Nos. 1, 2. - Ward v. Turner; Duffield v. Elwes. Notes.

tomer's estate to be put in the same position as if the authority had been subsisting. Rogerson v. Ladbroke (1822), 1 Bing. 93.

Consequently, if a cheque drawn in the ordinary way is delivered by the drawer to a person who retains the cheque in his possession until after the death of the drawer, he has no right of action against the drawer's representatives; nor can the transaction in any way be made effectual as a gift. Tate v. Hilbert (1793), 2 Ves. Jr. 111, 2 R. R. 175; Hewitt v. Kaye (1868), L. R., 6 Eq. 198, 37 L. J. Ch. 632. And it makes no difference if the gift of the cheque is accompanied by delivery of the donor's pass-book (which is merely a copy of the customer's account in the bank ledger and, at most, prima facie evidence against the banker of the state of the account). Beak v. Beak (1872), L. R., 13 Eq. 489, 41 L. J. Ch. 470. But if, in the lifetime of the donor, or before notice of the death, the donee negotiates the cheque for value, or obtains payment from the bank, the gift is validated. Tate v. Hilbert, 2 Ves. Jr. at p. 118; Rolls v. Pearce (1877), 5 Ch. D. 730. It is true that in the last-mentioned case, Vice-Chancellor MALINS lays stress on the circumstance that the cheque was drawn to the donee's order and indorsed by her. But it is difficult to see how it could have made any difference if the cheque had been drawn to bearer, since by negotiating the cheque for value (and payment to the donee's own bankers, and their placing the amount to her credit, is a transaction for value see 3 R. C. p. 760) she must have made herself liable to the bank for the amount, whether she endorsed the cheque or not.

But where the holder of a bill or note upon which a third person is liable to him delivers it with the intention of making a gift mortis causâ, that is effectual; and although the bill or note was payable to the order of the donor and he had not indorsed it, the property in equity passes to the donee. Miller v. Miller (1735), 3 P. Wms. 356; Veal v. Veal (1859), 27 Beav. 303, 29 L. J. Ch. 321; In re Mead, Austin v. Mead (1880), 15 Ch. D. 651, 50 L. J. Ch. 30; Clement v. Cheesman (1884), 27 Ch. D. 631, 54 L. J. Ch. 158, 33 W. R. 40.

The same principle has been applied to the deposit note of a bank, containing a formal acknowledgment of the receipt of money and an engagement by the bank to repay the same with interest, and being in terms which imply that the production of the receipt with an order endorsed on it by the depositor is necessary to obtain payment of either principal or interest. There had been several decisions by Courts of first instance to the effect that such an instrument was a good subject of donatio mortis causâ by delivery, particularly the decision of ViceChancellor KNIGHT BRUCE in Moore v. Darton (1851), 4 DeG. & Sm. 517, 20 L. J. Ch. 626; and ultimately the point came up for decision by the Court of Appeal in Re Dillon, Duffin v. Dillon (14 Feb., 1890),

44 Ch. D. 76, 59 L. J. Ch. 420. There, on a review of the cases, it was decided that the delivery of such a receipt by the depositor with the intention of making a gift of the money, and on the understanding that the note should be given back in case of recovery, was a good donatio mortis causa. The donor had in fact filled up and signed the order on the back of the receipt, so that it read:

"To the London and Westminster Bank-Lambeth Branch. Pay to self or bearer [bearer]

£580-Five hundred and eighty pounds and interest.

J. Dillon."

But the Court considered the filling up and signing of the order to be immaterial, except in so far as it assisted in showing the inten tion of the transaction. The order did not effect a complete transfer of the debt, nor would it have made the donor himself a trustee, so as to give effect to the transaction as a gift inter vivos. But the delivery of the instrument with the intention as proved in the case was, upon the principle of Lord ELDON's decision in Duffield v. Elwes, a good donatio mortis causâ making the representatives of the donor trustees for the donee for the purpose of giving effect to the gift. In giving judgment, COTTON, L. J., says (44 Ch. D. at p. 82): "The case of Moore v. Darton (supra) is very instructive as to the class of instru ments which are subjects of donatio mortis causû.

There a document

was executed when a deposit of money was made. The mere fact of the deposit would create a debt; but the document, besides acknowl edging the receipt of the money, expressed the terms on which it was held, and showed what the contract between the parties was. It was held that the delivery of that document was a good donatio mortis causâ of the money deposited, and so, in my opinion, was the delivery of the deposit note in the present case." In his judgment in the same case LINDLEY, L. J., incidentally observes that the doctrine that a man cannot make a good donatio mortis causâ by a gift of his own cheque may some day require consideration.

The donor may during his life revoke a donation mortis causâ, Bunn v. Markham, 7 Taunt. 224 at p. 232, 17 R. R. 497 at p. 503-4; but he cannot revoke it by his will, Jones v. Selby, Prec. Ch. 304. A donatio mortis causâ is liable to the donor's debts, Ward v. Turner (the former principal case, ante, at p. 815, 2 Ves. Senr. at p. 434); and is subject to legacy duty under 8 & 9 Vic. c. 76, s. 4; and also to stamp duty under 44 & 45 Vic. c. 12, s. 38.

Nos. 1, 2. Ward v. Turner; Duffield v. Elwes. - Notes.

AMERICAN NOTES.

Both principal cases are repeatedly cited by Mr. Thornton, the American writer on Gifts and Advancements. The general doctrine of the Rule as to the necessity of delivery is uniformly accepted in this country. As to what constitutes delivery however there is some conflict of opinion, and so in respect to stocks.

"To constitute a donatio causâ mortis, there must be three attributes: (1) the gift must be made with a view of the donor's death; (2) it must be subject to the condition that it shall take effect only on the donor's death by his existing illness; and (3) there must be a delivery of the subject of the donation:" Kenistons v. Sceva, 54 New Hampshire, 24, 37. See Henschel v. Maurer, 69 Wisconsin, 576; Michener v. Dale, 23 Pennsylvania State, 59; Taylor v. Henry, 48 Maryland, 550; 30 Am. Rep. 486; Conser v. Snowden, 54 Maryland, 175; 39 Am. Rep. 368; Willemin v. Dunn, 93 Illinois, 511; Ridden v. Thrall, 125 New York, 572; 21 Am. St. Rep. 758; Kiff v. Weaver, 94 North Carolina, 274; 55 Am. Rep. 601; Drew v. Haggerty, 81 Maine, 231; Vandor v. Roach, 73 California, 614; Kilby v. Godwin, 2 Delaware Chancery, 61; Trenholm v. Morgan, 28 South Carolina, 268; Dickeshied v. Exchange Bank, 28 West Virginia, 310; Gano v. Fisk, 43 Ohio State, 462; Emery v. Clough, 63 New Hampshire, 552; Priester v. Priester, Richardson Equity Cases (So. Car.), 26; 23 Am. Dec. 191; Holley v. Adams, 16 Vermont, 206; 42 Am. Dec. 508; Grymes v. Hone, 49 New York, 17; 10 Am. Rep. 313.

Evidences of debt, such as bonds or notes and mortgages, and promissory notes and checks of third persons, pass by delivery and carry the debt, even though the indorsement of the donor is lacking. Mr Thornton says (p. 234): "The old cases hold unqualifiedly that a note payable to the order of the payee, unindorsed by him, or if indorsed by him to a particular person, unindorsed by the indorsee, cannot be made the subject of a gift inter vivos or donatio mortis causâ. . . . A number of early cases hold to this rule." Citing Ward v. Turner. "But at an early date this doctrine was much shaken, and the decision then finally rendered became the rule of decision in England." Citing Snellgrove v. Bailey, 3 Atk. 314. "The question was virtually put to rest by a decision of the House of Lords in 1827" (Duffield v. Elwes), "though the legitimate deduction to be made from that case does not seem to have been acquiesced in until 1859," citing Veal v. Veal, 27 Beav. 303. The American doctrine was declared in 1837, in Massachusetts, in Grover v. Grover, 24 Pickering, 261; 35 Am. Dec. 319, and is sustained by Borneman v. Sidlinger, 15 Maine, 429; Trowbridge v. Holden, 58 ibid. 117; Stephenson's Adm'r v. King, 81 Kentucky, 425; Hill v. Sheibley, 64 Georgia, 529; Druke v. Heiken, 61 California, 346; 44 Am. Rep. 553; Walker v. Crews, 73 Alabama, 412; Elam v. Keen, 4 Leigh (Virginia), 333; 26 Am. Dec. 322; Ellis v. Secor, 31 Michigan, 185; 18 Am. Rep. 178; Trenholm v. Morgan, 28 South Carolina, 268; Kiff v. Weaver, 94 North Carolina, 274; 55 Am. Rep. 601; Brown v. Brown, 18 Connecticut, 410, 46 Am. Dec. 328; Camp's Appeal, 36 ibid. 88; 4 Am. Rep. 39; Westerlo v. De Witt, 36 New York, 341; 93 Am. Dec. 517; Gourley v. Linsenbigler, 51 Pennsylvania State, 345; Donnell v. Donnell, 1

Nos. 1, 2. Ward v. Turner; Duffield v. Elwes.- Notes.

Head (Tennessee), 267; Purdham v. Murray, 9 Ontario Appeals, 369; Exec'rs of Egerton v. Egerton, 17 New Jersey Equity, 419; Stewart v. Hidden, 13 Minnesota, 43; Kenistons v. Sceva, 54 New Hampshire, 24; White v. Callinan, 19 Indiana, 43; Basket v. Hassell, 107 United States, 602; 108 ibid. 267; Martin v. Smith, 25 West Virginia, 579.

It is held in some of these cases, and it is the general doctrine that the gift of a note made by the donor himself is not effectual inasmuch as it is a mere promise, Holley v. Adams, 16 Vermont, 206; 42 Am. Dec. 508; but the destruction by a creditor of the notes of a debtor, with a declaration that in case of her death he should not be compelled to pay them, is a valid donatio causâ mortis: Durland v. Taylor, 52 Iowa, 503; 35 Am. Rep. 285, citing Gardner v. Gardner, 22 Wendell (New York), 526; 31 Am. Dec. 310; Blasdel v. Locke, 52 New Hampshire, 238. So of a surrender of the maker's note to him. Stewart v. Hidden, 13 Minnesota, 43. An unaccepted draft does not pass by such delivery. Harris v. Clark, 3 New York, 93; 51 Am. Dec. 352.

Delivery of a savings bank pass-book with an assignment of the deposit, or even without an assignment, is a valid donatio causâ mortis. Sheedy v. Roach, 124 Massachusetts, 472; 26 Am. Rep. 680; Camp's Appeal, 36 Connecticut, 88; 4 Am. Rep. 39; Tillinghast v. Wheaton, 8 Rhode Island, 536; 5 Am. Rep. 621; Gardner v. Merritt, 32 Maryland, 78; 3 Am. Rep. 115; Minor v. Rogers, 40 Connecticut, 512; 16 Am. Rep. 69; Hill v. Stevenson, 63 Maine, 364; 18 Am. Rep. 231; Ray v. Simmons, 11 Rhode Island, 266; 23 Am. Rep. 447; Pierce v. Boston, &c. Bank, 129 Massachusetts, 425; 37 Am. Rep. 371; Curtis v. Portland Savings Bank, 77 Maine, 151; 52 Am. Rep. 750; Ridden v. Thrall, 125 New York, 572; 21 Am. St. Rep. 758; 11 Lawyers' Rep. Annotated, 684; Jones v. Weakley, 99 Alabama, 441.

It has been held that delivery of a pass-book will not pass money in bank as a gift causâ mortis, Ashbrook v. Ryon, 2 Bush (Kentucky), 228; 92 Am. Dec. 481; Page v. Lewis, 89 Virginia, 1; 18 Lawyers' Rep. Annotated, 170; and so of the donor's check on an ordinary bank, Thomas's Adm'r v. Lewis, 89 Virginia, 1; 37 Am. St. Rep. 848; Jones v. Weakley, 99 Alabama, 441; 42 Am. St. Rep. 84; 19 Lawyers' Rep. Annotated, 700.

Where the deceased never had the pass-book, but declared her wish that defendant should get it and have the money, this was held no gift. Case v. Dennison, 9 Rhode Island, 88; 11 Am. Rep. 222. So although the donee already has the book, this does not excuse the want of manual delivery by the donor. Drew v. Hagerty, 81 Maine, 231; 3 Lawyers' Reports Annotated, 230; 10 Am. St. Rep. 255. A mere request to one to take the book will not suffice. Daniel v. Smith, 64 California, 346.

As to the delivery of keys of a receptacle containing money there is a conflict of opinion. In Thomas' Admr's v. Lewis, 89 Virginia, 1; 37 Am. St. Rep. 848, it was held that "The contents of a warehouse, trunk, box, or other de pository may be sufficiently delivered by delivery of the key of the receptacle." Citing Ward v. Turner; Jones v. Brown, 34 New Hampshire, 445; Westerlo v. De Witt, 36 New York, 341; 93 Am. Dec. 517; Ellis v. Secor, 31 Michigan, 185; 18 Am. Rep. 178; Hillebrant v. Brewer, 6 Texas, 45; 55 Am. Dec. 757; Elam

Nos 1, 2. Ward v. Turner; Duffield v. Elwes. Notes.

v. Keen, 4 Leigh (Virginia), 333; 26 Am. Dec. 322; Stephenson's Adm'r v. King, 81 Kentucky, 425; 50 Am. Rep. 172. So where the key of a closet was delivered and the donee took possession at once. Goulding v. Horbury, 85 Maine, 227; 35 Am. St. Rep. 357. But in Keepers v. Fidelity, &c. Co., 56 New Jersey Law, 302; 23 Lawyers' Rep. Annotated, 184, the delivery of keys was held insufficient where the box was in another room, in a locked closet to which a third person had a key. The Court set out by citing Ward v. Turner, as "the leading case on the subject of donations causa mortis, where Lord Chancellor HARDWICKE laid down the rule with reference to delivery, which has ever since formed the basis whereon such gifts are supported." The Court continue: "On this footing" (i. e. of such delivery as "the donor could conveniently make "), "it has in some instances been held that delivery of the key was sufficient delivery for a valid donation causâ mortis of money or documents locked in a trunk or other receptacle, not within the presence or immediate control of the donor, and not otherwise transferred to the possession of the donee. Cooper v. Burr, 45 Barb. 9; Marsh v. Fuller, 18 New Hampshire, 360; Jones v. Brown, 34 New Hampshire, 439; Thomas' Adm'r v. Lewis, 89 Virginia, 1; 37 Am. St. Rep. 848; Phipard v. Phipard, 55 Hun, 433; Pink v. Church, 60 Hun, 580," and observe that "these cases depart from the views intended to be expressed in the leading case." Citing Hatch v. Atkinson, 56 Maine, 324; 96 Am. Dec. 464, and concluding: "We are not willing to approve the extreme views which have been adopted in the cases cited. We agree with the sentiment expressed in Ridden v. Thrall, 125 New York, 572, 21 Am. St. Rep. 758, that 'public policy requires that the laws regulating gifts causâ mortis should not be extended, and that the range of such gifts should not be enlarged.' When it is remembered that these gifts come into question only after death has closed the lips of the donor; that there is no legal limit to the amount which may be disposed of by means of them; that millions of dollars' worth of property are locked up in vaults the keys of which are carried in the owners' pockets, and that under the rule applied in those cases, such wealth may be transferred from the dying owner to his attendant, provided the latter will take the key and swear that it was delivered to him by the deceased for the purpose of giving him the contents of the vault, the dangerous character of the rule becomes conspicuous. Around every disposition of the property of the dead the legis lative power has thrown safeguards against fraud and perjury. Around this mode the requirement of actual delivery is the only substantial protection, and the Courts should not weaken it by permitting the substitution of con venient and easily proven devices."

A mere delivery of a receipt, without assignment, held for an instrument intended to be given, has been adjudged sufficient in the case of bonds. Elam v. Keen, 4 Leigh (Virginia), 333; 26 Am. Dec. 322. So of an indorsed receipt for bonds on deposit. Crook v. First Nat. Bank, 52 N. W. Rep. 1131. In Stephenson's Adm'r v. King, 81 Kentucky, 425; 50 Am. Rep. 172, it was held that the donor's delivery to the donee of the key of the donor's desk in which she kept her papers, and of a descriptive list taken by her therefrom of notes and bonds in the hands of her agent, signed by him and acknowledgVOL. IX. 55