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 per annum, but not to be withdrawn at less than six months' notice.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. 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. The validity of this gift was contested, on the ground that a promissory note payable to order, and not indorsed, could not be made the subject of a donatio mortis causa. Mr. R. Palmer and Mr. Southgate, for Mary Maslen. THE MASTER OF THE ROLLS. [SIR JOHN ROMILLY.] The question in this case is, whether a testatrix has made a good donatio mortis causa of two promissory notes payable to the testatrix "or order," she not having indorsed them. It is solely a question whether such a donation is really good, and if anything more remains to be done by the donor; the state of the authorities is by no means satisfactory. The earlier authorities point very distinctly in one direction, as Miller v. Miller, 3 Peere Williams, 356; Ward v. Turner, 2 Ves. Sen. 431. Lord Hardwicke extended the doctrine to a bond, but he said he would go no further. Then comes the case of Duffield v. Elunes, 1 Sim. & St. 239; 1 Bligh, N. S. 497, in which Sir John Leach laid it down, that the same principle which applied to voluntary gifts inter vivos was applicable to donations mortis causa, and that if, in the case of a donatio mortis causa, something more remained to be done by the deceased person, which this court would not have compelled him to do in his lifetime, it could not be a good donatio mortis causa after his death. Lord Eldon came to an opposite conclusion, but he does not appear to have overruled the former decisions; and in that state of the authorities, it becomes very embarrassing to ascertain what the state of the law now is. I have gone through the cases and some notes of a case not reported, but which is to be found in Chitty on Bills, namely, Rankin v. Weguelin. I thought that case extremely important, because it is stated that the bills were payable to order, and I find that the registrar's book fully bears out the conclusion stated in Chitty. It appears from the papers that the bills were drawn on the East India Company in favor of Colonel Weguelin or order, and were accepted; but it does not appear, from the papers, whether they were indorsed by Colonel Weguelin. Shortly before Colonel Weguelin's death, he gave them to his wife. The Master, in taking the accounts, included them in the outstanding estate of the testator, and the widow took an exception to his report. It was heard on the 7th of June, 1832, and it appears beyond all doubt, that the case was argued. The registrar's note-book states, that Mr. Bickersteth opened the exception, and that Mr. Pemberton and Mr. Rolfe were heard in favor of the report, and that several affidavits were read. The court took time to consider, and on the 14th of June, judgment was delivered by Sir John Leach, who allowed the exception and made a declaration that there was a good donatio mortis causa. It is, therefore, precisely the point which arises in the present case, and as it is a decision of Sir John Leach, whose decision in Duffield v. Elves was overruled by the House of Lords, and who, therefore, must have considered that the decision of the House of Lords had settled the question, I feel bound by it. I also think it a much more healthy state of the law, that the validity of such a gift should not depend on whether the testator had written his name on the back of the bill or not, if it be clear that he intended to give them. I will, therefore, make a declaration, that the two notes passed to Mary Maslen.1 AMIS v. WITT. CHANCERY. 1864. [Reported 33 Beav. 619.] THE plaintiff David Amis claimed, as against the defendant Stephen Witt, the administrator of Prisciller Floyd, a policy of assurance of the Kent Mutual Assurance Society for £1,000 on her own life, and a deposit note for £400 of the National Provincial Bank of England, which he alleged the intestate had, on her death bed, delivered to him, the plaintiff, by way of donatio mortis causa. Upon the trial of an action at law the jury gave a verdict for Amis, affirming the donation. The judge reserved the point whether a policy of assurance and a bank deposit note could be the subject of a donatio mortis causa, and upon a motion for a new trial the Court of Queen's Bench held they could, and refused to disturb the verdict, 1 Best & Smith, 109. The cause now came on for hearing. Mr. Selwyn and Mr. Beavan, for the plaintiff, argued that the trial at law had determined that the policy and deposit note might be the subject of a donatio mortis causa, and had also settled the fact of the gift. Mr. Bagshawe argued, that the verdict had only determined the right to the papers, and not to the money secured by them, and that the right to the money on such instruments, which were not transferable, could not pass as a donatio mortis causa. Duffield v. Elwes, 1 Bl. N. S. 497; Veal v. Veal, 27 Beav. 303; Barton v. Gainer, 3 Hurl. & N. 307; Moore v. Darton, 4 De G. & Sm. 517, were cited. THE MASTER OF THE ROLLS [SIR JOHN ROMILLY] held that the plaintiff was entitled to the policy and deposit note, and to the money paid in respect of them, as donationes mortis causa.2 In re 1 So a cheque of a third person to the donor unindorsed, Clement v. Cheesman, 27 Ch. D. 631 (1884); and so an unindorsed bill of exchange in favor of the donor. Mead, 15 Ch. D. 651 (1880). But Bradley v. Hunt, 5 G. & J. 54 (1832), is contra the principal case. 2 So as to deposit note, Moore v. Moore, L. R. 18 Eq. 474 (1874); and see Basket v. Hassell, 107 U. S. 602. Cf. In re Mead, 15 Ch. D. 651. |