The Republican journal. [volume] (Belfast, Me.) 1829-current, 1911-07-20
THE DEAN BOND CASE.
The Law Court Decides that the Bonds
Must 90 to the Executor.

NuSt 90 TO the Executor.
Augustine F. Hahn, Exr VS.. Leslie C. Dean
Rescript, Cornish, Jr.
This is an action of replevin brought by the
executor of the last will and testament of
Maria D. Dean, late of Lincolnville, to recover
various bonds of the par value of 1000
found after her death N the possession of the
defendant, nephew of said testatrix, and
claimed by the defendant, under gift inter
vivus.
At the conclusion of the evidence, the pre-
siding justice directed verdict in favor of
the plaintiff, and the case is before the law
court on defendants exception to this ruling,
and also to the admission and exclusion of GER
tain evidence.
Maria D. Dean died August II, 1909. She
a widow without children, her heirs being
a brother and large number of nephews and
neces.
She had safety deposit box in one of the
banks in Belfast for many years in which she
kept her securities. At some time prior to
December, 1903. she procured an envelope from
the treasurer of the Belfast Savings Bank and
on the back of it she wrote these words: "What
is in this envelope belongs to Leslie C. Dean
of Northport, Maine" Just what she deposit
ed in this envelope is not clear but it is fair to
infer that some of her bonds were placed in it
and it was then restored to her box and con-
tinued in her exclusive possessi IN and control.
On August 2, 1909, she gave the defendant an
of Belfast, in which her box was then kept, in
these words: "Please send me my safe deposit
box by Leslie d. Dean and oblige." The box
was delivered to the defendant on this order
and it is conceded that all the bonds described
in the writ were in the box at that time and
were the property of Mrs. Dean. On Tuesday
August 18th, after the death of Mrs. Dean
the defendant took the box to the City Nation
al Bank, but deposited the bonds in question in
the Waldo Trust Co. in his own name.
Held:
That the mere marking of the envelope, as
aforesaid, while it and its contents remained
in Mrs. Deans possession and control, was in
sufficient to transfer title to any property
therein contained.
2. That the title to the contents of the
safety deposit box is not proven to have pass
ed from her. There is no legal evidence of
delivery and the defendants mere possession
after his aunt's death falls far short of what the
law requires. He was in possession under her
authority when he took the box from the bank,
and his possession was her possession, and that
possession is presumed to continue until the
contrary is proved, that has not been proved,
and therefore. the title remained unchanged,
and at her decease passed to her estate or to
the plaintiff as the executor of the will.
3. To constitute a valid gift inter vivos
delivery is essential. No intention, however
clear, nor declaration, however strong, can
take its place.
4. AS a verdict for the defendant could not
have been sustained in this court, the direc-
tion of verdict for the plaintiff by the pre-
siding justice was without error.
5. The defendant was not made COM
petent witness by the fact that two heirs at
law of the testatr X testified at the instance
of the plaintiff, and his testimony was properly
excluded. 1t is provided in Revised Statutes,
chapter "a, Sec. 112, Par. ", that "In actions
where an executor, administrator other
legal representative is party and the oppo-
site party is an heir of the deceased, said heir
may testify when any other heir of the de-
ceased testifies at the instance of such execu-
tor, administrator. or other legal representa-
tive" The defendant not being an heir of the
deceased does not come within this EXECUTION.
g. The ruling of the presiding justice
permitted a niece of the testatrix to testify in
behalf of the plaintiff to declarations of the
testatrix tending to disprove gift of the
bonds would be nadmissable so far as they
can be regarded as merely self-serving; but
the decision of the court in this case entirely
dsregards these declarations and is based
upon the clearly admissible evidence. The
error, if any. was harmless and should not be
allowed to disturb the verdict.
Exceptions overruled.