Gerry v. Howe

• Decision Date: 21 February 1881
• Citation: 130 Mass. 350
• Parties: Susan Gerry v. Enos Howe, executor
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 350

Susan Gerry v. Enos Howe, executor

Supreme Court of Massachusetts

February 21, 1881

Middlesex. Contract, brought for the benefit of Eliza F Sweetser against the executor of the will of Minerva H Gerry, to recover $ 100, alleged to have been given to the plaintiff by the testatrix in her lifetime for the use of Eliza. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court in substance as follows:

The plaintiff offered to prove that she and Eliza were sisters that, a few days before the transaction in question, Minerva gave an order for $ 300, signed by her, which was presented to the defendant, who had charge of the funds standing in her name in the Stoneham Five Cents Savings Bank, amounting to $ 2000, and he thereupon drew the $ 300 from the bank and handed it to her son, Elbridge Gerry, as requested by her, for Eliza; that, on August 4, 1878, the following paper was written by the nurse of Minerva, on the day of its date and signed by the latter: "Mr. Howe, I want you to take one hundred dollars out of the bank for me, and not let Abby know it, and hand it to Susan;" that it was then presented to the defendant, who declined to draw the money; that the defendant afterwards saw Minerva, who told him that she wanted him to draw the money and pay it to Susan; that he tried to have her change the gift, but she refused and wanted him to pay it to Susan at once; that the $ 300 and the $ 100 were to be held in trust for Eliza by Susan and her husband, Elbridge Gerry; that the defendant never obeyed said direction; that Minerva died in September 1878, and the defendant was named and appointed executor; and that, after his appointment, he was again requested to pay over the $ 100, which he refused to do.

The judge ruled that these facts, if proved, would not support the action; and directed a verdict for the defendant. If there was a case for the jury, the verdict was to be set aside and a new trial had; otherwise, judgment on the verdict.

Judgment on the verdict.

A. V. Lynde, for the plaintiff.

W. B. Stevens, for the defendant.

Lord J. Colt, J., absent.

OPINION

Lord, J.

An intent to give is not a gift; nor is an executory agreement or promise without consideration a gift. We have nothing to do with the propriety or impropriety of the defendant's action in reference to the request to appropriate money to the benefit of the...