Nelson v. Peterson

• Decision Date: 26 May 1909
• Parties: NELSON v. PETERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 369

88 N.E. 916

NELSON v. PETERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1909

COUNSEL

Victor

E Runo, for complainant.

Wm. A Thibodeau and Geo. L. Ellsworth, for respondent.

OPINION

HAMMOND J.

This was a bill in equity filed by the administrator of the estate of Nils J. Liljestrom, deceased, to compel the delivery to him of personal property claimed by him to be estate of said Liljestrom, against the respondent, who holds and claims the property by virtue of an alleged donatio causa mortis to the Skandinaviska Foreningen, of which the plaintiff is president and trustee, and of which Liljestrom was a member at the time of his death.

The trial judge, having found certain facts, dismissed the bill; and the case is before us upon a report, such decree to be entered as justice and equity may require.

After stating the facts, the trial judge makes the following statement: 'I do not think this evidence compels me to hold the gift incomplete. The burden seems to me upon the administrator, as the plaintiff. There is a possibility Liljestrom contemplated doing something further. It is also possible he did not.'

Inasmuch as this is a proceeding in equity and is before us upon facts found, and by the terms of the report such decree is to be entered as justice and equity require, it becomes our duty to examine the facts and come to our own conclusion, giving due weight to the conclusion reached by the trial judge.

We have carefully studied the facts and do not think they show a completed donatio causa mortis. The most that can be said is that they indicate a desire upon the part of Liljestrom that after certain of his property had been disposed of for funeral and burial purposes, the rest should go to the society represented by the defendant. He evidently was thinking of his whole estate and of its future disposition, and not simply of certain specified articles out of his estate. $But, however that may be, there was no sufficient delivery. In this class of gifts, as in gifts inter vivos, there must be a delivery, a change of possession, which must be made for the purpose of passing the title in praesenti. The donor's title must pass and such must be the intention. The only difference in this respect between the two classes of cases is that where there is a gift inter vivos the change in the title is irrevocable and indefeasible, while in the case of a gift causa mortis the change is revocable and defeasible upon certain conditions. See Duryea v. Harvey, 183 Mass. 433, 67 N.E. 351, and the authorities there cited.

There is no evidence that before the death of Liljestrom he made any delivery to the defendant, but it is contended that a delivery was made to Mrs. O'Shea as the defendant's representative by his handing to her the key of the trunk containing some of the articles, and because she, after Liljestrom's death, handed the key of the trunk and other articles to the defendant. It is true a delivery need not be made to the donee, but may be made to some third person for him; and if after the death of the donor this person delivers the subject of the gift to the donee who accepts it, that is sufficient delivery.

The property of Liljestrom consisted of certain wearing apparel and $500 in money. Some of the wearing apparel was in the trunk and some was hanging up in the closet of his room which he occupied as a boarder in Mrs. O'Shea's house. The acts relied upon to show delivery took place on Monday morning. Liljestrom was very sick and knew it. Before leaving his boarding house for the hospital 'he handed her the key to his trunk and said: 'Here is the key of my trunk. Don't give it to anybody but the president, Mr. Peterson or the board of trustees. Give it to them. There is $500 in a pigskin pocketbook in my trunk rolled up in my pants, and if anything happens to me there is a dress suit I am going to put on, and there is some clean underwear and you can pick it out.' Mrs. O' Shea said: 'I hope there won't be nothing...