Whitney v. Wheeler

• Decision Date: 09 January 1875
• Citation: 116 Mass. 490
• Parties: George Whitney, administrator, v. Elizabeth Wheeler
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 490

George Whitney, administrator, v. Elizabeth Wheeler

Supreme Court of Massachusetts

January 9, 1875

Argued October 5, 1874

Worcester. Tort for the conversion of a United States bond of the denomination of $ 500, alleged to belong to the estate of Jonathan Wheeler, the plaintiff's testator. The answer was a general denial. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows:

The defendant contended and introduced evidence tending to show that she was the owner of the bond in question, and that it had been given to her by her husband, the said Jonathan, as a donatio causa mortis.

The plaintiff requested the judge to rule that there could be no valid donatio causa mortis from a husband to his wife, and that such a defence could not be sustained. But the judge for the purposes of the trial, ruled that a valid donatio causa mortis could be made by the husband directly to the wife.

The plaintiff introduced evidence tending to show that no such gift was ever made by the testator to the defendant. It was in evidence that, at the time of his marriage, Jonathan Wheeler was a man seventy-four years of age, had been twice before married, and had a family of four adult children living, and that the defendant was then a widow with five children, and that an antenuptial contract was executed between them, by which Mrs. Wheeler retained her own property, and at the decease of the testator was to receive the use and improvement of one third of his real and personal estate so long as she should live, in lieu of dower and all claim whatsoever upon his estate, and that shortly after the marriage a will was executed by Wheeler, disposing of his property in conformity with the terms of this contract.

The plaintiff offered evidence to show that the testator, at different times from the year 1866 to the day of his decease in 1872, had declared his intention to adhere to the disposition of the property made by the will and marriage contract; that not long previous to his death, but before the alleged donatio, he had expressed his fear that his wife had been secreting money obtained from his property, and had deposited it in the Fitchburg Savings Bank, and that he requested the witness, his son-in-law, to go there to ascertain if such was the fact; and also that on the day preceding his death, and a few days after the alleged gift, he had stated to this witness that he feared his wife and her friends, after his death, would take all there was of his estate, and begged that he would look after his estate and see that his children were not defrauded. He also offered to prove that, only a few hours previous to the time of the alleged gift, Jonathan Wheeler had expressed himself confident that he should recover; also, that on the Sunday succeeding the Friday on which the alleged gift was made, Wheeler, in conversation with the witness, in answer to an inquiry as to his health, stated that he was doing well, and believed he should ultimately recover; and, that from the Thursday preceding the alleged gift, to the Sunday succeeding, there had been no material change in his physical condition.

The defendant had previously introduced evidence that, at the time of the alleged gift, Wheeler had stated that he considered it doubtful if he should live long.

The judge...