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Foster v. Reiss

Decided: March 7, 1955.


On certified appeal from the Appellate Division of the Superior Court.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Burling. For affirmance -- Justices Wachenfeld, Jacobs and Brennan. The opinion of the court was delivered by Vanderbilt, C.J. Jacobs, J. (with whom Wachenfeld and William J. Brennan, Jr., JJ., agree, dissenting).


On April 30, 1951 the decedent, Ethel Reiss, entered a hospital in New Brunswick where she was to undergo major surgery. Just prior to going to the operating room on May 4, 1951, she wrote the following note in her native Hungarian language to her husband, the defendant herein:

"My Dearest Papa:

In the kitchen, in the bottom of the cabinet, where the blue frying pan is, under the wine bottle, there is one hundred dollars. Along side the bed in my bedroom, in the rear drawer of the small table in the corner of the drawer, where my stockings are, you will find about seventy-five dollars. In my purse there is six dollars, where the coats are. Where the coats are, in a round tin box, on the floor, where the shoes are, there is two hundred dollars. This is Dianna's. Please put in it the bank for her. This is for her schooling.

The Building Loan book is yours, and the Bank book, and also the money that is here. In the red book is my son's and sister's and my brothers address. In the letter box is also my bank book.

Give Margaret my sewing machine and anything else she may want; she deserves it as she was good to me.

God be with you. God shall watch your steps. Please look out for yourself that you do not go on a bad road. I cannot stay with you. My will is in the office of the former Lawyer Anekstein, and his successor has it. There you will find out everything.

Your Kissing, loving wife,

Ethel Reiss 1951 - 5 - 4."

She placed the note in the drawer of a table beside her bed, at the same time asking Mrs. Agnes Tekowitz, an old friend who was also confined in the hospital, to tell her husband or daughter about it -- "In case my daughter come in or my husband come in, tell them they got a note over there and take the note." That afternoon, while the wife was in the operating room unconscious under the effects of ether, the defendant came to the hospital and was told about the note by the friend. He took the note from the drawer, went home, found the cash, the savings account passbook, and the building and loan book mentioned in the note, and has retained possession of them since that time.

The wife was admittedly in a coma for three days after the operation and the testimony is in dispute as to whether or not she recovered consciousness at all before her death on the ninth day. Her daughter, her son-in-law, Mrs. Waldner, an old friend and one of her executrices who visited her every day, and Mrs. Tekowitz, who was in the ward with her, said that they could not understand her and she could not understand them. The defendant, on the other hand, testified that while she was "awful poor from ether" after the operation, "the fourth, fifth and sixth days I thought she was going to get healthy again and come home. She talked just as good as I with you." The trial judge who saw the witnesses and heard the testimony found that

"After the operation and until the date of her death on May 13, 1951 she was in a coma most of the time; was unable to recognize members of her family; and unable to carry on intelligent conversation. * * * Mrs. Reiss was never able to talk or converse after coming out of the operation until her death."

The decedent's will gave $1 to the defendant and the residue of her estate to her children and grandchildren. The decedent's personal representatives and her trustees under a separation agreement with the defendant, brought this action to recover the cash, the passbook, and the building and loan book from the defendant, who in turn claimed ownership of them based on an alleged gift causa mortis from his wife.

The trial court granted judgment for the plaintiffs, concluding that there had been no such gift. The Appellate Division of the Superior Court reversed, 31 N.J. Super. 496, and we granted the plaintiff's petition for certification to the Appellate Division, 16 N.J. 221.

The doctrine of donatio causa mortis was borrowed by the Roman law from the Greeks, 2 Bl. Com. 514, and ultimately became a part of English and then American common law, Keepers v. Fidelity Title and Deposit Co., 56 N.J.L. 302, 305 (E. & A. 1893), Ward v. Turner, 2 Ves. Sr. 431, 28 E.R. 275, 278 (1752), Trout v. Farmers Trust Co. of Newark, 19 Del. Ch. 437, 168 A. 208, 210 (Sup. Ct. 1933), Flint v. Varney, 220 Iowa 1241, 264 N.W. 277, 279 (Sup. Ct. 1935), 4 Page on Wills (1941 ed.) § 1658. Blackstone has said that there is a gift causa mortis "when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods, to keep in case of his decease." 2 Bl. Com. 514. Justinian offered this definition:

"A gift causa mortis is one made in expectation of death; when a person gives upon condition that, if any fatality happen to him, the receiver shall keep the article, but that if the donor should survive, or if he should change his mind, or if the donee should die first, then the donor shall have it back again. These gifts causa mortis are in all respects put upon the same footing as legacies. * * * To put it briefly, a gift causa mortis is when a person wishes that he himself should have the gift in preference to the donee, but that the donee should have it in preference to the heir." Walker's Just., at 119.

The modern description is similar:

"A donatio causa mortis is a gift of personal property made by a party in expectation of death, then imminent, and upon the essential condition that the property shall belong fully to the donee in case the donor dies as anticipated, leaving the donee surviving him, and the gift is not in the meantime revoked, but not otherwise. * * * To constitute a valid gift causa mortis, it must be made in view of the donor's impending death; the donor must die of the disorder or peril; and there must be a delivery of the thing given. The donor must be competent to make the gift; there must be an intent upon his part to do so; and an acceptance by the donee. * * *

The delivery must be such as is actual, unequivocal, and complete during the lifetime of the donor, wholly divesting him of the possession, dominion, and control thereof." Weiss v. Fenwick, 111 N.J. Eq. 385, 387-388 (E. & A. 1932).

There is some doubt in the New Jersey cases as to whether as a result of a gift causa mortis the property remains in the donor until his death, Weiss v. Fenwick, supra, 111 N.J. Eq. 385, 389; Jadzevicz v. Adams, 122 N.J. Eq. 6, 8 (E. & A. 1937); Borthwick v. Skurzynski, 139 N.J. Eq. 520, 522 (Ch. 1947), affirmed 141 N.J. Eq. 363 (E. & A. 1948), or whether the transfer is considered absolute even though it is defeasible, Meyers v. Meyers, 99 N.J. Eq. 560, 562 (Ch. 1926); Buchman v. Smith, 137 N.J. Eq. 215, 219 (E. & A. 1945); 5 Clapp, New Jersey Practice § 5. In any event, a gift causa mortis is essentially of a testamentary nature and as a practical matter the doctrine, though well established, is an invasion into the province of the statute of wills:

"Some quasi -testamentary acts, -- such as gifts causa mortis, where delivery takes the place of the execution of a will, -- may even enable essentially testamentary dispositions to be effected without compliance with the statutes governing wills. To be sure the delivery, actual or symbolic as the case may be, marks a gift causa mortis off from a strict testamentary disposition, but the revocable nature of the gift makes that distinction very slight, and in those jurisdictions where the title to the thing delivered as a gift causa mortis does not pass until the donor dies, the distinction becomes microscopic. Nevertheless the distinction is well established." Costigan, Constructive Trusts, 28 Harv. L. Rev. 237, at 240-241 (1915).

In Jones v. Selby, Prec. Ch. 301, 24 E.R. 143, 144 (1710), the Lord Chancellor noted that a " donatio causa mortis * * * differs in nothing from a will." Our Court of Chancery referred to it as "in effect an ambulatory and testamentary disposition," Dunn v. Houghton, 51 A. 71, 78 (Ch. 1902). To the same effect see O'Mara v. Dentinger, 271 App. Div. 22, 62 N.Y.S. 2 d 282, 287 (App. Div. 1946); 4 Page on Wills, § 1660; note, 61 Harv. L. Rev. 542, 543 (1948); annotation 63 A.L.R. 537, 552; 38 C.J.S., Gifts, § 72.

In Ward v. Turner, supra, 2 Ves. Sr. 431, 28 E.R. 275, 279, Lord Chancellor Hardwicke said that "it was a pity that the Statute of Frauds did not set aside all these kinds of gifts." Lord Eldon expressed the opinion that it would be an improvement of the law to strike out altogether this peculiar form of gift, but since that had not been done, he felt obliged to "examine into the subject of it." Duffield v. Elwes, 1 Bligh (N.S.) 533, 4 E.R. 959, 972 (1827). Our own Vice-Chancellor Stevenson referred to it as "that ancient legal curiosity," Dunn v. Houghton, 51 A. 71, 78 (Ch. 1902), and then later said that such gifts are "dangerous things":

"These gifts causa mortis are dangerous things. The law requires, before Mr. Hitt can come into this court and claim $10,000 as an ordinary testamentary gift from Mrs. Thompson, that he should produce an instrument in writing signed by Mrs. Thompson, and also acknowledged with peculiar solemnity by her in the presence of two witnesses, who thereupon subscribed their names as witnesses. That is what Mr. Hitt would have to prove if he claimed a testamentary gift in the ordinary form of one-third of Mrs. Thompson's estate. And yet, in cases of these gifts causa mortis, it is possible that a fortune of a million dollars can be taken away from the heirs, the next of kin of a deceased person, by a stranger, who simply has possession of the fortune, claims that he received it by way of gift, and brings parol testimony to sustain that claim." Varick v. Hitt, 55 A. 139, 153 (Ch. 1903), affirmed 66 N.J. Eq. 442 (E. & A. 1904).

Gifts causa mortis are not favored in the law. As stated in Buecker v. Carr, 60 N.J. Eq. 300, 305 (Ch. 1900), "gifts mortis causa are not favored in the law, for the reason that this mode of disposition permits property without limit of value to be transferred by mere delivery, and the proof thereof to be made when death has closed the lips of the claimed donor." In Parker v. Copland, 70 N.J. Eq. 685, 691 (E. & A. 1906), the highest court of this State had this to say:

"Of all legal rules, however, those that have grown up around the doctrine of donatio causa mortis should be the least subject to relaxation. Formed, as these rules were at a period when personal property consisted ...

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