Wells v. Tucker

• Decision Date: 30 March 1811
• Citation: 3 Binn. 366
• Parties: WELLS administrator of CRAIG v. TUCKER and wife.
• Court: Pennsylvania Supreme Court

3 Binn. 366

WELLS administrator of CRAIG v. TUCKER and wife.

Supreme Court of Pennsylvania.

March 30, 1811

The delivery of a bond or personal chattel by the owner in his last illness to his wife, for the use of a third person, is a sufficient delivery to make it a good donatio causa mortis.

The widow is a good witness to prove a donatio causa mortis by her deceased husband.

A bond is a proper subject of a donatio causa mortis.

It seems that a donatio causa mortis is not only conditional, to be void if the donor recovers, but it is also revocable by him, being in the nature of a legacy.

THIS was an action of trover for two bonds, tried under the general issue at the Nisi Prius in February last before Mr. Justice Yeates.

From the report of his honour, the evidence was in substance this:

Andrew Craig the intestate, had adopted the wife of Tucker at a very early age, and maintained her in his house until her marriage. After that event, he frequently manifested his kindness to her family, and in one or two unfinished wills which he left at his death, appeared to have designed a legacy of about 1000 l. for her husband and children. He died on the 20th August 1805 intestate and without issue, leaving a widow, a brother and sister, and some nephews and nieces the children of deceased brothers and sisters. His widow, who by the law of New Jersey where he had lived, was intitled to half his personal estate, proved upon the trial, that about the 17th of August 1805, her husband, having then a sketch of a will in his hand, which he was too ill to finish said to her, " I have bonds against Benjamin Tucker (the defendant) to the amount of about 1000 l., which I give to his children to be divided between them." He told her where they were, wrapt up in the pigeon-hole of a desk, of which he delivered her the key and requested her to go and get them. She accordingly got them and locked them up until after his death, when she delivered them to the defendants. After the delivery Tucker, imprudently, but not with any dishonest view, cancelled them, and induced the original obligee, who had assigned them and a mortgage for securing them, to the intestate, to enter satisfaction of record.

Judge Yeates charged the jury, that if they believed the evidence of Mrs. Craig, they ought to find for the defendants, as he was of opinion that the delivery of the bonds to the wife for the children, made them a good donatio causa mortis.

The jury found for the defendants; and now upon a motion for a new trial,

Ingersoll for the plaintiff contended, 1. That the verdict was against evidence. 2. That the judge misdirected the jury, inasmuch as a delivery by the husband to his wife was not sufficient to constitute a valid donatio causa mortis.

Upon the first point the argument is not material. On the second he argued, that this gift wanted an essential requisite to make it valid, and therefore the plaintiff was intitled as administrator. The bond he conceded was a proper subject of this kind of gift, though it was formerly held otherwise. 3 Woodeson 513-14. But delivery he said was essential, such a delivery as the donor could not recal. Ward v. Turner ^[a] , Drury v. Smith ^[b]. A donation causa mortis is subject to but one condition, the restoration of the donor to health. It is not revocable by him, and therefore an irrevocable delivery is of the essence of the gift. Were it not so, these gifts would entirely defeat the statute of wills, and would lead to endless litigation and perjury. They are not subject even to the rules which regulate nuncupative wills; and they are therefore the most dangerous of all dispositions of property. It cannot be surprising then that the law watches them with great jealousy, and that where there is not a gift which transfers the possession, the donation is ineffectual. In mortis causa donatione, dominium non transit sine traditione. Voet on the Pandects, lib. 39. tit. 6. num. 3. 6. There is no case which comes up to this. A delivery to a servant to give to a wife may be good, as in Miller v. Miller, ^[c] because the delivery to the servant is absolute; but a delivery to the wife for a third person is not so. She is sub potestate viri, and he may at any time countermand his gift; in fact the possession in such a case does not change hands. To say that it is in nature of a testamentary disposition, and therefore revocable, and from thence to argue that absolute delivery is not necessary, begs the question. It is not a testamentary disposition. If it were, the law would not permit one witness to sustain it. So it is a fallacy to say that the wife may accept livery of seisin for, or deliver it to her husband, because still the question recurs, is she not in point of law subject to the authority and commands of her husband? It is not easy to discern the use of a delivery except to prevent a countermand. It is true, that a delivery to the wife for her own benefit is said in one case to be good. But as to property, the wife is in equity considered as a feme sole; not so, as to her subjection to the husband's authority. It will be a most dangerous precedent to establish, that a wife, upon her single oath, and so ambiguous a delivery as this, may set up donations by her husband to defeat the next of kin. It will be a complete overthrow of all the statutory precautions in relation to written and nuncupative wills.

Hallowell and Rawle contra. The testimony of Mrs. Craig was decisive as to the facts, if she was believed; and no one could disbelieve her who saw her manner of giving testimony, and recollected that she was speaking against her own interest.

The point of law is almost equally clear. No doubt delivery is essential, but a valid delivery was made to the wife. The danger of these gifts is not the question, but whether the law has authorized them under the present circumstances. It authorizes the wife to act so far like a feme sole as to deliver seisin to her husband; Co. Litt. 52 a; a fortiori she may deliver seisin to a stranger for him. She may act as executrix to a third person. She may be attorney for her husband. Why then is not a delivery to her for a third person good? It is answered, because it is revocable. So is every such gift. In Jones v. Selby, ^[a] it is said by the Lord Chancellor to have been conceded by counsel. It is a consequence of its testamentary character, which runs pretty generally through it, making it even liable for debts, though it would not be if a donatio inter vivos. Ward v. Turner. ^[a] It is further said that the wife is under the husband's authority, and he therefore may countermand. That does not follow. If the husband makes his wife an attorney for the benefit of a third person, he cannot countermand. In Miller v. Miller the donation was to a servant for the wife who was present, and he handed it over to her immediately; yet it was held good. In Lawson v. Lawson ^[b] the husband gave a purse to his wife for her own use, and it was held good. And in Drury v. Smith the gift was supported, though to a third person for the use of an absent donee. Now if a delivery is good though made to one person for another, and if the wife may be either directly or mediately the donee, what sound reason can there be against her being the person to whom the delivery is made, and a friend or relation the donee? If she is sub potestate viri as to the possession, so must she be as to the property. If the former may be revoked, so may the latter. If she cannot take to deliver over, she cannot take to hold. Danger there may be in some cases. It is the duty of judges and juries to watch this kind of gift. But it never can be dangerous where, as in this case, there is clear evidence of a fixed purpose of bounty in the donor towards the donee, and the gift and delivery are supported by a witness against her own interest.

TILGHMAN C. J.

This is an action of trover for two bonds which were the property of A. Craig the plaintiff's intestate. The defendants claim them as a donatio causa mortis made by Andrew Craig in his last illness to the children of the defendants. Andrew Craig died intestate, and without issue, and the gift was proved by Theodosia Craig, his widow, who is intitled by law to one half of her husband's personal estate. She swore, that the gift was made by her husband about three days before his death, and the bonds delivered to her, to be by her delivered over, and that she kept them locked up in her trunk till after the death of her husband, when she gave them to the defendants for the use of their children.

The first reason offered for a new trial, is that the verdict was against evidence. But this does not appear to have been by any means the case; for the witness who proved the gift was of irreproachable character, and swearing against her own interest. Her credibility was submitted to the jury, and I cannot say that they were wrong in believing her.

The second reason for a new trial is, that there was no delivery of the bonds, which is essential to a gift of this kind; that a delivery to the wife, was, in point of law, no delivery at all, and that the judge who tried the cause erred in not charging the jury accordingly. This is the only point for consideration.

A donatio causa mortis is a gift of a...