country, and particularly in this state, is that any delivery of property which transfers to the donee either the legal or equitable title is sufficient to effectuate a gift; and hence it has been held that the mere delivery of non-negotiable notes, bonds, mortgages, or certificates of stock is sufficient to effectuate a gift. 2 Redf. Wills, 312; Westerlo v. De Witt, 36 N. Y. 340; Champney v. Blanchard, 39 N. Y. 111; Penfield v. Thayer, 2 E. D. Smith, 305; Walsh v. Sexton, 55 Barb. 251; Johnson v. Spies, 5 Hun, 468; Allerton v. Lang, 10 Bosw. 362; Camp's Appeal, 36 Conn. 88; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 Gray 418; Pierce v. Bank, 129 Mass. 425; Tillinghast v. Wheaton, 8 R. I. 536; In re Mead, 15 Ch. Div. 651; Moore v. Moore, L. R. 18 Eq. 474.

But the learned counsel for the appellants calls our attention to one of the by-laws of the bank printed in the deposit book in question in this action, and claims that the delivery was not effectual without the written order of the donor. The by-law is as follows: "Drafts may be made personally or by the order, in writing, of the depositor, if the bank have the signature of the party on their signature book, or by letters of attorney duly authenticated; but no person shall have the right to demand any part of the principal or interest without producing the pass-book, that such payments may be entered therein. If the person giving the order or power of attorney cannot write, he or she must make his or her mark, in the presence of a subscribing magistrate or some one whose signature is known at the bank, and any person presenting said order or power of attorney must be known or made known to the bank as the one authorized to receive the money." This by-law requires an order or power of attorney when some one seeks to draw money for the depositor or the depositor's money. But the depositor can draw the money without making an order, simply by the presentation of the deposit book, and so can any owner of the book. Suppose the plaintiff had purchased the book, and had thus become the absolute owner thereof. He could have drawn the money as owner on presentation of the book, and the bank could not have required, as a condition of payment, that he should procure a power of attorney or an order from one having no interest, legal or equitable, in the deposit. The owner in

such a case should produce satisfactory evidence of his ownership of the book, and if the bank refused to pay he would be obliged to establish such ownership by any competent evidence, and nothing more; and his rights as purchaser would be no greater than his rights as donee. He has the same right to enforce a payment that he would have had if he had been the donee of any non-negotiable chose in action, or a certificate of deposit or unindorsed note. He could establish his right to payment in such a case by any proof showing that he was the absolute legal or equitable owner.

The claim is also made that the donor could not make the gift in the apprehension of death from a surgical operation to be performed in the future, to which he intended voluntarily to expose himself. But, without taking a broader view, death from a surgical operation, made necessary by a present disease, is, in a proper sense, death from the disease, and the gift may in such case be upheld as made in the apprehension of death from the disease.

We now come to the question, was the gift invalid because the donor did not die of the same disease from which he apprehended death? Gifts causa mortis, as well as gifts inter vivos, are based upon the fundamental right every one has of disposing of his property as he wills. The law leaves the power of disposition complete, but, to guard against fraud and imposition, regulates the methods by which it is accomplished. To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered, and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos, the moment the gift is thus consummated it becomes absolute and irrevocable. But in the case of gifts causa mortis more is needed. The gift must be made under the apprehension of death from some present disease, or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the lifetime of the donor. It is not needful that the gift be made in extremis when there is no time or opportunity to make a will. In many of the reported cases the gift was made weeks, and even months, before the death of the donor, when there was

abundant time and opportunity for him to have made a will. These are the main features of a valid gift causa mortis as they are set forth in many text-books and reported cases. Just. Inst. lib. 2, tit. 7, § 1; Mack. Rom. Law, § 793; Civil Code Cal. §§ 1149, 1151; 1 Rop. Leg. 26; 2 Schouler, Pers. Prop. § 157; 2 Kent, Comm. 444; 1 Story, Eq. Jur. §§ 606, 607; 3 Pom. Eq. Jur. § 1146; Grymes v. Hone, 49 N. Y. 17; Williams v. Guile, 117 N. Y. 343, 22 N. E. Rep. 1071; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. Rep. 415.

Counsel for the appellants would add one more prerequisite to an effectual gift, and that is that the donor, when the gift has been made in the apprehension of death from disease, must have died of the same disease, and he calls our attention to expressions of judges to that effect. I have examined all the cases to which he refers, and many more, and find that these expressions were all made in cases where the donor died from the same disease from which he apprehended death when he made the gift, and that none of them were needful to the decisions made. The doctrine meant to be laid down was that the donor must not recover from the disease from which he apprehended death. I am quite sure that no case can be found in which it was decided that death must ensue from the same disease, and not from some other disease existing at the same time, but not known. There is no reason for this additional prerequisite. The rule is that the donor must not recover from the disease from which he than apprehended death. If he recovers, the gift is void; if he does not recover, and the gift is not revoked, it becomes effectual. In this case the condition was that if he did not recover from the consequences of the operation and return from the hospital, the gift should take effect. That was a perfectly lawful condition for him as the owner of the property to impose, and no reason can be perceived for refusing to uphold a gift made under such circumstances. A donor may have several diseases, and may in making a gift apprehend death from one and not from the others, and shall the gift be invalid. if, before he recovers from the disease feared, he dies from one of the other diseases? In such a case it might be, and generally would be, difficult, if not impossible, to tell what share any of the diseases had in causing the death. No medical skill could

ordinarily tell that the donor would have succumbed to the disease feared, if the other diseases had not been present. Here the immediate cause of death appeared to be heart disease, and the autopsy did not disclose that there was any connection between the hernia or the operation and the heart disease. But who could tell that the death would have ensued from the heart disease at that particular time but for the operation? No medical skill can tell that the shock from the operation, and the debility and disturbance caused thereby, did not hasten death; and the death, therefore, in a proper sense, may have ensued, and probably did ensue, from both causes. Sound policy requires that the laws regulating gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged. We therefore confine our decision to the precise facts of this case, and we go no further than to hold that when a gift is made in the apprehension of death from some disease from which the donor did not recover, and the apparent immediate cause of death was some other disease with which he was afflicted at the same time, the gift becomes effectual. The judgment should be affirmed, with costs. All concur.

CHAPTER II.

ORIGIN AND HISTORY OF WILLS.*

THE ENGLISH WILLS ACT.

1 Vict., c. 26, July 3d, 1837.

Be it enacted, that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows: (that is to say) the word "will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act, passed in the twelfth year of the reign of King Charles the Second, intituled An act for taking away the court of wards and liveries and tenures, in capite and by knights service, and purveyance, and for settling a revenue upon His Majesty in lieu thereof, or by virtue of an act passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled An act for taking away the court of wards and liveries and tenures, in capite and by knights service, and to any other testamentary disposition; and the words "real estate" shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words "personal estate" shall extend to leasehold estates and other chattels real, and also to moneys, shares of government and other funds, securities for money (not being real estates),

* See Secs. 929-934, Vol. 7 Cyclopedia of Law.