Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-07-07
LAW COURT DECISION. .
Recript in the Famous Eveleth W''
Case, Penobsoot County.

|
Twill case which has excited 50 much
interest in Piscatauuis county as well
as throughout Eastern Maine 1t was
Drawn by Justice Peabody and ia as
follows:
Piscataquis, SO. Calvin w. broWh'
! vs. Arthur A. Crafts ct ais. Re
Script, Peabody, j.
This was an action of debt on pro-
bate bond commenced in the name OF
the judge of probate for the county OIL
Piscataquis against Arthur A. Crafts,
executor Of the will Of John Fl. Eve
leth. late of GreenVille. in said county,
! deceased, testate, and the surety on his
official bond by Hattie Eveleth, widow
Of the testator. 1t Is before the law
court on report.
The testator died. Nov. Z, 1899, leav-
ing a widow, Hattie Eveleth. and Re-
becoa w. Crafts, a daughter by for
mer wife.
The will was admitted to probate on
the eighth day of January, 1900. and
within six months thereafter the Wld-
CIV waived the provision made for her
land claimed her right and interest by
descent in her husbands estate.
The defendant was appointed exec
utor of the will and gave bond to the
Judge of probate the predecessor Of the
nominal plaintiff. He returned an in
| ventory of the estate to the probate
court, which included improved real
estate, S34,120; wild land. $40,96O.50;
goods and chattles. S9,S97.93; and rights
and credits, $34, 1894
The basis of the suit is the breach of
the condition of the executors bond by
| his failure to include In his inventory
certain stocks. bonds and mortgages,
iamounting at their face value in the
aggregate to $65673.33, and of market
value of about 100000.
| This property beonged to the de-
ceased prior to June II, 1898, and con-
| stituted part of his estate at his death
unless the title thereto passed to his
daughter by gift. 1t was in his poses
sion at the time of his death and was
afterwards delivered by his executor
| to his daughter. Rebecca w. Crafts,
who claimed it under deed Of gift from
the deceased dated June II, 1898.
signed on the following day.
Four days after the execution of the
will the testatof, without the knowl-
edge of his wife or daughter, caused
to be prepared two written Instruments,
one a bill of sale or assignment by
which he SO sought to transfer the
property in controversy to his daugh-
ter; the other a power of attorney I'M
der which he was to receive the prop
erty and during his life to manage,
control and have the use and income of
the same as though it We're his own
property.
His daughter was called and his in
tention to give her this property dis
closed to her: and the papers were exc
cutcd consequently by himself and the
donee with all the formalties required
in the transfer of personal property.
He delivered the property to his
daughter, who received it and at his
request compared it. item by item, with
the schedule in the bill of sale; and she
in turn delivered the property to the
donor to be by him retained and used
in accordance with the terms of the
power OF attorney.
Eveleth was forty years older than
his wife, and while nothing appears
to indicate that the marriage relations
was not usually harmonious, his wife
had in their discussions in reference to
the disposition of his property made
threats that she meant to get all she
could of the estate when he got
through with 1t.
The validity of the transaction is
called into question by the plaintiff in
interest upon two grounds.
/. That it was not Il complete gift.
2. That it was n disposition of per-
sonal property intended to deprive his
wife of her distributive share and con-
seuucntly, as to her, by law fraudulent
and void.
l. The policy of the law favors gifts to
children.
| And the delivery of this property was
not incomplete by reason of lack Of for
mul endorsement or assignment of the
| certificates Of stocks bonds or notes.
The gift Of these chooses in action could
have been completely executed by
simple delivery with the inte'it at once
| to pass the title.
| The debatable ground is tn" intent
with which the formalities were OBJ
served and the limitation defined by
the law of wills. Under the instru-
ment signed by the donor there was
lacking no element of perfect execu-
! ton of the gift, but there was mani
fest mental reservation by him, which
had already been embodied in an in
strumcnt prepared at the same time
as the deed of gift, and which at his
virtual request was Immediately exc
cuted by the donee.
| 1t may well be doubted whether 1t
was legally In the power of the donce
under the circumstances to haNe aC-
cepted the gift without executing the
| power of attorney which gave the
donor the control of the property dur
ing his life. If not actually advised of
the intention of the donor when she
received the property. she was not left
In doubt for any determinate time.
What was done by the parties was
one and the same transaction.
We think the delivery of the proper
ty was incomplete. 1t was colorado,
not real. This attempted transfer, hay
ing the semblance of q gift but the
substance of a WILL was nugatory.
The courts of this state have given
liberal construction to language and
lattendant circumstances in upholding
| a tri1St whore the essential element OF