Coleman v. Parker

114 Mass. 30

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1873
• Status: Published

Opinion

Ames, J.

The only question raised upon this bill of exceptions is- as to the correctness of the ruling at the trial, that the case furnishes no evidence of any delivery of the trunk and its contents to the plaintiff, or to any one on her behalf. The evidence reported was sufficient to make out all the other elements necessary to maintain her title. But it is not enough merely to show that the dying person intended to make the gift, and that she designated with proper distinctness what was to be given and to whom. It is necessary also to the plaintiff’s case to show that the intention was carried into effect, and that the gift was consummated by an actual or effective delivery. Parish v. Stone, 14 . This term “ delivery ” is not to be taken in such a narrow sense as to import that the chattel or property is to go literally into the hands of the recipient and to be carried away. There are many articles which might be made the subjects of a donation mortis eausd, in which a manual delivery of that kind might be inconvenient or impracticable. We have no doubt that a trunk with its contents might be effectually given and delivered, in such a case, by a delivery of the key, not as a symbolical delivery of the property, but because it is the means of obtaining possession. Ward v. Turner, 2 Ves. Sen. 431, 443. If the key in this case had been placed in the hands of the witness, the donor relinquishing all dominion and control over it, and parting with it absolutely, or if by direction of the donor the witness had taken it into her possession and exclusive control, there would have been a sufficient delivery to make out a full title in the plaintiff. Wing v. Merchant, 57 Maine, 383. Dole v. Lincoln, 31 Maine, 422. But the evidence reported wholly fails to show that the witness had or was intended to have any such exclusive control or possession of the key. On the contrary, the evidence is that after putting some dresses into the trunk, she was directed by the sick woman to lock the trunk and put the key back where she found it, and that it remained there until after the death of the sick woman. There was therefore no such change in the possession of the key as would constitute an effectual delivery of the trunk. Bunn v. Markham, 7 Taunt. 224.

We must hold for these reasons that, even upon the assumption that the witness might be considered as the agent and representa* tive of the plaintiff, there was no evidence of delivery to her.

Exceptions overruled.