By English law donatio mortis causâ is a gift made by a person in expectation of death, conditional upon the donor not surviving and revoking it.

If the subject-matter is capable of delivery, actual delivery is indispensable to vest the property. Where a certain instrument in writing is essential to the complete legal title to property, the delivery of that instrument with the intention to pass the property will be effectual as a donatio mortis causa. But in the case of stocks which are capable of legal transfer by instruments the possession of which is not essential to the title, there is no valid gift without such transfer.

Where donatio mortis causâ is alleged, actual delivery is indispensable [431] to vest the property, if the subject-matter is capable of delivery. If it be not so, there must be a delivery of what is equivalent to it at law. In the case of stock, &c., delivery of the receipts, &c., not sufficient to constitute such a gift, though strong evidence of the intent.

The end of the bill was to have a transfer of £600 new South Sea annuities made to the plaintiff as executor of John Mosely, and to have certain specific parts of the personal estate of William Fly,

No. 1.- Ward v. Turner, 2 Ves. Sen. 431, 432.

dead intestate, delivered or made over to the plaintiff. Another prayer of the bill was to have an account of what was due to Mosely for services performed to Fly, against whose estate this demand was made.

The case, the plaintiff made, was this: he was executor of Mosely, who was related to Fly by affinity, having married his aunt; that Fly had great obligations to Mosely, who took care of him in his infancy: and at his house Fly used to come from school, when it broke up; and afterward Mosely, who in the latter part of his life appeared to be in very mean circumstances, lived with Fly as his servant until Fly's death; had his victuals there; performed services to him; and had now and then a shilling given him from thence Fly made profession of a strong intent to do for him at his death, and had great kindness for him; in pursuance of which, as Fly drew near his end, being in a very bad state of health, during that time he made Mosely several donations mortis causâ in prospect of death. Four times were fixed on by the witnesses, of which several were examined in the cause, speaking of actual gifts and declarations supporting them. First, 18th January, 1746, which was spoken to be by the porter of Furnival's Inn. The second, 6th February, 1746, which was the principal proof relied on by the plaintiff to support the gifts of these annuities, and was proved by Fly's barber; who being sent for [432] by Fly found Mosely with him, and no other; and swore to the particular words used, and declarations made, that Fly said to him: viz. "I intend to give him (speaking of Mosely) Longford estate for his life; but I have considered of it; and that which is worth £40 a year to another, is not worth so much to him; for if the tenants wanted an abatement for repairs, he would allow it; and therefore I will do better for him." That thereupon Fly went to his escritoir, and taking three papers said, "I give you Mosely these papers, which are receipts for South Sea annuities, and will serve you after I am dead." The third, 23rd February, which was proved by one, who swore, that in his presence Fly said, "Mosely, I give you all the goods and plate in this house." Fourthly, 3rd March, by the said barber, who swore, that Fly declared to him and to another person, who alone were present, that he gave to Mosely all his household goods, money, arrears of rent, and everything that should be found in his house, except his sword, gun, and books; and that this

No. 1. Ward v. Turner, 2 Ves. Sen. 432, 433.

together with those three receipts would make £2000; that he wished a gentleman of his acquaintance had his sword and gun, but all the rest he gave to Mosely. He died in April following.

These were argued to be so many declarations of bounty, supported by so many witnesses at different times. Two questions arose, first, whether in fact these things were given? Secondly, whether properly given in point of law? Donations mortis causâ are derived from the civil law. Justinian's Inst. lib. 2, tit. 7, shows the nature of them; and that in general any thing is properly the subject-matter of such donations that may be the subject-matter of a legacy or donation inter vivos. Either rights in possession or reversion are capable of being so given. It is not necessary that donor should have a legal interest; an equity will do, when by no act he can pass the legal property; consequently the formalities accompanying such donation must be according to the subject of the gift. Livery then cannot be always necessary; as in a chose in action or simple-contract debt, which lie not in livery, choses in action were not assignable: but now are in this Court as much as things in possession by the rules of law: and therefore this Court will carry into execution a voluntary gift of a chose in action. In Lawson v. Lawson, 1 Wil. 441, such a gift of a note drawn on a goldsmith, which in point of law passed nothing, was held good. Jones v. Selby, Pre. Chan. 300; Gold v. Rutland, Eq. Ab. 347. In Snelgrove v. Bailey, 3 Atk. 214, Mrs. Bailey, going out of town in a bad state of health, gave her maid a bond executed to her by a third person; saying, "if I die, it is yours." She died intestate; the plaintiff was her administrator: thus it stood on defendant's answer. A bill being brought for discovery and delivery of effects of the intestate in hands of defendant, the question was, whether the nature of the property was capable of being so given? [433] His Lordship held, it might as well as a specific chattel: though no legal property passed thereby, nothing but the paper, a bond being evidence of a debt, and the intent being to give the debt, not the paper, the Court held it a good donation mortis causâ, comparing it to the property which passes by assignment of a bond, which passes nothing in point of law, and the assignee must make use of the other's name for recovery on it. That case rested singly on the averment in the answer: in this is strong evidence. The Court there put this case; that if a chattel in possession had been bought by the intestate, and a bill of sale made to a trustee

for her use, the property would have been in the trustee, and the equitable interest in the cestuy que trust, who if she had given this chattel so circumstanced to the defendant, it would have been good.

LORD CHANCELLOR:·

That is a case put upon an equitable interest. There the chattel itself must have been delivered.

For plaintiff. Though these donations differ in some respects from testamentary dispositions, yet they participate in a great degree; for like that it is a declaration of his mind, what he will have done with his property, when he is no more; he does not part with the property or even the use of the thing in his life; for that would prevent any such disposition from being ever made. Where the thing lies in livery, the livery is not made to complete, it is only evidence of, the gift: and if the moment after possession delivered (with a declaration that he intended, if he died, it should be the donee's absolutely) the thing was restored by donee, that would not tend to defeat the gift.

I apprehend it would; and that such an instantaneous gift and taking back would not do, which it would be dangerous to admit.

For plaintiff. But where livery cannot be, the best evidence the nature will admit, being only to show the mind of donor, will do. Here is such a delivery over as is sufficient evidence of the gift of these annuities. They certainly lie not in livery, there being other ways of passing them. There is no evidence of them but one's name being placed in the book. The delivery then with strong words of gift of these receipts, which were the only symbol of his property, was as much as he could possibly do toward giving it, except a mere transfer in the books, which was not necessary, nor could he conveniently do that; and it was giving with a prospect of not recovering of that particular illness; for that of itself would be a revocation: but he died of it, and within two months

of the gift. In cases of livery of seisin it is not necessary [434] to deliver the thing itself or any part; for coming upon the land, and delivering a gold ring thereon is enough, 1 Inst. 44, though not participating of land: but there ought to be clear proof of the intent, which there is here. Next as to the specific things, it is said there was not sufficient possession delivered: but in such a number of things it is not necessary every one should

No. 1.-Ward v. Turner, 2 Ves. Sen. 434, 435.

be delivered. The subject of the gift is what was then in the house. If a delivery is absolutely necessary, the plaintiff has not indeed proved it; but Mosely was actually in the house with him, and is then as much in possession as if actually delivered to him, which is not necessary if he is in possession. If one is recited to be in possession of a house, livery is not necessary. If one does as much as he can towards possession, it is all that is required; as delivery of the key of a warehouse; so of a piece of parchment, delivery of a ship and of the actual possession of it to the mortgagee, as determined by your Lordship in Brown v. Williams. No more could be done here, for he could not carry the goods out of the house; and he was then in possession. However, as this is a bill for discovery of assets, if plaintiff is not entitled to these gifts, he is at least to a reasonable satisfaction for his services.

On the part of the defendant, administrator of Fly, there was no evidence to impeach the evidence of the gift, but to invalidate it to a certain degree, principally from the behaviour of Mosely after death of Fly, as not like one who thought he had a right to these donations from him; for it was sworn, that being at the house of Fly at his death, he continued there until midsummer; he did not say, these goods were his own upon application made to buy them, but that they were Turner's, the administrator and next of kin; sent to Turner, desiring him to take them away; that they were sent away, and Mosely assisted in packing them up, and declared he would not go into mourning, for that Fly had given him nothing that he could help. A donation mortis causâ (though there is indeed such a thing in the law) is of a very delicate nature, and from its import merely voluntary.

LORD CHANCELLOR:

Such donations are subject to debts.

For defendant. If there is no distinction between testamentary dispositions and such a donation, and there is a former will, the Statute of Frauds will be overturned, which relates to all wills of personal estate: therefore since the statute, no nuncupative will or codicil can be set up, where a will was made before. [435] The statute has expressed an anxiety as to nuncupative wills, not taking them away absolutely for fear of breaking in upon the real intent, but, seeing them liable to uncertainty, litigation, and perjury, has put several restrictions on them; whereas if the said distinction is not observed, a nuncupative will may take place,