in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in presenti, unless paid or accepted while the donor is alive; how much less so, when, as in the present case, it is made payable only upon his death.

66

The case is not distinguishable from Mitchell v. Smith, 4 De G., J. & S. 422, where the indorsement upon promissory notes, claimed as a gift, was, “I bequeath — pay the within contents to Simon Smith, or his order, at my death." Lord Justice Turner said: "In order to render the indorsement and delivery of a promissory note effectual they must be such as to enable the indorsee himself to indorse and negotiate the note. That the respondent, Simon Smith, could not have done here during the testator's life." It was accordingly held that the disposition of the notes was testamentary and invalid.

It cannot be said that the condition in the indorsement, which forbade payment until the donor's death, was merely the condition attached by the law to every such gift. Because the condition, which inheres in the gift mortis causa, is a subsequent condition, that the subject of the gift shall be returned if the gift fails by revocation; in the mean time the gift is executed, the title has vested, the dominion and control of the donor has passed to the donee. While here, the condition annexed by the donor to his gift is a condition precedent, which must happen before it becomes a gift, and, as the contingency contemplated is the donor's death, the gift cannot be executed in his lifetime, and, consequently, can never take effect.

This view of the law was the one taken by the Circuit Court as the basis of its decree, in which we accordingly find no error. It is accordingly. Affirmed.

DREW v. HAGERTY.

SUPREME JUDICIAL COURT OF MAINE. 1889.

[Reported 81 Me. 231.]

WALTON, J.1 The most important question is whether the gift of a savings-bank book, from husband to wife, causa mortis, is valid without delivery, provided the book is at the time of the alleged gift already in the possession of the wife. The action was tried before the Chief Justice, and he ruled that to constitute a valid gift, causa mortis, there must be a delivery; that if the property "be at the time already in the possession of the donee, the donor's saying to the donce, you may have it,' or 'you may keep it it shall be yours,' does not pass the property in the case of a gift causa mortis."

We think this ruling was correct. If the act of delivery was for no

1 The opinion only is here printed.

other purpose than to invest the donee with possession, no reason is perceived why it might not be dispensed with, when the donee already had possession. But such is not its only purpose. It is essential in order to distinguish a gift causa mortis, from a legacy. Without an act of delivery, an oral disposition of property, in contemplation of death, could be sustained only as a nuncupative will; and in the manner and with the limitations provided for such wills. Delivery is also important as evidence of deliberation and intention. It is a test of sincerity, and distinguishes idle talk from serious purposes. And it makes fraud and perjury more difficult. Mere words are easily misrepresented. Even the change of an emphasis may make them convey a meaning different from what the speaker intended. Not so of an act of delivery. Like the delivery of a turf, or the delivery of a twig, in the ancient mode of conveying estates, or the delivery of a kernel of corn, or the payment of one cent of the purchase money, to make valid a contract for the sale of a cargo of grain, an act of delivery accomplishes that which words alone cannot accomplish. Gifts, causa mortis, ought not to be encouraged. They are often sustained by fraud and perjury. It was an attempt to sustain such a gift by fraud and perjury that led to the enactment of the Statute for the prevention of fraud and perjury. See Matthews v. Warner, 4 Vesey, Jr., 187, 196, note; Leathers v. Greenacre, 53 Maine, 561, 569. As said in Hatch v. Atkinson, 56 Maine, 326, it is far better that occasionally a gift of this kind should fail than that the rules of law be so relaxed as to encourage fraud and perjury.

We are aware that some text writers have assumed that when the property is already in the possession of the donee, a delivery is not necessary. But the cases cited in support of the doctrine nearly all relate to gifts inter vivos, and not to gifts causa mortis. A gift, inter vivos, may be sustained without a distinct act of delivery at the time of the gift, if the property is then in the possession of the donee, and the gift is supported by long acquiescence of the donor, or other entirely satisfactory evidence. This court so held in Wing v. Merchant, 57 Maine, 383, and the jury were so instructed in this case, and the defendant had the benefit of the instruction. But the question we are now considering is not whether a gift, inter vivos, can be sustained without a distinct act of delivery, but whether such a relaxation of the law can be allowed in the case of a gift causa mortis. We think not. Reason and the weight of authority are opposed to such a relaxation. Hatch v. Atkinson, 56 Maine, 324, 327; Lane v. Lane, 76 Maine, 521; Parcher v. Savings Inst., 78 Maine, 470; Dunbar v. Dunbar, 80 Maine, 152; Miller v. Jeffries, 4 Gratt. 472; French v. Raymond, 39 Vt. 623; Cutting v. Gilman, 41 N. H. 147; Delmotte v. Taylor, 1 Red. (N. Y.) 417; Egerton v. Egerton, 17 N. J. Eq. 419; Kenney v. Pub. Adm., 2 Bradf. (N. Y.) 319; 2 Kent's Com. (10th ed.) 602, and note; Dickeschied v. Exchange Bank, 28 W. Va. 340; Walsh's Appeal, (Pa.) 1 L. R. A. 535, and note.

It is the opinion of the court that the gift of a savings-bank book, causa mortis, to be valid, must be accompanied by an actual delivery of the book from the donor to the donee, or to some one for the donee; and that the delivery must be made for the express purpose of consummating the gift; and that a previous and continuing possession by the donee is not sufficient; and that in this, and in all particulars, the rulings in the court below were correct; and that no cause exists for granting a new trial.

PETERS, C. J., DANFORTH, VIRGIN, EMERY, and HASKELL, JJ., concurred.

Frank L. Noble, for defendant.
Newell and Judkins, for plaintiff.

NOTE.

-

Motion and exceptions overruled.

See also on gifts mortis causa, Conser v. Snowden, 54 Md. 175; Bloomer v. Bloomer, 2 Bradf. 339.

122 MAKING, REVOCATION, AND REPUBLICATION OF WILLS. [CHAP. V.

CHAPTER V.

THE MAKING, REVOCATION, AND REPUBLICATION OF WILLS.

NOTE. The passing of personal property on intestacy might have been here considered, but the administration of intestate estates is so closely connected with that of testate estates that it will be found convenient to consider them subsequently together.

aim 1540 abybody

SECTION I.

THE MAKING OF WILLS.

A. Statutes.

32 HEN. VIII. c. 1 (1540). – [Be it enacted 1] that all and every person and persons, having, or which hereafter shall have, any manors, lands, tenements or hereditaments, holden in socage, or of the nature of socage tenure, and not having any manors, lands, tenements or hereditaments, holden of the King our sovereign lord by knights serfeeding in vice, by socage tenure in chief, or of the nature of socage tenure in -chief, nor of any other person or persons by knights service, from the twentieth day of July in the year of our Lord God M.D.XL. shall have full and free liberty, power and authority to give, dispose, will and devise, as well by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his life, all his said manors, lands, tenements or hereditaments, or any of them, at his free will and pleasure; any law, Statute or other thing heretofore had, made or used to the contrary notwithstanding.

II. And that all and every person and persons, having manors, lands, tenements or hereditaments, holden of the king our sovereign lord, his heirs or successors, in socage, or of the nature of socage tenure in chief, and having any manors, lands, tenements or hereditaments, holden of any other person or persons in socage, or of the nature of socage tenure, and not having any manors, lands, tenements or hereditaments, holden of the King our sovereign lord by knights service, nor of any other lord or person by like service, from the twentieth day of July in the said year of our Lord God M.D.XL. shall have full and free liberty, power and authority to give, will, dispose and devise, as well by his last will or testament in writing, or otherwise by any act or acts lawfully executed in his life, all his said manors, lands, tenements and hereditaments, or any of them, at his free will and pleasure; any 1 The preamble is omitted.

law, Statute, custom or other thing heretofore had, made or used to the contrary notwithstanding.

III. Saving alway and reserving to the King our sovereign lord, his heirs and successors, all his right, title and interest of primer seisin and reliefs, and also all other rights and duties for tenures in socage, or of the nature of socage tenure in chief, as heretofore hath been used and accustomed, (2) the same manors, lands, tenements or hereditaments to be taken, had and sued out of and from the hands of his highness, his heirs and successors, by the person or persons to whom any such manors, lands, tenements or hereditaments shall be disposed, willed or devised, in such and like manner and form, as hath been used by any heir or heirs before the making of this Statute; (3) and saving and reserving also fines for alienations of such manors, lands, tenements or hereditaments holden of the King our sovereign lord in socage, or of the nature of socage tenure in chief, whereof there shall be any alteration of freehold or inheritance, made by will or otherwise, as is aforesaid.1

34 & 35 HEN. VIII. c. 5 (1542).-I. Where in the last Parliament begun and holden at Westminster the thirty-eighth day of April in the thirty-first year of the King's most gracious reign, and thereby divers prorogations holden and continued unto the twenty-fourth day of July in the thirty-second year of his said reign, it was by the King's most gracious and liberal disposition showed towards his most humble and obedient subjects, ordained and enacted how and in what manner lands, tenements, and other hereditaments might be by will or testament in writing, or otherwise by any act or acts lawfully executed in the life of every person, given, disposed, willed or devised, for the advancement. of the wife, preferment of the children, payment of debts of every such person, or otherwise at his will and pleasure, as in the same Act more plainly is declared: (2) sithen the making of which Estatute, divers doubts, questions and ambiguities have risen, been moved, and grown, by diversity of opinions, taken in and upon the exposition of the letter of the same Estatute.

II. For a plain declaration and explanation whereof, and to the intent and purpose that the King's obedient and loving subjects shall and may take the commodity and advantage of the King's said gracious and liberal disposition, the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, most humbly beseechen the King's majesty, that the meaning of the letter of the same Estatute, concerning such matters hereafter rehearsed, may be by the authority of this present Parliament enacted, taken, expounded, judged, declared and explained in manner and form following:

III. First, where it is contained in the same former Statute, within divers articles and branches of the same, that all and singular person

1 See 34 & 35 Hen. VIII. c. 5, § 13. By the other sections of this Act of 32 Hen. VIII. it is provided that two thirds of land held by knight service may be devised.