by your Lordships, which, with respect to that part of the case, I take the liberty to advise your Lordships to adopt.

Mr. Sugden and Mr. Longley, for the appellants.

Mr. Heald and Mr. M. West, for the respondents, the children of Mr. and Mrs. Duffield.

[Reported 8 M. & W. 401.]

ASSUMPSIT for money had and received to the use of the plaintiff as administrator. Plea, Non assumpsit. At the trial before Rolfe, B., at the Middlesex sittings after last term, the facts appeared to be as follow:

The plaintiff's intestate, Mrs. Limmer, when in her last illness, and on the day of her death, went to bed, and sending for the landlady of the house where she lodged, told her that "she felt much worse, and she wished her brother James (the defendant) to bury her; that she wished him to have all she had, and he would bury her comfortably." At that time her pocket-book, containing a sum of about £80 in cash and notes, was lying on the bed. She said her pocket was very dirty, upon which a clean one was brought, and the pocket-book was put into it, and placed upon the pillow. She then fell asleep for a short time, and on awaking asked for the pocket-book, took out a half sovereign, and having paid 10d. for some household expense, put the change into the pocket-book, and replaced it on the pillow. Shortly afterwards the defendant came to see her, and she then, in the presence of the landlady, and a few minutes before her death, put the pocket-book into his hands. It was to recover the amount of the money contained therein that this action was brought. For the defendant, two points were made: first, that this was an absolute gift inter vivos, which could not be questioned by the administrator; or secondly, that it was good as a donatio mortis causa. The learned judge thought that it could not be deemed to amount to a gift inter vivos; and as to the latter question, he left it to the jury to say whether it was intended as an absolute gift to the defendant after the death of the intestate, or whether she intended to retain a control on the property during her life: and the jury finding in the affirmative of the former branch of the proposition, the verdict, under his lordship's direction, was entered for the defendant, leave being reserved to the plaintiff to move to enter a verdict for him for £75.

Kelly now moved accordingly.

LORD ABINGER, C. B. I think no rule ought to be granted. The facts upon which the question depends were for the jury, and their

finding has determined the point. If indeed in law there could be no donatio mortis causa coupled with a condition, the defendant could not succeed; but upon the authorities, that appears not to be so; property may be given by way of donatio mortis causa, although the gift be made for a special purpose, and coupled with a trust.

PARKE, B. The only question for us to determine is, whether what is otherwise a donatio mortis causa, as found by the jury, is less so because coupled with a condition that the donee shall pay the expenses of the funeral. That circumstance afforded a strong argument to the jury as to the construction to be put upon the expressions used by the deceased, and that a mere nuncupative will was meant, of which the defendant was to be the executor. But the jury have excluded that argument, by finding that there was a delivery which was intended to transfer the property in the money, subject to the contingency of the donor's recovering, and coupled with the condition of payment of the funeral expenses by the defendant; and the only question now is, whether that condition makes it void. It is not, indeed, properly a condition, because otherwise the property would not vest until performance of it, but a trust, upon which the donatio mortis causa was made. And the authority to which I have already referred, of Blount v. Barrow, 4 Bro. Ch. C. 72, goes the length of deciding that it is no objection to the gift that it is made for a special purpose. There India bonds were given by the deceased to the party, subject to the condition of his carrying on a Chancery suit, and the gift was nevertheless held to be a good donatio mortis causa. I cannot distinguish that case from the present. It follows, therefore, that a gift made for a special purpose, and coupled with a trust, may be good as a donatio mortis causa, although I agree that upon this particular trust a very strong argument arose that the deceased did not intend to make a donatio mortis causa, but as it were to make the defendant her executor under a nuncupative will.

ALDERSON, B. I am of the same opinion. The case of Blount v. Barrow decides, that a donatio mortis causa may be made for a particular purpose; that the party may deliver the subject-matter of the gift so as to pass the property to the donee, in contemplation of death, although he is to use it for a particular purpose, or out of it to make particular payments, and to keep the residue for himself. That case is entirely in point.

ROLFE, B. I am of the same opinion. I told the jury that a donatio mortis causa was always to be viewed with suspicion: but if it be allowed at all, I cannot see how the annexation of a trust to the gift can make any difference. If it be lawful so to give the property out and out to the party for his own use, I cannot see that it makes any difference that with it he is to pay for a particular thing. If a man on his death-bed gives another £1,000, is it any addition to the evils attending this mode of bestowing property that he attaches a condition to itas, for instance, that he stipulates that his brother shall receive

an outfit to India? The case of Blount v. Barrow is expressly in point, and disposes of the question; and I have no doubt that other cases to the same effect might be found.

Rule refused.1

MOORE v. DARTON.

CHANCERY. 1851.

[Reported 4 De G. & Sm. 517.]

THIS was an administration suit, which now came on to be heard upon exceptions to the report of the Master; and the question was, whether the delivery of two documents constituted a donatio mortis causa. The testatrix had advanced to William Moore, one of the plaintiffs, £600, and had taken from him upon that occasion the two documents in question signed by him, and which were as follows:

Received the 22d of October, 1843, of Miss Darton Five Hundred Pounds, to bear interest at 4 per cent. per annum, but not to be withdrawn at less than six months' notice.

£500.

WILLIAM MOORE.

Received the 22d of October, 1843, of Miss Darton, for the use of Ann Dye, One Hundred Pounds, to be paid to her at Miss Darton's decease, but the interest at 4 per cent. to be paid to Miss Darton. £100. WILLIAM MOORE.

(I approve of the above) BETTY DARTON.

The transactions relied upon as constituting the donatio mortis causa took place on June the 28th, 1845, between Miss Darton and Ann Dye, who was mentioned in the second memorandum, and who was Miss Darton's lady's maid. It was thus described by the lady's maid in her evidence.

"Late in the afternoon of the same day I did assist the said Betty Darton in leaving her bed, and she did, after having so risen, take from the said drawer the said two produced memorandums or receipts, marked respectively A. and B., and she then again placed them in my hands, at the same time requesting me to take care of them, and be sure and not let her nephew Mr. Thomas Harwood Darton see them, and not to let either of them go out of my possession until after her death; and she then directed me, that, immediately upon her death, I was to give the two receipts or memorandums to the said plaintiff William Moore; and her object or purpose in giving me such directions as aforesaid, as she told me and as I believe, was, that she wished 1 Contra, Bibby v. Coulter (Court of Exchequer in Ireland), Ridg. temp. Hard. 206, note (1791).

that at her death the said debt or sum of £600 so due to her from the said plaintiff William Moore should be cancelled."

Miss Darton died ten days afterwards.

The Master found, that the £600 was an outstanding debt from the plaintiff William Moore, who now excepted to that finding. Mr. Swanston and Mr. Moxon supported the exceptions. Mr. Walker and Mr. Pryor, contra.

Mr. Marshall for other parties.

THE VICE-CHANCELLOR. [SIR J. L. KNIGHT BRUCE.] The case as to the £100 is, I think, beyond the influence of the question, whether there was a donatio mortis causa; for, in my opinion, an effectual trust was declared, inter vivos, in favor of the servant maid. The document relating to this sum appears to have been written contemporaneously with the creation of the debt. It is thus: [His Honor read it]. Now, although this was not then signed by Miss Darton, yet it is probable, that, as she so intended the transaction, and as she received the document, she would be deemed to have assented to it, even without signing it. But, in fact, she afterwards signed it. Mr. Moore therefore became a trustee of the amount for Miss Darton during her life, and for Ann Dye after Miss Darton's death.

With respect to the £500, the question is much less simple; and I confess that it appeared to me not free from doubt, whether the Wills Act had not precluded any donations mortis causa from taking effect. But it does not seem to have ever been so decided or so argued. If, against the ordinary rules of construction, a Statute, passed for the purposes of the revenue, can be referred to for the purpose of determining a question of law beyond its scope, it appears that a Revenue Act has in a manner recognized the existence of such gifts.

My own opinion is, that, according to the true interpretation of the Wills Act, that Statute does not avoid such donations.

The next question is, whether there was a donatio mortis causa of this debt. The debt was due from Mr. Moore himself; and the document, the delivery of which is said to constitute a donatio mortis causa, was placed in the hands of Ann Dye, and I think, upon the evidence, was placed in the hands of that person as the agent of Mr. Moore, with an intention, which appears to me sufficient, to constitute its delivery a donatio mortis causa. If, therefore, by the law an interest of this description can be made the subject of a donatio mortis causa, I am of opinion that there was such a gift of it in the present case.

In deciding this case as I mean to do, I certainly have not the slightest intention of contravening anything that has been said by Lord Hardwicke, Lord Rosslyn, or Lord Eldon, if I could with propriety do so. My decision I consider to be consistent with every word that has been attributed to these eminent judges.

It is true, that the delivery of a bond is not the delivery of the mere evidence of a debt, for it is the delivery of that without which the debt would not have been a specialty.

Its continuance in existence is not now material, however that might have been considered formerly. The delivery of an instrument creating a specialty debt, without which it would not be a specialty debt, as in the case of a bond, would be sufficient for the purpose of a donatio mortis causa; and so Lord Eldon decided as to a mortgage. That, however, I agree does not go the length of deciding that the delivery of the mere evidence of a debt would be sufficient. In this case there was something more. The document here has been called a receipt, and is a receipt in a sense, but it is not a receipt in the ordinary acceptation of that term. It was a document contemporaneous, I take it, with the creation of the debt. [His Honor read it.] Now this is the document which was delivered to the agent of the debtor himself. The debt was a debt carrying interest. A mere debt of £500 would have arisen from a loan, without any writing. But it would not have been a debt carrying interest, without a contract to that effect beyond the advance. That particular contract, I agree, might have been entered into without writing; but, as it was created by writing, proof of the writing, if possible, was essential to recover upon the contract. This writing was therefore in a sense essential to the proof of the contract; and it is this writing which was, in substance, delivered mortis causa to the person owing the money. In my opinion it is consistent with what was said by Lord Hardwicke, Lord Rosslyn, and Lord Eldon, with the civil law and our own, to hold, as I do, that this was a sufficient delivery to constitute a donatio mortis causa, which, in my judgment, it was intended to be.

THE testatrix, Frances Veal, died on the 29th of March, 1858. She possessed two promissory notes for £60 and £120, both of which were in the following form:

Box, March 17th, 1852.

On demand. I promise to pay to Miss Frances Veal or order the sum of £60, with lawful interest for the same. For value received.

£60.

CATHERINE ROWE.
ELIZABETH NOBLE.
THOMAS NOBLE.

Shortly previous to her death, being told by her medical attendant that her complaint would terminate fatally, she delivered over the two promissory notes, unindorsed, to her niece, Mary Maslen, by way, as was alleged, of a donatio mortis causa. Mary Maslen retained them down to the death of the testatrix, and now claimed the amount.