Sheedy v. Roach

Endicoti, J. We have no doubt that a deposit in a savings bank may be the subject matter of a valid donatio eausd mortis, and the gift may be proved by the delivery of the bank book representing the deposit, accompanied by an assignment to the donee. As a gift inter vivas, it vests a complete title in the donee at once; as a gift in contemplation of death, the title is complete on- the death of the donor. As between the parties, the delivery of the book and assignment is all the delivery of which the subject is capable. Such a delivery may be consistent with other purposes; but if it is clear, upon the evidence, that the donor intended by the act, and in contemplation of death, to make the gift to the donee as a final disposition of the property, it is a good donatio eausd mortis. Grover v. Grover, 24 Pick. 261. Sessions v. Moseley, 4 Cush. 87. Bates v. Kempton, 7 Gray, 382. Chase v. Redding, 13 Gray, 418. Tillinghast v. Wheaton, 8 R. I. 536. Coutant v. Schuyler, 1 Paige, 316. It was decided in Clough v. Clough, 117 Mass. 83, that the validity of a donatio eausd mortis was not affected by the fact that the donee took it for third persons as a trust, the terms and limitations of which were prescribed by the donor, and might vary according to subsequent events. In that case, the gift was a sum of money delivered to the donee with instructions that he should hold it until his son was twenty-one,.and then pay it over to him with its accumulations; but if the son should die before he was twenty-one, then the money with its accumulations was to be given in equal parts to the mother and sister of the donor. The intention on the part of the donor to create a trust was manifest. There was no discretion in the donee to carry out [476] the purpose of the donor, but the duty was imperative upon him, and the persons who were the objects of the donor’s bounty were clearly designated, so that the donee could execute the trust, or a court of equity could enforce it according to the intention of the donor. See Drury v. Smith, 1 P. Wms. 404; Blount v. Burrow, 4 Bro. Ch. 72; Hills v. Hills, 8 M. & W. 401; Sessions v. Moseley, ubi supra; Dresser v. Dresser, 46 Maine, 48; Marshall v. Berry, 13 Allen, 43, 46; 1 Story Eq. Jur. § 607 e; 1 Perry on Trusts, § 87. In Dole v. Lincoln, 31 Maine, 422, as explained in Dresser v. Dresser, above cited, the gift was held to be invalid, not on the ground that it was in trust, but because the trust was so indefinite and uncertain that it could not be executed. As a trust may thus be created by a- donatio causd mortis, it follows, that, in determining its validity, it must be subjected to the same tests that are applied to other trusts. Among the essentials of a valid trust are, that the precise nature of the trust which the donor intended to create should appear, and that the particular persons who are to take as eestuis que trust, and the proportions in which they are to take, should be pointed out. If they are not, then the trust cannot be executed, and it must fail. Where the character of a trust is impressed upon the gift, and it fails, because ineffectually declared, and the eestuis que trust are not clearly designated, the trustee is not entitled to the gift for his own benefit. It was said by Lord Eldon, in Morice v. Bishop of Durham, 10 Ves. 521, 537, that, “though the trust is not declared, or is ineffectually declared, or becomes incapable of taking effect, the party taking shall be a trusteeif not for those who were to take by the will, for those who take under the disposition of the law.” Briggs v. Penny, 3 Macn. & Gord. 546. Warner v. Bates, 98 Mass. 274. Hess v. Singler, 114 Mass. 56. 1 Perry on Trusts, § 83, and cases cited. Lewin on Trusts, (5th ed.) 46. This brief statement, touching a material requisite of a valid trust, has a direct application to the case at bar. It appears from the bill of exceptions that there was evidence tending to show that Mrs. Sheedy, in contemplation of death, and one week before her death occurred, gave and delivered to the defendant her bank book, with an order for the whole deposit, signed by her with a full knowledge of its contents. The [477] defendant contended, and offered evidence to prove, that this waa an absolute gift to her, without any instructions as to the disposition of the money. The bill of exceptions also states that “ there was evidence tending to show that Mrs. Sheedy intended, in the event of her decease, that the money should be distributed among certain of her relations and other friends, including the defendant.” This is followed by a short recital of the declarations made by Mrs. Sheedy on that subject, before and at the time she executed the order. Whether this was all the evidence bearing on the question of her purpose or intention in making the gift does not appear. It is imperfectly reported, and is confused and contradictory; and while many different persons appear to have been named or referred to by her, to whom “ she wanted to leave some of it,” or “ expressed her wish that the money should go,” or stated that she “intended should have some of the money,” she did not declare the amounts which each should receive, except in the case of her parents, to whom “ she wanted to leave” $200.' It also appears that she stated in substance, in presence of one of the witnesses, that “ Katie,” whom we presume to be the defendant, should not have any of it, “ as she had enough of her.own.” It is impossible to ascertain, on this evidence, what particular persons the donor intended should receive the money, or in what proportions. But it was for the jury to decide upon this testimony, taken in connection with all the evidence in the case, whether the gift to the defendant was absolute and for her sole use and benefit, or was intended by the donor to be placed in the defendant’s hands for distribution among relatives and friends, whom she failed to designate with' sufficient certainty. For, if the character of a trust was impressed upon the gift by the declarations of the donor, then the donee cannot take for her own benefit, although the trust is so imperfectly declared that it cannot be enforced.- Whether the trust is perfectly or imperfectly declared, the trustee can take nothing for her own use. See Briggs v. Penny and Warner v. Bates, ubi supra. We are therefore of opinion that the sixth instruction requested by the plaintiff should have peen given. The instructions actually given and reported in the bill of exceptions do not cover the precise question raised in this request of the plaintiff, [478] and the last instruction given to the jury seems to assume that if any distribution of the money was intended among other persons, it was left to the discretion of the defendant. If the distribution was left to the discretion of the defendant, there was no trust and she took absolutely; but, as there was evidence from which the jury could have inferred that the donor did not intend to leave the distribution to the discretion of the defendant, but to provide directly for her relatives and friends, that question should have been submitted to the jury. Exceptions sustained.