Emery v. Clough

• Decision Date: 12 March 1886
• Citation: 63 N.H. 552,4 A. 796
• Parties: EMERY, Adm'r, v. CLOUGH.
• Court: New Hampshire Supreme Court

4 A. 796

63 N.H. 552

EMERY, Adm'r,

v. CLOUGH.¹

Supreme Court of New Hampshire.

March 12, 1886.

Two cases,—one a bill in equity, under Gen. Laws, c. 209, § 2, for discovery with reference to and restoration of a municipal bond for $1,000, alleged to belong to said estate, and to be unlawfully withheld from the plaintiff by the defendant; the other an action of assumpsit to recover $280 claimed to belong to said estate, and to be in the possession of the defendant. Facts found by the court:

The intestate, William Emery, died at Montpelier, Vermont, June 11, 1882, while temporarily there. His domicile at that time, and during his whole life, was at Loudon, in this state. The defendant's domicile is now, was at that time, and for many years has been, at said Loudon. For several months before his death William was sick, and on the twenty-first day of May, being then temporarily at Montpelier, he delivered to the defendant, as a donatio causa mortis, the bond above mentioned; and on the twenty-seventh day of May he delivered to her, as gifts to sundry persons, then and now residing in Loudon, the sum of $280, to be by her delivered to them, at Loudon, after his decease; and immediately after his death, but before suit was brought, she paid this money to the parties, as directed. No one was present when William delivered the bond and money to the defendant, and she offered no evidence to prove the same, except her own testimony, and a memorandum in writing, signed by William, (which is referred to in the opinion.) This evidence the plaintiff claims is incompetent and insufficient. No attempt was made to prove the gifts in accordance with Gen. Laws, c. 193, § 17.

The questions arising upon the foregoing facts are reserved.

Chase & Streeter, for plaintiff.

Samuel C. Eastman and William L. Foster, for defendant.

SMITH, J. It is contended on the part of the defendant that the transaction in Vermont, whereby the defendant became possessed of the bond, was a donatio causa mortis, valid as an executed contract under the laws of Vermont, and therefore valid here. The plaintiff contends that the transaction was in the nature of a testamentary disposition of property, and if valid in Vermont as a donatio causa mortis, it is not valid in this state, because it is not proved by the testimony of two indifferent witnesses, upon petition by the donee to the probate court to establish the gift, filed within 60 days after the decease of the donor. Gen. Laws, c. 193, § 17. The domicile of the parties at the time of the delivery of the bond to the defendant, and ever afterwards, to the death of the donor, being in this state, it is claimed that the neglect of the defendant to establish the gift in the probate court is fatal to her right to retain the bond. Every requisite to constitute a valid gift causa mortis under the laws of Vermont, where the parties were temporarily residing at the time of the delivery of the bond, was complied with. Holley v. Adams, 16 Vt. 206; Caldwell v. Renfrew, 33 Vt. 213; French v. Raymond, 39 Vt. 623. Every requisite, also, to constitute such a gift under the laws of New Hampshire was complied with, except the post mortem proceedings required by our statute. The question, therefore, is whether the lex loci or the lex domicilii governs, and the answer to this question depends upon the legal character and effect of such gifts.

A gift causa mortis is often spoken of in the books as a testamentary disposition of property, or as being in the nature of a legacy, (Jones v. Brown, 34 N. H. 439; 1 Williams, Ex'rs, 686, note 1;) and such was the doctrine of the civil law, (2 Kent, Comm. 444, and authorities cited in note b.) Such gifts are always made upon condition that they shall be revocable during the life-time of the donor, and that they shall revest in case he shall survive the donee, or shall be delivered from the peril of death in which they were made. The condition need not be expressed, as it is always implied, when the gift is made in the extremity of sickness, or in contemplation of death. It is sometimes, perhaps generally, said, in the English cases, that a gift causa mortis does not vest before the donor's death; but in Nicholas v. Adams, 2 Whart. 17, Gibson, C. J., considered this to be inaccurate; holding that this gift, like every other, is not executory, but executed in the first instance by delivery of the thing, though defeasible by reclamation, the contingency of survivorship, deliverance from peril, or from some other act inconsistent with the gift, and indicating the donor's purpose to resume the possession of the gift. 1 Williams, Ex'rs, 686, note 1; Marshall v. Berry, 13 Allen, 43, 46.

A gift causa mortis resembles a testamentary disposition of property in this: that it is made in contemplation of death, and is revocable during the life of the donor. It is not, however, a testament, but, in its essential characteristics, is what its name indicates,—a gift. Actual delivery by the donor in his life-time is necessary to its validity, or, if the nature of the property is such that it is not susceptible of corporeal delivery, the means of obtaining possession of it must be delivered. The donee's possession must continue during the life' of the donor, for recovery of possession by the latter is a revocation of the gift. But, in case of a legacy, the possession remains with the testator until his decease. The title to a gift causa mortis passes by the delivery, defeasible only in the life-time of the donor, and his death perfects the title in the donee by terminating the donor's right or power of defeasance. The property passes from the donor to the donee directly, and not through the executor or administrator, and after his death it is liable to be divested only in favor of the donor's creditors. In this respect it stands the same as a gift inter vivos. It is defeasible in favor of creditors, not because it is testamentary, but because, as against creditors, one cannot give away his property. 'A gift causa mortis is not subject to probate, nor to contribution with legacies, in case the assets are insufficient, nor to any of the incidents of administration. It is not revocable by will, for as a will does not operate until the decease of the testator, and the donor, at his decease, is divested of his property in the subject of the gift, no right or title in it passes to his representatives. The donee takes the gift, not from the administrator, but against him, and no act or assent on the part of the administrator is necessary to perfect the title of the donee. Cutting v. Gilman, 41 N. H. 147, 151; Marshall v. Berry, supra; Doty v Willson, 47 N. Y. 580, 585; Dole v. Lincoln, 31 Me. 422; Chase v. Redding, 13 Gray, 418; Basket v. Hassell, 107 U. S. 602; S. C. 2 Sup. Ct. Rep. 415; 1 Williams, Ex'rs, 686, note 1. A valid gift inter vivos may be made on similar terms. Worth v. Case, 42 N. Y. 362; Dean v. Carruth, 108 Mass. 242; Warren v. Durfee, 126 Mass. 338.

A gift causa mortis, in some respects, may be said to resemble a contract, the mutual consent and concurrent will of both parties being necessary to the validity of the transfer. 2 Kent, Comm. 437, 438; 1 Pars. Cont. 234. Contracts are commonly understood to mean engagements resulting from negotiation, (2 Kent, Comm. 437;) and in Peirce v. Burroughs, 58 N. H. 302, it was held that the assent of both parties is as necessary to a gift as to a contract.

Prior to the passage of chapter 106, Laws 1883, the law required a will to be executed according to the law of the testator's domicile at the time of his death. Saunders v. Williams, 5 N. H. 213; Heydock's Appeal, 7 N. H. 496. The distribution of the estate of a deceased person among the heirs or legatees is to be made according to the law of the domicile of the testator or intestate at the time of his death. Leach v. Pillsbury, 15 N. H. 137. But the plaintiff's intestate did not die possessed of the bond in suit. It did not vest in his administrator, and is not assets of his estate. The defeasible title which vested in the defendant at the time of the delivery was not defeated by the donor in his life-time, and his right and power to defeat it ceased with his death. A gift causa mortis is not a testament. If it is a contract, in this case it was executed in Vermont, in the life of the plaintiff's intestate. If it is not a "contract," as that term is commonly understood, it is a gift which received the assent of both parties, and nothing remained to perfect the conditional title of the defendant before the decease of the donor. The transfer of the bond being, therefore, either an executed contract or a perfected gift in Vermont, and valid under the laws of Vermont, is valid here; and no question arises whether our statute (Gen. Laws, c. 193, § 17) affects the contract or the remedy. That section applies to gifts made in this state.

As to the sum of $280, the money was delivered to the defendant as gifts causa mortis to sundry persons then and now residing in this state, designated by the donor, to be by the defendant delivered to them after his decease. Delivery to a third person for the donee's use is as effectual as delivery to the donee. Cutting v. Gilman, 41 N. H. 147, 151, 152, and authorities cited; Drury v. Smith, 1 P. Wms. 404; Marshall v. Berry, 13 Allen, 43. And there is no suggestion that the gift of the money stands differently from that of the bond.

The question as to the mode of proof remains to be considered. In the first case it has not been shown, and it does not appear, that injustice will be done by excluding the defendant from testifying. Gen. Laws, c. 228, §§ 13, 16, 17. As that question has not been passed upon at the trial term, it is still open, and the ruling of the judge will be subject to exception and revision. The written memorandum on the envelope containing the bond, signed by the plaintiff's intestate, and produced by the defendant, reads as...