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In Duffield v. Elwes, Sir John Leach made the declaration that where delivery would not execute a complete gift inter vivos it could not create a donatio mortis causa. This proposition was directly overruled by Lord Eldon in the House of Lords on appeal. 1 Bligh, N. s. 497.

He held that it was only essential to constitute a donatio causa mortis that the delivery should be sufficient to raise a trust, and that equity would compel the representatives of the donor to complete that which was incomplete.

In Veal v. Veal, the gift was resisted on the ground that the note was payable to order, and not indorsed. Romilly, M. K., after reviewing previous decisions, refers to the fact that Sir John Leach's decision in Duffield v. Elwes had been overruled in the House of Lords, and says: "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 the clear intent that he intended to give it." 27 Beav. 303.

In Grymes v. Hone, 49 N. Y. 17, the owner of certain bank stock made an assignment of the same to his granddaughter, and appointed her his attorney to transfer or sell the same for her use. This paper, after being kept by him for some time, he delivered to his wife, saying: "I intend this for Nelly; if I die, don't give it to the executor." She asked, "Why not give it to her now?" Well," said he, "better keep it for the present. I don't know how much longer I may last, or what will happen, or whether we may need it."

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The action was, by the donee, against the executor for the recovery of the bank stock or its value. Judgment was rendered for plaintiff and affirmed in the court of appeals.

There it was said the transaction as to such a gift is: "The donor says, 'I am ill, and fear I shall die of this illness, wherefore I wish you to take these things and hand them to my granddaughter after my death; but do not hand them to her now, as I may need them.' A good donatio mortis causa always implies all this. If delivered absolutely to the donee in person, the law holds it void in case the donor recovers, and he may then reclaim it. To make a valid gift mortis causa, it is not necessary there should be any express qualification in the

transfer of delivery. It may be found to be such a gift from the attending circumstances, though the written transfer may be absolute."

It was urged that the gift was not completed, inasmuch as the stock was not transferred on the book of the bank, and could not be until the certificate was surrendered; that equity would not aid a volunteer to perfect an imperfect title. But the court held that, by the modern authorities, the gift was valid, notwithstanding these objections, that the equitable title passed by the assignment, and it was not necessary to hand over the certificate; that a court of equity will compel the donor's representative to produce the certificate, that the legal title may be perfected.

The doctrine as we have announced it is fully sustained by the decisions in Tennessee, where the gift was made.

In Gass v. Simpson, decided in 1867, Gass, as administrator of Carter, filed his bill, in which he alleged that when Carter left home, in 1862, to join the Union army in Kentucky, from whence he never returned (having died in 1863), he placed in Simpson's hands for safe keeping certain moneys, notes of hand, and receipts, with other valuable papers, all of which complainant was entitled to as administrator.

Simpson answered that when Carter made this deposit with him, he said, if he never returned, he wanted it all to belong to his son, George Simpson, then a youth of six years.

The case was heard on bill and answer, and this was decreed as a good gift causa mortis. 4 Cold. (Tenn.) 288.

The certificate of deposit held by Chaney was in all respects the negotiable promissory note of the bank, and, on well-settled decisions, its delivery, with or without an indorsement, would confer a good title.

The learned district judge, in his opinion, admits that it is "now settled that choses in action, whether negotiable or not, may be the subject of gifts causa mortis," and that money on deposit may be delivered by delivery of the certificate of deposit.

Nevertheless, he holds that in this case there was no gift, inasmuch as by the indorsement of the certificate Basket "could

not have compelled the delivery of the money to him during the lifetime of the donor."

But if our preceding citations correctly define the principles governing such gifts, the delivery of a note payable to order and not indorsed, or the delivery of the bank-book without assignment, constitutes a good gift, though the money could not be collected in the lifetime of the donor.

The certificate was delivered. It represented the money which Chaney had loaned to the bank. The wording of the indorsement does not affect the question of delivery of the paper, but expresses the condition on the happening of which Basket's title to the money due by the bank should be complete.

Similar language is found in many of the cases which have been sustained as gifts causa mortis. Thus, in Snelgrove v. Bailey, decided by Lord Hardwicke, there was a delivery of a bond with the declaration, "In case I die, it is yours." 3 Atk. 214. "I want to deal with it in my lifetime." Meridith v. Watson, 17 Jur. 1063. In Sessions v. Moseley, decided by Chief Justice Shaw, notes were handed by payee to another to be given by him to a third after the donor's death. 4 Cush. (Mass.) 87. Mitchell v. Smith, much relied on by the other side, does not touch the question. The indorsement was not made in contemplation of death. There was no evidence to show that the testator was not in perfect health at the time of the gift. The court below held that the indorsement was sufficient to found a recovery at law. This was reversed on appeal. The same donor subsequently, in contemplation of death, and in extremis, handed to the defendant some mortgage deeds, saying: "I want to leave something for Christiana." "Give them to Christiana." This was held good as a gift causa mortis, and the report is particular to say, "that it was not sought to disturb the ViceChancellor's decision upon the point relating to the gift of the title-deeds." 10 L. T. N. s. 520, 801.

The condition expressed in the indorsement of the certificate is one which the law would enforce under the circumstances, if the indorsement had been absolute. Grymes v. Hone, above cited.

The rule as to checks and notes of the donor himself stands on different grounds; unless presented in the lifetime of the

drawer, they will not be paid. The question here is as to the effect of the indorsement of a note of the bank.

Mr. Asa Iglehart and Mr. J. E. Iglehart, contra.

MR. JUSTICE MATTHEWS, after stating the case, delivered the opinion of the court.

It is apparent that the sole controversy is between Basket and Hassell, the present parties to the appeal. By the delivery of the certificate of deposit to the clerk the attorneys of Basket are exonerated from all responsibility; and the payment of the money by the bank to Hassell equally relieves it and its officers; for, not being parties to the appeal, and the execution of the decree not having been superseded, the decree will always furnish them protection, whether affirmed or reversed, because, if reversed, it would only be so as between the parties to the appeal. So that the omitted parties have no legal interest, either in maintaining or reversing the decree, and, consequently, are not necessary parties to the appeal. Forgay v. Conrad, 6 How. 203; Cox v. United States, 6 Pet. 182; Germain v. Mason, 12 Wall. 261; Simpson v. Greely, 20 id. 152. The motion to dismiss the appeal is accordingly overruled.

It is claimed on behalf of the appellant that the delivery of the certificate under the circumstances mentioned in the statement of the case constitutes a valid donatio mortis causa, which entitles him to the fund; and whether it be so, is the sole question for our determination.

The general doctrine of the common law as to gifts of this character is fully recognized by the Supreme Court of Tennessee as part of the law of that State. Richardson v. Adams, 10 Yerg. 273; Sims v. Walker, 8 Humph. 503; Gass v. Simpson, 4 Cold. 288.

In the case last mentioned, that court had occasion to consider the nature of such a disposition of property, and the several elements that enter into its proper definition.

Among other things, it said:

"A question seems to have arisen, at an early day, over which there was much contest, as to the real nature of gifts causa mortis. Were they gifts inter vivos, to take effect before the death of the donor, or were they in the nature of a legacy,

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taking effect only at the death of the donor. At the termination of this contest, it seems to have been settled, that a gift causa mortis is ambulatory and incomplete during the donor's life, and is therefore revocable by him and subject to his debts, upon a deficiency of assets, not because the gift is testamentary or in the nature of a legacy, but because such is the condition annexed to it, and because it would otherwise be fraudulent as to creditors; for no man may give his property who is unable pay his debts; and all now agree that it has no other property in common with a legacy. The property must pass at the time and not be intended to pass at the giver's death; yet, the party making the gift does not part with the whole interest, save only in a certain event; and until the event occurs which is to divest him, the title remains in the donor. The donee is vested with an inchoate title, and the intermediate ownership is in him; but his title is defeasible, until the happening of the event necessary to render it absolute. It differs from a legacy in this, that it does not require probate, does not pass to the executor or administrator, but is taken against and not from him. Upon the happening of the event upon which the gift is dependent, the title of the donee becomes, by relation, complete and absolute from the time of the delivery, and that without any consent or other act on the part of the executor or administrator; consequently, the gift is inter vivos." In another part of the opinion (p. 297) it is said: is said: "All the authorities agree that delivery is essential to the validity of the gift, and that, it is said, is a wise principle of our laws, because delivery strengthens the evidence of the gift; and is certainly a very powerful fact for the prevention of frauds and perjury.”

In the first of these extracts there is an inaccuracy of expression, which seems to have introduced some confusion, if not an apparent contradiction, when, after having stated that "the property must pass at the time and not be intended to pass at the giver's death," it is added, that "until the event. occurs which is to divest him, the title remains in the donor." But a view of the entire passage leaves no room to doubt its meaning; that a donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the con

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