Sessions v. Moseley

58 Mass. 87

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1849
• Status: Published

Opinion

Shaw, C. J.

This action is brought in the name of the administrator of Festus Work, upon a promissory note made by the defendant, payable to the intestate. The suit is brought by Danford Work, a brother of the intestate, and the only question is, whether Danford is entitled to recover the amount, and hold it to his own use, upon the ground of a gift from the intestate to him. This note was placed, with others, in the hands of a sister of the intestate, by him, during his last sickness, with directions to her to deliver the notes as set forth in her deposition.

The question is, whether, under the circumstances, the transaction, as stated by the sister, constituted a valid gift of Moseley’s note by the intestate, either as a gift inter vivos, or as a good donatio causa mortis. The inquiry before us relates to the correctness of the instructions given by the court to the jury. The judge instructed the jury, that if Festus Work, being sick and apprehensive of death, gave into the hands of Lurancy the note in suit, with directions to give it, after his death, to Danford Work for his own, and she kept the note till after the death of Festus, and then gave it to Danford, and he accepted it, the plaintiff was entitled to recover.

This, we think, was correct. Here are all the requisites for a good donatio mortis causa. A note of hand of a third person, a security for money, or a chose in action, however it may have been formerly considered, is now held to be a proper subject of such a gift. There was an actual delivery to a person for the use of the donee; an expectation of death-; the death of the donor ensuing; a subsequent delivery to the donee; and an acceptance of the gift by him. Parish v. Stone, 14 Pick. 198.

The court further instructed the jury, that if they believed that Festus gave the note to Lurancy without any apprehension of death, directing her to give it to Danford, when she should see him, and meant to make a gift of it to Dan-ford, whether he should live or die, and Lurancy gave the note to Danford, and he accepted it, then the plaintiff was entitled to recover.

The court are of opinion, that this instruction cannot be supported. It regards the transaction as a gift inter-vivos, though not assented to by-the donee, or even known'to him and not delivered to him till after the donor’s death.

The difference between a gift inter vivos and a gift causa mortis is this : the former is absolute, irrevocable, and complete, whether the donor die or not; the subject of it must therefore be delivered to the donee or to some other person, with his consent, for his use, and must be accepted by him. Grover v. Grover, 24 Pick. 261. If, therefore, it be delivered to a third person, with authority to deliver it to the donee, this depositary, until the authority is executed by an actual delivery to and acceptance by the donee, is the agent of the donor, who may revoke the authority and take back the gift; and, therefore, if the delivery do not take place in the donor’s lifetime, the authority is revoked by his death; the property does not pass, but remains in the donor, and goes to his executor or administrator. But if intended as a gift causa mortis, it could not become absolute and irrevocable till the death of the donor; and, therefore, if delivered to and accepted by the donee, after the decease of the donor, it is sufficient ; although it must be remembered, that even as a good and valid donatio causa mortis, no such gift can avail against creditors. Tate v. Hilbert, 2 Ves. Jr. 111.

As the jury may have given their verdict under the second instruction, we think the verdict must be set aside, and a new trial granted;