Drew v. Hagerty

• Decision Date: 18 January 1889
• Citation: 17 A. 63,81 Me. 231
• Parties: DREW v. HAGERTY.
• Court: Maine Supreme Court

17 A. 63

81 Me. 231

DREW

v. HAGERTY.

Supreme Judicial Court of Maine.

Jan. 18, 1889.

Exceptions from supreme judicial court, Androscoggin county.

Action for money had and received, brought by Franklin M. Drew, administrator, etc., of Daniel Hagerty, deceased, against Mary Hagerty. Defendant claimed the property, which was money deposited in a savings bank, under an alleged gift causa mortis of the savings bank book made by the intestate on the day of his death. Verdict for plaintiff which defendant moved to set aside, and also excepted to the charge of the court.

Newell & Judkins, for plaintiff. Frank L. Noble, for defendant.

WALTON, J. The most important question is whether the gift of a savings bank book from husband to wife, causa mortis, is valid without delivery, provided the book is at the time of the alleged gift already in the possession of the wife. The action was tried before the chief justice, and he ruled that, to constitute a valid gift causa mortis, there must be a delivery; that, if the property "be at the time already in the possession of the donee, the donor's saying to the donee,' You may have it,' or 'You may keep it; it is yours,'—does not pass the property in the case of a gift causa mortis."

We think this ruling was correct. If the act of delivery was for no other purpose than to invest the donee with possession, no reason is perceived why it might not be dispensed with when the donee already had possession. But such is not its only purpose. It is essential, in order to distinguish a gift causa mortis from a legacy. Without an act of delivery, an oral disposition of property, in contemplation of death, could be sustained only as a nuncupative will, and in the manner and with the limitations provided for such wills. Delivery is also important as evidence of deliberation and intention. It is a test of sincerity, and distinguishes idle talk from serious purposes; and it makes fraud and perjury more difficult. Mere words are easily misrepresented. Even the change of an emphasis may make them convey a meaning different from what the speaker intended. Not so of an act of delivery. Like the delivery of a turf, or the delivery of a twig, in the ancient mode of conveying estates, or the delivery of a kernel of corn, or the payment of one cent of the purchase money, to make valid a contract for the sale of a cargo of grain, an act of delivery accomplishes that which words alone cannot accomplish. Gifts causa mortis ought not to be encouraged. They are often sustained by fraud and perjury. It was an attempt to sustain such a gift by fraud and perjury that led to the enactment of the statute for the prevention of fraud and perjury. See Mathews v. Warner, 4 Ves. 187, 196, note; Leathers v. Greenacre, 53 Me. 561, 569. As said in Hatch v. Atkinson, 56 Me. 326, it is far better that occasionally a gift of this kind should fail than that the rules of law be so relaxed as to encourage fraud and perjury.

We are aware that some text writers have assumed that, when the property is already in the possession of the donee, a delivery is not necessary. But the cases cited in support of the doctrine nearly all relate to gifts inter vivos, and not to gifts causa...