CHAPTER IV.

GIFTS MORTIS CAUSA.

DRURY v. SMITH.

CHANCERY. 1718.

[Reported 1 P. Wms. 404.]

A. HAD a nephew, and being about making his will, directed the scrivener employed by him for that purpose to give £100 to his nephew; afterwards the testator, recollecting that his nephew had £100 of his in his hands, therefore ordered the scrivener not to put the legacy into his will, in regard his nephew had already that £100 in his own hands, and the testator made B. (that was his niece) executrix and residuary legatee.

Afterwards the nephew came, and brought a specie bill for this £100 to the testator, who, in his last sickness, gave the said £100 bill to be delivered over to his nephew, in case he [the testator] should die of that sickness, which did accordingly happen.

And now, on the nephew's bringing a bill against the executrix, for this £100 note, it was objected, that this being a parol gift, and contrary to the will by which the executrix was made residuary legatee, it would introduce all the inconvenience of perjury which the Statute of Frauds intended to prevent, if such evidence, or verbal dispositions, should prevail against the will, and would be contrary to the words of the Statute, which say, a will in writing shall not be revoked by parol.

LORD CHANCELLOR. [LORD COWPER.] The case is not so strong as if this very £100 note had been specifically devised; for devising the residuum is only the rest of his estate, that he should not, by will or otherwise, dispose of; but this is a gift in the testator's life-time, donatio causa mortis, and the possession transmuted, and certainly, notwithstanding the will, the testator had a power to give away any part of his estate in his life-time; he might in his life-time, after the making of his will, give away any part of his estate absolutely, and by the same reason might, notwithstanding the will, give away any part thereof conditionally; and this gift being so fully proved:

Decree the plaintiff his £100 bill with costs.

THE testator being languishing upon his death-bed, delivered to his wife a purse of gold containing about 100 guineas, and bid her apply it to no other use but her own, and likewise drew a bill upon a goldsmith to pay £100 to his wife, to buy her mourning and to maintain her until her life-rent (meaning her jointure) should become due, and soon afterwards (viz., about seventeen days after the drawing of the bill) the testator died.

This coming on upon the Master's report, the MASTER OF THE ROLLS [SIR JOSEPH JEKYLL] was clearly of opinion, that as to the purse of gold, it was donatio causa mortis, in regard the testator was then languishing upon his death-bed; and therefore, it being in nature of a legacy, and not to take effect but in case of the donor's death, under such circumstances a man might give to his wife; and it was the stronger, it being said that she was to apply it to no other use but her own; for consequently she was not to apply it to her husband's

use.

His Honor further observed, that this being donatio causa mortis, need not be proved with the testator's will, neither need any such gift, though in nature of a legacy, be so proved; for they operate as a declaration of trust upon the executor.

As to the other point, the court at first held, that the testator's ordering the goldsmith to pay £100 to his wife was but an authority, and determined by the testator's death.

To which Mr. Vernon replied, that this was an authority coupled with an interest, and being given for mourning, it could not take effect but upon the testator's death, and therefore his death could not be a revocation; which seemed to have weight; but His Honor doubted whether there could be a donatio causa mortis without an actual delivery to such donee; at least, it was a point not settled, for which reason, he would (he said) reserve it for further consideration.

Afterwards in Hilary Vacation, 1718, the MASTER OF THE ROLLS delivered his opinion solemnly on both these points:

That the delivery of the purse was good; and must operate as a donatio causa mortis, ut res magis valeat, &c. Because otherwise one could not give to his own wife, and there being a delivery by the testator in his last sickness, and when he was so near his end, and the bidding his wife apply it to no other use than her own, made this part of the case plain; and he cited Swinburne, 18, where it appears there are three sorts of gifts causa mortis, and said this was in the nature of a legacy to the wife.

Secondly, as to the bill of £100 drawn upon his goldsmith, payable to his wife to buy her mourning and to maintain her until her life-rent (viz. jointure) should come in:

This His Honor held good, and to operate as an appointment; that if the wife had received it during the husband's life-time it would have been liable to some dispute, but that he apprehended this amounted to a direction to his executors that the £100 should be appropriated to his wife's use. And he inclined to think, that even if the wife had received it in the husband's life-time, she should have kept it; that being for mourning, it might operate like a direction given by the testator touching his funeral, which ought to be observed, though not in the will; that the court ought to go as far as it could to assist the meaning of the party in this case; here was a wife attending her husband in his last sickness, and the husband, sensible of her affections, was conferring gifts upon her, and those not extravagant (for then he admitted equity ought not to make them good), but the gifts were but £200, whereas the personal estate amounted to £8,000, so that this was only an instance of the tender care of an affectionate husband towards his wife; wherefore it was decreed accordingly.

MILLER v. MILLER.

CHANCERY. 1735.

[Reported 3 P. Wms. 356.]

ONE having a wife and a son that was his only child, two days before his death made his will, giving thereby to his wife £150 per annum, in long exchequer annuities, during her widowhood. After which the same day he made a codicil, by which he gave to his said wife a further exchequer annuity and £600 in money, to be paid her immediately after his death. Subsequent to this, and about an hour before his death, the testator having called to his servant to reach him his pocketbook, took thereout two bank notes for £300 each, and another note for £100 (not being a cash note, or payable to bearer) all which notes he ordered his servant to deliver to his wife (then present) adding, that he had not done enough for her. But the wife for some time declined taking these, having, as she said, enough already, and for that it would injure their son, who was the residuary legatee in the will. Nevertheless, at length she was prevailed on by her husband to accept of the two bank notes, and also the other note. After which the testator by word of mouth gave her his coach and a pair of his coach-horses, bidding three witnesses then present take notice of it, and that he was in his senses, who accordingly made a memorandum thereof in writing.

On a bill brought in the name of the infant son by his prochein amy, against the widow and the executors, for an account of the testator's

personal estate, it was insisted on behalf of the plaintiff, that since by the codicil a legacy of £600 was given to the wife, payable immediately after the testator's death, the delivery of these two bank notes amounting to just the sum of £600 was a payment of such legacy in the testator's life-time; and with regard to the other note for £100 which was not payable to bearer, that was merely a chose en action, and consequently could not pass by a delivery thereof. Also as to the coach and horses, these were not delivered in the testator's life-time, for which reason the widow could have no claim to them.

MASTER OF THE ROLLS. [HON. JOHN VERNEY.] The gift of the £600 contained in the bank notes was a donatio causa mortis, which operates as such though made to a wife, for it is in nature of a legacy, but need not be proved in the spiritual court as part of the testator's will. Neither are gifts of this kind good, unless made by the party in his last sickness. And though in the principal case the sum be the same with the £600 money legacy given by the codicil, yet the manner of giving these notes, together with the expressions then made use of by the husband, declaring that he had not sufficiently provided for his wife, manifestly show them to have been designed as additional. the other hand, the wife by declining at first to accept of them, appears to have been no craving woman.

But then as to the note for £100 which was merely a chose en action, and must still be sued in the name of the executors, that cannot take effect as a donatio causa mortis, inasmuch as no property therein could pass by the delivery, much less can the widow be entitled to the coach and horses, of which there was no delivery in the testator's life-time.

THE question in this case was whether a bond or other chose in action may be granted by way of donatio mortis causa.

LORD CHANCELLOR. [LORD HARDWICKE.] I had some doubt whether there could be a donatio mortis causa of a bond or other chose in action, because a bond considered at law as a thing in possession, is no more than the wax and paper, and no more can pass at law by the gift of such bond; but the beneficial property or interest is the debt which at law still remains in the power of the donor, notwithstanding his gift of it to another: but equity has introduced great alteration in choses in action, and continually supports the assignments of them in such manner, that, if an obligee assigns a bond, and the obligor has notice of it; yet if he after such notice will pay the money to the obligee, though at law it is a good payment, and the obligee can well release it,

yet in equity the obligor shall be obliged to pay the money over again to the assignee; so, if a bond is lost at law, the debt is lost, because the obligee cannot sue at all; for though the loss of such bond may be given in evidence upon the trial well enough, yet the plaintiff will be wrecked before he has advanced to a trial: for upon his declaring, he must make a profert of the bond, and give oyer of it, which it is impossible for him to do, when his bond is lost. But in equity, though the bond is lost, yet the demand contained in it is not, for he may recover the money in this court; therefore I am now satisfied, that this is a good donatio mortis causa of the bond, and it is the stronger by reason of the extent to which this court has gone in supporting assignments of choses in action:—the testator might have assigned this bond, and though he had done it voluntarily, this court would have maintained it against himself, or any person claiming under him; therefore this court supports equitable interests in the same manner as if they were in possession. The testator gave this bond to the defendant in his sickness, with all the circumstances and expressions to make it a valid gift, mortis causa, here, says he, take this bond, it is yours; if I die, I give it to you, that you may have something after my death. This is read out of the donee's own answer, and is clear proof and stands uncontrovertible.

Suppose the testator in the present case had bought chattels and taken them in a bill of sale in a trustee's name, so that he would have had only an equitable interest, the legal property being in the trustees; suppose the cestui que trust had had possession of the goods, and on his death-bed had delivered them over to the defendant in such manner as he has done the bond: this would have been a good donatio causa mortis, and yet there he had no more than an equitable interest, and no legal one; and such gift would bind the equitable interest as much as it would the legal property, if the party had had it.

The two cases or authorities are strong as to this purpose, that in 1 Wms. 441, is in point: there the testator intended to give £100 to his wife, and drew a note on his goldsmith for that sum, payable to his wife; the note vested in the husband, and was the same as if it had been to have been paid to the husband himself, and the demand upon the goldsmith was a chose in action in the husband himself; and yet a donatio mortis causa of such note was decreed to be valid; and that does not at all differ from the case of a bond.

The other case in Chancery Precedents, 300, as to the opinion given at the Rolls, is equally strong with the former. There the testator gave to A. a hair-trunk with all that was in it; there happened to be a tally on the Government, enclosed for £500, which was a chose in action. The trunk itself was no more than the res continens of no value; the Master of the Rolls decreed it as a donatio mortis causa; upon appeal, the Chancellor was of another opinion, but upon another foundation; not that the donatio mortis causa was not good, but that a subsequent will was a constructive satisfaction of it, and that both gifts