Foster v. Reiss

18 N.J. 41, 112 A.2d 553, 48 A.L.R.2d 1391 (1955)

Facts

Decedent executed a will in which she left a nominal bequest to her husband (D), and most of her estate to her children and grandchildren from a prior marriage. The two later separated and executed a separation agreement which addressed their respective rights in certain land. A few years later, they reconciled. When decedent entered the hospital a few years later to undergo major surgery, she wrote a note to D, in which she gave him gifts of cash which were hidden around their house, and made a few gifts to other people. In the note, she also expressed a belief that she was going to die, and told D where her will was. She put the note in the drawer of a bedside table and told a friend to let her husband or daughter know that the note was there. The friend informed D about the note when he came into the room during decedent's surgery. D took the note, went home and located the cash and other items. He retained these items after decedent's death and refused to turn them over to the executors of decedent's estate (P). Decedent lived for nine days following her surgery. She was unconscious for at least the first three days following the surgery: at trial, the jury found that from the surgery until her death, she was unable to recognize family members or to converse. P sued for recovery of the items mentioned in the note. D argued that the items in the note were a gift causa mortis from his wife. The trial court found in P's favor. On appeal, the Appellate Division reversed. P appeals.