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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. On 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.

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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.

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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

should not stand. I don't say, that this was a direct opinion on this question; yet it does not contradict, I think, the present case, being like the cases of equitable assignments of choses in action it must Dismiss the bill without costs.

WARD v. TURNER.

CHANCERY. 1752.

[Reported 1 Dick. 170.]

THE plaintiff, as representative of John Mosely, brought his bill to have a transfer of £600 new South Sea annuities, and several specific parts of the personal estate of William Fly, delivered to him; and to have an account of what was due to Mosely for services done to Fly.

It appeared, that Fly in his life-time had expressed great kindness for the plaintiff's testator; and in the presence of one Mounsey, a witness. had taken three transfer receipts for £600 South Sea annuities, and declared he would give them to the plaintiff's testator; and in the presence of one Greentree, another witness, taking the key of his scrutore, took out three papers, and said, "Here, Mosely, I give you these three papers: these are for South Sea stock, and will serve you when I am dead;" and in the presence of one Taylor declared, he gave the plaintiff's testator all the goods and plate in his house, save his sword, gun, and books.

LORD HARDWICKE, C.

Suppose the facts above sworn to were well proved, what is the law arising on these facts?

First, as to any part of the things given, except the £600 South Sea annuities, I am of opinion the gift is not good, there being no pretence of any delivery, and it is too general. If they prove anything, they must prove a nuncupative will.

Then for argument's sake, take the gift of the £600 South Sea annuities, as an independent donation; the question is, whether it be such a gift as the law of England will allow as a donatio causa mortis. And first, the fact of the gift is proved only by Greentree, whereas the civil law requires five witnesses, and limits it in point of value. Vide Justinian's Institutes. The express gift sworn by Greentree is of the three receipts only, which the plaintiff would construe as a gift of the South Sea annuities.

The question that arises is: whether the delivery of the thing, given by way of donatio causa mortis, is necessary; and if necessary, if this delivery of the three receipts is a sufficient delivery. I am of opinion a delivery is necessary, and that the delivery of the three receipts is not sufficient to validate this act.

In the Roman law there are three kinds of donatio mortis causa. First, where the property in the thing doth not vest, until the death of the donor; second, where the property immediately passes, but is defeasible, in case the donor recovers; third, where the donor moved with present danger, doth not think it so immediate as to give the party a vested interest in them, but only to take effect, when the donor dies.

Now, as to the second, the civil law requires a delivery; but as to the first and third, not an absolute delivery, because the property doth not completely pass till the death of the donor.

But the civil law is not binding in this country, farther than it hath been received, and allowed here, and that must be determined by authorities; and the result of the authorities is, that the civil law hath been received in England, only so far as the gift hath been attended with delivery. Swinburne, part 1st, § 6; Drury v. Smith, 1 P. Wms. 404; Lawson v. Lawson, Ibid. 441; Jones v. Selby, Precedents in Chan. 300; Hedges v. Hedges, Ibid. 269; Snellgrove v. Bailey, March, 1744, 3 Atk. 214; Miller v. Miller, 3 P. Wms. 356.

Then I come to the question, whether the delivery of the three receipts is a delivery of the thing; I am of opinion it is not, and find no authority for it; the delivery of the thing given, is what is relied on in all the cases; the only case where a symbol was held good, was in Jones v. Selby; the key of the trunk wherein the thing was kept (Exchequer Tallies), but I am of opinion that amounted to a possession in the donee of the tallies, for the donor was restrained from making use of them, without the consent of the donee, and the donor could not rightfully come at them, without the key.

I think in like manner, as to a key of a warehouse for goods, or of a wine cellar.1

But as to the delivery of the receipts for the stock, it amounts to nothing; they being of no use after the acceptance of the stock, and are seldom kept.

Suppose a mortgage and a separate receipt taken for the consideration money, and the receipt is delivered over, it could not be a delivery of possession.

Upon the whole I am of opinion this gift is not valid, without a transfer, or something that amounts to a transfer, and it being unaccompanied with a delivery, is merely legatory, and amounts to a nuncupative will, and allowing it would be a breach of the Statute of Frauds. Therefore let the bill be dismissed as to the gifts claimed.2

1 On delivery of a key as delivery of the contents of a trunk or desk, see Hatch v. Atkinson, 56 Me. 324 (1868); Stephenson v. King, 81 Ky. 425 (1883).

* Lord Hardwicke's opinion is given more at length, 2 Ves. Sr. 431; the following is an extract from it (pp. 442-444) :

"It is argued, that though some delivery is necessary, yet delivery of the thing is not necessary; but delivery of anything by way of symbol is sufficient: but I cannot agree to that; nor do I find any authority for that in the civil law, which required VOL. IV. 5

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TATE v. HILBERT.

CHANCERY. 1793.

[Reported 2 Ves. Jr. 111.]

THE plaintiffs in these causes were relations of Mark Bell: Jane his niece; and Mary his great niece. The object of the first bill was to have a banker's cheque for £200 paid, either out of £800 cash belonging to Mark Bell in his banker's hands at the time of his decease, and admitted by the defendant, the executor, to have been possessed by him, or out of his general assets. The cheque was in this form: — "Pay to self or bearer £200. MARK BELL."

The other bill was to have payment of a promissory note, for £1000 to the plaintiff Jane, signed by Mark Bell. These claims were made

delivery to some gifts, or in the law of England, which required delivery throughout. Where the civil law requires it, they require actual tradition, delivery over of the thing. So in all the cases in this court delivery of the thing given is relied on, and not in name of the thing, as in the delivery of sixpence in Shargold v. Shargold. If it was allowed any effect, that would have been a gift mortis causa, not as a will, but that was allowed as testamentary, proved as a will, and stood. The only case wherein such a symbol seems to be held good is Jones v. Selby; but I am of opinion that amounted to the same thing as delivery of possession of the tally, provided it was in the trunk at the time. Therefore it was rightly compared to the cases upon 21 J. 1, Ryal v. Rowles, and others. It never was imagined on that Statute, that delivery of a mere symbol in name of the thing would be sufficient to take it out of that Statute; yet, notwithstanding, delivery of the key of bulky goods, where wines, &c., are, has been allowed as delivery of the possession, because it is the way of coming at the possession, or to make use of the thing: and therefore the key is not a symbol, which would not do. If so, then delivery of these receipts amounts to so much waste paper; for if one purchases stock or annuities, what avail are they after acceptance of the stock? It is true, they are of some avail as to the identity of the person coming to receive: but after that is over, they are nothing but waste paper, and are seldom taken care of afterwards. Suppose Fly, instead of delivering over these receipts to Mosely, had delivered over the broker's note, whom he had employed, that had not been a good delivery of the possession. There is no color for it; it is no evidence of the thing, or part of the title to it; for suppose it had been a mortgage in question, and a separate receipt had been taken for the mortgage-money, not on the back of the deed (which was a very common way formerly, and is frequently seen in the evidence of ancient titles), and mortgagee had delivered over this separate receipt for the consideration-money, that would not have been a good delivery of the possession, nor given the mortgage mortis causa by force of that act. Nor does it appear to me by proof, that possession of these three receipts continued with Mosely from the time they were given, in February to the time of Fly's death; for there is a witness who speaks, that in some short time before his death Fly showed him these receipts, and said, he intended them for his uncle Mosely. Therefore I am of opinion it would be most dangerous to allow this donation mortis causa from parol proof of delivery of such receipts, which are not regarded or taken care of after acceptance; and if these annuities are called choses in action, there is less reason to allow of it in this case than in any other chose in action, because stocks and annuities are capable of a transfer of the legal property by Act of Parliament, which might be done easily; and if the intestate had such an aversion to make a will as sup

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