Foster v. Reiss
112 A.2d 553 (1955)
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Rule of Law:
A valid gift causa mortis requires actual, physical delivery of the subject matter of the gift by the donor while the donor is alive and competent; a note that merely states donative intent and describes the property's location is insufficient to substitute for this requirement.
Facts:
- On April 30, 1951, Ethel Reiss entered a hospital for major surgery.
- Just prior to the operation on May 4, 1951, she wrote a note in Hungarian to her husband, Adam Reiss.
- The note described the location of cash, a bank passbook, and a building and loan association book within their home, stating they were for him.
- She placed the note in a drawer by her hospital bed and asked a friend to inform her husband about it.
- While Ethel Reiss was unconscious under anesthesia for the surgery, Adam Reiss was told about the note, retrieved it, and went home.
- Adam Reiss located the cash and books as described in the note and took possession of them.
- Ethel Reiss remained in a coma or was otherwise unable to communicate intelligently after the surgery until her death nine days later.
- The decedent's will, predating these events, left Adam Reiss only one dollar, with the residue of her estate going to her children and grandchildren.
Procedural Posture:
- The decedent's personal representatives sued Adam Reiss in the Chancery Division of the Superior Court of New Jersey (a trial court) to recover the property.
- The trial court entered judgment for the plaintiffs (the estate), finding no valid gift had been made.
- The defendant, Adam Reiss, appealed to the Appellate Division of the Superior Court.
- The Appellate Division reversed the trial court's judgment, holding that a valid gift causa mortis had occurred.
- The plaintiffs (the estate) petitioned for, and were granted, certification to appeal to the Supreme Court of New Jersey, the state's highest court.
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Issue:
Does a donee's act of taking possession of personal property, based on an informal note written by the donor in contemplation of death, satisfy the delivery requirement for a valid gift causa mortis when the donor does not personally deliver the items?
Opinions:
Majority - Vanderbilt, C. J.
No. A donee's act of taking possession based on a donor's written instructions does not satisfy the legal requirement of delivery for a gift causa mortis. The doctrine requires an actual, unequivocal, and complete delivery of the property by the donor during their lifetime, which wholly divests the donor of possession, dominion, and control. This requirement serves as a crucial safeguard against fraud and protects the integrity of the Statute of Wills, which mandates formal execution for testamentary transfers. Donative intent, even when clearly expressed in a writing, is a separate element and cannot substitute for the act of delivery. Furthermore, even if the note were construed as an authorization for the husband to take possession, this agency was terminated by law once Ethel Reiss became incapacitated under anesthesia.
Dissenting - Jacobs, J.
Yes. The donee's act of taking possession based on the donor's clear written instructions should satisfy the delivery requirement under these circumstances. The delivery requirement is a historical formality intended to prevent fraud and ensure donative intent, both of which are satisfied here by the undisputed, handwritten note. Requiring the donee to bring the property to the donor's hospital bed for a ritualistic redelivery is to thwart the donor's clear wishes through a 'narrow and illiberal construction' of the law. When the donor has done everything reasonably possible to effectuate the gift and the donee takes possession in accordance with those instructions, the transfer should be considered complete.
Analysis:
This decision represents a strict, formalist application of the common law requirements for gifts causa mortis, prioritizing the policy behind the Statute of Wills over the clear, undisputed donative intent of the decedent. The court solidifies the precedent that delivery must be an affirmative, physical act by the donor and cannot be accomplished by the donee's actions, even when authorized in writing. This ruling reinforces the view that gifts causa mortis are disfavored in the law as they are seen as a dangerous encroachment on formal testamentary dispositions. The case serves as a strong caution that informal, written instructions are legally insufficient to transfer property at death outside of a validly executed will.
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