Stratton v. Athol Savings Bank

Hammond, J. The first contention of the claimant is that there was a donatio mortis causa of this bank book to him. In the case of a gift mortis causa as well as in that of a gift inter vivas a delivery to the donee, or to some one for him, during the lifetime of the donor is necessary to the validity of the gift.. The gift “must be completely executed, precisely as required in the case of gifts inter vivas, subject to be divested by the happening of any of the conditions subsequent, that is, upon actual revocation by the donor, or by the donor’s surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and inter vivas. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved ás a will.” Matthews, J., in Basket v. Hassell, 107 U. S. 602, 609. While the delivery may be made by the donor to some one for the donee, and in such case is good even although the thing given is not transmitted to the donee until after the death of the donor, still the delivery must be such as to transfer the title during the lifetime of the donor, a title defeasible, it is true, but complete in the donee until so defeated, the only difference in this [49] respect between a gift inter vivas and a gift mortis causa being that the former is indefeasible while the latter is defeasible. Duryea v. Harvey, 183 Mass. 429, and authorities therein cited. Was there such a delivery? Thé judge before whom without a jury the case was tried has found that Mrs. Taft did not intend that the order and bank book should be delivered to the donee Taft during her lifetime, and further found that Whitney held both the order and bank book as her attorney and representative during her lifetime and subject to her orders; and that there was no delivery to the donee or to any one for him and that no title or possession passed to the donee during the lifetime of the donor. The finding that the order and book were held by Whitney subject to her order, when taken in connection with the finding that he held them as her attorney, must be taken to mean not that he held them subject only to the general right of revocation of a gift completed by delivery, but subject to every order which the donor might give him with reference to them as her own property. In other words she had not lost her control over it as the general owner. The claimant insists that these findings are not warranted by the evidence. But this position seems untenable. The judge had the witnesses before him, and in view of the statements made by Whitney in the two letters written by him and of his testimony on cross-examination as to the conversation and as to those letters, he may have come to the conclusion that the statement made by Whitney in his direct examination as to the precise language used by Mrs. Taft was not in all respects accurate, that Whitney understood from the language actually used that he was to hold the order and book as her agent and not as the agent of the donee and that such also was the understanding of Mrs. Taft. Upon the whole evidence the question of delivery was one of fact, and the findings upon that part of the case must stand. The second contention of the claimant is that there was a complete assignment of the book. But here, as elsewhere in the case, there was no completion by delivery. The written paper was still held by Whitney undelivered and under the full control of the assignor. There was no executed contract. Upon the foregoing findings the court properly refused to rule as requested by the claimant, and rightly ruled, as requested by [50] the plaintiff, that the claimant could not prevail. The case differs materially from Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425, cited by the defendant. The exceptions as to the admission and rejection of evidence were not argued by the claimant, and in view of their nature we consider them waived. Exceptions overruled.