Foster v. Reiss

Supreme Court of New Jersey · 1955 · Property

Propertygiftscausa mortisdeliverysuicide notegift causa mortisdeliverydonative intent

Facts

Ethel Reiss entered the hospital for major surgery and, just before going to the operating room, wrote a note to her husband identifying cash in the home, stating that the building and loan book and bank book were his, and directing other distributions. She placed the note in a drawer beside her bed and asked a friend to tell her husband or daughter about it; while she was unconscious under ether, her husband retrieved the note, went home, found the cash, savings account passbook, and building and loan book, and kept them. The trial court found that after the operation and until her death nine days later she was in a coma most of the time, unable to recognize family members, and never able to talk or converse intelligently. Her will gave her husband only $1, and her representatives sued to recover the property from him after he claimed it as a gift causa mortis.

Issue

Whether the decedent's note, followed by the husband's retrieval of the cash, passbook, and building and loan book from the home during her lifetime, constituted a valid gift causa mortis. More specifically, the question was whether there had been the required delivery by the donor, or any legally sufficient equivalent, during her lifetime.

Rule

To constitute a valid gift causa mortis, the donor must make the gift in view of impending death, die of the contemplated peril, intend to make the gift, and there must be acceptance and delivery. New Jersey requires actual, unequivocal, and complete delivery during the donor's lifetime, wholly divesting the donor of possession, dominion, and control; actual delivery of the property is required except where actual delivery is impossible or impracticable, in which case delivery of the indicia of title may suffice. Delivery is a separate and indispensable requirement from donative intent, and an informal writing expressing intent does not satisfy delivery.

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In Newark, Nina Velez was taken to the hospital for emergency heart surgery. Before being wheeled in, she texted her brother Omar, "If I do not make it, the $8,000 in cash taped under the dresser in my apartment is yours," but she left the cash in the apartment. While Nina was still alive but unconscious after surgery, Omar used her spare key, found the cash, and kept it after she died from surgical complications two days later.

Under the majority rule, did Omar receive a valid gift causa mortis of the cash?

Explanation. A valid gift causa mortis requires delivery separate from donative intent. For tangible property like cash, actual delivery is required when practicable. The donor must, during life, make an actual, unequivocal, and complete delivery that divests her of possession, dominion, and control. Here Nina's text showed intent, but leaving the cash in her apartment and Omar's unilateral retrieval did not satisfy delivery by the donor.