a complete act passing the property, but as creating a trust, by operation of law, in favor of the donee, which a court of equity will enforce in the same manner as it would the right of the donee to a bond. In short, in all cases in which the donatio mortis causa is carried into effect by a court of equity, the court has not considered the interest as completely vested by the gift; but that it so vested in the donee, that the donee has a right to call on a court of equity for its aid; and in case of personal estate, to compel the executor or administrator of the donor to carry into effect the intention manifested by the person whom he represents; as, for example, if the donation be a bond, to compel the executor or administrator to allow the donee to use his name in suing the bond, upon being indemnified, because it is a trust for the donee." 10. It seems to be well settled, as before intimated, that one may remit a debt due him by way of donatio mortis causa by a formal surrender of the securities, with a verbal declaration of intention to that effect. As where a father, having lent his son a sum of money, took a deposit of the title-deeds of an estate, together with a bond. The son afterwards borrowed the deeds of his father, and mortgaged the estate to another, without the knowledge of his father, who, during an illness from which he never recovered, gave his son the bond, saying, "Take this, but do not wrong your children, and do not mortgage your property," and it was held that this constituted a good donatio mortis causa for the benefit of the son alone.56 And where one lent another £500, and took the following security: "Received of A. £500, to bear interest at 4 per cent.," and when dangerously ill gave the document to her servant, saying that she wished the debt to be cancelled, it was held that this was a good donatio mortis causa.57 "Meredith v. Watson, 23 Eng. Law & Eq. 250. "Moore v. Darton, 7 Eng. Law & Eq. 134; s. c. 4 DeG. & Sm. 579. 60 11. It has been made a question, recently, whether this species of gift is not so far of a testamentary character as to be avoided by coming in conflict with the present English Wills Act,58 which requires all testamentary dispositions of estate, personal as well as real, to be by writing, and with certain prescribed formalities. But the English courts have nevertheless upheld them,59 and they are expressly recognized in a later English statute affecting revenue. In some American cases this point has been presented. It was held in Pennsylvania, that where such a gift was made to embrace all the donor's estate, consisting of numerous and diverse articles, it could not be maintained, since it was an attempt to make a will in a form not allowed by the statute. Mr. Justice Lowrie here says, that donationes mortis causa were treated as exceptions, which should not be extended by way of analogy so as to embrace the whole field occupied by wills. But in a later case in the same state,61 it was decided that this rule will not embrace a case where the whole or the principal part of the donor's estate consisted in the thing given, which was here a bag of gold-dust and coin. And in Vermont this question was examined with some care, and the conclusion arrived at that the present state of the law will not allow us to define any limits in regard either to the absolute or comparative amount of property which may be transferred in this mode.62 12. There can be no question of the right of the donor, as before suggested, at any time, to revoke such gifts, by any act clearly evincing such intention; and it has accordingly been held, that any act, such as the subsequent birth of a child, where it will operate to revoke a will, should have the same 68 1 Vic. ch. 26. Moore v. Darton, 4 DeG. & Sm. 517. * Headley v. Kirby, 18 Penn. St. 326. 61 Michener v. Dale, 23 Penn. St. 59. *2 Meach v. Meach, 24 Vt. R. 591. effect in regard to a gift mortis causa. But the bequest of all the testator's property to another will not operate to revoke a donatio mortis causa, since the will only becomes operative at the death of the testator, when the gift also becomes irrevocable.64 13. There seems to be no question of the right of married women to receive this species of gift to their separate use, as the cases already referred to abundantly show; and married women may dispose of their estate in this mode, to the same extent as they are allowed to do by will in the place of their domicile.65 And a gift to the wife by a stranger is presumed to have been intended for her separate use.66 And a husband may make such gifts directly to the wife.67 14. This subject was considerably discussed in a recent case in the Surrogate's Court, New York.68 It was here considered, that the true policy of the law should be to discourage such gifts; that they could only be established upon the clearest, most satisfactory, and circumstantial proof; and that where the gift was by parol, the proof of an intentional delivery on the part of the donor, and with a view to perfect the gift, should appear; and that the mere fact that the thing went into the possession of the donee, even by the act of the donor himself, was not enough; nor will the mere intention to make such a gift be sufficient to render it effectual, however clearly established. "Bloomer v. Bloomer, 2 Bradf. Sur. Rep. 340. As to the revocable character of gifts mortis causa, see Parker v. Marston, 27 Me. R. 196. It seems that recovery from the impending prospect of death, and restoration to health, is regarded as evidence of revocation. Weston v. Hight, 5 Shepl. 287. "Nicholas v. Adams, 2 Whart. 17; Jones v. Selby, Prec. in Ch. 300; Hambrooke v. Simmons, 4 Russ. 25. "Jones v. Brown, 34 N. H. R. 439. Howard v. Menifee, 5 Pike, 668. "Meach v. Meach, 24 Vt. R. 591; Gardner v. Gardner, 22 Wend. 526. So also may the wife make such gifts to the husband, either for himself or in trust for others. Caldwell v. Renfrew, 33 Vt. R. 213. * Delmotte v. Taylor, 1 Redfield's Sur. Rep. 417. 69 15. It seems, as already stated, to have been considered in some cases, that a donatio mortis causa is invalid, if it embraces the whole of the debtor's personal estate. But we had occasion to examine this point, in a case of considerable importance, and where the estate was very considerable, and we were not able to perceive any ground upon which the right to dispose of personal estate in this mode could be restricted, either absolutely or relatively, to the amount of the donor's estate.70 69 Headley v. Kirby, 18 Penn. St. 326; s. c. 1 Am. Law Reg. 25. TO Meach v. Meach, 24 Vt. R. 591. Our own views are here thus stated: "One cannot but feel, that it was never properly intended to apply to a general disposition of a large estate, to the utter subversion of the Statute of Wills. And still, when we attempt to limit its operation, we encounter embarrassments not readily disposed of. If one may remit a debt of £500 (about $ 2500) by the simple act of delivering the receipt for it to a third person, a servant attending the death-bed, with a general expression of desire, in the briefest words, that the debt should be cancelled, (which was the case of Moore v. Darton, 7 Eng. Law & Eq. Rep. 134,) and which was sustained without difficulty by a distinguished English Vice-Chancellor, we can scarcely be expected to say that twice that amount, therefore, is not a good donatio mortis causa. And although in practice with us this mode of final disposition of property has oftener been confined to some favorite articles of personal attire or ornament, perhaps, like watches and jewels, yet an examinatiom of the cases will show a wonderful variety in the character and extent of property disposed of in this mode, often including all one possesses, consisting of the largest extent and variety of property, both in possession and in action; and thus in fact amounting to a nuncupative will. And still I find no case, except the late case in Pennsylvania, where any attempt has been made to limit its operation, on account of the comparative or absolute extent of the property disposed of. And the more I have reflected upon the subject, and compared the cases, with a view to evolve some rational and practicable principle of limitation to the extent of its operation, the more I have felt constrained to declare that it cannot be done by any powers of abstraction or generalization which my short sight is able to command. If the servant, whose whole estate consists of a few hundred dollars balance of earnings, in the hands of his employer, and five pieces of property in possession, is to be allowed, in his last sickness, to dispose of it to five different persons by mere words, and by committing the entire evidence of debt to a fellow-servant, which seems now to come within all the best considered cases upon that subject, it would seem in 16. Much of the foregoing chapter was written some months since. But we have not been able to find any essential qualification of the doctrines stated, in any of the more recent cases, English or American. The question came before the Lords Justices in the recent case of Mitchell v. Smith,71 where the facts were, that the donor, some months before his death, gave his nephew, who was residing with him, certain promissory notes, of which he was the owner and payee, with the words, "I give you these notes," adding soon after, that his nephew should have them at his death, but that he wished to be master of them as long as he lived. On the same day each note was indorsed with these words: "I bequeath, pay the within contents to S. or his order, at my death," and this indorsement was signed by the testator, and attested by a single witness; and it was held that as this was intended only as a testamentary disposition, which failed through informality, the notes must be regarded as part of the testator's estate. It was here said, that the indorsement and delivery of a promissory note, to be effectual as a donatio mortis causa, must be such as will enable the indorsee himself to indorse and negotiate it. 17. In a later case,72 before Vice-Chancellor Stuart, where the vidious to hold, that when the property amounts to thousands, composing the principal estate of a substantial householder, it could not therefore be conveyed in this mode. And if the man of great worldly possessions, who has executed his will in the most reverent formality, may, when death presses him sore, modify that disposition, which alone the written law of the land recognizes, by taking from his secret drawer securities for debt to the amount of thousands of dollars, and making an irrevocable disposition of them after death by the brief words 'I give,' and the simple act of delivery to the wife, which in law is a delivery to himself,—a mere change from one hand to the other, it would certainly not be easy to say that one whose whole property did not amount to one tithe of that sum, or if it did exceed it by hundreds of dollars, could not do the same. And yet it will be noticed, that the last case supposed is the well-considered and constantly recognized case of Miller v. Miller, 3 P. Wms. 356." 10 Law Times, N. s. 801. "Lambert v. Overton, 13 W. R. 227; s. c. 11 Law Times, N. s. 504. |