Reardon v. Whalen

• Citation: 29 N.E.2d 23,306 Mass. 579
• Parties: REARDON v. WHALEN.
• Decision Date: 13 September 1940
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 579

29 N.E.2d 23

REARDON

v.WHALEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1940.

Proceeding by Mary E. Reardon, administratrix, against Walter L. Whalen, wherein the issue was whether defendant made a valid gift of defendant's undistributed share in an estate. From an unsatisfactory decree of the probate court, defendant appeals.

Decree modified in accordance with opinion, and, as modified, affirmed.Appeal from Probate Court, Suffolk County; Mahoney, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

M. J. Robinson, and F. W. Mansfield, both of Boston, for administratrix.

A. J. McCarthy, of Charlestown for respondent.

QUA, Justice.

The issue in this case is whether the appellant made a valid gift to his three aunts of his undistributed share in the estate of his deceased father.

The evidence, which is reported without subsidiary findings of fact, would justify a finding that on April 12, 1938, the day of the father's funeral, the appellant expressed to his aunts his intent to make to them a then present gift of his share in the estate. So far as spoken words alone will suffice, we think that the words used could be found to have been enough. But there was nothing beyond words. There was no delivery of any property or of any document, and there was no symbolic delivery, if such delivery of an undistributed share in the estate of a deceased person is possible. No property the subject of the alleged gift was at that time in the possession of the alleged donees. Later in April one of the aunts was appointed administratrix and did take possession of the estate, but her possession of the entire estate in her capacity as administratrix was not equivalent to possession by her and her two sisters as donees of the undistributed share of one of the next of kin. By about the first of July the appellant had disavowed any gift he may have made and had reasserted his title to his share. None of the alleged donees had then received possession individually of anything attributable to the appellant's distributive share.

The necessity in general, in order to complete a parol gift, of some form of delivery, either of tangible property or of some document of title employing or representing the property intended to be given, need not be discussed again here. Millett v. Temple, 280 Mass. 543, 549, 182 N.E. 921;Mulloy v. Charlestown Five Cents Savings Bank, 285 Mass. 101, 105, 188 N.E. 608. The question now before us is whether there can be a valid gift by mere word of mouth alone of an undistributed share in the estate of a deceased person which is not embodied in or represented by any document of title or other tangible evidence. An attempted gift of this kind must be held invalid under well-established principles, unless the nature of the property and the inherent lack of any representative document, token, or symbol are held to do away with the requirement of delivery or its equivalent.

A share as next of kin in an undistributed estate is property. It is capable of being conveyed by a proper instrument of conveyance. Security Bank of New York v. Callahan, 220 Mass. 84, 87, 107 N.E. 385;Harrison v. Stevens, Mass., 26 N.E.2d 351. It does not, however, carry with it actual title either in whole...