to the Statute of Frauds, and would introduce a greater breach on that law than ever was yet made; for if you take away the necessity of

delivery of the thing given, it remains merely nuncupative. [444] To this purpose consider the clauses in the Statute of Frauds

relating to this; which seems to me to be applied directly to prevent a mischief of this sort. The clauses are in sec. 19, 20, 21, 22, which have very anxious provisions against dispositions of this kind, requiring three witnesses, solemn declaration of testator, fixing the place of making, and to be reduced into writing in six days after making. These are in cases where no will was made. Next comes another requisite, where a will has been made. If what the plaintiff insists on is right in point of law, that this gift of the annuities by delivery of the receipts was good, yet, though Fly had made a will before, it had been equally good notwithstanding that will, because this relates to revocation of a will in writing by anything amounting to a testamentary act. It would be good against the will, as appears from the cases. Would not that be quite contrary to the plain provision of this clause, taking away delivery of the thing? Here is then a revocation of a will by words only; viz. "This is yours when I die." All these clauses therefore will be overturned, if such evidence is admitted. But it is said, if this is not allowed, it will be impossible to make a donation mortis causâ of stock or annuities, because in their nature they are not capable of actual delivery. I am of opinion, it cannot without a transfer, or something amounting to that: and there is no harm in it, considering how much of the personal estate of this kingdom, vastly the greatest proportion of it, subsists now in stock and funds: and all the anxious provisions of the Statute of Frauds will signify nothing, if donation of stock, attended only by delivery of the paper, is allowed. It might be supported to the extent of any given value, and would leave these things under the greatest degree of uncertainty; and amount to a repeal of that useful law as to all this part of the prop erty of the subjects of this kingdom. Therefore notwithstanding the strong evidence of the intent, this gift of annuities is not sufficiently made within the rules of the authorities; and I am of opinion not to carry it further. If any doubt remains in any one's mind, I will add (what I very seldom do, though it has been done by my predecessors) that I should be very glad to have this point settled by the supreme authority; for it highly ought to be settled, if there is a doubt, considering so large a property of this kind.

The bill ought to be dismissed therefore without costs as to the demand of these annuities, or any other part of the intestate's estate by way of donation mortis causâ.

But as there was a plain intent of bounty and kindness to this old man, who lived with him as a servant, and it seems, in expectation of what should be given at his death, therefore on the other part of the bill an inquiry should be, what Mosely deserved over and above his maintenance for services performed during life of Fly. The account should be taken from a reasonable time, if the plaintiff thinks fit to pray it.

E. having by his will made a certain provision for his daughter, an [497] only child with whom he had been offended on account of a clandestine marriage, but was reconciled to her and her husband — declares to a common friend his purpose to make farther provision for his daughter. Being on his death bed, and unable to write, he is urged by that friend to make a gift to his daughter of certain monies secured by mortgage and bond, and expressly assents to that proposal. In the evening of the same day, being then unable to speak, he is reminded by the same friend of the transaction of the morning, and the deeds of mortgage and bond securing the monies being produced, he is informed that it is necessary to confirm the gift by a delivery of the deeds; and the friend proposed with the father's permission to hand over the deeds to his [* 498] daughter. Upon this proposal the father made an inclination of his head, and the friend then handed the deeds across the bed where the father was lying, to the daughter on the opposite side; whereupon the father placed the hand of the daughter upon the deeds, aud pressed it with his own hand for some minutes, and appeared satisfied with what he had done. The deeds in question consisted of, 1. A conveyance in fee of lands to secure £2927 with the usual covenant for payment of the money lent, and bond by way of collateral security. 2. An assignment of a mortgage debt of £30,000, and of a judgment for that sum recovered on a bond with a conveyance of the land, and the usual covenant for payment of the money.

Held, that this was a valid donatio mortis causâ; that the property in the deeds and the right to recover the money secured by them, passed by the delivery followed by the death of the donor, and that the real and personal representatives of the donor were trustees for the donee, to make the gift effectual.

The original suit in this case was instituted in the Court of Chancery, by the appellants Thomas Duffield, Esquire, and Emily Frances his wife, as plaintiffs, with a view of obtaining the judgment of that Court upon several questions arising out of the

No. 2.-Duffield v. Elwes, 1 Bligh N. S. 498–500.

various dispositions made by George Elwes, deceased, of different parts of his property, by way of settlement, gift, and testamentary arrangement; and also for the purpose of placing the infant defendants, the children of the plaintiffs, under the protection of the Court.

The appellant Emily Frances Duffield, was the only child and heir-at-law, and sole next of kin of George Elwes; she intermarried with the appellant, Thomas Duffield, Esquire, in the year 1810. The children of that marriage were five; namely, the respondent George Thomas Warren Hastings Duffield, the only son

of the appellants, an infant of the age of eleven years; [* 499] and four daughters, the respondents * Caroline Duffield, Maria Duffield, Anna Duffield, and Susan Eliza Duffield, all infants, younger than their brother. George Elwes died in 1821, leaving the respondent Amelia Maria Hicks, his widow, who, after the decree pronounced in the original cause, married the respondent the Reverend William Hicks. The respondent Abraham Henry Chambers was the surviving devisee in trust and executor named in the will of George Elwes; the other trustee named in the will having died in the testator's life. The respondent William Hicks was named an executor by George Elwes in a codicil. The respondents Robert Greenhill Russell, and George Spencer Smith were the trustees of the settlement made on the marriage of the respondent William Hicks, and Amelia Maria his wife.

In the month of February, 1810, the appellant Emily Frances Duffield, being then about the age of 18 years, intermarried with the appellant Thomas Duffield, at Gretna in Scotland, without the knowledge of her father, and on the 11th day of March, 1810, the appellants were re-married in England. Shortly after this remarriage, George Elwes and the respondent Amelia Maria, then his wife, received the appellants into their house, to reside with them as part of their family, George Elwes, at the time of making his will, and until his death, was seised in fee simple of divers freehold and copyhold estates, and was also possessed of a very considerable personal estate. By his will, dated the 1st March 1811, and duly executed and attested to pass freehold estates, after directing that all his debts and funeral expenses, and the expenses of proving his will, should be paid, as thereinafter mentioned, and confirming a jointure of £100 per annum, [*500] and an annuity of £400 to his wife, the *respondent

Amelia Maria Hicks, he gave and bequeathed unto his dear daughter Amelia Maria Frances Duffield (meaning thereby his daughter the appellant Emily Frances Duffield), the wife of Thomas Duffield, and her assigns, for her life, all that his leasehold messuage or dwelling-house, with the appurtenances, situate in High-street, Mary-le-bone, and he declared that the same should from and after her decease fall into the residue of his personal estate thereinafter devised: And he gave and bequeathed unto his said daughter all his carriages, horses, household furniture and goods, plate, linen, china, stock of wines and other liquors, which should be in and about the said messuage or dwelling-house, or in or about any other house or houses in which he might dwell, or which he might inhabit at the time of his decease: And he gave and bequeathed unto his brother John Elwes, since deceased, and to the respondent Abraham Henry Chambers, and their heirs, his freehold and copyhold farm and estate, in Suffolk, and also his freehold farm and estate in Essex, upon certain trusts therein expressed, for the benefit of the second or only son of the appellants, or their daughters in failure of such son, with devises over: And the testator, after giving some legacies of stock and small annuities, and pecuniary legacies, devised and bequeathed the residue of his real and personal estates to the same trustees, upon trust to sell and convert into money all his real estates, mortgages, securities, &c., to hold the monies so produced in trust, among other things, to purchase so much 3 per cent. stock, as would yield £1000 per annum, and to pay the dividends. to the appellant his daughter, during her life, for her separate use; the principal at her death to fall into his personal

estate. The residue of the trust fund he disposed of, [* 501] by special limitations, to the children of his daughter, and their children (if any); remainder to John Elwes.

By a codicil dated the 3d March, 1821, he declared the intent of a cancellation which he had made in that part of his will relating to the sale of his freehold, copyhold, and leasehold estates: He devised his real estates to that son of his daughter, who should first attain 21; and appointed the respondent, William Hicks, a trustee in the place of his brother deceased.

The testator, George Elwes, was entitled to the principal sum of £2927 and interest thereon due to him from Sir Edwin Bayntun Sandys, Baronet, secured by the bond of Sir Edwin Bayntun.

Sandys, executed by him to the testator, bearing date the 12th day of July, 1820, and further secured by indentures of lease and release and mortgage, bearing date respectively the 11th and 12th of July, 1820, whereby Sir Edwin Bayntun Sandys released and conveyed to the testator in fee simple, by way of mortgage, certain freehold estates. The deed also contained the usual covenant for repayment of the money lent. The testator, George Elwes, was also entitled to the principal sum of £30,000 and interest thereon due to him from Sir Edwin Bayntun Sandys, and secured by certain indentures of lease and release, and assignment of mortgage, bearing date respectively the 2nd and 3rd of November, 1820. The release recited a loan of £30,000 made by trustees under a marriage settlement to Sir Edwin Bayntun Sandys, a conveyance of lands therein described to secure the repayment, a bond executed for the

same purpose, and a judgment recovered upon that bond. [*502] It *further recited that the mortgagee having called in the

money due on the mortgage, George Elwes had advanced to the mortgagee £30,000, in consideration of which the mortgagee, &c., by direction of Sir Edwin Bayntun Sandys, assigned to George Elwes the £30,000 due on the mortgage and also the judgment, and conveyed the lands, &c. This deed also contained the usual covenant for payment of the money lent, on a day specified, with a power to sell the lands mortgaged on failure of payment.

George Elwes, shortly before his death, in conversations held with the respondent William Hicks, frequently declared his purpose to make a further provision for his daughter. He was seized with the illness which ended in his death, on the 1st of September, 1821 on the morning of that day the respondent, William Hicks, proposed to George Elwes to make a gift, mortis causâ, to his daughter, of the monies secured by the two mortgages before mentioned, to which proposal, the nature of the gift having been explained to him by Hicks, George Elwes expressly assented. Of this proposal and assent a formal note was drawn up, and signed by Hicks, and two other witnesses. In the evening of the same day, Mr. Hicks, having been informed that an actual delivery of the thing proposed to be given was necessary to the completion of the gift, caused the deeds of mortgage and the bond to be brought from the office of Mr. Law, the solicitor of Mr. Elwes. These deeds were then, in the presence of the same witnesses, produced before the testator, and shown to him, and he was informed by