Foster v. Reiss

Facts

Decedent Ethel Reiss and Defendant Adam Reiss were married in 1940. Subsequent to the marriage, Decedent executed a will which left Defendant with one dollar and the residue of the Decedent’s estate to her children and grandchildren. Decedent and Defendant separated in 1946 and entered into an agreement concerning their respective rights to certain land. Thereafter, in 1948, the couple reconciled and co-habitated until Decedent’s death in 1951 at the age of 66. In April of 1951 Decedent was put in the hospital for major surgery. Prior to going into the surgery Decedent wrote a note in her native Hungarian to her husband, the Defendant. The note gave the directions to money which was hidden in the house the couple shared, gave instructions to a savings account, and gave directions to a book which showed shares in a building and loan association. The note also referenced where Decedent’s will was to be found. The Decedent told a friend in the hospital to direct her husband to th e note, which she placed in a drawer beside her bed. Then, while the Decedent was in surgery and unconscious, the Defendant found the note and went home to gain possession of the items referenced in the note. The Decedent, as found by the trial court, never regained the ability to communicate from the time of the surgery until her death nine days later. The Defendant husband maintained possession of the items he found as a result of the note. The Plaintiffs instituted suit to recover the property. At the trial court level the Plaintiffs prevailed, and the Defendant appealed to the intermediate appellate court which reversed and found that the items in the note were given as a gift causa mortis to the Defendant, and that the gift causa mortis superceded the expressed intent of the will. The Plaintiffs appealed.