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*Note: The following opinion was edited by AudioCaseFiles' staff.
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Newman v. Bost
29 S.E. 848
Supreme Court of North Carolina, 1898

FURCHES, J. The plaintiff in her complaint demands $ 3,000 collected by defendant, as the administrator of J. F. Van Pelt, on a life insurance policy, and now in his hands; $300, the value of a piano upon which said Van Pelt collected that amount of insurance money; $ 200.94, the value of household property sold by defendant as belonging to the estate of his intestate, and $ 45, the value of property in the plaintiff's bed-room and sold by the defendant as a part of the property belonging to the intestate's estate.

The $ 3,000, money collected on the life insurance policy, and the $ 200.94, the price for which the household property sold, plaintiff claims belonged to her by reason of a donatio causa mortis from said Van Pelt. The $ 45, the price for which her bed-room property sold, and the $ 300 insurance money on the piano, belonged to her also by reason of gifts inter vivos.

The rules of law governing all of these claims of the plaintiff are in many respects the same, and the discussion of one will be to a considerable extent a discussion of all.

To constitute a donatio causa mortis, two things are indispensably necessary: an intention to make the gift, and a delivery of the thing given. Without both of these requisites, there can be no gift causa mortis. And both these are matters of fact to be determined by the jury, where there is evidence tending to prove them.

The intention to make the gift need not be announced by the donor in express terms, but may be inferred from the facts attending the delivery --that is, what the donor said and did. But it must always clearly appear that he knew what he was doing, and that he intended a gift. So far, there was but little diversity of authority, if any.

As to what constitutes or may constitute delivery, has been the subject of discussion and adjudication in most or all the courts of the Union and of England, and they have by no means been uniform--some of them holding that a symbolical delivery--that is, some other article delivered in the name and stead of the thing intended to be given, is sufficient; others holding that a symbolical delivery is not sufficient, but that a constructive delivery--that is, the delivery of a key to a locked house, trunk or other receptacle is sufficient. They distinguish this from a symbolical delivery, and say that this is in substance a delivery of the thing, as it is the means of using and enjoying the thing given; while others hold that there must be an actual manual delivery to perfect a gift causa mortis.

This doctrine of donatio causa mortis was borrowed from the Roman Civil Law by our English ancestors. There was much greater need for such a law at the time it was incorporated into the civil law and into the English law than there is now. Learning was not so general, nor the facilities for making wills so great then as now. But the civilians, while they incorporated this doctrine into their law, did not do so without guarding it with great care. They required that a donatio causa mortis should be established by at least five witnesses to the facts constituting the gift. And why it was that our English ancestors should have adopted the doctrine, without also adopting the manner in which it should be proved, seems to be unexplained. But they did so, and only required the facts to be proved by one witness, as in this case.

Thomas v. Lewis (a Virginia case), 37 Am. St. Rep. 878, was probably more relied on by the plaintiff than any other case cited, and for that reason we mention it by name. This case, in its essential facts, is distinguishable from the case under consideration. There, the articles present were taken out of the bureau drawer, handed to the donor, and then delivered by him to the donee. According to all the authorities, this was a good gift causa mortis. The box and safe, the key to which the donor delivered to the donee, were not present but were deposited in the vault of the bank; and so far as shown by the case it will be presumed, from the place where they were and the purpose for which things are usually deposited in a bank vault, that they were only valuable as a depository for such purposes, as holding and preserving money and valuable papers, bonds, stocks and the like. This box and safe would have been of little value to the donee for any other purpose. But more than this, the donor expressly stated that all you find in this box and this safe is yours. There is no mistake that it was the intention of the donor to give what was contained in the box and in the safe.

As my Lord Coke would say: "Note the diversity" between that case and the case at bar. There, the evidence of debt contained in the bureau which was present, were taken out, given to the donor, and by him delivered to the donee. This was an actual manual delivery, good under all the authorities. But no such thing was done in this case as to the life insurance policy. It was neither taken out of the drawer nor mentioned by the donor, unless it is included in the testimony of Enos Houston who, at one time, in giving in his testimony says that Van Pelt gave her the keys, saying "what is in this house is yours," and at another time on cross-examination, he said to Julia, "I intend to give you this furniture in this house," and at another time, "What property is in this house is yours." The bureau in which was found the life insurance policy, after the death of Van Pelt, was present in the room where the keys were handed to Julia, and the life insurance policy could easily have been taken out and handed to Van Pelt, and by him delivered to Julia, as was done in the case of Thomas v. Lewis, supra. But this was not done. The safe and box, in Thomas v. Lewis, were not present, so that the contents could not have been taken out and delivered to the donee by the donor. The ordinary use of a stand of bureaus is not for the purpose of holding and securing such things as a life insurance policy, though they may be often used for that purpose, while a safe and a box deposited in the vault of a bank are. A bureau is an article of household furniture, used for domestic purposes, and generally belongs to the ladies' department of the household government, while the safe and box, in Thomas v. Lewis, are not. The bureau itself, mentioned in this case, was such property as would be valuable to the plaintiff.

It is held that the law of delivery in this State is the same in gifts inter vivos and causa mortis. Adams v. Hayes, 24 N.C. 361. The leading case in this State is Adams v. Hayes and this cites and approves.

Following this case . . . we feel bound to give effect to constructive delivery, where it plainly appears that it was the intention of the donor to make the gift, and where the things intended to be given are not present, or, where present, are incapable of manual delivery from their size or weight. But where the articles are present and are capable of manual delivery, this must be had. This is as far as we can go. It may be thought by some that this is a hard rule--that a dying man cannot dispose of his own. But we are satisfied that when properly considered, it will be found to be a just rule. But it is not a hard rule.

In gifts causa mortis it requires but one witness, probably one servant as a witness to a gift of all the estate a man has; no publicity is to be given that the gift has been made, and no probate or registration is required.

It being claimed and admitted that the life insurance policy was present in the bureau drawer in the room where it is claimed the gift was made, and being capable of actual manual delivery, we are of the opinion that the title of the insurance policy did not pass to the plaintiff, but remained the property of the intestate of the defendant.

But we are of the opinion that the bureau and any other article of furniture, locked and unlocked by any of the keys given to the plaintiff did pass and she became the owner thereof. This is upon the ground that while these articles were present, from their size and weight they were incapable of actual manual delivery; and that the delivery of the keys was a constructive delivery of these articles, equivalent to an actual delivery if the articles had been capable of manual delivery.

Still following Ward v. Turner, we are of the opinion that the other articles of household furniture (except those in the plaintiff's private bed chamber) did not pass to the plaintiff, but remained the property of the defendant's intestate.

We do not think the articles in the plaintiff's bed chamber passed by the donatio causa mortis, for the same reason that the other articles of household furniture did not pass--want of delivery--either constructive or manual. But as to the furniture in the plaintiff's bed room ($ 45) it seems to us that there was sufficient evidence of both gift and delivery to support the finding of the jury, as a gift inter vivos. The intention to give this property is shown by a number of witnesses and contradicted by none.

The only debatable ground is as to the sufficiency of the delivery. But when we recall the express terms in which he repeatedly declared that it was hers; that he had bought it for her and had given it to her; that it was placed in her private chamber, her bed room, where we must suppose that she had the entire use and control of the same, it would seem that this was sufficient to constitute a delivery. There was no evidence, that we remember, disputing these facts. But, if there was, the jury have found for the plaintiff, upon sufficient evidence at least to go to the jury, as to this gift and its delivery. As to the piano there was much evidence tending to show the intention of Van Pelt to give it to the plaintiff, and that he had given it to her, and we remember no evidence to the contrary. And as to this, like the bed-room furniture, the debatable ground, if there is any debatable ground, is the question of delivery. It was placed in the intestate's parlor where it remained until it was burned. The intestate insured it as his property, collected and used the insurance money as his own, often saying that he intended to buy the plaintiff another piano, which he never did. It must be presumed that the parlor was under the dominion of the intestate, and not of his cook, housekeeper, and hired servant. And unless there ] is something more shown than the fact that the piano was bought by the intestate, placed in his parlor, and called by him "Miss Julia's piano," we cannot think this constituted a delivery. But, as the case goes back for a new trial, if the plaintiff thinks she can show a delivery she will have an opportunity of doing so. But she will understand that she must do so according to the rules laid down in this opinion--that she must show actual or constructive delivery equivalent to actual manual delivery. We see no ground upon which the plaintiff can recover the insurance money, if the piano was not hers.

We do not understand that there was any controversy as to the plaintiff's right to recover for her services, which the jury have estimated to be $ 125. The view of the case we have taken has relieved us from a discussion of the exceptions to evidence, and as to the charge of the Court. There is no such thing in this State as symbolical delivery in gifts either inter vivos or causa mortis. There is a hint in that direction in the case of Shirley v. Dew, supra, and this is now overruled. There is error.

New trial.

This case is in these books

• Property
• Dukeminier, Krier, Alexander, Schill
• 6th Edition