Mangan v. Howard

• Decision Date: 07 March 1921
• Citation: 130 N.E. 76,238 Mass. 1
• Parties: MANGAN v. HOWARD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 1

130 N.E. 76

MANGAN

v.HOWARD et al.

Supreme Judicial Court of Massachusetts, Plymouth.

March 7, 1921.

Appeal from Superior Court, Plymouth County; Frederick W. Fosdick, Judge.

Suit by Delia M. Mangan against Fred B. Howard and another, as executors of the will of Martha J. Brett. Decree for plaintiff, and defendants appeal. Affirmed.

Nutter, King & Keith and Albert F. Barker, all of Brockton, for appellants.

Elmer H. Fletcher, Harry K. Stone, and William G. Rowe, all of Brockton, for appellee.

PIERCE, J.

This is an appeal from a decree confirming the master's report and the final decree, whereby the claim of the petitioner to the absolute ownership by gift inter vivos of two registered bonds was established, and an order made that the respondents deliver the bonds or the avails thereof to the petitioner, in performance of their stipulation filed in court in this case.

It is settled in this commonwealth that an unregistered bond, a bill of exchange, a promissory note, a policy of life insurance or a savings bank book, without an assignment, like a chattel, may be the subject of a legal gift inter vivos or mortis causa. It is also settled that evidences of debt, as distinguished from the debt itself, that is, chose in action without writing, may be the subject of a valid gift, and as such constitute an equitable assignment of the debt or other obligation. In either case by an unqualified delivery and acceptance the title passes, the gift becomes perfect and carries with it an implied irrevocable power to enforce it in the name of the donor. Grover v. Grover, 24 Pick, 261, 35 Am. Dec. 319;Ensign v. Kellogg, 4 Pick. 1;Hunt v. Hunt, 119 Mass. 474;Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425, 37 Am. Rep. 371;Slade v. Nutrie, 156 Mass. 19, 30 N. E. 168;Serivens v. North Easton Savings Bank, 166 Mass. 255, 44 N. E. 251;Bone v. Holmes, 195 Mass. 495, 81 N. E. 290;Knowles v. Knowles, 205 Mass. 290, 91 N. E. 213;Herbert v. Simson, 220 Mass. 480, 108 N. E. 65, L. R. A. 1915D, 733;Bliss v. Bliss, 221 Mass. 201, 207, 109 N. E. 148, L. R. A. 1916A, 889.

In the case at bar the master found the ultimate fact, based upon undisputed subsidiary facts, that the deceased, the donor, ‘intended to make and did make a complete and absolute gift of these bonds to plaintiff.’ This finding of fact would be conclusive were it not for the contention that the donor intended to retain and did retain dominion and control over the bonds by her declarations and the alleged qualifying words which accompanied the delivery of the bonds. The descriptive facts are as follows:

‘Without a word of comment deceased took the bonds from the drawer, locked at the time, and handed them, incased in an envelope, to plaintiff, with the information that they were two $20,000 bonds of the city of Boston, and that she was going to give them to her saying: ‘I want you to...