How it differs from a gift inter vivos:

1. It is revocable:

is, that the former is claimed against the executor, and the other, from the executor (k).

A donatio mortis causâ differs from a gift inter vivos, in these respects, in which it resembles a legacy: 1. It is ambulatory, incomplete and revocable during the testator's life. The revocation may either be effected by the recovery of the donor from his disorder (1), or by resumption of the possession of the subject (m). But he cannot revoke the donation by a subsequent will: for, on the death of the donor, the title of the donee becomes, by relation, complete and absolute from the time of delivery (n). It may, however, be satisfied by a 2. It may be legacy given to the donee (o). 2. It may be made to the wife of the donor (p). 3. It is liable to the duties imposed on legacies, by the express provisions of the stat. 36 Geo. III. c. 52, s. 7, and the stat. 8 & 9 Vict. c. 76, s. 4, which enact that every gift which shall have effect as a donation mortis causâ, shall be deemed a legacy within the meaning of those Acts. 4. It is liable to the debts of the testator upon deficiency of assets (q).

made to the

wife of the donor;

8. Liable to legacy duty:

4. To debts.

Evidence of a donatio mortis causâ.

In Hayslep v. Gymer (r), an action of debt was brought for money had and received to the use of the plaintiff: It appeared that the defendant was executor of a Mrs. Wilkinson, and the plaintiff lived in Mrs. Wilkinson's house till the time of her death: On the reading of Mrs. Wilkinson's Will, the defendant asked the plaintiff whether she had not possession of something given to her by Mrs. Wilkinson, and how she had obtained it: She produced a parcel, which contained bank notes of the value of 2201. and said that

(k) 1 Sim. & Stu. 245.
(1) Ante, p. 687.

(m) Ward v. Turner, 2 Ves. Sen.
433. Bunn v. Markham, 7 Taunt.
232, by Gibbs, C. J.

(n) Jones v. Selby, Prec. Chanc. 300. See Hambrooke v. Simmons,

4 Russ. Chanc. Cas. 25.

(0) Jones v. Selby, Prec. Chanc. 300. See Johnson v. Smith, 1 Ves. Sen. 314.

(p) Lawson v. Lawson, 1 P. Wms. 441. Miller v. Miller, 1 P. Wms. 356. Tate v. Leithead, Kay, 658. See Walter v. Hodge, 2 Swanst. 92. S. C. 1 Wils. Chanc. Cas. 445.

(7) Smith v. Casen, mentioned in Drury v. Smith, 1 P. Wms. 406. Ward v. Turner, 2 Ves. Sen. 434. (r) 1 Adol. & Ell. 162.

Mrs. Wilkinson had given them to her a fortnight before her
death, telling her they would be useful to her, after her
(Mrs. Wilkinson's) death; and that no one was present at the
time: According to one witness, the defendant then said that
he should keep the parcel till the plaintiff required it;
according to another, simply that he should keep it: The
plaintiff had Mrs. Wilkinson's keys during her illness, and
superintended the economy of the house: Other property of
Mrs. Wilkinson's to a considerable amount was shown to
have been in the power of the plaintiff, which was found by
the executors undisturbed: Mrs. Wilkinson did not take
to her bed more than a week before her death: During that
week the plaintiff showed the notes, in her own possession,
to a witness: The action was brought to recover back these
notes: The defendant's counsel objected that there was not
evidence to go to the jury, of the property of the notes
being in the plaintiff: The Judge having left the whole
evidence to the jury, they found a verdict for the plaintiff:
A motion was afterwards made to enter a nonsuit, because
there was no evidence at all of property in the notes, except
the plaintiff's own account of the matter: But the Court of
K. B. refused to disturb the verdict, on the ground that,
there was some evidence to go to the jury, though slight,
and that the declaration made by the plaintiff herself was
admissible evidence in her favour, by reason of acquiescence
(though of trifling weight) in its truth by the defendant, and
also as being part of the res gesta, on the occasion of
the defendant's obtaining the notes (s).

It appears to have been considered at one time that no issue ought to be directed by the Court of Chancery to try whether there was a donatio mortis causâ; inasmuch as it is of a testamentary nature and not triable in the Common Law Courts (t). But according to the modern practice, where

(s) In this case Littledale and Parke, J. J., expressed their opinion that it made no difference whether the delivery of the notes was a gift absolutely, or a donatio mortis causâ.

(t) Ashton v. Dawson, May 5, 1725, coram Jekyl and Gilbert, Lords Commissioners, (reported in 2 Coll. 363, note (c).)

The Court of
Chancery will

direct an issue
to try whether
there was a

donatio mortis

causi.

Donatio mortis

there is any doubt whether in point of fact, there was that which would constitute a good donatio mortis causâ, if in point of law the subject of it can be made the subject of such a donation, it is usual for a Court of Equity to direct an issue or issues to try that fact (u).

It may be added in conclusion that the New Wills' Act lished by New (1 Vict. c. 26) has not, either in words or in effect, abolished

causâ not abo

Wills' Act.

such donations (x).

(u) By Lord Eldon in Duffield v. Elwes, 1 Bligh, N. S. 531.

(x) Moore v. Darton, 4 De G. & Sm. 517.

BOOK THE THIRD.

OF THE QUANTITY OF THE ESTATE IN ACTION OF AN
EXECUTOR OR ADMINISTRATOR.

HITHERTO the subject as to the quantity of the estate of an executor or administrator has been confined to personal property of the testator or intestate in possession; that is, where he had not only the right to enjoy, but had the actual enjoyment of the thing. But property in chattels personal may also be in action; that is, where a man has not the occupation, but merely a right to occupy the thing in question; the possession whereof may, however, be recovered by a suit or action, from whence the thing so recoverable is called a thing, or chose, in action.

Thus, if a man promises or covenants with me to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action; for though the right to recover a recompense vests in me at the time of the damage done, yet there is no possession of it till recovered by course of law (a).

By the term Chose in Action, as used in this Treatise, is to be understood a right to be asserted, or property reducible into possession, either by action at law, or suit in equity (b).

(a) 2 Black. Comm. 397.

(b) A testator bequeathed a leasehold estate to trustees, upon trust as therein mentioned; and first, he charged the estate with the payment of an annuity to his daughter during all his interest in the estate: The daughter afterwards mortgaged her annuity, first to A. and afterwards to B.; but B. gave the trustees notice of his mortgage

before A. did: And it was held by Sir L. Shadwell, V. C., that the annuity was a chattel interest in equity and not a chose in action, nor subject to any of the rules established with regard to assignment of choses in action; and consequently that B. had not gained any priority over A.: Wiltshire v. Rabbits, 14 Sim. 76.

The object of the present Book will be to investigate what choses in action the estate of an executor or administrator comprises and the subject may perhaps be separated conveniently into these four divisions; 1st, To what choses in action an executor or administrator is entitled, which the deceased himself might have put in suit. 2ndly, As to the right of an executor or administrator to choses in action, where the action accrues after the death of the testator or intestate. 3rdly, As to the title of an executor or administrator to the executory and contingent interests of the deceased. 4thly, What suits, commenced by the testator or intestate, may be continued by the executor or adminis

trator.

CHAPTER THE FIRST.

ΤΟ WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINIS-
TRATOR IS ENTITLED, WHICH THE DECEASED MIGHT HAVE
PUT IN SUIT.

It may be advisable to treat of the subject of this Chapter in two subdivisions; 1st, The general question as to what actions survive to the executor or administrator; 2ndly, Particular instances where the executor or administrator is entitled to Choses in Action, which the deceased might have put in suit, and where not.

All personal

on contract or

SECTION I. .

The General Question as to what Actions survive to the
Executor or Administrator.

With respect to such personal actions as are founded upon

actions founded any obligation, contract, debt, covenant, or other duty, the general rule has been established from the earliest times; that the right of action on which the testator or intestate

duty, &c.,

survive :