The final and correct opinion was established, that a gift inter vivos was irrevocable ; but that a gift causa mortis was conditional and revocable, and of a *tes 445 tamentary character, and made in apprehension of death.a The first case in the English law on the subject of gifts causâ mortis, was that of Jones v. Shelby, in 1710,5 in which the lord chancellor ruled, that a donatio causa mortis was substantially a will with a like revocable character during the life of the donor. Afterwards, in Drury v. Smith,c a person, in his last sickness, gave a one hundred pound bill to a third person, to be delivered to the donee if he died : and this was held to be a good gift, and Lord Hardwicke subsequentlyd approved of that decision. In Lawson v. Lawson, and in Miller v. Miller, f a delivery to the wife as donee was held good; but in the last case it was held, that a note of hand not payable to bearer, and being a mere chose in action, to be sued in the name of the executor, did not pass by delivery, or take effect as a gift causâ mortis.s The delivery of bank notes, which circulated as cash, was held at the same time to be a valid donation; and the same point has been since established.h

Dig. 39. 6. 2. and 27. Inst. 2. 7. 1. Vide Dig. lib. 39. tit. 5. De Donationibus, and tit. 6. De mortis causa Donationibus, for the Roman law at large on the subject. By the Lex Cincia, A. U. C. 550, a donation above 200 solidi was not valid, unless accompanied with delivery.

Prec. in Ch. 300. In Hambrooke v. Simmons, 4 Russell's Rep. 25, it was left as a doubtful point, whether a donatio mortis causâ be avoided by the making of a subsequent will.

el P. Wms. 404. a 3 Atk. Rep. 214. •1 P. Wms. 440. 13 Ibid. 356.

& The same point as that in Miller v. Miller, was decided the same way in Bradley v. Hunt, 5 Gill & Johnson, 54, in the case of a promissory note payable to the husband's order. It would have been otherwise, if the note had been payable to bearer.

h Hill v. Chapman, 2 Bro. Ch. Rep. 612.

But the case of Ward v. Turner, a was that in which the whole doctrine was, for the first time, fully and profoundly examined in the English court of chancery; and Lord Hardwicke gave to the subject one of his most elaborate and learned investigations. He held, that actual delivery was indispensable to the validity of a gift

causâ mortis, and that a delivery to the donee of *446 receipts for south sea annuities, *was not sufficient

to pass the property though it was strong evidence of the intent. The delivery of the receipt was not the delivery of the thing. He examined very accurately the leading texts of the civil law, and the commentators on the point, and concluded, that though the civil law did not require absolute delivery of possession in every kind of donation causâ mortis, that law had not been received and adopted in England in respect to those donations, only so far as the donations were accompanied with actual delivery. The English law required delivery throughout, and in every case. In all the chancery cases, delivery of the thing was required, and not a delivery in the name of the thing. In Jones v. Shelby, a symbol was held good; but that was in substance the same as delivery of the article, and it was the only case in which such a synibol had been admitted. Delivery of a symbol in the name of the article was not sufficient. The delivery of the receipts was merely legatory, and amounted to a nuncupative will, and was a breach of the statute of frauds.

Symbolical delivery is very much disclaimed by Lord Hardwicke in this case, and yet he admits it to be good when it is tantamount to actual delivery ; and in Smith v. Smith,b it was ruled, that the delivery of the key of a room, containing furniture, was such a delivery of possession of the furniture, as to render the gift causâ mortis valid. Ch. J. Gibbs said, that was a confused case ; but

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the efficacy of delivery, by means of the key, was not a questionable fact.

The doctrine of this species of gift, was afterwards discussed with ability and learning, in Tate v. Hilbert.a Lord Loughborough pressed the necessity of actual delivery to the efficacy of such gift, except in the case of a transfer by deed or writing. He held, that where a person, in his last sickness, gave the donee his check on his banker, for a sum of money, payable to bearer, and he died before it was realized, *it was not *447 good as a donatio causâ mortis ; for it was to take effect presently, and the authority was revoked by his death. He likewise held, that where the same person, at the same time, gave to another donee his promissory note for a sum of money that was not good as such a gift, for it was no transfer of property. So, where a person, supposing himself to be in his last sickness, caused India bonds, bank notes and guineas, to be sealed up and marked with the name of the donee, with directions to have them delivered after his death, and still retained possession of them, it was held, b that there was no delivery; and the act was void as a gift causâ mortis ; for there must be a continuing right of possession in the donee until the death of the donor, and he may revoke the donation any time before his death.c

The cases do not seem to be entirely reconcilable on the subject of donations of choses in action. A delivery of a note, as we have seen, was not good, because it was a mere chose in action ; and yet in Snellgrove v. Bailey,d the gift of a bond causâ mortis was held good, and passed the equitable interest; and Lord Hardwicke after

a 2 Ves. jun. 111. 4 Bro. Ch. Rep. 286.

Buna v. Markham, 7 Taunt. Rep. 224. · Hawkins v. Blewitt, 2 Esp. N. P. Rep. 663. S. P. In the case of the Roman Catholic Church v. Miller, 17 Martin's Louis. Rep. 101, it was held that a legacy of so much money in a drawer, was only good for the sum found there at the death of the testator.

a3 Atk. Rep. 214.

wards, in the great case of Ward v. Turner, said he adhered to that decision; and the same kind of gift, as well as the gift of a promissory note causâ mortis, has been held in this county to be valid. The distinction made by Lord Hardwicke, between bonds and bills of exchange, promissory notes and other choses in action, seems now to be exploded in this country, and they are all considered proper subjects of a valid donation causâ

mortis as well as inter vivos.a 448* * By the admirable equity of the civil law,

donations causâ mortis were not allowed to defeat the just claims of creditors; and they were void as

& Wells v. Tucker, 3 Binney's Rep. 366. Borneman v. Sidlinger, 15 Maine Rep. 429. Wright v. Wright, 1 Cowen's Rep. 598. Constant v. Schuyler, 1 Paige's Rep. 318. Parker v. Emerson, sup. court N. Y. 1846, The Law Reporter, for June 1846. Brunson v. Brunson, 1 Meig's Tenn. Rep. 630. Parish v. Stone, 14 Pick. 207. This last case overrules the one from Cowen, so far as it applies to the donor's own promissory note payable to the donee, and which cannot be the subject of a donatio causa mortis. It has been a debateable question, whether a bond and mortgage could pass by delivery as a donatio causâ mortis. In Duffield v. Elwes, 1 Sim. f. Stu. 239, it was held, that a mortgage could not be so given, and that the bond did not also pass. The reason assigned was, that it was not a gift completed, inasmuch as the mortgagor had a right to resist the payment of the bond without the reconveyance of the estate ; and the donor of the bond was not to be compelled to complete his gift by such conveyance. But this case was afterwards reversed; and the delivery of the mortgage, as creating a trust by operation of law, was good as a donatio causâ mortis. 1 Bligh's Rep. 497. This principle was also admitted in Hurst v. Beach, 5 Madd. Ch. Rep. 351, and a delivery of a bond and mortgage, as a donation mortis causá, held valid. So, also, in Duffield v. Hicks, 1 Dow's N. S. 1, bond and mortgage securities were held to be capable of a good delivery as a donatio causå mortis. They raise a trust by operation of law, and the heir or executor is bound to give effect to the intent of the donor. These decisions are subject to the objection, that they go very much to impair the provision in the statute of frauds, which avoids parol grants and assignments in trust. The requisites of a valid donatio mortis causâ, are well collected in a learned note to the case of Walter v. Hodge, 2 Swanston, 106, where it is stated and proved, that it requires delivery of the property or the documentary evidence of it—that it is revocable by the donor—that it is revoked by the death of the donee during his life-that it is subject to the claims of creditors, and that, on the death of

against them even without a fraudulent intent. It is equally the language of the modern civilians and of the English law, that donations cannot be sustained to the prejudice of existing creditors.b

the donor, the property vests absolutely in the donee and no probate is required, and the wife may be that donee.

Dig. 39. 6. 17. 5 Vect. Com. ad Pand. 39. 5. sec. 20. Pothier, Traité des Donations entre Vifs, sec. 3. art. 1. sec. 2. Toullier, Droit Civil Français, tom. v. p. 733. Smith v. Casen cited in 1 P. Wms. 406, note.

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