Vandor v. Roach

Hayne, 0. — The plaintiff claimed that the defendant’s intestate gave to her on his death-bed five United States bonds which stood in his name. There was no indorsement or written transfer, and she brought this action to obtain a decree directing the administrator “ to* make a good and sufficient transfer of said bonds to plaintiff by his assignment in writing.” The court below gave judgment for the plaintiff, and the defendant appeals. - t,

[615]The only points made on behalf of the appellant are the following:—

1. It is argued that the burden of proof was upon the plaintiff to show that “the gift was fair”; and that there was no evidence on the subject. If this means that it was incumbent upon plaintiff to show that there was no fraud practiced upon the deceased, we cannot agree to it. Fraud is never presumed. And if there is nothing in the circumstances to create a suspicion of wrong, we cannot see why the plaintiff should be required to go further and negative possibilities. Nor can we agree to it, if it means that the plaintiff is required to show that the deceased was of sound and disposing mind at the time of the gift. Soundness of mind is presumed until the contrary appears. In the case of a will, proof that the testator was of sound mind is required by express provision of the statute. There is no such provision as to gifts causa mortis. The point was expressly decided in Bedell v. Carl, 33 N. Y. 586, in which case the court said: “ He establishes a prima facie case when he shows that the disposition has been attended by all the requisites which the common law prescribes to give it validity. Certainly he is not required to prove affirmatively that the donor was of sound, disposing mind and memory when he made the gift, and that the delivery of the subject was his free and voluntary act. These are matters of defense equally applicable to gifts inter vivos and causa mortis.”

■ 2. It is argued that -what was done did not show sufficient intention of giving. The counsel says that “the operative words of a gift are, ‘I give,’ or ‘I have given’ ”; and that these words are wanting. But we do not think that any formula or set phrase is necessary. It is sufficient if there was delivery, and any words importing .an intention to give. The only evidence on the subject was that of the physician, who testified that the dying man took a package from under his pillow and [616]