Foster v. Reiss

18 N.J. 41, 112 A.2d 553 (1955)



To constitute a valid gift causa mortis, the gift 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. 


Defendant, the deceased's husband, claimed he was entitled to cash, a savings account, and a building and loan book through a gift causa mortis by his wife. The deceased had written a note which indicated her intent for him to have these items and told him where they could be found in their home. Plaintiff trustees of the estate objected, claiming a valid gift causa mortis had not taken place. Plaintiffs appealed the judgment in defendant's favor in the latter's action to recover items taken.  The court reversed the judgment which awarded items to defendant because there was no valid gift causa mortis when no delivery of the items had taken place.



Was there a valid gift causa mortis?




The court found that gifts causa mortis are not favored. The court determined a gift causa mortis required donative intent, which the letter indicated, and delivery. The court found the two requirements are separate and distinct and the informal letter did not constitute both. The court found no delivery of the intended gifts sufficient to constitute complete divesting of the deceased's control. The court determined there was no affirmative action on the deceased's part to satisfy the delivery requirement. An informal writing does not satisfy the separate and distinct requirement of delivery, but rather there must be such delivery of the property that the donor stands absolutely deprived of his control over it. 

Click here to view the full text case and earn your Daily Research Points.