equally incapable of becoming the subject of a gift mortis causa.40 But the American courts, as already stated, fully adopt the rule of the English courts, that any security for a debt of a third person may be made the subject of a donatio mortis causa by a parol gift and delivery merely. This subject was very elaborately considered by the New York Court of Appeals, in an important case, after argument by the most distinguished counsel, in regard to an unaccepted draft for thirty thousand dollars, which was made by the donor during his last sickness, and sent to the donee, his sister, by mail, in a letter wherein the donor said, "For fear I should not reach home, as I am very feeble, I will give you an order on R. Clark & Co. for thirty thousand dollars, which they will pay you if I should be taken away, as I have funds in their hands to a large amount; and I hope you will make good use of the money." The drawees, at the date of the draft, had funds in their hands more than enough to pay the draft. The draft was dated July 9, 1844, the donor died July 20, 1844, and the draft was presented and payment refused on the 9th day of December, 1845. The court held, that an instrument executed by the donor to the donee, operating as an assignment or transfer of the donor's funds in the hands of a third party, constitutes a sufficient delivery to uphold a gift mortis causa. But a draft of the donor (not accepted) for a specific sum, upon a third person who has in his possession funds of the donor, does not operate as an assignment or appropriation to the donee of the sum mentioned in the draft, and therefore is not valid as a gift mortis causa. It is here shown by the authorities, that a draft, payable out of a particular fund, operates as an assignment pro tanto of the funds in the hands

indorsed as to transfer the legal title by delivery. See also Waring v. Edmonds, 11 Md. R. 424.

40 Harris v. Clark, 2 Barb. Sup. Ct. 94; Coutant v. Schuyler, 1 Paige, 316; Shirley v. Whitehead, 1 Ired. Ch. 130.

1 Grover v. Grover, 24 Pick. 261; Parker v. Marston, 27 Me. R. 196; Jones v. Deyer, 16 Ala. R. 221.

43

of the drawee, and an accepted bill of exchange operates in the same way.42 And admitting that a bank-check may become the subject of a donatio mortis causa, although not accepted during the life of the donor, which, upon principle, seems very questionable, it is here shown very conclusively, that an unaccepted bill of exchange cannot have that effect. It seems to us that, upon principle, there is no substantial difference between a check upon a particular fund, which does not exhaust it, and a draft upon the general credit of the drawee, which is always supposed to be on account of funds in the drawee's hands: neither operates to transfer any particular money to the donee, and is not, therefore, a valid donatio mortis causa.44

(11.) There seems to have been some question whether a deed of personal chattels would constitute a good donatio mortis causa. Ch. J. Ruffin 45 intimates an opinion that such mode of conveyance will not be effectual to create a gift mortis causa, without delivery. But in the case of Meach . Meach,46 where the donor, being desperately sick, in prospect of death executed to his wife a deed in common form of all his real estate, and at the same time executed a separate deed of all his personal property, consisting of the stock on his farm and choses in action, both deeds being duly recorded, and the grantor remaining hopelessly sick for a little more than a month, and then dying; upon a bill for specific performances against the heirs and next of kin, together with the personal representative, it was held that the deed of the real estate could not be upheld, either as a post-nuptial settlement or a donatio mortis causa,

Mandeville v. Welch, 5 Wheat. 277, 286; Tiernan v. Jackson, 5 Peters, 580; Weston v. Barker, 12 Johns. 276; Clarke v. Adair, cited in 4 T. R. 343. Lawson v. Lawson, 1 P. Wms. 441.

“Harris v. Clark, 3 Comst. 93, 110-121. The question is here discussed in a most thorough manner, and is presented in all its bearings, both by court and counsel.

45 Smith v. Downey, 3 Ired. Ch. 268.

24 Vt. R. 591.

but that the deed of the personal estate, the donee continuing to have the control and management of the same after the execution of the instrument, did constitute a good donatio mortis causa.47

47 It is here said that the case is "decided neither upon the sufficiency of the deed nor of the delivery of the property, which we feel justified in saying was such as was natural under the circumstances, where the husband had become so incapable of longer managing or controlling his property and business that it fell exclusively under the control of the wife, even before his death." In Candor & Henderson's Appeal, 27 Penn. St. R. 119, it was held that the voluntary bond of the father to a trustee for the benefit of his minor child, is a valid gift, notwithstanding the father lived ten years afterwards, and made provision in his will for the child, which the guardian of the child refused to accept in lieu of the provision made in the bond; and that the executors of the father, having paid the bond, should be allowed for the same in settling their account of administration.

Some of the state courts seem not to have regarded the delivery of the evidence of indebtedness as a sufficient delivery of the debt. In Pennington v. Gittings, 2 Gill & J. 208, it was decided by the Maryland Court of Appeals, that the certificates of bank-stock, transferable only at the bank personally or by attor ney, although indorsed in blank by the donor and delivered to the donee, did not constitute a good donatio mortis causa. And the same court held, that a promissory note or certificate of profit, payable to the order of the donor and delivered to the donee, did not constitute a good gift mortis causa. Bradley v. Hunt, 5 Gill & J. 54. These cases seem to have proceeded upon the ground that the title of the donee must be made perfect at the time of the gift, leaving nothing more to be done either by the donor or his representative, in order to give the donee the complete benefit of the gift. But this proposition could not now be maintained, and the cases would not probably be followed.

In 1 Wms. Exrs. 694, it it said, - "It has never been decided whether a donatio mortis causa may be by deed, without delivery of the things contained in it. Lord Hardwicke, on two occasions, (Ward v. Turner, 2 Ves. Sen. 444, Johnson v. Smith, 1 id. 314,) seems to have expressed an opinion in the affirmative. Lord Rosselyn, in Tate v. Hilbert, 2 Ves. Jr. 120, observed that perhaps it might not be difficult to conceive, that this sort of donation might be by deed or writing, without delivery. But there has already been occasion to show that, in the ecclesiastical courts, such instruments are considered as testamentary, and are admitted to probate as such; and it should seem that in the temporal courts they would not, unaccompanied by delivery, be allowed to operate as

6. It was here held, too, that courts of equity might properly interfere to carry into effect a donatio mortis causa, where the substance of the gift had been clearly proved, and the delivery was effectual to change the possession, either actually or constructively, and the only defect of title or possession consisted in the recovery of the debt or property assigned, as against the claim of some third party.48 It has been held, too, that where the gift mortis causa consists in the transmission of a chose in action, it is competent for the donee to maintain an action in the name of the executor or administrator of the donor to recover the amount due.4 49

7. It was a rule of the Civil Law, that a donatio mortis causa might be made subject to a trust or condition, and the inclination of the courts seems to be in the same direction, both in England and America.50 This point seems to have been expressly decided in the case of Hills v. Hills.51 Lord Abinger, C. B., here said: "Property may be given by way of donatio mortis causa, although the gift be made for a special purpose and coupled with a trust." And Parke, B., said: "It follows, therefore, that a gift made for a special purpose, and coupled with a trust, may be good as a donatio mortis causa."

donations mortis causa." Ch. J. Gibson took a similar view in Nicholas v. Adams, 2 Whart. 17, 24. And we are not prepared to say this view, that the deed of the donor merely is no sufficient delivery to create a good gift mortis causa, may not ultimately prevail.

"Harris v. Clark, 2 Barb. Sup. Ct. 94, 98, where Gridley, J., said: "In gifts inter vivos, a court of equity will not compel the donor to complete his gift, or an executor to complete the gift of his testator, whereas in the case of gifts mortis causa, the donor may successfully invoke the aid of a court of chancery for that purpose."

Bates v. Kempton, 7. Gray, 382; Chase v. Redding, 13 Gray, 418; Lord Eldon, in Duffield v. Elwes, 1 Bligh, N. s. 530.

"Hambrooke v. Simmons, 4 Russ. 25; 1 Story, Eq. Jur. § 607 e.

The same

rule prevails in the American courts. Borneman v. Sidlinger, 8 Shepl. 185; s. c. 3 Shepl. 429.

"8 M. & W. 401; Blount v. Burrow, 4 Br. C. C. 72.

8. The whole subject of gifts mortis causa is seriously questioned by Lord Eldon, in the House of Lords, in the leading case of Duffield v. Elwes,52 where his lordship said: "Improvements in the law, or some things which have been considered improvements, have been lately proposed; and if among those things called improvements this donatio mortis causa were struck out of the law altogether, it would be quite as well." And in further discussing the point of what aid courts of equity would afford the donee, it is here said: 53 “In a case where a donatio mortis causa has been carried into effect by a court of equity, the court of equity has not considered the interest as vested by the gift, but that the interest is so vested in the donee, that the donee has a right to call on a court of equity, and as to the personal estate, to compel the executor to carry into effect the intention manifested by the person he represents."

9. We have already intimated that the donee in this species of gift derives his title directly from the donor, and not in any sense from the executor or personal representative of the donor.54 The point is thus summed up by Mr. Justice Story: 55" The delivery in the case of a mortgage is, therefore, treated, not as

1 Bligh, N. s. 533.

55 Ante, n. 52. The cases in regard to a bond secured by mortgage, being the proper subject of donatio mortis causa, are here very carefully reviewed by Lord Eldon. The great doubt in his lordship's mind, which he confesses to having expressed to the Vice-Chancellor before the decision of the case below, seems to have turned a good deal upon the idea that the security was in the nature of real estate, which could not become the subject of this species of gift. It seems to have been supposed that such an interest could not have been conveyed by parol merely, since that would be in conflict with the statute of frauds. But it is obvious no difficulty of this kind need arise, since the transfer of the debt carries the security, which is a mere incident. 1 Story, Eq. Jur. § 607 a; Hassell v. Tynte, Amb. 318; Richards v. Symes, 2 Atk. 319; s. c. Barnard. 90; Martin v. Mowlin, 2 Burrow, 969.

Grant v. Tucker, 18 Ala. R. 327.

55 1 Eq. Jur. § 607 a; S. P. Parish v. Stone, 14 Pick. 198, 203, 204; Grover v. Grover, 24 id. 261, 266.