Bliss v. Fosdick

Under the release of May 15, 1891, the only parties having a pecuniary interest in this litigation are St. John’s Guild and the residuary devisees and legatees, unless it should happen that a division, under the alleged trust, of the proceeds of the 1,000 shares among the ten corporations would give every one of the nine corporations mentioned iu the codicil a greater sum than would the division of $100,000 among said nine corporations. The plaintiffs and Charles B. Fosdick are interested simply in carrying out the wishes of Elizabeth Fogg and in relieving themselves from liability.

There is no evidence, and, indeed, it is not asserted that Exhibit No. 3 was ever delivered to Charles B. Fosdick, or that he ever saw it until after the death of the testatrix, unless he saw it when the codicil was drafted, but at about nine a. m., December twentieth, he did see and hold in his hands for a few moments the three pieces of paper, the contents' of which were afterwards and on the same day copied on to Exhibits No. 3 and L. In reaching the conclusion that the list of beneficiaries was delivered to Mr. Fosdick, the learned trial court must have held (1) that the three pieces of paper were handed by Mrs. Fogg to him, and (2) with the intent on her part to deliver them to him for the purpose of effecting a gift by means of the transfer of the shares of stock and those papers. The fact that the three papers were subsequently copied and burned in the presence of Mrs. Fogg, militates against- the theory that she understood tha,t they had been delivered to Mr. Fosdick and formed part

“From the proceeds-thereof I desire that you do appropriate the sum of one hundred thousand dollars in the name of Elizabeth Fogg, in sums of five thousand dollars each, to the various charity organizations, of which a list is hereto annexed.”

No list was ever annexed to this letter and no list naming twenty corporations was ever made by -or for Mrs. Fogg. Mr. Fosdick testified that this letter was devised by himself and copied by his bookkeeper; that he (Fosdick) stopped at Mrs. Fogg’s on his way downtown on the morning of December twentieth, when the letter was signed. Therefore, he must have been informed December nineteenth of her purpose to divide $100,000 among twenty charitable corporations. Mrs. Fogg and Miss Norton spent the night of December nineteenth and twentieth in a vain attempt to name twenty charitable corporations which should receive the sura, but abandoned the attempt, and Mrs. Fogg concluded to divide the sum among ten corporations. In order to uphold the trust declared by the judgment of the Special Term the letter of December twentieth must be eliminated from the case, as it is entirely inconsistent with the trust adjudged to exist. The only evidence left of an intent to establish a trust consists of the transfer' of the shares of stock of Exhibit No. 3, and the testimony given by Miss Norton. From the time Mrs. Fogg’s pastor wrote for her that which subsequently became the caption of Exhibit No. 3 down to the time when her codicil was executed, the idea of Mrs. Fogg, plainly disclosed by the evidence, was to bequeath the shares, or the avails of them, to charitable corporations, which she finally did. That which was-done by the testatrix during the night of December nineteenth and twentieth, and during the day of the twentieth, was preparatory to

The interview between Mrs. Fogg and Mr. Fosdick on the morning of December twentieth occupied about one-half hour, in which time, according to the theory of the respondents, she completed the execution of a trust in favor of the ten corporations mentioned on Exhibit No. 3, and during the same half hour executed a declaration of trust dividing the avails of the shares “in sums of five thousand dollars each to the various charity organizations of which a list is hereto annexed.” Thus, in the same half hour an attempt was made to establish two wholly inconsistent trusts. Trusts are not to be established by such evidence. The evidence, read in the light of the circumstances surrounding the transaction, does not support the conclusion that Mrs. Fogg intended absolutely to vest the title of the shares in Mr. Fosdick as trustee, for the benefit of St. John’s Guild and the other corporations mentioned in Exhibit No. 3.

But, assuming that at the close of the interview between Mrs. Fogg and Mr. Fosdick on the morning of the twentieth she intended to vest him with the title of the shares for the purpose of giving the proceeds to the ton corporations after her death, the judgment cannot be sustained. It is not asserted and cannot be successfully maintainéd that Mrs. Fogg intended this gift to take effect in her lifetime.

Miss Norton testified that during the night of December nineteenth and twentieth Mrs. Fogg believed that she was about to die, and expressed the opinion that she would not live until morning. The witness testified: “ During that night she was apprehensive of dying before morning. That is what she said, and so expressed herself to me, although I personally did not think there was any immediate danger of her death. She did, however, express a danger of dying before morning. She was then in bed, and she remained continuously in bed until the time of her death, on the 3d of January, 1891. She had been in bed several days previously. Q. And

“ Sound policy requires that the Lavs regulating gifts causa, mortis should not be extended, and that the range of such gifts should not be enlarged.” (Ridden v. Thrall, 125 N. Y. 572 , 581.) Such gifts are not favored by the courts. (Delmotte v. Taylor, 1 Redf. 417; Rockwood v. Wiggin, 16 Gray, 402 ; Michener v. Dale, 23 Penn. St. 59 ; Hatch v. Atkinson, 56 Maine, 326.)

The presumption is that a gift made during a last' sickness • is intended to take effect at the donor’s death, even though it be not so declared. (Pom. Eq. Juris. § 1146.) If there was a gift it was made in apprehension of death — a donatio causa mortis. Such a gift can be revoked by the donor in his lifetime. (Merchant v. Merchant, 2 Bradf. 432 , 444; Bloomer v. Bloomer, Id. 339, 347 Parker v. Marston, 27 Maine, 196 ; Basket v. Haskell, 107 U. S. 602 ; Pom. Eq. Juris. § 1146 ; 3 Redf. Wills [3d ed.], 343 ; 2 Kent’s Com. 444.) A revocation can be effected by a change of purpose and undoing what has been done. Mrs. Fogg had burned the papers which were shown to Fosdick December twentieth, and the copy- — -Exhibit No. 3 — had been altered by writing the word “No” against the words “ St. John’s Guild,” which, under the circumstances, was as potent evidence of her intent to revoke the gift previously intended, or made to that corporation, as though the word “ revoked ” had been written in the place of “ No ” or the exhibit burned. The stock certificate and the transfer indorsed thereon were then locked in her private box in the safe deposit company, and were as effectually in her possession and under her control as they would have been had they lain under her pillow. She declared in her codicil that the assignment of the shares to Mr. Fosdick was intended as a power to transfer them, and Fosdick testified that the codicil Avas read to him before it was executed and that he assented to its terms. Under the evidence we think, assuming that Mrs. Fogg intended, on December twentieth, to make a gift to St. John’s Guild of $10,000, by means of a trust to take effect after her death, that it was effectually revoked on December 21, 1890.

The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

O’Brien, J., concurred.

I concur in the result. I do not think there is any sufficient execution of the trust declaration by the delivery of the list. I think that the evidence shows that the creation of the trust was never completed and it was abandoned, and the codicil to the will took its place.

Judgment reversed, new trial granted, costs to appellants to abide event.