more than that to a certain extent the deceased put Charlotte R. in possession of the box, but retained to himself the absolute power over the contents. But it is no objection that the gift was not made to the donee free from incumbrance, but charged with the perform ance of a particular purpose (ƒ). Accordingly, it was held in a modern case (g), that a gift may be good as a donatio mortis causâ, although it be coupled with a trust that the donee shall provide for the funeral of the donor. Again, though a delivery to a third party for the donee's use may be good (h), yet a mere delivery to an agent, in the character of agent for the giver, is not sufficient (i). But there are cases where the nature of the thing will not admit of a corporeal delivery; and then, it should seem, that a delivery of the means of coming at the possession or making use of the thing given will be sufficient (k). Thus the delivery of the key of a trunk has been decided to amount to the delivery of a trunk and it's contents (1). So the delivery of the key of a warehouse or other place, in which goods of bulk were deposited, has been determined to be a valid delivery of the goods for the purpose of a donatio mortis causá (m). But in these cases it is to be observed, that the key is not to be considered in the light of a symbol in the name of the thing itself; but the delivery of it has been allowed as the delivery of the possession, because it is the way of coming at the possession, or to make use of the thing (n). So a bond may be a subject of donatio mortis causa, because the property is considered to pass by the delivery (o). but a trust may be annexed to the gift: a delivery to some one else as agent for the donor, is insufficient: what is a sufficient delivery when the sub ble of actual transfer: ject is incapa there may be a donatio mortis cause of a bond or bank notes : or of other ne gotiable instruments which pass by delivery : or of a mortgage deed: The same has been decided with respect to bank notes, because the property is transferred by the delivery (p). And on the same principle, it should seem, that all negotiable instruments which require nothing more than delivery to pass to the donee the money secured by them, may be the subjects of donations mortis causâ. For since it has been so adjudged of bank notes, there appears no reason why exchequer notes, or promissory notes, payable to the bearer, or bills of exchange, or exchequer bills, indorsed in blank, should not have the same capability: for in all those cases the property passes to the donee by delivery (q). It has been a matter of considerable discussion, whether a mortgage can be the subject of a donatio mortis causá by delivery of the mortgage deeds: but the question may now be regarded as settled in the affirmative. It seems indeed never to have been much doubted, that by a delivery by a mortgagee to the mortgagor of the mortgage deeds, a donatio mortis causâ is effected (r). But with respect to a delivery to a third party, although it may be inferred from Lord Hardwicke's expressions, in Ward v. Turner (s), that his opinion was, that the delivery of the mortgage deeds mortis causâ may be good, yet in Hassel v. Tynte (t), his Lordship doubted whether it was allowable by the Statute of Frauds : And in Duffield v. Elwes (u), Sir John Leach, V. C., held, that a mortgage security cannot by law be given by way of donatio mortis causâ, even where the mortgage was accompanied by a bond: In that case, George Elwes was possessed 363, n. (c). Snellgrove v. Baily, 3 (p) Miller v. Miller, 3 P. Wms. 612. Ashton v. Dawson, 2 Coll, 363, n (c). (2) 1 Rop. Leg. 16, 3rd edition. See Jones v. Selby, Prec. Chane, 300, as to an Exchequer Tally. (r) Richards v. Syms, Barnard. Chan. Cas. 90. Hurst v. Peach, 5 Madd. 351. (s) 2 Ves. Sen. 443. of a bond for 2,9271., and had also a mortgage, created by a deed of even date with the bond, for securing the sum mentioned in the bond, and he had another mortgage for 30,000l. On the first of September, 1821, when he was on his death bed, so ill as to be unable to write, but of sound and disposing mind, in the presence of three persons, as witnesses, he declared that he gave the bond and mortgages, and the money secured by them, to his daughter Mrs. Duffield: A written statement of this declaration was forthwith made, and signed by three persons in whose presence the declaration was made: Very soon afterwards, on the same day, in the presence of the same persons, the mortgage deeds and bonds were produced to the testator, and he was told what they were; on which he desired them to be delivered into the hands of Mrs. Duffield; they were accordingly delivered into her hands, and whilst she held the deeds, he took her hands between his, in token of having completed the gift, and expressed satisfaction when he had done so The Vice Chancellor declared that there was no good donatio mortis causâ of the mortgages: But on appeal to the House of Lords, their Lordships held, that the property in the deeds, and the right to recover the money secured by them, passed in each case by the delivery, followed by the death of the donor, and that the real and personal representatives of the donor were trustees to the donee, to make the gift effectual: The decree of his Honor was accordingly reversed (x). But where no property is transferred to the donee by delivery of the subject, there can be no valid donatio mortis causâ. Thus in Ward v. Turner (y), Lord Hardwicke held that the delivery of receipts for South Sea annuities was not such a delivery of the annuities themselves as to support but not of rethe gift of them as a donatio mortis causâ: but he intimated ceipts for that an actual transfer of the stock would have been sufficient to effectuate the intended donation. On the same (x) 1 Bligh, N. R. 498. S. C. 1 Dow. N. S. 1, nomine Duffield v. Hicks. See also 3 Mac. & G. 676. (y) 2 Ves. Sen. 431. stock. or bills or notes not payable to bearer: Sed quære. or notes drawn by the de ceased in his last illness: or (generally speaking) cheques on bankers: Whether donations mortis ground bills of exchange and promissory notes, not payable to the bearer (2), have been considered incapable of being the subjects of a donatio mortis causá. A promissory note made by a man in his last illness, cannot operate as a donatio mortis causâ to the payee (a): for it has not that reference to the death of the donor which is essential to such a gift (b). The same has been decided as to a cheque on a banker; which is an order for the payment of money, that may take effect immediately, and in the lifetime of the donor; so that it is (generally speaking) altogether inconsistent with the nature of a donation mortis causâ (c). It has never been decided, whether a donatio mortis causâ causa may be may be by deed without delivery of the things contained in by deed with out delivery. (z) Miller v. Miller, 3 P. Wms. 356. Tate v. Hilbert, 3 Ves. Jun. 111. S. C. 4 Bro. C. C. 286. But see contrà, Rankin v. Weguel. Chitty on Bills, p. 2, 9th edit. See also Story's Equity, ch. x. § 607, where it is doubted whether the doctrine of these last cases can be supported since the decision of Duffield v. Elwes; inasmuch as the ground on which Courts of Equity now support donations mortis causâ is not that a complete property in the thing must pass by delivery, but that it must so far pass by the delivery of the instrument as to give a title to the donee to the assistance of a Court of Equity to make the donation complete. See further Moore v. Darton, 4 De G. & Sm. 517: In that case a receipt had been given by a borrower to a lender as follows: "Received of D. 500l. to bear interest at 4 per cent. per annum: "And Knight Bruce, V. C., held that the delivery of this receipt to an agent of the borrower by the lender on his deathbed, stating that he wished the debt to be cancelled, was a sufficient donatio mortis causâ; on the ground, semble, that the document was essential to the proof of the contract of loan. (a) Tate v. Hilbert, 2 Ves. Jun. 111. S. C. 4 Bro. C. C. 286. Holliday v. Atkinson, 5 B. & C. 501. In the latter of these cases, Lord Tenterden expressed his opinion that the intention to avoid the legacy duty would not be a sufficient consideration for a promissory note; for then the note would not be payable till after the donor's death: 5 B. & C. 503. (b) See ante, p. 651. (c) 2 Ves. Jun. 120. 4 Bro. C. C. 286. See also Tate v. Leithead, Kay, 650. Ante, p. 687. However, a cheque under some circumstances has been considered the subject of a donatio mortis causâ: as where the testator in his illness drew a bill on a goldsmith for the payment of a sum to A. the wife of B., and delivered it to A. with a written indorsement to buy her mourning Lawson v. Lawson, 1 P. Wms. 441: (But see the remarks of Lord Loughborough in 2 Ves. Jun. 121.) So in Bouts v. Ellis, 17 Beav. 121 (affirmed on it. Lord Hardwicke on two occasions (d), seems to have How a donatio differs from a mortis causa A donatio mortis causâ, differs from a legacy in these respects. 1. It need not be proved in the Ecclesiastical 1. Probate unCourt; for such a gift takes effect from delivery; so the donee necessary : claims the subject of it as a gift from the donor in his lifetime, and not under a testamentary act (g). Hence the Court of King's Bench has prohibited the executor from proceeding in the Ecclesiastical Court to recover it from the donee (h). 2. For the reason just given, no assent or other act on the part of the executor or administrator is necessary to perfect the title of the donee (i). In fact the distinction between a donatio mortis causâ, and a legacy under a nuncupative Will, appeal, 4 De G. M. & G. 249), a testator, four days before his death, said to his wife, "I am a dying man; you will want money before my affairs are wound up: On the following day he gave his wife a crossed cheque, and on the next day but one, remembering that it was crossed, he asked a friend who visited him to take it and give the wife another for it, which the friend did: The testator's cheque was paid before, and the other cheque after, his death: And it was held by Romilly, M. R., and 2. Executor's assent unne cessary. |