Madeira's Appeal

Opinion by Mr. Justice Gordon: Had Walter C. Madeira executed an assignment of the policy in question to his wife, the appellee, there could have been little, if any, doubt as to her right to the proceeds, though the delivery of that assignment had been evidenced by nothing more than its deposit in a box or other receptacle common to the use of both husband.and wife. But, says Mr. Justice Siiarswood in Bond v. Bunting, 78 Pa. 210: “Is not a gift an assignment, perfected by a delivery which debars the donor from revocation ?” Undoubtedly it is, and this doctrine is recognized in Re Gray, 1 Pa. St. 327. It is, however, hardly necessary to refer to authorities in support of a principle now so well established. The difference will be found solely in the method of proof; in all other particulars an assignment without valuable consideration and a gift are alike. The legal requisition is that the intention of the donor be established by clear and precise evidence, and that the delivery be secundum subjectam materiam. Now, that Walter C- Madeira, in taking the policy on his own life, intended it exclusively for the benefit and use of his wife, cannot, if we adhere to the evidence, be very well doubted. He desired in the first instance, and before their marriage, to have it drawn to her use, but she, from feelings of delicacy, requested him not to do so. Not the less, however, did he design a gift of this policy to her; his declarations to this effect are clear and positive, and made, not only at and about the time he insured, but they were repeated frequently up to within a day or two of his death. [495] Nor, we think, can there be any serious doubt concerning the validity of the delivery of this paper, especially as the matter does not affect creditors, but is merely a contest between the wife and volunteers. The policy was put into a tin box which contained, as she testifies, “the North American Insurance stock that was in my name and every thing that he and I had together ; everything that I owned was in that box; I had no valuable papers anywhere except what were in that box.” This box was delivered to her by her husband. She says: “The tin box, when we went out to Madeira’s was taken out of my trunk, and Walter asked me if I would give it to mamma to keep for me. I gave it to her. Remember saying: T want you to keep this box, because it contains all our worldly goods.’ ” In the keeping of Mrs. Neidhard that box remained until after Madeira’s death. We think as between husband and wife this was a sufficient delivery. It is true, she did not take the policy out of the box and put it beyond her husband’s reach, as she might at any time have done. But why should she do so ? She had no reason to doubt the intention of her husband or to suppose he would revoke, his gift, and, moreover, it was never out of her possession from the time of its delivery till after the death of the donor, for it was expressly committed to Mrs. Neidhard’s custody for her. Certainly, this delivery was quite as complete as that in the ease of Crawford’s Appeal, 61 Pa. 52, 100 Am. Dec. 609, where a husband directed a clerk to enter on his books a credit to his wife in the sum of $3,000, and annually added the interest thereto until his death. There was in this case no delivery which was good for anything, either as against the husband or his creditors, yet, as against volunteers, it was held to raise a valid trust in favor of the wife. We would, indeed, regard it as a very ungracious task were we compelled to take the gift of a kind though perhaps careless husband to his confiding wife and transfer it to those for whom he never intended it. It is true, we would do so did the law and facts of the case so determine; and so, doubtless, would the court below have done under like circumstances; but as the matter now stands, as facts and law are with the appellee, we aré rather pleased to affirm the decree of the orphans’ court. The appeal is dismissed and the decree affirmed, at the costs of the appellants.