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physical symptoms, such as insomnia, incontinence of break out when least expected,” and that at most the urine, childishness, loss of shame, petulancy, prodi- mental malady is but quiescent. This may all be so, gality or penury, and in men, tendencies decidedly and yet the interval may be lucid enough and the amorous and obscene. Ham. Med. Jur. Ray, Bul- mind and will free enough for the time to act intellilour, Browne and Pritchard.

gently about the business, and this is all that the law
When an “unsound mind" is alleged to exist, and requires.
facts showing more or less mental unsoundness As has been said in Cartwright v. Cartwright, ut
prosed, the question will arise, has tbe testator been supra, the burden of proof of a “lucid interval” is
proved to be of a mind sufficient unsound to destroy upon him who asserts it. This does not mean that
the presumption of testamentary capacity? While the once the mind be shown to have acted abnormally, the
rule of law in Stewart v. Lispenard has never been ex- law will presume the continuance of such peouliarity.
pressly overruled, yet through the influence of the opin- It seems simply this, that if a mental disease be shown
ion of Davies, J., in Delafield v. Parish and the cases to exist, and if such disease be of a nature permanent
thero cited, it has never been followed in later cases, or habitual, proof will be required as to its removal or
and the rule declared by Judge Davies has been uni- temporary cessation.
versally accepted. The opinions of Lord Kenyon in When the causes of such malady are accidental or
Greenwood v. Greenwood, 3 Curt. App. 2, and of Lord temporary no presumption of its continuance will
Erskine in Harwood v. Baker, 3 Moore Priv. C. R. 282, exist. For instance, the delirium of a fever, or the
and Mr. Justice Washington in Harrison v. Rowan, 3 mental aberration occasioned by undue excitemeut,
Wash. C. C. lay down the rule adopted by Davies, J. will not be presumed to last longer than their causes

It is substantially this: Testamentary capacity remain, and so with all mental conditions arising from
exists only where the testator knows what he is do- temporary causes.
ing, to whom he is giving his property, its extent, and The existence of "delusions" in the testator's mind
those who have claims unpon his bounty, and the na- in regard to the common affairs of every-day life is
ture of such claims. In order to exercise freely the often brought forth to prove an "unsound mind.”
will power, the intellect must have comprehended the Delusions are of two kinds, viz., simple and insane.
particulars and elements of the transaction in which A “simple delusion” generally arises from ignorance,
the testator was engaged. Every mau making a will and is but a false deduction from true premises. It
is presumed to have had the “sound mind” required disappears before clear proof. An "insane delusion"
by the statute, yet if mental unsoundness be shown in however is a true deduction from false premises,
such a degree and of such a nature as to prevent the which have no existence outside the mind. No amount
testator's baving the knowledge above described, no of proof can eradicate such a delusion. It is adhered
valid will can be made.

to in the face of all reason and probability. Such a
In cases where mental unsoundness is the question a delusion does not however destroy the testamentary
very interesting state of affairs often arises. When capacity, unless it is pertinent to the will which has
insanity is alleged, and to a certain extent proved, it been made. If it be of a nature to prevent “radical
is frequently asserted that the will was made in what volition" in the matter, as for instance, a delusion in
is known as a "lucid ivterval.” “Lucid intervals" are regard to the testator's family, his property, or his du-
recoguized by law, although they are viewed with ties to others, theu it necessarily destroys the required
great suspicion by medical writers, and the rule in free volition of the testator, aud reuders the will in-
such cases, as laid down in Cartwright v. Cartwright, 1 valid. Banks v. Goodfellow, L. R., 5 Q. B. Div. 549;
Phillim. 100, is as follows: “If you can establish that Seamen's Friend Soc. v. Hopper, 33 N. Y. 619.
the party affiicted habitually by a malady of the mind In these cases it will be found stated that a "mono-
has intermissions, and if there was an intermission of mauiao” may make a valid will under certain limita-
the disorder at the time of the act, that being proved, tions.
is sufficient, and the general habitual insanity will not As for the distinction between simple and insane de.
affect it; but the effect of it is this, it inverts the or- lusions, and the proot required, see Coit v. Patchen, 77
der of proof and of presumption, for until proof of in- N. Y. 533.
sanity is made, the presumption is that the party, like In proving unsoundnes of mind, expert witnesses
all human creatures, was rational; but where an hab- must give the facts on which their opinions are based
itual insanity in the mind of the person who does the (Delafield v. Parish, ut supra), and lay witnesses are
act is established, then the party who would take ad- allowed to give their conclusions only as to specific
vantage of the fact of an interval of reason, must acts. Clapp v. Fullerton, 34 N. Y. 190. The subscribe
prove it.” Much speculation on this subject will be ing witnesses to the will are alone privileged to give
found in the cases.

their opinions only. lu proving or disproving the existence of “lucid in- Testamentary capacity being based on free, intellitervals” expert medical witnesses are frequently gent volitiou, cannot exist without it. So far we have called, and their testimony should be carefully considered free will as affected by inward causes, viz., watched, and generally such witnesses are disbelievers idiocy, unsoundness of mind, etc. in the existence of a genuine “lucid interval,” and When the cause preventing a free exercise of the will their professional opinions greatly color their testi- is exterior to the testator's mind, what is generally mony.

known as “ undue influence' is said to exist. The The reason of a rule recognizing such a thing should

rule of law in such case will be found in Coit v. be always borne in mind. The law does not require Patchen, 77 N. Y. 533; Matter of Martin, 98 id. 193. that the mind should be absolutely sound; at most, it

BROOKLYN, N. Y.

WILLIAM J. CARR. but requires that the testator at the time of the making of the will should have mind enough to do it in

CRIMINAL LAW-EVIDENCE OF THREATS OF telligently-that is, to freely exercise bis will power.

THIRD PERSONS.
All medico-legal writers admit that “remissions"

SUPREME COURT OF ERRORS OF CONNECTICUT, occur in many mental maladies, during which the

APRIL 5, 1886.
force of the disease is lessened, and its influence over
the will decreased. During such time delusions which

STATE V. BEAUDET.*
bias the person's judgment temporarily disappear, and On a criminal trial, evidence of threats and declarations of
to all appearances the man is sane. Yet they insist third parties are incompetent, unless part of the res
that “a smouldering fire exists, which is likely to

4 Atl. Rep. 237.

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APPEAL from judgment of the Superior Court. The

gestæ, or links in a chain of evidence connected with the In 2 Best Ev., $ 506, under the head of “Res inter crime itself.

Alios Acta," it is said: "No person is to be affected by

the words or acts of others, unless be is connected .

with them, either personally or by those whom he Zacher & Andrews, for appellant.

represents, or by whom he is represented.”

Were this a civil suit iu favor of Dr. Zink against T. E. Doolittle, for State.

the same defendant, for the same assault, would it ooLoomis, J. The prisoner was tried upon

an infor- cur to any one to offer the declarations of Dougherty mation for an assault upon one Dr. Walter Ziuk, with that he intended to do the act, or even that he had intent to murder. He was at the time in Dr. Zink's doue it? Is it any the less a matter inter alios when employ, and an inmate of the family; the other mem- the State is a party? In either case it would be a lebers being the wife of Zink, who was very deaf, a gitimate defense that another person had committed daughter aged fifteen, and a little son much younger. the deed; but in neither would his threats alone be The State claimed to have proved that the prisoner admissible. was preseut in the room with Dr.Zink a short time be- Now to illustrate some of the reasons for such disfore the commission of the offense, and was found in tinction, we will add that where the threats of the one the house shortly after. The assault took place in the on trial are adduced against him, he is always present dining-room of the house, a few minutes after eleven in court to deny or qualify them; to show that the o'clock in the evening. Dr. Zink at the time had upon witness misunderstood, misremembered or was false; his person two rolls of bills, one of $56 and tbe other or to explain how the threats were uttered in a tranof $200. During the day-time, preceding the assault, sient fit of anger, or from mere bravado, or for intimihe had received $16 or $18 from one Robert Dough- dation; but where the threat of a third person is inerty, who then had opportunity to see one of the rolls troduced he may be far away, and no one can explain of bills.

its real meaning; and besides the very introduction of [Omitting immaterial statement.]

such collateral issue serves greatly to confuse and Upon the trial a wituess was asked “whether Dough- mislead the triers, and justice may thereby be deerty, upon that night, in that saloon, between the feated. And if the jury were to pass on such collathours of half-past nine and half-part ten, made any eral issue it would have no other effect than to acquit threats against Dr. Zink." And another witness was the ove on trial. The third person could be in nowise asked, “whether on the day before the assault, legally affected. If he should afterward be indicted Dougherty in his hearing made any threats against and put on trial for the same offense, he would still be Dr. Zink." Both questions were excluded by the at liberty to show his innocence, notwithstanding the court, and exceptions taken by the defendant's coun- fact that the former finding of his guilt caused angel; and this ruling presents the only question for re- other's acquittal. And so, if he had previously been view.

tried and acquitted, that fact could in nowise affect At the outset it should be noticed that the offer was the admissibility of his declarations when afterward simply to prove the threats of Dougherty against Dr. another person is on trial for the same offense, for the Zink. Any threats of any kind would have filled the latter would be no party to the verdict. It is therefore offer. What act Dougherty threatened to do, or when going far enough in favor of the accused to allow him or how he was to do it, was not indicated; nor was the to exculpate himself by showing the fact of another's oftered evidence accompanied with any claim, or even guilt, by some appropriate evidence directly connecta hint that it could or would be supplemented by fur- ing that person with the corpus delicti. The animus ther testimony. Indeed it nowhere appears in the of a third person is no defense, and by itself it cannot record that it was even claimed in behalf of the pris- prove the ultimate fact which is a defense. Even as oner that Dougherty committed the offense, or that to the threat of the person on trial, Wharton, in his any evidence admitted or to be offered would show it. Criminal Evidence (8th ed.), $ 756, says: They are The threats, whatever they were, so far as appears, admissible in evidence, not because they give rise to a were entirely isolated from the transactiou in ques- presumption of law as to guilt, which they do noti, but tion, and tended in no way to elucidate or give char- because from them, in connection with other circumactor to any material act or fact in the case. They stances, and on proof of the corpus delicti, guilt may could not therefore have been received as parts of the be logically inferred.” Then follows a list of informares gesta. As to the threats in the saloon, the only thing tive suppositions, designed to show that because one it would seem which they characterized was the threatens to commit a crime it does not follow that drunken condition of the one who uttered them. such intentiou really existed in his mind; much less [Omitting a minor consideration.]

does it show the actual commission of the crime. But we will forbear further discussion of this aspect

Nearly all treatises on evidence contain similar cauof the case, as it is not necessary to place our refusal

tions. In 3 Benth. Rat. Jud. Ev. 75, it is said that to grant a new trial on this ground, and proceed to

* declarations of an intention to commit a crime are consider the precise question raised by the appeal,

no less susceptible of being false than declarations of namely, were the threats of Dougherty admissible at

an intention to abstain from the commission of that all, under the circumstances stated? And if so, upon

or a similar crime." what principle? The only plausible ground for the

We insist therefore that it is reasonable to exclude admission is that the excused might exculpate himself the mere disconnected threats and declarations of by showing that another was the guilty, party, so any

third persons. If they are parts of the res gesta, or item of evidence which would have been admissible

form links in a chain of evidence connecting with the had such other person been on trial, should be received crime itself, they may doubtless be received. If the in his favor. We concede the premises, but not the

threats were to commit a crime in a particular mode, conclusion; for under the rules of evidence it makes a and it was in fact so committed, perhaps they would vast difference whether declarations offered in evi- then be admissible. But in the case under consideradence come from the party on trial or not. In the one tion there is nothing at all to show that the tbing case they are universally admitted unless irrelevant threatened had any sort of resemblance to the thing or self-serving: In the other they are by general

done, either in kind or mvde. rule excluded, subject to a few well-marked excep- But if we suspend our discussion of the principles tions.

which ought to be applied to the question, and pass to

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the consideration of the decided cases as found in pal fact or matter in dispute, and for the good reason other jurisdictions, we shall find the ruling of the court stated for the rule by Mr. Greenleaf, that such evi. rindicated, vot simply by the preponderance of judi-dence tends to draw away the minds of the jury from cial authority, but by absolute unanimity, save in one the point in issue, and to excite prejudion and mislead case in Louisiana, which for reasons to be suggested them. 1 Greenl. Ev., &$ 51, 52." hereafter, can have little weight in the opposing scale. We may add that the doctrine of these cases has reWe will first cite cases precisely analogous to the case ceived the recent approval of jurists and text writers of at bar, iu that threats of third persous prior to the high authority. Wharton, in his treatise on Criminal commission of the crime, were offered in evidence by Evidence ($ 225) says: “Evidence of threats by other the accused, and excluded; but the threats, instead persons are inadmissible." The same doctrine is found of being vague and indefinite, as in the case at bar, in Whart. Hom., $ 693. were generally very specific and significant.

In 2 Bish. Crim. Proc., $ 623, it is said: “The deolaThe case of State v. Daris, 77 N. C. 483, was an in- rations of the deceased, as of any third person, when dictment for murder. On the trial, the prisoner pro- not of the res gestã or dying declarations, or commuposed to prove by one Peck “that George Nicks had nicated to the defendant so as possibly to influence malice toward the deceased, and had a motive to take his conduct, are excluded by rules which have been his life, and opportunity to do so, and had threatened Bupposed to promote justice on the whole-at all to do so before the court." (2) He further offered to events, which have become parts of the common law, prove by one Rice "that ono Peck took a gun, and pot within the discretion of the courts to set aside. went in the direction of the house of the deceased Hence they are not admissible." some time before the deceased was killed.” The court Aud again in the first volume of the same treatise says: “Both exceptions are untenable, and have been ($ 1248) it is said: “In general, what one says, as for repeatedly so held by this court-the first, because example, that he committed the crime in question, they are declarations of a third party, and are res inter will not be admitted for or against another." alios acta, and have no legal tendency to establish the In further support of the ruling complained of, wo innocence of the prisoner; and the second for the adduce a few of the numerous decisions holding that same, and additional reason that the time is too admissions of third persons, that they, and not the acvaguely and indefinitely set forth. * Such evi- cused, are guilty of the crime charged, are to be exdence is inadmissible, because it does not tend to eg. cluded. tablish the corpus delicti. Unquestionably it would In the early oase of Com. V. Chabbock, 1 Mass. 143, have been competent to prove that a third party killed the prisoner was tried on an indictment for breaking the deceased, and not the prisoner. But this could into a house, and also for stealing goods therein. The only have been done by proof connecting Peck with defendant offered to prove by a witness present that the fact that is, with the perpetration of some deed another person had owned to the witness that he had entering into the crime itself. Direct evldence con- stolen some of the articles mentioned in the indict. nectiog Peck with the corpus delicti would have been ment. The court held that the evidence could not be admissible. After proof of the res gestæ constituting admitted, saying: “It was no more than hearsay. If Peck's alleged guilt had been given, it might be that a person other than the defendant had stolen thegoods, the evidence which was offered and excluded in this it was undoubtedly competent for the defendant to case would have been competent in confirmation of prove the fact in exculpation of himself, but not by direct testimony connecting him with the fact of kill- the mode of proof now offered." ing. No such direct testimony was offered here. It is In Smith v. State, 9 Ala. 990, the prisoner, a slave, unnecessary to elaborate, as the questions of evidence was indicted for the murder of oue Edmund, also a here made bave beeu fully discussed and decided by slave. All the evidence was circumstantial. Sam, this court in many cases. It is only necessary to re- another slave, had been tried and acquitted for the fer to the principal ones: State v. Bishop, 73 N. C. 44; same murder previously. On the trial it seems there State v. May, 4 Der. 328; State v. Duncan, 6 Ired. 236; was a strong array of circumstantial evidence against State v. While, 08 N. C. 158.".

him; but Sam stated that a few days after the murder These cases are all pertinent, and supported by simi- Smith told him that he killed Edmund. The partiou. lar and some additiopal reasons. We will not take the lars of the statement we omit. But on the trial of time and space necessary for a particular statement of Smith, evidence was offered in his behalf that Sam, the evidence offered, and the reasoning of the court during his own trial, had became alarmed, and had sustaining its exclusion. To the above list we will add told the witness that he had wrongfully accused Smith ihe case of State v. Haynes, 71 N. ('. 79.

of the murder of Edmund, and he did not wisb to die In Crookham v. State, 5 W. Va. 510, it was held that with a lie in his mouth, etc. The counsel for the acit was no error to exclude testimony offered by the cused claimed that it was competent for the prisoner, prisoner, to the effect that another and a different per- under the circumstances, to show that another comson from himself had made threats to kill the de- mitted the murder; and that iu this view the declaraceased just before the commission of the offense with tions of Sam should have been received, as they which he was charged; and that immediately after tended to inculpate him, as well as to show that the the offense such other person left the country, and has

prisoner was not the offender. Ormond, J., in delivnot since been heard from.

ering the opinion of the court, said: “Conceding the In Boothe v. State, 4 Tex. Ct. App. 202, and in Walker

true meaning of these declarations of Sam in jail to 5. State, 6 id. 576, both being indictments for murder,

be an admission of his own guilt, and that he had it was held not competent for the aocused to prove

killed Edmund himself, it does not vary the case in that a very short time before the homicide a persou

the slightest degree. W ofe * The declaration of Sam other than the accused made threats to take the life was not an act within the meaning of the doctrine I of the deceased, In the last case the court supported

have been discussing. * * * To give effect to the the ruling by saying: “The issue of the trial was the

mere declarations of third persons would be a most guilt or innocence of the defendaut on trial. Evidence alarming innovation upon the criminal law. Such a is admissible if it tends to prove the issue, or consti

declaration would not be obligatory on the persons tutes a link in the chain of proof; and this seems to

making it. He might afterward demonstrate its falbe the limit, and excludes all evidence of collateral sity when attempted to be used against him. Such facts, or those which are incapable of affording any

testimony may be a mere contrivance to procure the reasonable presumption or inference as to the princi. acquittal of the accused."

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In West v. State, 76 Ala. 98, the question was again threats by other persons is inadmissible.
before the highest court of the same State, and it was On an indictment for larceny also declarations of
held “that the admission of a third person tbat he third parties that they committed the theft are inad.
committed the offense with which the accused was missible.”
cbarged, not made under oath, though on his death- In all the numerous cases we have examined, where
bed, is mere hearsay, and is not admissible as evidence threats of third persons were excluded, there was no
for the accused."

dissenting opinion in any instance; and after diligent Iu Sharp v. State, 6 Tex Ct. App. 650, it was held no search we ha been able to find but one case which error to refuse to allow a witness for the defense to furnishes any support to the claim of the accused. We testify that certain other meu confessed that they refer to that of State v. Johnson, 30 La. 921, where the committed the crime.

State, in a prosecution for murder, based entirely on A similar ruling was also sustained iu Rhea v. State, circumstantial evidence, found it necessary to trace to 10 Yerg. 258.

the accused a motive for the homicide in a previous Greenfield v. People, 85 N. Y. 75, was an indictment quarrel with the deceased, when the accused while in for murder. Upon the trial the accused offered the liquor uttered threats against the deceased; and upon letter of one Royal Kellogg to his brother, in which, cross-examination the witnesses for the State, who after alluding to the murder, he said among other had in chief testified to the quarrelsome character of things: “If they want me, they can come and get the deceased, and to the threats of the accused, was me;" and in connection with the above and certain asked what other quarrels the deceased had besides anonymous letters containing confessions, they offered that with the accused, a few days prior to the murthe declarations of Kellogg and his brother and an-der, and the trial court excluded it. The court of reother person, made within an hour after the murder, view cites no authorities, and enters into no discusand at a place three-fourths of a mile distant. The sion of the question upon principle, but simply says in witness bejug awakened at the barking of a dog at effoot, that although it was of doubtful admissibility, about four o'clock in the morning, on looking yet on the whole they will give the accused the bene

of the window, recognized the two Kel-fit of a new trial. But even this case can be widely loggs and one Taplin, and they had a gun and a distinguished from the one on trial. The State bad bag, eto. The witness, after giving in detail their sus- put in issue the quarrelsome character of the depicious actions at his place, offered to prove that Tap- ceased, and to that extent the cross-examination was lin said to the Kelloggs on that occasion before they pertinent; and further, the case seemed to be conleft: “You are damned fools to do it;” and tbat one trolled by the question whether the motive arising out of the Kelloggs replied, “If we had not done it, we of a recent quarrel pointed exclusively to the accused. should all have been hung. Miller, J., in delivering The fact drawn out on a cross-examination might the opinion of the court, said: Even if this letter show that it did not, and therefore there was some could be regarded as a confession of Kellogg that he force in the claim that it was admissible, in order to comunitted the murder, it was only the declaration of weaken that evidence, by showing that others were a third party, merely hearsky testimony, and upon no also included and shared the same motive. But in rule of evidence admissible. If such declarations were the case at bar we have already called attention to the competent upon any trial for homicide, they would fact that the motive which moved Beaudet was entend to confuse the jury, and to divert their attention entirely different from that attributed to Dougherty: from the real issue. The letter did not tend to estab- and hence the evidence as to the latter in no way imlish that Kellogg committed the offense, was not a paired that applicable to the former. part of the res gestre, and in no sense relieved the pris- In regard to the admissibility of the confessions of oner from the charge for which he was upon trial, or guilt by third parties in criminal trials, there is absoraised any presumption that Kellogg was the guilty lute unanimity in the decisions, so far as we have been party. Confessions of this character are sometimes able to ascertain. made to screen offenders; and 10 rulu is better estab- In Smith v. State, supra, Goldthwaite, J., dissents lished than that extrajudicial statements of third per- from the majority opiniou, but in so doing he exsons are inadmissible. Whart. Ev., § 611; Whart, pressly concedes "that the confession of a third perCrim. Law, SS 662, 684; 2 Best Ev., $$ 559, 560, 563, 565, son of his guilt is not evidence in favor of another,

While evidence tending to show that wben standing alone, when aided by other facts and another party might have committed the crime would circumstances." Yet he coutends that it is so whenbe adınissible, before such testimony could be received ever the party confessing is connected with the crime there must be such proof of connection with it, such a by strong presumptive circumstances. train of fact or circumstances as tend clearly to point Wefind also a qualification of the doctrine in the out some one besides the prisoner as the guilty party. dictum of a distinguished reporter.” It is found lu a Remote acts, disconnected and outside the crime noto to the case of Speer v. Coate, 3 McCord (S. C.), itself, cannot be separately proved for such a purpose. 232, where the reporter gives a summary of the excepIn considering the question, we have carefully exam- tions to the rule excluding hearsay evidence, and in ined the numerous authorites cited to sustain the po-paragraph 12 he says: “So confessions in extremis that sition that the evidence was competent, and none of the person himself had committed a forgery of which them hold that under such circumstances it could law- another was indicted are admissible;" citing as aufully be received; and it was neither admissible alone thority Clymer v. Littler, 1 W. Bl. 345. The reporter nor in connection with the letters referred to."

then adds his own opinion: “So I should think that In Whart. Crim. Ey., $ 225, it is said: “Extrajudi. where a person comes forward and confesses the cial statements of third persons cannot be proved by crime, and surrenders himself to justice, such confeshearsay, unless such statements were part of the res sion would be admissible evidence for a prisoper acgestre, or made by deceased persons in the course of cused of the same offense." business, or as admissions against their own interest, It should be observed that stress is placed on the or are material for the purpose of determining the fact that the person confessing also surrenders himstate of mind of a party who canuot be exam- himself to justice, implying that the confession alone ined in court.

Hence on an iudict- would be insufficient; but we ought also to add that ment for murder the admissions of other persons the principle of the case cited from 1 W. B1. 345, which that they killed the deceased, or committed the crime | led to and suggested the proposition just referred to, in controversy, are pot evidence; and evidence of owing to some oversight or mistake, was stated in an

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apt words and personal delivery. But if needed to pay erroneous and most misleading manner. It would be

the donor's debts, his administrator may recover them. supposed upon reading the note of the case, that upon the trial of one person indicted for the crime of forg

CTION by plaintiff as administrator of James Kiff, ery, the confessions in extremis of another person were

deceased, to recover a number of notes, and held admissible in defense of the persou ou the trial.

mortgages executed to secure them, payable to the But it was no such case. On the contrary, it was a

plaintiff's intestate, which it is alleged the defendant mere civil action, based upon a controversy between

unlawfully withholds from the plaintiff. The defendadverse claimants to property under two different

ant admitted that he held the possession of the bouds wills of one Clymer, deceased. The action was eject- and mortgages, but denied that be held them unlaw. ment. The plaintiff claimed under a will made in

fully. 1743. The defendant claimed under the heir at law by

For a further defense, he pleaded as a counterau instrument dated in 1745, very imperfect in form,

claim, that he was the rightful owner and in possesbut purporting to have been subscribed by Mr. Cly

sion of the said bonds, notes and mortgages. That mer, and to give the property as follows: “Whereby

James Kiff, in his last illness and in contemplation of in consideration of natural affection he covenants and

his death, and but a short time before his death, gave agrees,” but with nobody, “that the lands in question

and delivered to the defendant said notes, bonds and shall and be given to his wife for life, and then to

mortgages, to and for his sole use and benefit. Other Elizabeth, wife of Wm. Medlycutt,” she being also his

facts appear in the opinion. The defendant had judg. heir at law, " and her heirs forever.” It was attested

ment.
by the said William Medlycott and Elizabeth Mitchell.
The first will was concealed, and William Medlycott

B. B. Winborne, for plaintiff.
took possession under the last one in the right of his

David A. Barnes and J. B. Batchelor, for defendwife; but on his death bed, in 1746, he declared that

ant. the instrument of 1745 was forged by himself; and he produced from under the bedclothes the first will of

ASHE, J. A donatio causa' mortis, in Nicholas v. 1743, and caused it to be sent to the parties interested,

Adams, 2 Whart. 17, is defined by Gibson, C. J., to be who had it proved, and who then brought this suit;

"a conditional gift, depending on the contingency of and this evidence, without any objection, went before

expected death, and that it was defeasible by revocathe jury in connection with the inspection of the two

tion or delivery from the peril." To constitute & wills, and verdict was rendered for the plaintiff.

donatio mortis causa the circumstances must be such as Lord Mansfield, in giving the opinion of the court on

to show that the donor intended the gift to take effect, this point, simply says: “The testator died in 1746;

if he should die shortly afterward, but that if he both wills in the custody of Medlycott; the other

should recover, the thing should be restored to him. subscribing witness dead; his wife to be benetited un

Overton v. Sawyer, 7 Jones, 6. der it; he on his death bed sends the lessor of the

From this definition it results, that to constitute a plaintiff his title, which is inconsistent with that un

donatio mortis causa, there must be three attributes. der which the defendant claims. Under all these cir

1st. The gift must be with the view to the donor's cumstances I think it admissible evidence. No gen

death. 2d. It must be conditioned to take effect only eral rule can be drawn from it. No objection was

on the death of the donor by his existing disorder; and made to its production. It came out, it seems, on the

3d, there must be a delivery of the subject of donation. cross-examination of the defendant's counsel. Unless

1 Williams Ex. 686. therefore manifest injustice has been done on the

The donation in this case, possessed all the qualities whole case, there is no ground for a new trial. Here

of a donatio causa mortis. The donor in his last illappears to be good reason for the verdict.”

pess, on the Sunday previous to his death on the Tues. A further criticism of the proposition referred to

day following, while despairing of all hope of recovmay be found in 2 Phil. Ev. (4th Am. from 7th Lond.

ery, handed the bonds and mortgages in controversy, ed. Carrer & Hill's notes), p. 703, uote 493: “And if an

in the presence of several witnesses, to the defendant, actual surrender should make the declaration admis

and told him that “he gave him the same, to take and sible, it would at once throw open the door for fraud

collect them, and that he might have the money and ulent testimony, even in exculpation of the most

bonds in case he died,” and that the defendant then atrocious criminals. The self-accuser is yet to be

took the bonds and mortgages, and has had possession tried, and he may act under the full consciousness of

of them ever since. having such clear proofs of his own innocenceman

The plaintiff contended in this court that the counalibi, or some other evidence-that he would be risk

ter-claim could not be maintained, because the title ing but little by doing the whole as an act of solemn

to bonds, bills of exchange and promissory notes, trickery in behalf of his friend. The surrender would

could only be passed by indorsement or assignment, not estop him. Even should the people prosecute,

and could not be transferred by mere delivery, so that convict and execute him as the sole malefactor, the

the delivery of the bonds did not vest the legal title Perdict would not estop them, nor be any evidence

in the defendant, and could not constitute a good whatever against the first accusation. It would be res

donatio causa mortis, and that the counter-claim was inter alios."

therefore defective, because it did not state facts suffi. There was no error in the ruling complained of.

cient to constitute a cause of action, and in support of The other judges concurred.

his position, he relied upon the case of Overton v. Sawyer, 7 Jones, 6, where it was held that bonds or sealed

notes, given by delivery as a donatio causa mortis, may GIFT CAUSA MORTIS NOTES AND MORT.

be recovered at law in an action of trover by the perGAGES.

sonal representative of the donor, and he also relied

upon the cases of Fairly v. McLean, 11 Ired. 158, and NORTH CAROLINA SUPREME COURT,

Brickhouse v. Brickhouse, id. 404. The two latter FEBRUARY, 1886 .

named cases were actions of trover for the converKIFF V. WEAVER.*

bion of unindorsed promissory notes, the legal title to A valid gift, causa mortis, may be made of unindorsed notes

which could not, at that time, be transferred, except and unassigned mortgages executed to secure them, by

by indorsement, and the actions were at law.

But since that case was decided, a obange has come * 93 N, C. 274.

over our system of legal procedure. Then an action

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