Property I, Pages 221–225

Scherer v. Hyland

Supreme Court of New Jersey, 1977


Plaintiff and decadent lived together for 15 years. During this time, plaintiff was injured in an automobile accident and became immobilized. Plaintiff provided for her after the accident. On the day of her death, she received a check for her claim in the automobile accident. She told plaintiff of this, who didn't notice anything out of the ordinary. After the call, she signed the check and wrote two notes to plaintiff. One note explained her depression, expressed her love for plaintiff, and apologized for her soon suicide. The other note said she "bequeathed" all of her belongings and the check to plaintiff. She left the blank signed check and the notes on their kitchen table, went outside, and jumped to her death.

Procedural History:

Trial court held that Ms. Wagner had made a valid gift causa mortis to the plaintiff. Appellate Division affirmed.


Did decedent's actions constitute delivery to plaintiff?

Defendant's Argument:

Decedent did not relinquish her control over the check to plaintiff. At any time before her jump she could have gone back and taken back the check despite writing the note.


Page 223, Paragraph 4

Where there has been unequivocal proof of a deliberate and well-considered donative intent on the part of the donor, . . . a "constructive" or "symbolic" delivery is sufficient to vest title in the donee. However, where this is allowed the evidence must clearly show an intention to part presently with some substantial attribute of ownership.


  • Wagner's intent was concrete, unequivocal, and undisputed. There was no possibility of fraud.

  • Signing a check is understood to be the only act needed to render a check negotiable. Plaintiff was the only other person who had access to the apartment and she placed the check where he would see it. These show that she did all she thought necessary to surrender the check.


Yes, decedent's did everything she thought necessary and clearly intended delivery. This should constitute sufficient symbolic delivery. Affirmed.