WOODWARD, J. James E. Dale, a native of Philadelphia, and a bachelor, having lived several years in California, embarked at San Francisco in the month of August, 1850, for Panama, on board a steamship. On the voyage, between Acapulco and Panama, he was seized by cholera. He sent for the purser of the ship, Mortimer Lent, who when he came found Dale lying dangerously ill, on the steerage deck. A sailor was in attendance upon him. The sick man held in his hands a buckskin bag of göld dust, and some pieces of coin, together amounting in value to $1770.60, which he handed to the sailor, and requested him to deliver them to Mr. Lent, which was done on the spot. In answer to questions put to him by Lent, he said his name was James E. Dale; that he was twenty-six years old; that he was not married. Lent asked him who he wanted to have his effects? He said his sister and brother, residing in Philadelphia. This, says Lent, was all he said; but on further examination, the witness stated, "the said gold dust and coin were given to me in presence of said James E. Dale, and at his request; and he wished his brother and sister to have it." About six hours after this occurrence Dale died of the disease from which he was then suffering.

This is an action brought by his brother and sister, to recover the value of the gold dust and coin, after conversion, from the administrator, into whose hands it has come. The question is, whether these circumstances establish a donatio causa mortis.

The plaintiff in error, who was defendant below, founds an argument on the word "effects;" that it was a nuncupative disposition of his whole estate, and not a mere gift of the gold dust and coin. This question was properly submitted to the jury, and they found that the words of donation had reference only to the gold dust and coin. And interpreting the words of the dying man by his action, there is no room to doubt that the effects which he meant to give to his brother and sister were what he handed to the sailor.

Though we have derived the name and some of the principles of such gifts from the Roman law, yet we treat them with less favor than they enjoy in that system of jurisprudence, because it is the policy of our law to require all testamentary dispositions to be in writing. Our Statute of Wills does indeed provide for nuncupation in respect to personal property, but surrounds it with so many requisites and restrictions (all which we hold to be indispensable, Haus v. Palmer, 1 Am. L. R. 635) (9 Harris 296), that it is scarcely more than a nominal exception to the general rule that testaments must be written. And I agree it is a fair principle of decision, as suggested in Headley v. Kirby, 6 Harris 329, that we take our Statute of Wills as a general rule, and treat donationes mortis causa as exceptions which are not to be extended by way of analogy. It results, thence, that nothing can be sustained by way of donatio causa mortis, that is not strictly and purely such.

Donatio causa mortis is a gift of a chattel made by a person in his last illness, or in periculo mortis, subject to the implied condi

tions that if the donor recover, or if the donee die first, the gift shall be void.

In this definition I have followed, substantially, C. J. Tilghman in Wells v. Tucker, 3 Bin. 370, and the English cases collected in 6 Bac. Abridg. 162; but I am aware that in Nicholas v. Adams, 2 Wh. 22, it was criticised by C. J. Gibson, who quoted from Justinian's Institutes to prove that there was nothing about sickness in the primitive definition, and to deduce what he considered the proper definition—a conditional gift dependent on the contingency of expected death.

I am far from thinking definitions unimportant, for, in the law as in all other sciences, they are the very keys to accurate knowledge; but the difference between these definitions is not material as applied to the case before us, for, according to either or both of them, a good donatio causa mortis was made by Mr. Dale. It was a gift in his last sickness, and in view of expected death; and the donees surviving him, the implied conditions were taken away and the gift became absolute. Delivery was indispensable, but whether made to the donee immediately, or to another for him, was held to be immaterial in Drux v. Smith, 1 P. Wms. 404. The delivery to Lent was all that the law required.

And it was the completeness of this delivery in execution of the gift, which excluded the rights of the administrator. A gift is an executed contract. It may be defeated by conditions subsequent; but it must vest presently or it is nothing, for a mere promise to give cannot be enforced either at law or in equity. When a chattel has been given causa mortis, possession delivered, and death has performed the condition subsequent on which it depended, no title whatever in that chattel descends to the executor or administrator, and he has no right to the possession of it for purposes of administration. If the title of the donor be so effectually divested by a gift causa mortis that he cannot affect it by his subsequent will, as was held in Nicholas v. Adams, 2 Wh. 23, then, beyond controversy, his personal representative can take no interest in it. The donee, it is true, must account for the value of the chattel, if creditors appear and there be not estate enough beside to satisfy them, for in no manner whatever can a man, living or dying, give away his estate in fraud of creditors. The law compels him to be just, before it permits him to be generous. But until the donation is needed to satisfy creditors, the donee is entitled to enjoy it, and it is not subject to the ordinary course of administration: Roper on Legacies, p. 3; Tate v. Hilbert, 2 Vesey, Jr. 120; Walter v. Hodge, 2 Swans. 98.

It was greatly insisted on in argument that the court ought to have instructed the jury that if the gold was the principal part of Mr. Dale's property, he could not make a donatio causa mortis of it, and for this Headley v. Kirby was relied on. In that case there was a variety of chattels they were not specified by the donor-nothing more than a constructive delivery occurred - the language was evidently testamentary and it referred expressly to all her property. In these particu

lars the case is broadly distinguished from the present, and it does not decide that where a single chattel is the whole of a man's estate, or the "principal part of his property," it may not be given causa mortis. The doctrine of that case, predicated of the circumstances then before the court, is not to be questioned, for it rests on sound reasons; but, if applied to a case like this, it would defeat all gifts made as memorials of gratitude and affection in the most solemn circumstances of life. It is due to the sensibilities of our nature that the law permit, under proper limitations, such expressions of a dying man's regards. Many a chattel of small intrinsic worth has been thus impressed with an unspeakable value, which it would be a sort of sacrilege to subject to inventory, appraisement, and sale in open market. The court did not charge that a man could dispose of his whole estate as a gift causa mortis; and if the gold dust and coin were the principal part of the decedent's property, we see nothing on the record to impeach it as a donatio causa mortis.

The property having been converted, and its equivalent only being in the hands of the administrator, the action was well brought in assumpsit; and because the title of the plaintiffs was joint, the implied promise followed it, and they were properly joined to sue upon it.

Though the fourteen errors assigned have not been discussed in order, it is believed the substance of all of them has been disposed of in these observations, and the judgment is affirmed.

GRYMES v. HONE.

COURT OF APPEALS OF NEW YORK. 1872.

PECKHAM, J.1 On the

[Reported 49 N. Y. 17.]

19th August, 1867, the alleged donor being the owner of 120 shares of stock, included in one certificate, in the Bank of Commerce of New York city, made an absolute assignment in writing, transferable on the books of the bank on the surrender of the certificate, under seal and witnessed, of twenty shares thereof to this plaintiff, his favorite granddaughter, for value received, as the assignment purports, and appointed her his attorney irrevocable to sell and transfer the same to her use. After this paper had been signed, "he kept it by him for a while" (how long, nowhere appears), and afterward handed it to his wife to put with the will and other papers in a tin box she had. When he gave to his wife the paper so drawn, he said: "I intend this for Nelly. If I die, don't give this to the executors; it is n't for them, but for Nelly; give it to her, herself." She asked, "Why not give it to her now?" "Well," he said, "better keep it for the present; I don't know how much longer I may last or what may happen, or whether we may not need it." This is the state

1 The opinion only is given.

ment, as given by the widow of donor. It was admitted that, at the time of executing said instrument, the donor was from seventy-eight to eighty years of age, was in failing health, and so continued till his death, January 23d, 1868. Upon these facts was there a valid gift mortis causa?

Upon the question as to what constitutes such a gift, the authorities are infinite, not always consistent. But at this time it is generally agreed that, to constitute such a gift, it must be made with a view to the donor's death from present illness or from external and apprehended peril. It is not necessary that the donor should be in extremis, but he should die of that ailment. If he recover from the illness or survive the peril, the gift thereby becomes void; and until death it is subject to his personal revocation. 2 Kent, 444, and cases cited;

2 Redfield on Wills, 299 et seq.; 1 Story's Eq., § 606, etc., notes and authorities.

In the next place there must be a delivery of it to the donee or to some person for him, and the gift becomes perfected by the death of the donor.

Three things are necessary. 1. It must be made with a view to donor's death. 2. The donor must die of that ailment or peril. 3. There must be a delivery. The appellant insists that the gift in this case fulfils neither requisition.

Was this gift made with a view to the donor's death? It is so found by the referee as a question of fact. What the witness intended to convey by the term "failing health" is not clear; but intendments are against the appellant where the fact is left uncertain. There is nothing in the case inconsistent with the idea that the testator, when he signed this assignment, was confined to his bed, and so continued till his death; though I do not wish to be understood as saying that such confinement was necessary to validate the gift. It seems that he died, as the referee finds, from this failing health, in five months thereafter; so that the terms, as used, indicated a very serious ailment.

True, he did not, and of course could not, know when death would occur when he executed this assignment, but he was in apprehension of it. His age and his "failing" told him death was near, but when it might occur he had no clear conviction. An ailment at such an age is extremely admonitory.

From these facts, can this court say, as matter of law, that this testator was not so seriously ill when he executed this assignment as to be apprehensive of death; that he was not legally acting "in view" of death; that he was not so ill as to be permitted to make this sort of gift? True, the donor died five months thereafter; but we are referred to no case or principle that limits the time within which the donor must die to make such a gift valid. The only rule is that he must not recover from that illness. If he do, the gift is avoided. The authorities cited by the appellant's counsel, of Weston v. Hight, 5 Shep. Me. 287, and Staniland v. Willott, 3 McN. & Gor. Ch. R. 664, are both instances of

recovery, and the gifts, on that ground, declared void. In the latter, the donor and his committee recovered back the stocks given. because of his recovery. The first case is improperly quoted in 2 Red. 300, note 11, as not originally authorizing the gift.

The declaration of the donor, that his wife should keep the assignment and not hand it over till after his death, as he did not know what might happen, nor but that they might need it, was simply a statement of the law, as to such a gift, whether the declaration was or was not made. Clearly he could not tell whether he should die or recover from that ailment. If he did recover, the law holds the gift void.

The transaction as to such a gift is, the donor says, I am ill, and fear I shall die of this illness; wherefore I wish you to take these things and hand them to my granddaughter after my death; but do not hand them to her now, as I may recover and need them. A good donatio mortis causa always implies all this. If delivered absolutely to the donee in person, the law holds it void in case the donor recovers, and he may then reclaim it. Staniland v. Willott, supra.

To make a valid gift mortis causa, it is not necessary that there should be any express qualification in the transfer or the delivery. It may be found to be such a gift from the attending circumstances, though the written transfer and the delivery may be absolute. See the last case.

I think this donor made this gift with a view to his death," within the meaning of the rule on that subject.

2d. This also settles the second requisite, as it is admitted that he did not recover, but died of this failing health," as it is expressed.

3d. Was there a delivery? The assignment was delivered to his wife for the donee. She thus became the agent of the donor. So far as the mere delivery is concerned, this is sufficient. See the elementary writers before cited; also Drury v. Smith, 1 P. W. 404; Sessions v. Moseley, 4 Cush. 87; Coutant v. Schuyler, 1 Paige, 316; Borneman v. Sidlinger, 8 Shep. Me. 185; Wells v. Tucker, 3 Binn. 366; Hunter v. Hunter, 19 Barb. 631. Such a delivery to be given to the grantee after the grantor's death, is good as to a deed of real estate. Hathaway v. Payne, 34 N. Y. 92.

It is urged that this gift was not completed; that the stock was not transferred on the books of the bank, and could not be until the certificate held by the donor was surrendered, and that equity will not aid volunteers to perfect an imperfect gift.

Within the modern authorities this gift was valid, notwithstanding these objections. The donor, by this assignment and power, parted with all his interest in the stock assigned as between him and the donee, and the donee became the equitable owner thereof as against every person but a bona fide purchaser without notice. Delivery of the stock certificate without a transfer on the bank's books would have made no more than an equitable title as against the bank (V. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y. 80, and cases cited), though