For affirmance -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For reversal -- None.
Defendant, the Administrator ad litem of the Estate of Catherine Wagner, appeals from an Appellate Division decision, one judge dissenting, affirming a summary judgment by the trial court holding that Ms. Wagner had made a valid gift causa mortis of a check to plaintiff. We affirm.
The facts are not in dispute.*fn1 Catherine Wagner and the plaintiff, Robert Scherer, lived together for approximately fifteen years prior to Ms. Wagner's death in January 1974. In 1970, the decedent and plaintiff were involved in an automobile
accident in which decedent suffered facial wounds and a broken hip. Because of the hip injury, decedent's physical mobility was substantially impaired. She was forced to give up her job and to restrict her activities. After the accident, plaintiff cared for her and assumed the sole financial responsibility for maintaining their household. During the weeks preceding her death, Ms. Wagner was acutely depressed. On one occasion, she attempted suicide by slashing her wrists. On January 23, 1974, she committed suicide by jumping from the roof of the apartment building in which they lived.
On the morning of the day of her death, Ms. Wagner received a check for $17,400 drawn by a Pennsylvania attorney who had represented her in a claim arising out of the automobile accident. The check represented settlement of the claim. Plaintiff telephoned Ms. Wagner at around 11:30 A.M. that day and was told that the check had arrived. Plaintiff noticed nothing unusual in Ms. Wagner's voice. At about 3:20 P.M., decedent left the apartment building and jumped to her death. The police, as part of their investigation of the suicide, asked the building superintendent to admit them to the apartment. On the kitchen table they found the check, endorsed in blank, and two notes handwritten by the decedent. In one, she described her depression over her physical condition, expressed her love for Scherer, and asked him to forgive her "for taking the easy way out." In the other, she indicated that she "bequeathed" to plaintiff all of her possessions, including "the check for $17,400.00 * * *." The police took possession of the check, which was eventually placed in an interest-bearing account pending disposition of this action.
Under our wills statute it is clear that Ms. Wagner's note bequeathing all her possessions to Mr. Scherer cannot take effect as a testamentary disposition. N.J.S.A. 3A:3-2. A donatio causa mortis has been traditionally defined as a gift of personal property made by a party in expectation of death, then imminent, subject to the condition that the donor
die as anticipated. Establishment of the gift has uniformly called for proof of delivery.
The primary issue here is whether Ms. Wagner's acts of endorsing the settlement check, placing it on the kitchen table in the apartment she shared with Scherer, next to a writing clearly evidencing her intent to transfer the check to Scherer, and abandoning the apartment with a clear expectation of imminent death constituted delivery sufficient to sustain a gift causa mortis of the check. Defendant, relying on the principles established in Foster v. Reiss, 18 N.J. 41 (1955), argues that there was no delivery because the donor did not unequivocally relinquish control of the check before her death. Central to this argument is the contention that suicide, the perceived peril, was one which decedent herself created and one which was completely within her control. According to this contention, the donor at any time before she jumped from the apartment roof could have changed her mind, re-entered the apartment, and reclaimed the check. Defendant therefore reasons that decedent did not make an effective transfer of the check during her lifetime, as is required for a valid gift causa mortis.
The majority and dissenting opinions in Foster v. Reiss contain thorough analyses of the evolution of the delivery requirement of the gift causa mortis. See also Mechem, "The Requirement of Delivery in Gifts of Chattels and of Choses in Action Evidenced by Commercial Instruments," 21 Ill. L. Rev. 341, 457, 568 (1926); Bruton, "The Requirement of Delivery as Applied to Gifts of Choses in Action," 39 Yale L.J. 837 (1930). For commentary on Foster v. Reiss, see Bordwell, "Testate and Intestate Succession," 10 Rutgers L. Rev. 293, 297 (1955); Note, 10 Rutgers L. Rev. 457 (1955); Note, 54 Mich. L. Rev. 572 (1956). We see no need to retrace that history here.
There is general agreement that the major purpose of the delivery requirement is evidentiary. Proof of delivery reduces the possibility that the evidence of intent has been fabricated or that ...