Whitney v. Wheeler

116 Mass. 490, 1875 Mass. LEXIS 21

• Court: Massachusetts Supreme Judicial Court
• Decided: January 9, 1875
• Status: Published

Opinion

Wells, J.

Before the recent statutes, securing to married women their separate rights of property, gifts causa mortis from a husband to bis wife were sustained. 2 Redf. Wills, c. 12, § 42, pl. 13. Lawson v. Lawson, 1 P. Wms. 441. Miller v. Miller, 3 P. Wms. 356. Walter v. Hodge, 2 Swanst. 92. The proviso that nothing in those statutes shall authorize the husband to convey or give property to his wife, Gen. Sts. c. 108, § 10, does not operate to render invalid what was before held to be valid.

Gifts mortis causa, like testamentary gifts, express the state of mind and disposition of the donor towards the donee, and his purpose in regard to the bestowal of his estate. When there is any ground for doubt as to the intent with which a delivery of property was made, or whether in fact its possession was obtained by delivery as a voluntary gift or in some other mode, evidence tending to show a continuous and apparently fixed state of mind and purpose, inconsistent with such alleged gift, existing previously thereto, may have a legitimate bearing upon the case to affect the inferences to be drawn from the facts and circumstances attending the transaction.

The precise state of the testimony in this case is not disclosed upon the bill of exceptions. It appears merely that “ the defendant claimed and introduced evidence tending to show ” that the bond “had been given to her by her husband ” “as a donatio causa mortis ; ” and that the plaintiff “ claimed and introduced evidence tending to show that no such gift was ever made.” In this position of the case, we see nothing to justify the exclusion of evidence offered to show the existence of a state of mind and purpose in the supposed donor inconsistent with the alleged gift.

Exceptions sustained.