Page images
PDF
EPUB

ditions subsequent, that is, upon actual revocation by the donor, or by the donor's surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and inter vivos. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will.

This statement of the law is, we think, correctly deduced from the judgments of the highest courts in England and in this country; although, as might well have been expected, since the early introduction of the doctrine into the common law from the Roman civil law, it has developed, by new and successive applications, not without fluctuating and inconsistent decisions.

"As to the character of the thing given," says Shaw, C. J., in Chase v. Redding, 13 Gray (Mass.), 418, 420, "the law has undergone some changes. Originally it was limited, with some exactness, to chattels, to some object of value deliverable by the hand; then extended to securities transferable solely by delivery, as bank-notes, lottery tickets, notes payable to bearer or to order, and indorsed in blank; subsequently it has been extended to bonds and other choses in action, in writing or represented by a certificate, when the entire equitable interest is assigned; and in the very latest cases on the subject in this Commonwealth, it has been held that a note not negotiable, or if negotiable, not actually indorsed, but delivered, passes, with a right to use the name of the administrator of the promisee, to collect it for the donee's own use," citing Sessions v. Moseley, 4 Cush. (Mass.) 87; Bates v. Kempton, 7 Gray (Mass.), 382; Parish v. Stone, 14 Pick. (Mass.) 198.

[ocr errors]

In the case last mentioned -Parish v. Stone -the same distinguished judge, speaking of the cases which had extended the doctrine of gifts mortis causa to include choses in action, delivered so as to operate only as a transfer by equitable assignment or a declaration of trust, says further, that "these cases all go on the assumption that a bond, note, or other

security is a valid subsisting obligation for the payment of a sum of money, and the gift is, in effect, a gift of the money by a gift and delivery of the instrument that shows its existence and affords the means of reducing it to possession." He had, in a previous part of the same opinion, stated that "the necessity of an actual delivery has been uniformly insisted upon in the application of the rules of the English law to this species af gift." p. 204.

In Camp's Appeal, 36 Conn. 88, the Supreme Court of Errors of Connecticut held that a delivery to a donee of a savingsbank book, containing entries of deposits to the credit of the donor, with the intention to give to the donee the deposits represented by the book, is a good delivery to constitute a complete gift of such deposits, on the general ground that a delivery of a chose in action that would be sufficient to vest an equitable title in a purchaser is a sufficient delivery to constitute a valid gift of such chose in action, without a transfer of the legal title. That was the case of a gift inter vivos. But the court say, referring to the case of Brown v. Brown, 18 Conn. 410, as having virtually determined the point: "It is true that was a donation causa mortis, but the principle involved is the same in both cases, as there is no difference in respect to the requisites of a delivery between the two classes of gifts." And so Wilde, J., delivering the opinion of the court in Grover v. Grover, 24 Pick. (Mass.) 261, 264, expressly declared that "a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale;" that the title passed, and the gift became perfected by delivery and acceptance; that there was, therefore, "no good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase;" and showed, by a reference to the cases, that there was no difference in this respect between gifts inter vivos and mortis causa.

In respect to the opinion in this case, it is to be observed, that it cites with approval the case of Wright v. Wright, 1 Cow. (N. Y.) 598, in which it was decided that the promissory note, of which the donor himself was maker, might be the subject of a valid gift mortis causa, though the concurrence was not

upon that point. That case, however, has never been followed. It was expressly disapproved and disregarded by the Supreme Court of Errors of Connecticut in Raymond v. Sellick, 10 Conn. 480, Waite, J., delivering the opinion of the court; it had been expressly questioned and disapproved by Shaw, C. J., in Parish v. Stone, 14 Pick. (Mass.) 198, and was distinctly overruled by the Court of Appeals of New York in Harris v. Clark, 3 N. Y. 93. In the latter case it was said: "Gifts, however, are valid without consideration or actual value paid in return. But there must be delivery of possession. The contract must have been executed. The thing given must be put into the hands of the donee, or placed within his power by delivery of the means of obtaining it. The gift of the maker's own note is the delivery of a promise only, and not of the thing promised, and the gift therefore fails. Without delivery, the transaction is not valid as an executed gift; and without consideration, it is not valid as a contract to be executed. The decision in Wright v. Wright was founded on a supposed distinction between a gift inter vivos and a donatio mortis causa. But there appears to be no such distinction. A delivery of possession is indispensable in either case."

The case from which this extract is taken was very thoroughly argued by Mr. John C. Spencer for the plaintiff, and Mr. Charles O'Connor for the defendant, and the judgment of the court states and reviews the doctrine on the subject with much learning and ability. It was held that a written order upon a third person, for the payment of money, made by the donor, was not the subject of a valid gift, either inter vivos or mortis causa; and the rule applicable in such cases, as conceded by Mr. O'Connor, was stated by him, as follows: "Delivery to the donee of such an instrument as will enable him, by force of the instrument itself, to reduce the fund into possession, will suffice,' is the plaintiff's doctrine. This might safely be conceded. It might even be conceded that a delivery out of the donor's control of an instrument, without which he could not recover the fund from his debtor or agent, would also suffice."

The same view, in substance, was taken in deciding Hewitt v. Kaye, Law Rep. 6 Eq. 198, which was the case of a check

on a banker, given by the drawer mortis causa, who died before it was possible to present it, and which was held not to be valid. Lord Romilly, M. R., said: "When a man on his death-bed gives to another an instrument, such as a bond, or promissory note, or an I O U, he gives a chose in action, and the delivery of the instrument confers upon the donee all the rights to the chose in action arising out of the instrument. That is the principle upon which Amis v. Witt, 33 Beavan, 619, was decided, where the donor gave the donee a document by which the bankers acknowledged that they held so much money belonging to the donor at his disposal, and it was held that the delivery of that document conferred upon the donee the right to receive the money. But a cheque is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is at a banker's or anywhere else. It is an order to deliver the money, and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing."

Accordingly the Vice-Chancellor, In re Beak's Estate, Law Rep. 13 Eq. 489, refused to sustain as valid the gift of a check upon a banker, even although its delivery was accompanied by that of the donor's pass-book.

The same rule, as to an unpaid and unaccepted check, was followed in The Second National Bank of Detroit v. Williams, 13 Mich. 282. The principle is that a check upon a bank accour is not of itself an equitable assignment of the fund. Bank of the Republic v. Millard, 10 Wall. 152; but if the banker accepts the check, or otherwise subjects himself to liability as a trustee, prior to the death of the donor, the gift is complete and valid. Bromley v. Brunton, Law Rep. 6 Eq. 275.

Contrary decisions have been made in respect to donations mortis causa of savings-bank books, some courts holding that the book itself is a document of title, the delivery of which, with that intent, is an equitable assignment of the fund. Pierce v. Boston Savings Bank, 129 Mass. 425; Hill v. Stevenson, 63 Me. 364;. Tillinghast v. Wheaton, 8 R. I. 536. The contrary was held in Ashbrook v. Ryon, 2 Bush (Ky.), 228, and in McGonnell v. Murray, Irish Rep. 3 Eq. 460.

That a delivery of a certificate of deposit, such as that de

scribed in the record in this case, might constitute a valid donatio mortis causa, does not admit of doubt. It was so decided in Amis v. Witt, 33 Beav. 619; Moore v. Moore, Law Rep. 18 Eq. 474; Hewitt v. Kaye, 6 id. 198; Westerlo v. De Witt, 36 N. Y. 340. A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equitable assignment of the money for which it calls.

The point, which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in case of a gift mortis causa; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift. Further illustrations and applications of the principle may be found in the following cases: Powell v. Hellicar, 26 Beav. 261; Reddel v. Dobree, 10 Sim. 244; Farquharson v. Cave, 2 Colly. C. C. 356; Hatch v. Atkinson, 56 Me. 324; Bunn v. Markham, 7 Taunt. 224; Coleman v. Parker, 114 Mass. 30; Wing v. Merchant, 57 Me. 383; Mc Willie v. Van Vacter, 35 Miss. 428; Egerton v. Egerton, 17 N. J. Eq. 419; Michener v. Dale, 23 Pa. St. 59.

The application of these principles to the circumstances of the present case requires the conclusion that the appellant acquired no title to the fund in controversy, by the indorsement and delivery of the certificate of deposit. The certificate was payable on demand; and it is unquestionable that a delivery of it to the donee, with an indorsement in blank, or a special indorsement to the donee, or without indorsement, would have transferred the whole title and interest of the donor in the fund

« PreviousContinue »