FOSTER V. REISS
18 N.J. 41, 112 A.2d 553, 48 A.L.R.2d 1391 (1955)
NATURE OF THE CASE: This was an action to recover the property of an estate. Appealed.
Foster (P), appealed a judgment in Reiss' (D) favor in an action to recover items taken
pursuant to an alleged gift causa mortis.
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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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