McGrath v. Reynolds

A written instrument, not duly attested as a will, by which a sum of money is given to another for certain purposes named, which is signed and delivered in expectation of death by the party at whose request it is made, and which is shown by the attending circumstances not to be intended as passing a gift inter vivo's, cannot give effect to the intended gift as a donatio causa mortis. A man, in expectation of death, caused a written instrument to be made by which he gave to A. a stated sum of money for certain purposes named, and for the purpose of carrying out its provisions delivered to him a savings bank book with an order for the payment of the deposits, which made up only a smaller portion of the sum named in the instrument. The donor, when asked by A. where the remainder was, said it was in his trowsers’ pocket, turning in his bed and looking towards the closet in which the trowsers were, and that E., who owned the house and who was present, would give it to him. After the donor’s death, E. delivered the money to A. Held, that there was no sufficient delivery of the money to give effect to the gift as a donatio causa mortis, and that it could not take effect otherwise than as an entire gift.

Bill in equity to obtain the instructions of the court as to the disposition of certain funds alleged to have been placed in the plaintiff’s hands by Bernard Reynolds, as a donatio causa mortis. The case was reserved by Colt, J., for the consideration of the full court, upon the bill and answers and a report, and appeared to be as follows : Bernard Reynolds on September 23,1873, sent for the plaintiff to come to him at Salem, where he was then lying very sick and in expectation of death. The plaintiff accordingly went to Salem and found Reynolds in bed in his room at the house of his sister, Ellen Gaffney, where he had been boarding for some three or four years. Reynolds then stated to the plaintiff that he had some money which he wished him to divide among his, Reynolds’s, relations. The plaintiff, after some objection, took a piece of paper and wrote at Reynolds’s direction as follows: “ Salem, Sept. 23, 1873. I give to Patrick McGrath $5758, to be divided as follows : ” he then, also at Reynolds’s direction, wrote the names of certain relatives of Reynolds, and then wrote against their names respectively certain sums of money. This paper Reynolds then signed and handed to McGrath. Reynolds then produced two savings bank books of the Emigrant Savings Bank of Boston, each showing a deposit of $900, and both in Reynolds’s name, and requested McGrath to fill out the blank orders printed in the books for the payment to McGrath of the amounts deposited, which McGrath accordingly did. The orders were then signed by Reynolds, and the books and orders delivered by him to McGrath, in whose possession they have been up to the present time. McGrath then, perceiving that the amount in the bank books fell short of $5758 mentioned in the paper above referred to, asked Reynolds where the rest of the money was; Reynolds told him that it was in his trowsers’ pocket, turning at the same time in the bed and looking towards the closet in which the trowsers were then hanging, and that Ellen would give it to him. There was then in the trowsers’ pocket the sum of $3850. Ellen, his sister, was then present and heard the question and answer, and had previously been informed by Reynolds where the money was. McGrath then took the books to the bank for the purpose of drawing the money, but it being represented to him that he would lose some of the interest by drawing it at that time, he requested to have the amounts assigned to him. One of the officers of the bank informed him that this could not be done upon the orders produced, but drew a form of assignment, which McGrath sent to Reynolds. Reynolds signed and gave it to his sister, with directions to give it to McGrath, and this she did after Reynolds’s death. Reynolds died the morning of September 27, 1873. In the evening of that day Ellen Gaffney took the money, amounting to $3850, as above stated, from his trowsers’ pocket, and placed it in her own trunk, and about three weeks after Reynolds’s death delivered it to McGrath. The bank having declined to pay over any money after the death of Reynolds, McGrath was appointed administrator of Rey - nolds’s estate, January 6,1874. He had already paid over to two of the persons mentioned in the paper the sums set opposite their names, before he had notice that the parties interested, or any of them, intended to raise any question as to the disposition of the funds intrusted to him. Upon these facts the case was reserved for the consideration of the full court, such order or decree to be made as the nature of the case requires.