380 A.2d 698 (N.J. 1977)
Catherine Wagner and the plaintiff, Robert Scherer, lived together for approximately fifteen years prior to Ms. Wagner’s death in January 1974.1 In 1970, the decedent and plaintiff were involved in an automobile accident in which decedent suffered facial wounds and a broken hip.2 Because of the hip injury, decedent’s physical mobility was substantially impaired.3 She was forced to give up her job and to restrict her activities.4 After the accident, plaintiff cared for her and assumed the sole financial responsibility for maintaining their household.5
During the weeks preceding her death, Ms. Wagner was acutely depressed.6 On one occasion, she attempted suicide by slashing her wrists.7 On January 23, 1974, she committed suicide by jumping from the roof of the apartment building in which they lived.8 On the morning of the day of her death, Ms. Wagner received a check for $17,400 drawn by a Pennsylvania attorney who had represented her in a claim arising out of the automobile accident.9 Plaintiff telephoned Ms. Wagner at around 11:30 a.m. that day and was told that the check had arrived.10 Plaintiff noticed nothing unusual in Ms. Wagner’s voice.11
At about 3:20 p.m., decedent left the apartment building and jumped to her death.12 The police, as part of their investigation of the suicide, asked the building superintendent to admit them to the apartment.13 On the kitchen table they found the check, endorsed in blank, and two notes handwritten by the decedent.14 In one, she described her depression over her physical condition, expressed her love for Scherer, and asked him to forgive her “for taking the easy way out.”15 In the other, she indicated that she “bequeathed” to plaintiff all of her possessions, including “the check for $17,400.00 * * *.”16 The police took possession of the check, which was eventually placed in an interest-bearing account pending disposition of this action.17
Defendant, the Administrator ad litem of the Estate of Catherine Wagner, appeals from an Appellate Division decision, one judge dissenting, affirming a summary judgment by the trial court holding that Ms. Wagner had made a valid gift causa mortis of a check to plaintiff.18
Whether Ms. Wagner’s acts of endorsing the settlement check, placing it on the kitchen table in the apartment she shared with Scherer, next to a writing clearly evidencing her intent to transfer the check to Scherer, and abandoning the apartment with a clear expectation of imminent death constituted delivery sufficient to sustain a gift causa mortis of the check?19
The major purpose of the delivery requirement is evidentiary.20 Proof of delivery reduces the possibility that the evidence of intent has been fabricated or that a mere donative impulse has been mistaken for a completed gift.21 A constructive or symbolic delivery is sufficient to vest title in the donee when there has been unequivocal proof of a deliberate and well-considered donative intent on the part of the donor.22 The evidence must clearly show an intention to part presently with some substantial attribute of ownership.23 The steps taken by the donor to effect such a transfer must have been deemed by the donor as sufficient to pass the donor’s interest to the donee.24
Yes. The evidence of decedent’s intent to transfer the check to Robert Scherer is concrete, unequivocal, and undisputed.25 Ms. Wagner endorsed the settlement check in blank and placed it on the kitchen table in the apartment she shared with Scherer, next to a writing clearly evidencing her intent.26
The apartment was leased in Scherer's name, so he had routine access to it.27 By abandoning the apartment with a clear expectation of imminent death through suicide, she completed a constructive delivery.28 The act of endorsing the check represents the only act needed short of actual delivery to render the check negotiable.29
When she left the apartment, she did so with no expectation of returning, making her surrender of possession complete.30 These steps satisfied the flexible standard for constructive delivery because they aligned with what the donor viewed as sufficient to transfer her interest.31
Ms. Wagner’s acts constituted delivery sufficient to sustain a gift causa mortis of the check.32
Whether suicide, the perceived peril, was one which decedent herself created and one which was completely within her control such that a gift causa mortis cannot be sustained?33
A gift causa mortis is made by the donor with a view to impending death.34 Death is no less impending because of a resolve to commit suicide.35 The peril attendant upon contemplated suicide may reasonably be viewed as even more imminent than that accompanying many illnesses which prove ultimately to be fatal.36 The notion that one in a state of mental depression serious enough to lead to suicide is somehow freer to renounce the depression and thus the danger than one suffering from a physical illness.37 This view has long since been replaced by more enlightened views of human psychology.38
No. Although the defendant contends that suicide was a peril the decedent created and could have renounced at any time before jumping, this does not prevent the gift from being sustained.39 Ms. Wagner was acutely depressed and had previously attempted suicide by slashing her wrists.40
Her resolve to take her own life made the peril imminent on the day she received the check and left the apartment.41 The law does not disqualify gifts causa mortis on the ground that the donor created the peril, as the gift remains revocable until death occurs.42
Enlightened understanding of mental health confirms that the danger was real and immediate, supporting rather than undermining the validity of the transfer.
The gift causa mortis is sustained even though the peril was suicide.43
Whether this gift must fail because there was no acceptance prior to the donor’s death?44
Given a valid delivery, acceptance will be implied if the gift is unconditional and beneficial to the donee.45 The presumption of acceptance may apply even if the donee does not learn of the gift until after the donor’s death.46 A donee cannot be expected to accept or reject a gift until he learns of it and unless a gift is rejected when the donee is informed of it the presumption of acceptance is not defeated.47
The gift does not fail for lack of acceptance prior to the donor’s death.50