Curtis v. Portland Savings Bank

Savings bank deposits. Gift. The plaintiff, by direction of her aunt four days before her death, took a key from her bureau drawer, unlocked her trunk and took therefrom her savings bank book, and thereupon the aunt said to the plaintiff: “Now keep this and if anything happens to me, bury me decently and put a headstone over me, and anything that is left is yours.” Held, a donatio causa mortis, coupled with the trust indicated.

On report. Assumpsit for money had and received. The writ was dated September 6, 1883. The plea was the general issue. The plaintiff is the niece of Mrs. Jane McCue, deceased, and brings this action to recover the balance due on the deposit made by Mrs. McCue in her lifetime, in the defendant bank. The plaintiff’ went with Mrs. McCue to the bank in March, 1878, when, by her aunt’s direction, an officer of the bank made this memorandum on the deposit book, "Sub. also to Cath. E. Curtis.” Mrs. McCue retained possession of the deposit book and subsequently on various occasions both deposited and drew out money on the deposit. The plaintiff testified that " about noon on the 30th of May, 1883, a year ago. She [Mrs. McCue] called me to her and asked me if we were alone ; 1 told her yes. She said, ' Go to the bureau drawer and get the key.’ I went to the bureau drawer and got the key. She had two. She said, 'Take that key and unlock the trunk.’ I unlocked the trunk and took the book to her. She said, 'Now, keep this and if anything happens to me bury me decently and put a headstone over me, and anything that is left is yours.’ . " Cross examined. Q. If I understand you, you say your aunt said to you, 'Take this book and if anything happens to me bury me, pay my debts and whatever there is left is yours ? ’ A. Yes.” The plaintiff then took the book and kept it, and her aunt died June 4, 1883. cited: Davis v. Ney, 125 Mass. 590; Pierce v. Sav. Rank, 129 Mass. 425; Hill v. Stevenson, 63 Maine, 367 ; 3 Redf. Wills, c. 12 ; Parish v. Stone, 14 Pick. 198. The law requires clear and unmistakable proof of the following’ facts to sustain a gift causa mortis: 1. An intention on the part of the donor accompanied by evidence, that this intention has been perfected by an actual gift. 2. Delivery to the donee, who must retain possession until after the decease of the donor. 3. The donor must part with all interest in the property and dominion over it, subject only to revocation if death does not ensue. 4. The donation must be made in contemplation of near approach of death. 5. The gift must be so complete inform that no other act is required to be done. Allen v. Polereczky, 31 Maine, 339 ; Northrop v.. Hale, 73 Maine, 66 ; Dole v. Lincoln, 31 Maine, 422; Hatch v. Atkinson, 56 Maine, 324. In the case at bar there was no " clear and unmistakable proof” of an intention to give the funds represented by the pass book. Indeed the debts, funeral expenses, &c. of Mrs. McCue was first to be paid. She retained an interest inconsistent with an intention to make a gift.