Duryea v. Harvey

• Decision Date: 23 May 1903
• Citation: 67 N.E. 351,183 Mass. 429
• Parties: DURYEA v. HARVEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 429

67 N.E. 351

DURYEA v. HARVEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1903

COUNSEL

Thomas J. Barry and Walter A. Buie, for appellant.

Stephen H. Tyng and M. L. Sanborn, for appellees.

OPINION

HAMMOND, J.

William L. Simpson, fearing that his physician would advise him that a surgical operation would be necessary to prevent a fatal result from a disease from the effects of which he believed himself to be suffering, and thinking that he might commit suicide rather than to submit to such an operation, put the papers upon which the plaintiff relies in an envelope, which having sealed, he caused to be placed in the hands of Jacob Scheider. Upon the outside of the envelope he wrote: 'To be opened by Jacob Scheider, * * * or Miss May Duryea, * * * only by my direction or on my death.' From the language used by him, it is plain that he did not intend that the envelope should be opened during his life without further directions from him. There was no delivery to the plaintiff or to Scheider for her. Scheider held the papers during the life of Simpson subject to his orders, and not for the plaintiff. Simpson had written the requests to Harvey, it is true, but the fact was not known to Harvey or to the plaintiff, and Simpson's intention plainly was to keep to himself during his lifetime the power to make a delivery of them. There being no delivery during his life to the plaintiff, or to anybody for her, there was no gift inter vivos. Sessions v. Moseley, 4 Cush. 87, 92.

It is contended, however, that the transaction can be supported as an equitable assignment to the plaintiff upon a valuable consideration, consisting of an alleged debt due her for money loaned to Simpson. Even if it be assumed that there was such a debt, and that one of the purposes of Simpson in drawing up the request to Harvey was to pay or secure that debt, still we are met by the same difficulty about delivery. There was no delivery during the life of Simpson, and he did not intend that there should be without further direction from him. Everything was incomplete. Scheider was merely his depositary. There being no delivery, there was no contract arising therein during his life. The case is clearly distinguishable from Hewins v. Baker, 161 Mass. 320, 37 N.E. 441, and other similar cases cited by the plaintiff.

But the trial judge has found, and this finding is amply justified by the evidence, that although, at the time the papers were placed in Scheider's hands, Simpson had not fully determined to commit suicide, still he was considering suicide, and he intended that, if he should commit suicide the plaintiff should have the benefit and rights for which he had made provision in the papers. Upon these findings the plaintiff contends that the transaction can stand as a gift mortis causa. Here, however, as...