RICHARD CROSSLEY being on terms of intimacy with the plaintiff (who had rendered the deceased various services), and being seriously ill, and confined to his bed, two days before his death, in the presence of a servant, gave the plaintiff a bond for £1,800, saying, at the same time, "There, take that and keep it." The defendants were the executors of Crossley, and the prayer of the bill was, that the plaintiff might be declared entitled to the bond; and that the defendants might be decreed to execute proper instruments to enable the plaintiff to recover and receive the money due on the bond; and that the plaintiff might be at liberty to make use of the names of the defendants in any action to be brought against the obligors, the plaintiff offering to indemnify the defendants against all costs.

Sir Samuel Romilly and Mr. Roupell, for the plaintiff.

Mr. Cooke, contra.

THE VICE-CHANCELLOR. [SIR JOHN LEACH.] The case of Snelgrove v. Bailey, 3 Atk. 214, has established, that there may be a donatio mortis causa of a bond, though not of a simple contract debt, nor by the delivery of a mere symbol. The doubt here is, that the donor has not expressed that the bond was to be returned if he recovered. This bond was given in the extremity of sickness, and in contemplation of death; and it is to be inferred, that it was the intention of the donor that it should be held as a gift only in case of his death. If a gift is made in expectation of death, there is an implied condition that it is to be held only in the event of death. The cases of Lawson v. Lawson, 1 P. Wms. 441; Miller v. Miller, 3 P. Wms. 358; and Jones v. Selby, Prec. Ch. 300, furnish this rule. Let it be declared that the plaintiff is entitled to this bond as a donatio mortis causa; and that, indemnifying the executors, he is at liberty to sue in their names, and let the costs be paid out of the testator's estate.

DUFFIELD v. ELWES.

HOUSE OF LORDS. 1827.

[Reported 1 Bligh, N. S. 497.]

THE EARL OF ELDON.'

In the first of these causes there is an appeal from the judgment (1 Sim. & Stu. 244) of the then Vice-Chancellor,

1 The opinion only is given.

A

the present Master of the Rolls, in which he makes this declaration, and from that part of the judgment the present appeal is brought. "This court doth declare, that this court being of opinion that a mortgage security cannot by law be given by way of donatio mortis causa, the appellant, Emily Frances Duffield, was not entitled to the mortgage money's secured by the indentures of the 2d and 3d of November, 1820, and the bond of 12th July, 1820, and by the indentures of lease and release and mortgage, dated the 11th and 12th of July, 1820."

This judgment, therefore, proceeds upon the expression of an opinion, that a mortgage security cannot by law be given by way of donatio mortis causa; and if it be true that a mortgage security cannot by law be given by way of donatio mortis causa, it certainly then would be unnecessary to inquire whether the mortgage of November, 1820, and the bond of July, 1820, and the indentures of mortgage also of the 11th and 12th July, 1820, have been given by way of donatio mortis causa; because if a mortgage cannot be so given, it is quite unnecessary to consider whether, under the circumstances of this case, it can be held that there was a donatio mortis causa.

Before I proceed to state the opinion which I have formed upon this subject, it is my duty to the learned judge, from whose judgment this is an appeal, to say, that probably he has been influenced in the opinion which he has expressed by something which had fallen from me in a conversation with him, in which I had certainly expressed very great doubt whether a mortgage could be made the subject of a donatio mortis causa. I consider it just to state that this is so.

The judgment is commenced by the learned judge in the words I am now about to read. "The case of a bond, I consider to be an exception and not a rule; property may pass without writing either as a donatio mortis causa, or by a nuncupative will according to the forms required by the Statute. The distinction between a donatio mortis causa and a nuncupative will is, that the first is claimed against the executor, and the other from the executor. Where delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causa, because it will not prevent the property from vesting in the executors; and as a Court of Equity will not inter vivos compel a party to complete his gift, it will not compel an executor to complete the gift of his testator. The delivery of a mortgage cannot pass the property inter vivos: — first, because the action for the money must still be in the name of the donor; and secondly, because the mortgagor is not compellable to pay the money without having back the mortgaged estate, which can only pass by the deed of the mortgagee, and no court would compel the donor to complete his gift by executing such a deed. As to the case where a bond accompanied the mortgage deed" (I shall have occasion to state presently the distinction between the two mortgages), "I was at first inclined to think that as the bond alone, if it had been the only security for the debt, would under the decisions have passed as a donatio mortis causa, so it would draw after it the mort

gage as being a collateral security for the same debt, — but upon further consideration I think that the delivery of the bond, where there is also a mortgage, cannot be considered as a gift completed. The mortgagor has a right to resist the payment of the bond without a re-conveyance of the estate, and it cannot be maintained that the donor of the bond would be compelled to complete his gift by such re-conveyance."

The principle which is applied in the decision of this case, is the principle upon which Courts of Equity refuse to complete voluntary conveyances. No Court of Equity will compel a completion of them, and throughout the whole of what I have now read, the donor is considered as a party who may refuse to complete the intent he has expressed; but I think that is a misapprehension, because nothing can be more clear than that this donatio mortis causa must be a gift made by a donor in contemplation of the conceived approach of death,— that the title is not complete till he is actually dead, and that the question therefore never can be what the donor can be compelled to do, but what the donee in the case of a donatio mortis causa can call upon the representatives, real or personal, of that donor to do; the question is this, whether the act of the donor being, as far as the act of the donor itself is to be viewed, complete, the persons who represent that donor, in respect of personalty-the executor, and in respect of realty the heir-at-law, are not bound to complete that which, as far as the act of the donor is concerned in the question, was incomplete; in other words, where it is the gift of a personal chattel or the gift of a deed which is the subject of the donatio mortis causa, whether after the death of the individual who made that gift, the executor is not to be considered a trustee for the donee, and whether on the other hand, if it be a gift affecting the real interest, and I distinguish now between a security upon land and the land itself, whether if it be a gift of such an interest in law, the heir-at-law of the testator is not by virtue of the operation of the trust, which is created not by indenture but a bequest arising from operation of law, a trustee for that donee. I apprehend that really the question does not turn at all upon what the donor could do, or what the donor could not do; but if it was a good donatio mortis causa, what the donee of that donor could call upon the representatives of the donor to do after the death of that donor.

With respect to the question of fact, whether those mortgages and the bond were or were not given in such a manner as constituted a good donatio mortis causa, if there be no objection to the fact, that the subject of the mortgage was an interest in real estate, I do not apprehend that the gentlemen at the bar, though they criticised very much the nature of the evidence which has been given, meant to ask for any issue to try whether there was or was not a good donatio mortis causa, if a mortgage can be the subject of a donatio mortis causa. In some of the cases which I shall have occasion to mention, it will be seen that where there is any doubt whether in point of fact there was that which

would constitute a good donatio mortis causa, if in point of law the subject of it can be made the subject of a donatio mortis causa, it is a very familiar thing to direct an issue or issues to try that fact. That not having been desired, the case is to be considered on its merits. Supposing the testator to have the power, has he fallen into a mistake with respect to the subject which he did intend so to give, and has he attempted to make a good donatio mortis causa of property which he could not so transfer?

It is necessary to state, first, what these two mortgages are, for they differ in their nature. The first is a mortgage for a sum of between £2,000 and £3,000, and there is the usual bond. The other is the case of an interest conveyed by indentures of lease and release and assignment, the contents of which are such as I am about to state. There being property considerably more than £30,000 vested in trustees under a marriage settlement, they have advanced £30,000 to Sir Edwin Bayntun Sandys upon a mortgage of his estates and a bond, and judgment recovered upon that bond. The person who is supposed to have made this gift causa mortis afterwards advanced to the mortgagee that sum of £30,000, the mortgagor joining in the trust assignment of the mortgage. There was first an assignment of the money, the £30,000; secondly, an assignment of the judgment; and, thirdly, it contained a covenant to pay the money secured by the mortgage, which covenant formed a species of debt affecting the inheritance · the subject of the assignment to Mr. Elwes.

It appears that Mr. Elwes had been extremely angry with his daughter, who had married Mr. Duffield; but towards the close of life, and particularly when he came very near his death, he became very desirous to make a larger provision for his daughter; and, accordingly, in a conversation which he had upon the subject, he mentioned that there were these mortgages, one of two thousand odd hundred pounds, and another of thirty thousand pounds. Nobody, I think, who looks to the evidence, can doubt that it was his intention to make a gift of those mortgages for the benefit of that daughter whom he had restored to his favor, and, accordingly, he stated his purpose. He died the next morning. He was at the time in circumstances in which, it is clear, he apprehended that his death was approaching, and being extremely desirous to make some provision for his daughter, in the course of that morning he stated an intention upon the subject, which could leave no doubt in the mind of anybody what that intention was. It occurred afterwards that a declaration of this purpose should be made, and the question is, whether the form of that declaration was sufficient to constitute a gift of the property? There was no time to draw out a regular transfer of the property, but in the course of the morning there were brought to him the instruments, the mortgages, the bonds, and so on; and it being suggested that it was necessary, in order to make a good donatio mortis causa, that there should be delivery of the instruments, subject to the question, whether such

delivery constituted a good donatio mortis causa; it appears by the evidence of the gentleman who had all these instruments in his hand, that Mr. Elwes took the hand of his daughter and laid it upon these instruments. The evidence presents an accurate account of the clear manifestation of his purpose to give, although that manifestation was accompanied with this circumstance - that he was so near the termination of his life, and so reduced, that he could hardly utter the words, but that it was more by a look than a word that he expressed his approbation of what was done. This was therefore a case where one cannot help feeling a very strong wish that it should take effect; but, it must be remembered, we cannot give that effect unless the law enables us to do it.

Improvements in the law, or some things which have been considered improvements, have been lately proposed; and if, among those things called improvements, this donatio mortis causa was struck out of our law altogether, it would be quite as well; but that not being so, we must examine into the subject of it.

I apprehend that the question is not a question between the donor and donee, but that the question is, whether the act is complete to this extent that the donor gave this in such a manner as to constitute a good donatio mortis causa which will bind the interest in the executor as to the personal estate, and bind the interest in the heir-at-law with respect to the mortgage security as to the real estate? Because, I apprehend, that in a case where a donatio mortis causa has been carried into effect by a Court of Equity, that Court of Equity has not considered the interest as vested by the gift, but that the interest is so vested in the donee, that that donee has a right to call on a Court of Equity, and, as to the personal estate, to compel the executor to carry into effect the intention manifested by the person he represents. The only authority it will be necessary to cite for that doctrine is referred to in this decision. The case of Gardner v. Parker, 3 Madd. 184, is a decision by the same judge, and was under these circumstances: It was a gift of a bond by delivering the same and saying, "There, take that and keep it," in the last sickness of the donor- the donor dying two days afterwards. This was held to be a donatio mortis causa, and it was directed that the donee should be at liberty to use the executors' names in suing on the bond, he indemnifying them, and the costs of the suit to be paid out of the testator's estate, which is founded on this reason, that the money may be recovered in a proceeding at law, by an action in the name of the executors; but if the executors refuse to permit their names to be used, a Court of Equity will compel them to permit their names to be used in consequence of the trust which arises from the act of the donor himself.

In another case of Snellgrove v. Bailey, 3 Atk. 214, "A bond for £100 was given by one Sparkman to Sarah Bailey, which Sarah Bailey delivered to the defendant, saying, 'In case I die, it is yours, and you will have something.' The plaintiff, as administrator to Sarah Bailey,