Drew v. Hagerty , 81 Me. 231 ( 1889 )

Walton, J.

The most important question is whether the gift of a savings-bank book, from husband to wife, causé mortis, is valid without delivery, provided the book is at the time of the alleged gift already in the possession of the wife. The action was tried before the Chief Justice, and he ruled that to constitute a valid gift, causé mortis, there must be a delivery; that if the property “be at the time already in the possession of the donee, the donor’s saying to the donee, ‘you may have it,’ or ‘you may keep it — it shall be yours,’ does not pass the property in the case of a gift causé mortis.”

We think this ruling was correct. If the act of delivery was for no other purpose than to invest the donee with possession, no reason is perceived why it might not be dispensed with, when the donee already had possession. But such is not its only purpose. It is essential in order to distinguish .a gift, causé mortis, from a legacy. Without an act of delivery, an oral disposition of property, in contemplation of death, could be sustained only as a nuncupative will; and in the manner and with the limitations provided for such wills. Delivery is also important as evidence of deliberation and intention. ■ It is a test of sincerity and distinguishes idle talk from serious purposes. And it makes fraud and perjury more difficult. Mere words are easily misrepresented. Even the change of an emphasis may make %em convey a meaning different from what the speaker intended. Not so of an act of delivery. Like the delivery of a turf, or the delivery of a twig, in the ancient mode of conveying estates, or the delivery of a kernel of corn, or the payment of one cent of the purchase money, to make valid a contract for the sale of a cargo of grain, an act of delivery accomplishes that which words alone can not accomplish. Gifts, eausd mortis, ought not to be encouraged. They are often sustained by fraud and perjury. It was an attempt to sustain such a gift by fraud and perjury that led to the enactment of the statute for the prevention of fraud and perjury. See Matthews v. Warner, 4 Vesey, Jr., 187, 196, note; Leathers v. Greenacre, 53 Maine, 561, 569. As said in Hatch v. Atkinson, 56 Maine, 326, it is far better that occasionally a gift of this kind should fail than that the rules of law be so relaxed as to encourage fraud and perjury.

We are aware that some text writers have assumed that when the property is already in the possession of the donee, a delivery is not necessary. But the cases cited in support of the doctrine nearly all relate to gifts, inter vivos, and not to gifts causé mortis. A gift, inter 'vivos, may be sustained without a distinct act of delivery at the time of the gift, if the property is then in the possession of the donee, and the gift is supported by long acquiescence of the donor, or other entirely satisfactory evidence. This court so held in Wing v. Merchant, 57 Maine, 383, and the jury were so instructed in this case, and the defendant had the benefit of the instruction. But the question we are now considering is not whether a gift, inter vivos, can be sustained without a distinct act of delivery, but whether such a relaxation of the law can be allowed in the case of a gift causé mortis. We think not. Ileason and the weight of authority are opposed to such a relaxation. Hatch v. Atkinson, 56 Maine, 324, 327; Lane v. Lane, 76 Maine, 521; Parcher v. Savings Inst., 78 Maine, 470; Dunbar v. Dunbar, 80 Maine, 152; Miller v. Jeffries, 4 Gratt. 472; French v. Raymond, 39 Vt. 623; Cutting v. Gilman, 41 N. H. 147; Delmotte v. Taylor, 1 Red. (N. Y.) 417; Egerton v. Egerton, 17 N. J. Eq. 419; Kenney v. Pul. Adm., 2 Bradf. (N. Y.) 319; 2 Kent’s Com. (10th ed.) 602, and note; Dickeschied v. Exchange Bank, 28 W. Va. 340; Walsh's Appeal, (Pa.) 1 L. R. A. 535, and note.

It is the opinion of the court that the gift of a savings-bank book, causé mortis, to be valid, must be accompanied by an actual delivery of the book from the donor to the donee, or to some one for the donee; and that the delivery must be made for the express purpose of consummating the gift; and that a previous and continuing possession by tbe donee is not sufficient; and that in this, and in all particulars, the rulings in tbe court below were correct; and that no cause exists for granting a new trial.

Motion and exceptions overruled.

Peters, C. J., Daneorth, Virgin, Emery and Haskell, JJ., concurred.