Ellis v. Secor

• Decision Date: 19 January 1875
• Citation: 31 Mich. 185
• Court: Michigan Supreme Court
• Parties: Lathrop S. Ellis v. Charles Secor

31 Mich. 185

Lathrop S. Ellis v. Charles Secor

Supreme Court of Michigan

January 19, 1875

Heard January 14, 1875

Error to Manistee Circuit.

Judgment reversed and rendered in this court in favor of Ellis of the finding; the estate to bear the costs.

Ramsdell & Benedict, for plaintiff in error.

Bullis & Cutcheon, for defendant in error.

OPINION

Campbell, J.:

Secor, as administrator of Rachael Hill, deceased, recovered judgment against Ellis in trover for the conversion of certain securities, which the latter claimed as having become his property by a gift in the nature of a gift causa mortis.

There is no dispute about the facts. A part of the securities consisted of notes against Ellis, and the remainder of notes of other persons in part secured by mortgage. Rachael Hill died intestate, as is supposed, on the 19th day of December, 1873, and either then or between that day and the 26th, when she was found dead in her house. At that time there was found written by her on a slate by her bedside: "I wish Dr. L. S. Ellis to take possession of all, both personal, real and mixed. Rachael Hill. I am so sick, I believe I shall die; look in valise."

A valise was found in her room containing the securities in question, in an old envelope with her name upon it, but not in her writing, and unsealed. In the same valise was an envelope directed by herself to Dr. L. S. Ellis, and containing the following memorandum written by her: "I wish you to take possession of all my effects, to do with them as you see fit. Dunlap has the Higgins and Parr papers, the rest you will find in my valise. I have paid Dunlap $ 34 (thirty-four dollars) in advance. Push these according to your own judgment. All I have said about them is true. If James H. Wing should ever call on you, give him $ 1,000, or whatever your judgment dictates, but to no one else, for I have given the others all I ever intend to.

"Rachael Hill.

"Manistee, Dec. 19th, 1863.

"To Dr. L. S. Ellis."

The date is agreed to be a clerical error for 1873. Dr. Ellis obtained possession after her death. There was evidence received by stipulation showing a long-continued design to give the property to Dr. Ellis (to whom the deceased was under obligations for services and kindnesses) to the exclusion of her kindred. She was living alone and died alone.

There is no room for any doubt that the deceased intended to give, and supposed she had given, this property to Dr. Ellis. It is equally plain that she did not intend to make a will. The only question is, whether, after she had done all in her power to accomplish this end, it has failed for want of any legal formality. And the only formality supposed to be wanting is delivery, actual or constructive.

It was urged strongly on the argument, that the law treats such transactions with disfavor, and that they are contrary to public policy, and not to be sustained where it can be avoided. There is no doubt some such language in the books. But it is only used in the sense that such acts are scrutinized carefully to ascertain whether freely and intelligently done. There is no middle class between lawful and unlawful acts. And it is the duty of courts to enforce all lawful rights, so as to carry out the intention of the parties. That intention should always be observed if lawfully expressed; and it is only incumbent on legal tribunals to be very careful to ascertain the facts. There is much room for frauds and mistakes in cases of this kind, and, therefore, care should be used to sift the evidence. But where there is no doubt about the facts, it would be a legal wrong and gross injustice to refuse to act upon them fairly and without hesitation.

The authorities which were cited on the argument, and others which are scattered through the reports, generally declare that delivery of the chattels or securities is necessary to establish a gift causa mortis.

This, however, is not because the gift is made causa mortis, but because the rule is supposed to apply to all gifts. Tradition or some equivalent seems to have been necessary at common law, to pass chattels by gift. But it has always been competent to transfer them by writing, which is less ambiguous than parol delivery, and there can be no doubt of that at the present day,--delivery under writings being chiefly necessary to avoid questions with third persons, but not between the parties. And the unwillingness of the early courts to sustain gift causa mortis of choses in action, arose from the fact that no legal transfer could be made of them at all, because they only represented rights but were not themselves intrinsically valuable. Since the equitable doctrine has prevailed that they can be assigned by delivery, they are placed with all other chattels, as subject to gift; and the same rules have been enforced. But no doubt ever existed as to their being transferable by writing so as to vest the beneficial title in the assignee, and the questions have been in all cases, not whether they could be, but whether they had been transferred in that way.

The confusion, if any, which is found in some of the text-books, is partly due to an attempt to draw unreal distinctions between these and other strictly analogous transactions. They are neither more nor less than a branch of voluntary gifts and settlements; and in the case of choses in action, fall generally under the doctrine of trusts and equitable assignments. The cases are abundant where such transactions have been maintained, where the technical phrase donatio causa mortis is not referred to.

If there could be any doubt on the subject, it would seem to be, not whether the securities must be delivered, but whether the memorandum of transfer must be delivered. The paper in question here, if actually delivered, would have been a sufficient assignment on its face to pass title, if so intended.

It has been held that the retained possession by a grantor of a voluntary deed of gift or settlement is not inconsistent with its enforcement, if intended to be effectual, and if capable of transferring title by its terms. But where, if delivered, it would not have been operative as an assignment, it will fail, because amounting to no more than an executory agreement. This is the reason for some conflict in the authorities, arising only from the doubt whether in certain cases it was executed or executory. This is very clearly explained by some recent decisions in the English courts.

In Fortescue v. Barnett, 3 Mylne & Keen, 36, the question was made whether a written assignment of a bond was valid without manual delivery of the bond itself, and the objection made was, that it passed no title. The court there drew the distinction between those cases where anything remains to be done by the grantor to complete title, and those where nothing more is necessary; and illustrated it by the case of stocks, where, according to the English law, no title, either legal or equitable, could...