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Scherer v. Hyland

Citation. 22 Ill.75 N.J. 127, 380 A.2d 698 (1977)
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Brief Fact Summary.

Plaintiff, Mr. Scherer, lived with Decedent for fifteen years. The Decedent was injured in a car wreck and became very depressed. She received a settlement check from a lawsuit over the wreck and endorsed the check and left a suicide note which stated her intent to give all her possessions to Plaintiff, including the check, and then jumped to her death.

Synopsis of Rule of Law.

The gift causa mortis is valid where there is evidence of the donor’s intent to make the transfer and the facts here support a finding that the rule requiring delivery of the gift should be relaxed because the situation is incompatible with making actual delivery.


Catherine Wagner (Decedent) and the Plaintiff, Robert Scherer, lived together for approximately fifteen years before Wagner’s death in 1974. In 1970 the couple were involved in a car wreck which left Wagner with facial wounds and a broken hip which forced her to give up her job. Wagner became seriously depressed. After the accident Plaintiff assumed the responsibility to care for Wagner as well as her finances. Wagner had at one time attempted suicide by slashing her wrists. On January 23, 1974, Wagner committed suicide by jumping from the roof of the apartment building in which housed her and the Plaintiff’s apartment. On that same day, prior to the jump, Wagner had received a check for $17,400.00, in settlement for the injuries sustained in the car wreck. Plaintiff endorsed the check in blank, then wrote a suicide note to Scherer which “bequeathed” to Plaintiff all her possessions including the check for $17,400.00. Then, Wagner jumped to her death. The police, in investigat
ing the death, entered the apartment and found the note and the check. The check was taken as evidence and eventually deposited in an interest bearing account pending the outcome of the litigation. Plaintiff sued the administrator of the Decedent’s estate for the money, based on the theory that the writing and the check indicated a desire by the Decedent to make a gift causa mortis to Plaintiff. The trial court found that a valid gift causa mortis of the check had been made and the intermediate appellate court affirmed. The administrator of the Decedent’s estate appealed.


Were the steps taken by the decedent, independent of the writing of the suicide note, sufficient to establish that Decedent had made a lifetime transfer of the check to Plaintiff Scherer as a gift causa mortis?


Yes. Judgment affirmed.
The Court found that under the statute of wills, the suicide note was clearly not a testamentary instrument. The Court found that the only question necessary to determine the case was that of whether adequate delivery of the check had been made by the Decedent’s actions prior to her death.
The Defendant (Administrator) argued that under the rule of Foster v. Reiss, infra, the Decedent never made an unequivocal relinquishment of control of the check because the peril of imminent death was one which the Decedent created and that Decedent could have changed her mind. Thus, the Defendant argues that the gift was not made within the Decedent’s lifetime as required by the doctrine of gift causa mortis. In this case the Court found favor with the dissent in Foster v. Reiss, infra, which questioned the reasonableness of requiring actual delivery of the gift in cases where the intent of the donor is clearly expressed. Also, that the best approach is to allow for constructive delivery in such cases, insofar as the intent of the donor is manifest.
The Court found that the endorsement in blank of the settlement check by the Decedent was the actual gift, and that the suicide note served only as persuasive evidence of the intent of the Decedent to make the gift. The Court found that the facts supported this conclusion based on the fact that the apartment was leased to Plaintiff Scherer and that he alone had regular access to the apartment, and that Decedent left the check where Plaintiff would be sure to find the check.
The Court found that the Decedent’s state of mind at the time of the gift was to commit suicide and that she did not manually deliver the check to Plaintiff due to her desire not to be deterred from her suicide. The Court found that her actions in leaving the endorsed check in the apartment constituted a constructive delivery. The Court found that death was impending due to the desire of the Decedent to commit suicide.
The Court found that acceptance of the check by Plaintiff would be implied based on the fact that the gift is unconditional and beneficial to the Plaintiff.


This Court, in attempting to effectuate the clearly expressed intent of the Decedent, took a much more liberal view of the doctrine of gift causa mortis than did the Court in Foster v. Reiss, infra. One important method of understanding these cases is to consider the effect of the Court’s decision on the parties involved.

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