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Foster v. Reiss

Citation. 22 Ill.18 N.J. 41, 112 A.2d 553 (1955)
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Brief Fact Summary.

The decedent wrote a note prior to death which directed her husband to certain money, a savings account and shares in a building and loan association. The husband would not have received the property under the decedent’s will and the Plaintiffs, those responsible for carrying out the will, sued the husband to recover the property.

Synopsis of Rule of Law.

The doctrine of gift causa mortis is subject to strict requirements, including delivery, which are necessary to limit the application of the doctrine due to the fact that it intrudes on the statute of wills.


Decedent Ethel Reiss and Defendant Adam Reiss were married in 1940. Subsequent to the marriage, Decedent executed a will which left Defendant with one dollar and the residue of the Decedent’s estate to her children and grandchildren. Decedent and Defendant separated in 1946 and entered into an agreement concerning their respective rights to certain land. Thereafter, in 1948, the couple reconciled and co-habitated until Decedent’s death in 1951 at the age of 66. In April of 1951 Decedent was put in the hospital for major surgery. Prior to going into the surgery Decedent wrote a note in her native Hungarian to her husband, the Defendant. The note gave the directions to money which was hidden in the house the couple shared, gave instructions to a savings account, and gave directions to a book which showed shares in a building and loan association. The note also referenced where Decedent’s will was to be found. The Decedent told a friend in the hospital to direct her husband to th
e note, which she placed in a drawer beside her bed. Then, while the Decedent was in surgery and unconscious, the Defendant found the note and went home to gain possession of the items referenced in the note. The Decedent, as found by the trial court, never regained the ability to communicate from the time of the surgery until her death nine days later. The Defendant husband maintained possession of the items he found as a result of the note. The Plaintiffs instituted suit to recover the property. At the trial court level the Plaintiffs prevailed, and the Defendant appealed to the intermediate appellate court which reversed and found that the items in the note were given as a gift causa mortis to the Defendant, and that the gift causa mortis superceded the expressed intent of the will. The Plaintiffs appealed.


Does the note written by the Decedent constitute a valid gift causa mortis of the property described therein to the Defendant?


No. The judgment of the intermediate appellate court is reversed and the judgment of the trial court in favor of the Plaintiffs is reinstated.
The Decedent’s will gave to the Defendant one dollar. The Defendant claimed that the property described in the note from Decedent prior to her death was a gift causa mortis, which falls outside the law of probate. The Court noted the historical definition of the doctrine of donatio causa mortis and stated that the doctrine was based on certain elements which must be established to validate such a purported gift.
The elements of a gift causa mortis are: 1. The gift must be made in light of the impending death of the donor; 2. The donor must die of the peril or disorder which creates the basis for impending death; 3. There must be delivery of the thing given; 4. The donor must be competent to make the gift; 5. There must be an intent on the part of the donor to make the gift; 6. There must be acceptance by the donee. The Court further found that the delivery must be actual and serve to completely divest the donor of possession. A transfer under a gift causa mortis is reversible by the donor if the donor recovers from the peril. The doctrine of gift causa mortis is an invasion into the realm of law regarding wills.
The Court found that in the facts presented, there was no delivery of the items in the note whatsoever. The donor’s intent was established, but not the requirement of actual delivery.
Also, the Court found that the note failed to authorize the Defendant to take possession of the chattels mentioned therein due to the fact that Decedent was under the influence of ether and unconscious at the time the Defendant took the note from the drawer in the hospital room. Thus, the Decedent lacked capacity to grant such authority.


The doctrine of gift causa mortis is by its nature an emergency form of donation, and it is therefore present in cases where the actual delivery can often not be made and the Decedent does not have the ability to execute formal documents. In this case, the Decedent could not do any more than she did to effect her intent, thus, the gift should be held valid.


In cases where there is a will which clearly expresses one desire and another, less formal, writing which expresses another desire, the courts will general find favor with the formal writing. This is because the formal writing is witnessed and is not as susceptible to questions of the capacity of the donor.

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