These gifts can be made only by a person by whom death is believed, on reasonable grounds, to be very near, and who makes the gift in view of, and because of, his approaching death. (ff) 3
( f) For American cases in which this question is considered, see Thomson v. Dougherty, 12 S. & R. 448; Hanson v. Buckner, 4 Dana, 251; Hudual v. Wilder, 4 MeCord, 294; Sexton v. Wheaton, 8 Wheat. 229; Gannard v. Eslava, 20 Ala.
732; Clark v. Depew, 25 Penn. St. 509 Trimble v. Rateliffe, 9 B. Mou. 511; Haw kins v. Moffit, 10 B. Mon. 81.
(ff) Knott v. Hogan, 4 Met. (Ky.) 99 Champney v. Blanchard, 39 N. Y. 111.
he takes as trustee for the donee the gift is complete. In re Richards, 36 Ch. D. 541; Devol v. Dye, 123 Ind. 321; Frazier v. Perkins, 62 N. H. 69. See also Wood-burn v. Woodburn, 123 Ill. 608; Stephenson's Adm. v. King, 81 Ky. 425; Dunbar v. Dunbar, 80 Me. 152; Williams v. Guile, 117 N. Y. 343; Gano v. Fisk, 43 Obi.. St. 462.
1 Monatt v. Parker, 30 La. An. 585; Stewart v. Hidden, 13 Minn. 43; Walker v. Joseph Dixon Crucible Co. 47 N.J. Eq. 342; Bedell v. Carll, 33 N. Y. 581; Kellogg V. Adams, 51 Wis. 138.
2 Williams v. Forbes, 114 Ill. 167. But if under seal such a note or promise is binding. Krell v. Codman, 154 Mass. 454; Boss's Appeal, 127 Pa. 4.
3 In Gourley v. Linsenbigler, 51 Pa. 345, 350, it is said: " It is evident that the language used by the authorities in speaking of - in contemplation of death - in expectation of death - or - in apprehension of death - applies to the cases of illness ending in death, the last illness which makes it a death-bed disposition." Dicta of similar import may be found in other cases. Chancellor Kent, however, says, " The apprehension of death may arise from infirmity and old age, or from external or anticipated danger." 2 Kent's Com. *444. And in Ridden v. Thrall, 125 N. Y. 572, a gift made under apprehension of death from an impending surgical operation was supported, though the donor in fact died from another cause before he had fully recovered from the effects of the operation. The court intimate, however, that had the donor recovered from the effects of the operation, before he was attacked by the disease which proved fatal, the gift could not have been supported.
Much that was said of gifts inter vivos applies equally to gifts causa mortis. There must be delivery to the donee; and while it need not be strictly actual, it must be as near an actual delivery to the donee, as the circumstances of the case and the nature and actual position of the thing given, will permit. (g)1 And it is said that no mere possession, whether it be subsequent or previous and continued, will supply the want of delivery; (h) but we should doubt whether this can be regarded * as a universal rule. The law watches, however, this kind of transfer jealously, and is unwilling that it should take the place of wills, and make them unnecessary; because, while it is much less troublesome, it is open to those objections of uncertainty which the law seeks to avoid, in reference to wills, by its precautions and provisions as to their execution. Hence it is the prevailing rule, that the donor's own note, or his own check or draft not accepted or paid before his death, does not pass by gift causa mortis.2 Delivery by a dying husband of the book of a savings bank showing deposits by a deceased wife, with a verbal gift thereof, passed to the donee the moneys so deposited. (hh) And banknotes, certainly, (i) and perhaps the notes, bonds, and other written promises of others than the donor, may be the subject of a valid donatio causa mortis, although the rule on this subject can hardly be considered as completely settled. (j)
(g) Jones v. Selby, Prec.Ch.300; Drury v. Smith, 1 P. Wms. 404; Snellgrove v. Bailey, 3 Atk. 214; Lawson v. Lawson, 1 P. Wms. 441; Miller v. Miller, 3 P. Wms. 356; Ward v. Turner, 2 Ves. 431. There seems to be no limit in law to the extent of a donatio causa mortis. Meach v. Meach, 24 Vt. 591; Dresser v. Dresser, 46 Me. 48. But see Headley v. Kirby, 18 Penn. St. 326.
(h) Dole v. Lincoln, 31 Me. 422; Huntington v. Gilmore, 14 Barb. 243; Drew v. Hagerty, 81 Me. 231. In England, the law seems not to be settled on this point. Moore v. Dalton, 7 E. L. & E. 134, differs from the cases first cited; while Gough v. Findon, 7 Exch. 48, 8 E. L. &. E. 507, confirms them. See note, ante p. *235.
(hh) Tillinghast v. Wheaton, 8 R. I. 536; Pierce v. Boston Savings Bank, 129 Mass. 425.
1 See cases cited in note 1, ante p. *235. Also Rowland v. Phillips, 13 Southwestern Rep. 1101 (Ark.); Daniel v. Smith, 75 Cal. 548; Fearing v. Jones, 149 Mass. 12; Shackelford v. Brown, 89 Mo. 546; Trenholm v. Morgan, 28 S. C. 268; Yancey v. Field, 85 Va. 756. But see Ellis v. Secor, 31 Mich. 185.
- Basket v. Haskell, 107 U. S. 602, 615; Smith v. Smith's Adm. 30 N. J. Eq. 564; Sanborn v. Sanborn, 65 N. H. 172. See Burke v. Bishop, 27 La. An. 465; although accompanied by a delivery of his banker's pass-book. Beak v. Beak, L. R. 13 Eq. 489. But a certificate of deposit may be the subject of a donatio mortis causa, Basket v. Haskell, 107 U. S. 602; Conner v. Root, 11 Col. 183. And none the less so because the donor also gives with it a check for the amount of the certificate. In re Dillon, 44 Ch. D. 76. See also Rolls v. Pearce, 5 Ch. D. 730.
It is held in New York, rightly we think, that a valid gift, causa mortis, of corporate stocks, may be made by simple delivery of the certificates with intent to transfer the stock, although her certificates contain a restriction on the method of transfer. (/'/)
In a recent English case, a voluntary deed of gift of all her personal property was made by one who soon after died. Then the donee died. Among his effects were promissory notes which had belonged to the donor, but were not indorsed, and there was no evidence of their delivery to him. But it was held that the deed of gift was a complete declaration of trust and carried all her personal property to the donee. (jl) There have been some cases arising from gifts made by soldiers before joining the army, in the late war. Where the gift was made to take effect " if he did not come back," it was held not valid, because not a present absolute gift. (jm) But in another case, where the same contingency existed, it was held valid. (jn)
The donor, during his life, may at any time revoke any donation causa mortis, even if it be completed by delivery and acceptance. Such a gift is as revocable as a will. The authorities agree that he may do this if he recovers, because the death, which has not taken place, was the cause of the gift. (k)
Gifts causa mortis are wholly void as against existing credi(i) Hill v. Chapman, 2 Bro. Ch. 612. This has not been recently doubted.
(i) See Miller v. Miller, 3 P. Wms. 356, and Bradley v. Hunt, 5 G. & J. 54. These cases seem to hold that, if the notes were payable to hearer, the donation would be valid, thus putting such a note on the footing of bank-bills. This distinction may perhaps he sustained, hut it should be extended to all notes indorsed in blank, for they are just as much transferable by delivery to bearer. See Parish v. Stone, 14 Pick. 207, which asserts the law as stated in the text. See also Harris v. Clark, 2 Barb. 56,94, and 3 Comst. 93; Flint v. Pattee, 33 N. H. 520. But it also seems that the note of a third person may be a valid donatio causa mortis, although not made transferable by delivery by blank indorsement; and in that case the executor or administrator of the deceased must indorse it. Brown v. Brown, 18 Conn. 410. See also Sessions v. Moseley,
4 Cush. 87, and Smith v. Kittredge, 21 Vt. 238; Veal v. Veal, 27 Beav. 303; Rankin v. Weguelin, 27 Beav. 309; Drake v. Heiken, 61 Cal. 346.
(jj) Walsh v. Sexton, 55 Barb. 251.
(jl) Richardson v. Richardson, L. R. 3 Eq. 686. See Morgan v. Malleson, L. R. 10 Eq. 475.
( jm) Linsenbigler v. Gourley, 66 Penn. St. 166. [See also Walsh's Appeal, 122 Pa. 177, as to the necessity of an intention to make an immediate gift].
(jn) Virgin v. Gaither, 42 Ill. 39.
(k) In Jones v. Selby, Prec. Ch. 300, a donatio causa mortis was put on the same footing as a will, in this respect, - that it could, as certainly, be revoked by the donor, at any time during his life. This case was decided about one hundred and fifty years ago, but the rule has never been shaken. Jayne v. Murphy, 31 Ill. App. 28. See Crue v. Caldwell, 52. N. J. L. 215 tors. (l)1 A court of equity will sometimes compel a party to complete and execute a gift which, at law, would be wholly in the power of the donor. (m)
(l) See cases cited in note (f), p. *235.
(m) See post, Chap. on Specific Performance, sect. 2.
1 And gifts made with a view of depriving the donor's wife of her share of his estate were held invalid in Manikee's Adm. v. Beard, 85 Ky. 20.