Foley v. Coan

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation272 Mass. 207,172 N.E. 74
PartiesFOLEY v. COAN et al.
Decision Date03 July 1930

272 Mass. 207
172 N.E. 74

FOLEY
v.
COAN et al.

Supreme Judicial Court of Massachusetts.

July 3, 1930.


Appeal and Report from Probate Court, Middlesex County; Charles N. Harris, Judge.

Accounting of Ellen T. Foley, as administratrix of the estate of Margaret E. Gardiner, deceased. From a decree of the probate court in favor of administratrix, John Coan and others appeal, and case was reported.

Decree affirmed.


[272 Mass. 208]

[172 N.E. 75]

J. L. Hannan, of Lynn, for appellants.

J. W. Monahan, of Cambridge, for appellee.


WAIT, J.

This is an appeal from a decree of the probate court. No new question of law is involved. The judge of [272 Mass. 209]probate found, as fact, that the intestate Margaret E. Gardiner made a completed gift to her sister, Ellen T. Foley, of a bank book and deposit in the Cambridge Savings Bank as a donatio mortis causa. The appellants, nephews or grandnephews of the intestate, challenge the correctness of the decision. The evidence is reported. We must examine it and form an independent judgment with regard to what it establishes as fact. In doing so we are not bound by the finding of the trial judge; but may use it in forming our opinion upon the credit to be given the testimony of witnesses whom he has seen and heard and we have not. Osborne v. Craig, 251 Mass. 169, 172, 146 N. E. 263.

Upon hearing upon an account of Ellen T. Foley, as administratrix of her sister, the appellants contended that she had failed to account for the savings bank book and deposit as part of the intestate's estate. There was no dispute that the intestate had owned deposits in the Cambridge Savings Bank and in the Belmont Savings Bank. She died on December 16, 1927. The administratrix contended and testified that on December 14, after her sister had been anointed by the priest and was in expectation of death, her sister handed the Cambridge Savings Bank book to her saying: ‘Here, Nellie, this is a gift for your kindness and trouble’; and that she took and retained it thereafter as her own. The essential issue is whether or not this constituted a completed gift, a delivery by Margaret E. Gardiner with intent to pass ownership to Ellen T. Foley, and an acceptance by the latter with intent to retain ownership, followed by actual retention of control of the book. The burden of proof here was on the accountant. Rockwood v. Wiggin, 16 Gray, 402, 403. That burden is heavier than in the case of a simple gift inter vivos, because it is the general policy of our legislation that disposition of property in expectation of death and to become irrevocable only in the event of death shall be by will, surrounded by the safeguards of written statement, signature, and the presence of attesting witnesses, most or all of which are lacking, ordinarily, in the case of a donatio mortis causa. The proof must be convincing, though it need not reach the [272 Mass. 210]certainty...

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11 cases
  • Berkey v. Delia, 15
    • United States
    • Court of Appeals of Maryland
    • 26 Marzo 1980
    ...preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases. See Foley v. Coan, (272 Mass. 207, 172 N.E. 74 (1930)); Coghlin v. White, (273 Mass. 53, 172 N.E. 786 (1930)). It [413 A.2d 178] has been said that the proof must be "strong......
  • Stone v. Essex County Newspapers, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 29 Mayo 1975
    ...Iron Co. v. Hudson Iron Co., 107 Mass. 290 (1871) (mutual mistake sufficient to justify reformation of an instrument); Foley v. Coan, 272 Mass. 207, 172 N.E. 74 (1930) (gift causa mortis); Coghlin v. White, 273 Mass. 53, 172 N.E. 786 (1930) (contents of a lost will); Kidder v. Greenman, 283......
  • Mulloy v. Charlestown Five Cents Sav. Bakk
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 2 Enero 1934
    ...Mass. 390, 147 N. E. 826;Brine v. Parker, 271 Mass. 86, 171 N. E. 324;Brodrick v. O'Connor, 271 Mass. 240, 171 N. E. 479;Foley v. Coan, 272 Mass. 207, 172 N. E. 74;Robinson v. Pero, 272 Mass. 482, 172 N. E. 599. Whether there was such delivery was matter of fact. The judge's decision must s......
  • Lindsey v. Ogden
    • United States
    • Appeals Court of Massachusetts
    • 30 Junio 1980
    ...Mass. 565, 566, 179 N.E.2d 900, 901 (1962), quoting from Osborne v. Craig, 251 Mass. 169, 172, 146 N.E. 263 (1925). See Foley v. Coan, 272 Mass. 207, 209, 172 N.E. 74 (1930); Markell v. Sidney B. Pfeifer Foundation, Inc., Mass.App. ---, --- - ---, 402 N.E.2d 76 (1980). The record discloses ......
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