Allen v. Allen, 117 Mass. 27, 29; Andrews v Gilman, 122 Mass. 471; Newton v. Baker, 125 Mass. 30, 33; Holmes v. Bank, 126 Mass. 353, 358; Association v. Cory, 129 Mass. 435; Rau v. Von Zedlitz, 132 Mass. 164; Chase v. Hubbard, 153 Mass. 91, 26 N.E. 433. The doctrine that gifts causa mortis take their effect from delivery, and require actual delivery or its equivalent, what is commonly spoken of as symbolical or constructive delivery not being sufficient, is well settled, (see McGrath v. Reynolds, 116 Mass. 566, and cases cited; Fearing v. Jones, 149 Mass. 12, 20 N.E. 199;) and we assume that it was applied by the justice who heard the evidence. It is not contended that any required element of a valid gift causa mortis is wanting except actual delivery. The question, therefore, is whether a finding of an actual delivery of the bank books was clearly erroneous upon the evidence. These cases are always more or less suspicious, and the reading of the reported evidence in this case leads to a surmise that possibly there was no such scene as that related by the plaintiff and her witnesses. But all the witnesses were produced before the justice who heard the case, and were cross-examined at great length, and on different days. If, upon the whole, the presiding justice had not deemed them worthy of credit he could not have so found the facts as to authorize a decree for the plaintiff. Assuming that their story is substantially true, there is ample evidence to support a finding of an actual delivery of the books. As stated in Coleman v. Parker, 114 Mass. 30, 33, the "term 'delivery' is not to be taken in such...