Newman v. Bost
| Decision Date | 19 April 1898 |
| Citation | 29 S.E. 848,122 N.C. 524 |
| Parties | NEWMAN v. BOST. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Iredell county; Coble, Judge.
Action by Julia Newman against F. W. Bost, administrator of J. F Van Pelt. Judgment for plaintiff. Defendant appealed. Reversed.
Armfield & Turner, J. A. Hartness, and H. P. Grier, for appellant.
Long & Long and H. Burke, for appellee.
The plaintiff, in her complaint, demands $3,000, collected by defendant, as the administrator of J. F. Van Pelt, on a life insurance policy, and now in his hands; $300, the value of a piano upon which said Van Pelt collected that amount of insurance money; $200.94, the value of household property sold by defendant as belonging to the estate of his intestate; and $45, the value of property in the plaintiff's bedroom, and sold by the defendant as a part of the property belonging to the intestate's estate. The $3,000, money collected on the life insurance policy, and the $200.94, the price for which the household property sold plaintiff claims belonged to her by reason of a donatio causa mortis from said Van Pelt. The $45, the price for which her bedroom property sold, and the $300, insurance money on the piano, belonged to her also, by reason of gifts inter vivos. The rules of law governing all of these claims of the plaintiff are in many respects the same, and the discussion of one will be to a considerable extent a discussion of all.
To constitute a donatio causa mortis, two things are indispensably necessary,--an intention to make the gift, and a delivery of the thing given. Without both of these requisites, there can be no gift causa mortis; and both these are matters of fact to be determined by the jury, where there is evidence tending to prove them. The intention to make the gift need not be announced by the donor in express terms, but may be inferred from the facts attending the delivery; that is, what the donor said and did. But it must always clearly appear that he knew what he was doing, and that he intended a gift. So far there is but little diversity of authority, if any. As to what constitutes or may constitute delivery has been the subject of discussion and adjudication in most or all the courts of the Union and of England, and they have by no means been uniform; some of them holding that a symbolical delivery--that is, some other article delivered in the name and stead of the thing intended to be given--is sufficient others holding that a symbolical delivery is not sufficient but that a constructive delivery is,--that is, the delivery of a key to a locked house, trunk, or other receptacle is sufficient. They distinguish this from a symbolical delivery, and say that this is in substance a delivery of the thing, as it is the means of using and enjoying the thing given; while others hold that there must be an actual manual delivery to perfect a gift causa mortis. This doctrine of donatio causa mortis was borrowed from the Roman civil law by our English ancestors. There was much greater need for such a law at the time it was incorporated into the civil law and into the English law than there is now. Learning was not so general, nor the facilities for making wills so great, then as now. But the civilians, while they incorporated this doctrine into their law, did not do so without guarding it with great care. They required that a donatio causa mortis should be established by at least five witnesses to the facts constituting the gift. And why it was that our English ancestors should have adopted the doctrine, without also adopting the manner in which it should be proved, seems to be unexplained; but they did so, and only required the facts to be proved by one witness, as in this case. It seems to us that there was greater reason in England, as there is here, for requiring in to be established by five witnesses, than in Rome, after the statute of frauds and of wills, as this doctrine of causa mortis is in direct conflict with the spirit and purpose of those statutes,--the prevention of fraud. It is a doctrine, in our opinion, not to be extended, but to be strictly construed, and confined within the bounds of our adjudged cases. We were at first disposed to confine it to cases of actual manual delivery, and are only prevented from doing so by our loyalty to our own adjudications. But it is apparent from the adjudications that our predecessors felt the restrictions of former adjudications, and that they were not disposed to extend the doctrine.
We will not go into the general review of the many cases cited in the well-considered briefs filed in the case on both sides. Were we to do this, it would lead us into a labyrinth of discussion without profit, as we would not feel bound by the decisions of other jurisdictions, and would put our own construction on the doctrine of donatio causa mortis, but for decisions of our own state. Many of the cases cited by the plaintiff are distinguishable from ours, if not all of them. The case of Thomas v. Lewis (a Virginia case) 37 Am. St. Rep 878, 15 S.E. 389, was probably more relied on by the plaintiff than any other case cited, and for that reason we mention it by name. This case, in its essential facts, is distinguishable from the case under consideration. There are articles present were taken out of the bureau drawer, handed to the donor, and then delivered by him to the donee. According to all the authorities, this was a good gift causa mortis. The box and safe, the key to which the donor delivered to the donee, were not presents, but were deposited in the vault of the bank; and, so far as shown by the case, it will be presumed, from the place where they were, and the purpose for which things are usually deposited in a bank vault, that they were only valuable as a depository for such purposes, as holding and preserving money and valuable papers, bonds, stocks, and the like. This box and safe would have been of little value to the donee for any other purpose. But, more than this, the donor expressly stated that "all you find in this box and this safe is yours." There is no mistake that it was the intention of the donor to give what was contained in the box and in the safe. As my Lord Coke would say, "Note the diversity" between that case and the case at bar. There the evidences of debt contained in the bureau, which was present, were taken out, given to the donor, and by him delivered to the donee. This was an actual manual delivery, good under all the authorities. But no such thing was done in this case as to the life insurance policy. It was neither taken out of the drawer, nor mentioned by the donor, unless it is included in the testimony of Enos Houston, who at one time, in giving in his testimony, says that Van Pelt gave her the keys; saying, "What is in this house is yours;" and at another time, on cross-examination, he said to Julia, "I intend to give you this furniture in this house;" and at another time, "What property is in this house is yours." The bureau in which was found the life insurance policy, after the death of Van...
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