being delivered is not the subject of a donation. There must be a parting by the donor with the legal power and dominion over it. If he retains the dominion, if there remains to him a locus penitentiæ (which must be the case, when he retains the possession, and what is done, is merely by parol), there cannot be a perfect and legal donation, and that which is not a good and valid gift in law, cannot be made good in equity. Proceeding upon this principle, the relief sought in Mary Tate v. Hilbert, and Jane Tate v. Hilbert, 2d Vesey, Jr. 112, was refused where a man, a short time before his death, gave one a cheque on his banker, which was not presented before his death, and to the other a promissory note, both of them being his relations. They were strong cases, particularly that of the cheque, which, if it had been presented before the death of the deceased, would have been paid, the banker having sufficient funds in his hands. But the money, the thing that was intended to be given, not having been delivered, they were not good and available donations in law; the promissory note and the cheque being only evidences of contract, they did not transfer the possession of the money, nor invest the persons to whom they were respectively given, with the legal dominion over it, which continued in the deceased until his death, when the property vested in the executors. A promissory note delivered as a donation, is not a vested gift of the money, but only a promise or engagement to give; and imposes no stronger obligations, nor affords a better ground of action, than a promise to deliver any chattel as a gift. Such intended donations cannot be enforced on the consideration of blood, which has been insisted on in this case, and was probably a leading motive with the defendant's testator; in the cases referred to, in 2d Vesey, Jr. 112, Mary Tate and Jane Tate being stated to have been his relations. The consideration of natural love and affection is sufficient in a deed; but a mere executory contract, that requires a consideration, as a promissory note, cannot be supported on the consideration of blood, or natural love and affection, there must be something more; a valuable consideration, or it is not good and cannot be enforced at law, but may be broken at the will of the party. And being void at law for want of a sufficient consideration, Chancery cannot sustain and enforce it. The cases of Mary Tate and Jane Tate v. Hilbert, have been mentioned as striking cases, in which the Lord Chancellor manifested a strong desire, more than once expressed, to grant the relief prayed; a desire not foreign from us, so far as sitting here we are permitted to entertain it, but we are, as he then was, restrained by the settled and stubborn rules of law. The case of Ward v. Turner, 2d Vesey, Sen. 431, is just this case. It was a bill to compel a transfer of South Sea annuities, the receipt for which had been delivered to the complainant's testator by one Flog, saying, "I give you, Mosely, these papers, which are receipts for South Sea annuities, and will serve you after I am dead." It was argued for the complainant that the delivery of these receipts, with the strong words of gift accompanying it, was as much as could be done towards giving the annuities, except a mere transfer in the books. But it was held that the annuities being the thing intended to be given, a delivery of the annuities was indispensably necessary to make it a good donation; that the delivery of the receipts was not sufficient, and that such a donation could not be made without a transfer, or something equivalent, that being the only mode in which stock or annuities are susceptible of being delivered. It is supposed that this case differs from that, because, as is alleged, that James Gittings, at the time of delivering the certificate of stock to his daughter, indorsed his name upon the back of it (which does not appear to have been done by Flog, when he delivered the receipts for the annuities) which, it is contended, gave her authority to write over it a full assignment or a power of attorney, which would have enabled her to go to the bank, and cause a transfer of the stock to be made to her on the books. But it is not perceived that this makes any difference, nor is it necessary to inquire whether that indorsement gave any such authority; if it did, it never was executed. It appears upon the face of the certificate itself that the stock was transferable at the bank only, and it is admitted that the indorsement, whether in blank or in full, did not, and could not, operate to transfer the stock; and as it was the stock and not the certificate, that was the subject of the intended gift, it matters not whether the indorsement was in full or in blank; for, as in the case of the cheque on the banker, which not being presented and paid in the life-time of the maker, the intended donation of the money was defeated for want of delivery, notwithstanding the holder of the cheque might, by presenting it in the life-time of the maker, have obtained the money, and thus perfected the gift; so here, even if by the indorsement of the certificate, whether filled up or remaining in blank, Mrs. Patterson might have gone to the bank in the life-time of her father, and caused a transfer of the stock to herself on the books of the bank, the only way in which the stock, the thing that was intended to be given, could be delivered, and thus have perfected the donation; yet, not having done so, it was not a valid gift of the stock, either in law or equity, for want of delivery. It was not a valid gift in law, otherwise there would have been no necessity for going into Chancery to perfect it. And being void in law, Chancery cannot interpose to make it good or enforce it. If Mr. Gittings was alive, it could not be seriously contended, that he could be compelled to transfer the stock in the absence of any consideration; and the same principle applies to his executor. His death does not make that good, which was bad before. Decree affirmed, with costs. Winchester and Mayer, for the appellant. HEADLEY v. KIRBY. SUPREME COURT OF PENNSYLVANIA. [Reported 18 Pa. 326.] ERROR to the District Court, Philadelphia. 1852. This was an action of replevin by Headley, as administratrix of the estate of Patience Kirby, deceased, against Ann Kirby, to recover from her the possession of a variety of clothing, a watch and chain, pencilcase, teaspoons, trunks, a promissory note for $1600, a book of deposit in the Philadelphia Savings Fund Society, and articles of female wearing apparel, which had belonged to the deceased. They were claimed by the defendant as a gift from the decedent, as a donatio causa mortis. The defendant was a sister-in-law of the decedent, who left brothers and sisters, of whom the plaintiff was one. The decedent went to the house of defendant on the 23d October, 1850, taking all her property with her, and rented a room in the house. Some of the articles were contained in two trunks; others were in a band-box, and others were hanging up in a closet in the room. The decedent died on 26th October, 1850. One witness Three witnesses testified as to the alleged donation. said the words of the decedent were: "Ann, I am dying; all that I have is here, and all is yours; do everything for me; there are my keys, take them." Another witness testified substantially the same. A third witness testified that the words were: "Ann, I am dying; all that is here with you is yours; do the best for me when I am gone; there's the keys." It was argued that the last expression excluded the money in the Saving Fund. The decedent died a few minutes after the alleged donation. The judge charged, inter alia, that if the facts related by the defendant's witnesses were believed by the jury, they were sufficient to establish a valid donatio causa mortis; and he submitted to the jury the question whether the decedent used "words sufficient to declare her intention to give all her property to the defendant; and, if so, did she do so under the immediate expectation of death. If so, the gift was valid as a donatio causa mortis." This part of the charge, and other parts of the answers to points or instructions of the court, were assigned as error. Sheppard and Meredith, for plaintiff in error. The opinion of the court was delivered by LOWRIE, J. Though we derive the law as to donationes mortis causa from the Roman law, yet their rules on that subject are no guide to us in the administration of our law; for the stringent severity of their law of wills occasioned and excused much larger equitable excep tions, by way of gifts in prospect of death, than can at all be sanctioned under our much more reasonable Statute of Wills. But even with them these gifts were so carefully guarded that, however they might impinge upon the rules as to testamentary dispositions, they could not readily give rise to fraud; for every such gift was invalid unless proved by five witnesses present at the time, every one of whom was required to be a Roman citizen, of full age, of good character, and not related to either donor or donee, a regulation not belonging to our law of evidence. In the Roman law (Inst. 2, 7, 1; 2 Domat, 4, 1, 3, 2-6), as well as in ours (2 Ves. Jr. 120; 2 Swanst. 98), these donations are regarded as of the same nature as testamentary dispositions, and such is manifestly their character. We shall therefore take but a one-sided view of such gifts, if, in considering them, we neglect the spirit of our law of wills; and it is not necessary here to point out the care which some courts have taken to prevent this exception to the law of wills from making any further invasions upon that law. So far as regards property, a will is the declaration of one's intention as to the disposition of it after his death; and our law on that subject is very clear in defining the form of such a will. Considering that our present Statute is substantially a mere republication of the law as it has existed ever since 29 Charles 2, it is perhaps too late to attempt without legislative direction to reclaim it from the exceptions which have been made in favor of these donations; but we may and must restrain the effect of those exceptions, so as to prevent them from becoming themselves a general rule. The gift in the case before us professes to embrace all the donor's property, and to be made in prospect of death, and is therefore a will, if it receive the sanction of law. The claim that such a thing can be is a startling consequence of the exceptions in favor of donationes mortis causa, and it is not possible to say that such a consequence may not be arrived at, if we follow the analogies of these exceptions, without looking at our Statute, and without regarding the maxim, quod contra rationem juris receptum est, non est producendum ad consequentia. This case is so entirely peculiar in its character, that, if we take our Statute of Wills as the general rule for such dispositions, as we are bound to do, and treat the cases of donationes mortis causa as exceptions which are not to be extended by way of analogy, then we are clear of all embarrassment as to the principle on which the case is to be decided. It is not pretended that any gift like this has ever been held good, and it may be safely declared, that no mere gift made in prospect of death and professing to pass all one's property to another, to take effect after death, can be valid under our Statute of Wills, no matter what delivery may have accompanied it. If this is not true, then it is plain that the Statute of Wills, so far as it is intended to exclude all modes of disposing of personal property at death which it does not provide for, is repealed by the decisions of the courts. It is not necessary to point out the danger of sustaining such a donation as this, for no thinking mind can fail to see it, and it was this very consideration that led to the precautions which are provided in the Statute on the subject of nuncupative wills. We cannot even glance at these precautions without seeing that they were designed to defeat a gift sustained by such evidence as was given in this case, and to prevent oral dispositions in the nature of last wills from being made under such suspicious circumstances. The court below ought to have instructed the jury that such evidence could not establish a donatio mortis causa, or to have ruled out the whole evidence as insufficient. Judgment reversed, and new trial awarded.1 1 Contra, Meach v. Meach, 24 Vt. 591 (1852), the opinion in which was delivered by REDFIELD, C. J. In a note to the case the learned Chief Justice says: "One cannot but feel that it was never properly intended to apply to a general disposition of a large estate to the utter subversion of the Statute of Wills. And still, when we attempt to limit its operation, we encounter embarrassments not readily disposed of. If one may remit a debt of £500, about $2,500, by the simple act of delivering the receipt for it to a third person, a servant attending the death-bed, with a general expression of desire, in the briefest words, that the debt should be cancelled, which was the case of Moore v. Darton, 7 Eng. Law and Equity R. 134, and which was sustained without difficulty by a distinguished English Vice-Chancellor, we can scarcely be expected to say that twice that amount, therefore, is not a good donation mortis causa. And although, in prac tice with us, this mode of final disposition of property has oftener been confined to some favorite articles of personal attire, or ornament perhaps, like watches and jewels, yet an examination of the cases will show a wonderful variety in the character and extent of property disposed of in this mode, often including all one possesses, consisting of the largest extent and variety of property, both in possession and in action; and thus, in fact, amounting to a nuncupative will. And still I find no case, except the late case in Pennsylvania, where any attempt has been made to limit its operation, on account of the comparative or absolute extent of the property disposed of. And the more I have reflected upon the subject and compared the cases, with a view to evolve some rational and practicable principle of limitation to the extent of its operation, the more I have felt constrained to declare that it cannot be done by any powers of abstraction or generalization, which my short sight is able to command. "If the servant, whose whole estate consists of a few hundred dollars, balance of earnings, in the hands of his employer, and five pieces of property, in possession, is to be allowed, in his last sickness, to dispose of it to five different persons by mere words,, and by committing the entire evidence of debt to a fellow servant, which seems now to come within all the best considered cases upon that subject, it would seem invidious to hold, that when the property amounts to thousands, composing the principal estate of a substantial householder, that therefore it could not be conveyed in this mode. And if the man of great worldly possessions, who has executed his will in the most reverent formality, may, when death presses him sore, modify that disposition, which alone the written law of the land recognizes, by taking from his secret drawer securities for debt to the amount of thousands of dollars, and making an irrevocable disposition of them after death, by the brief words "I give," and the simple act of delivery to the wife, which, in law, is a delivery to himself, a mere change from one hand to the other, it would certainly not be easy to say that one whose whole property did not amount to one tithe of that sum, or if it did exceed it by hundreds of dollars, could not do the And yet it will be noticed, that the last case supposed is the well considered and constantly recognized case of Miller v. Miller, 3 P. Wms. R. 356." same. |