Keepers v. Fidelity Title & Deposit Co.

The opinion of the court was delivered by Dixon, J. The first question for solution is whether the delivery of the key of a box containing valuable papers is sufficient delivery to constitute a valid donatio moHis causa of the papers, when the box is not in the presence or immediate control of the donor and does not pass into the actual possession of the donee during the lifetime of the donor. The leading case on the subject of donations mortis causa is Ward v. Turner, 2 Ves. Sr. 431 (A. D. 1752), where Lord Chancellor Hardwicke laid down the rule, with reference to delivery) which has ever since formed the basis whereon such-gifts are supported. After showing that the recognition of donations mortis causa by the common law was derived from the civil law, he declared that the civil law had been “received in England, in respect of such donations, only so far as attended with delivery, or what the civil law calls tradition;” that “tradition or delivery is necessary to make a good donation mortis causa.” He further said: “ It is argued that, though some delivery is necessary, yet delivery of the thing is not necessary, but delivery of anything by way of a symbol is sufficient; but I cannot agree to that, nor do I find — 306 — any authority for that in the civil law, which required delivery in some gifts, or in the law of England, which required delivery throughout. "Where the civil law requires it, they require actual tradition, delivery over of the thing. So in all the cases in this court, delivery of the thing given is relied on, and not in the name of the thing. * * * Yet,” he added, “notwithstanding, delivery of the key of bulky goods, where wines, &c., are, has been allowed as delivery of the possession, because it is the way of coming at the possession or to make use of the thing.” Although this doctrine has received general approval in the courts of England and of this country, yet some divergence has taken place respecting the facts which may constitute the delivery required. For the purpose of giving effect to the difference mentioned by Lord Hardwicke between articles that were bulky and those that were not, it was usually stated in the earlier cases that the delivery must be according to the nature of the thing given, such as the thing was reasonably capable of, while in later cases, as if ignoring the ground of the distinction, it has often been asserted that the situation as well as the nature of the thing must be taken into consideration, and only such delivery was requisite as, under all the circumstances, the donor could conveniently make. On this footing, it has in some instances been adjudged that delivery of the key was sufficient delivery for a valid donation mortis oausa of money or documents locked in a trunk or other receptacle, not within the presence or immediate control of the donor, and not otherwise transferred to the possession of the donee. Cooper v. Burr, 45 Barb. 9; Marsh v. Fuller, 18 N. H. 360; Jones v. Brown, 34 Id. 439; Thomas v. Lewis, 89 Va. 1; Phipard v. Phipard, 8 N. Y. Sup. 728; Pink v. Church, 14 Id. 337. That in this respect these cases depart from the view intended to be expressed in the leading case is, I think, manifest by noticing "Lord Hardwick e’s comment on Jones v. Selby, Prec. Ch. 289, and his ruling in Smith v. Smith, 2 Str. 955. — 307 — In Jones v. Selby the donor had called his cousin, who was his housekeeper, and two of his servants, and said: “ I give to my cousin, Mrs. Wetherley, this hair trunk and all that is contained in it,” and delivered her the key thereof; and, on the strength of this, Mrs. Wetherley claimed a £500 tally as part of the contents of the trunk. This claim was allowed by the Master of the Rolls as a valid donatio mortis causa, and would have been allowed by Lord Chancellor Cowper on appeal, except for lack of full proof that the tally was in the trunk at the time, and his conclusion that the gift was satisfied by a legacy to the donee given in a will subsequently made by the donor. .On this, Lord Hardwicke’s comment was : “ The only case wherein such a symbol seems to have been held good is Jones v. Selby, but I am of opinion that amounted to the same thing as delivery of the possession of the tally, provided it was in the-trunk at the time.” He thus seems to state that, with regard to the tally, the key was but a symbol, the delivery of which he had just declared to be insufficient, but that the circumstances showed a delivery of the trunk, and consequently of the tally if in the trunk. Smith v. Smith, 2 Str. 955, was a ruling at Nisi Prius, where the plaintiff’s intestate, having lodgings in the defendant’s house, had brought there furniture and plate, and had said that whatever he brought into those lodgings he did not intend to take away, but gave directly to defendant’s wife. Whenever he went out of town,' he used to leave the key of his lodgings with the defendant. He having died, probably out of town (Bunn v. Markham, 7 Taunt. 224), Lord Hardwicke, then Chief Justice, permitted the jury to find a valid gift. This ruling accords with thé view expressed in the leading case, upon the idea that the things given were too bulky for actual delivery, 'otherwise than by leaving them in the defendant’s house and giving him the key of the rooms. The same distinction is clearly noted in Hatch v. Atkinson, 56 Me. 324, and other cases. The opinion that delivery of a key is equivalent to the delivery of documents locked up under the key, is not at all — 308 — supported by the views announced in such cases as Hawkins v. Blewitt, 2 Esp. 663; Bunn v. Markham, 7 Taunt. 224, and Warriner v. Rogers, L. R., 16 Eq. 340, where the retention of the key by the donor was deemed to negative the claim of a gift, for, to constitute a gift, there must be, besides delivery of the thing, an intention to transfer to the donee complete dominion over it, and the withholding of the key proved that no such intention existed, notwithstanding the fact of delivery. FTor is that opinion, in its general form, fully sustained by cases like Debinson v. Emmons, 158 Mass. 592, where the receptacle was in. the immediate presence and control of the parties, in a room occupied by the donee as well as the donor, and where the only external sign of the exclusive possession of the receptacle was the actual possession of the key. Under such circumstances, tradition of the key might be considered tantamount to tradition of the receptacle and its contents, without giving the same force to the tradition of the key, when the receptacle was away from the presence of the parties and in the actual possession of a third person. We are not willing to approve the extreme views which have been adopted in the cases cited. We agree with the sentiment expressed in Ridden v. Thrall, 125 N. Y. 572, that “public policy requires that the laws regulating gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged.” When it is remembered that these gifts come into question only after death has closed the lips of the donor; that there is no legal limit to the amount which may be disposed of by means of them; that millions of dollars’ worth of property are locked up in vaults the keys of which are carried in the owners’ pockets, and that, under the rule applied in those cases, such wealth may be transferred from the dying owner to his attendant, provided the latter will take the key and swear that it was delivered to him by the deceased for the purpose of giving him the contents of the vault, the dangerous character of the rule becomes conspicuous. Around every other disposition of the property of the — 309 — dead, the legislative power has thrown safeguards against fraud and perjury. Around this mode the requirement of actual delivery is the only substantial protection, and the courts should not weaken it by, permitting the substitution of convenient and easily-proven devices. We think the trial justice properly decided that the evidence would not warrant the jury in finding such a delivery as is essential to a donation mortis causa. ' Nor was there any error in his ruling that the plaintiff had no title under the will of her father. That instrument made the estate of each of his- daughters indefeasible upon her arriving at the age of twenty-three years. Only in case she died before that period and without issue was' there a gift over to her surviving sister. Van Houghton v. Pennington, 4 Halst. Ch. 745. The judgment should be affirmed. For affirmance—The Chancellor, Chief Justice, Dixon, Lippincott, Reed, Van Syokel, Bogert, Krueger, Phelps, Smith. 10. For reversal—Abbett. 1. •