iiiiiB UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY A TREATISE Law Relating To Gifts And Advancements BY ^Y. W. THORNTOISr OF THE Indianapolis Bab. Author of "Eailboad Fences and Private Crossings," "Lost Wills," Etc. PHILADELPHIA T. & J. W. JOHNSON & CO. 1893 T T3974^ Copyright, 1893, By W. W. Thornton. ^ ^ PREFACE. . It is difficult to confine the subject of Gifts within reasonable limits. It is almost as broad as that of Contracts. The leading features of a gift are not so numerous, but the difficulty lies in their application. The complex affairs of modern civilization every day render this more difficult, and call for a modifica- tion of the stern rigor of the common law. So closely are the subjects of Gifts and Advancements con- nected that the work would be incomplete were treatment of the latter omitted. On this subject the book may be said to be a pioneer. It has been the author's aim frequently to state cases at length in connection with the principle then under discussion, in order to illustrate it and show how it has been applied, and in this way bring out the conflict in the cases. He believes he has been moderately successful in his undertaking, and trusts that the profession will derive some benefit from an exami- nation of the work. W. W. Thornton, Indianapolis, June 1, 1893. ^400&3 TABLE OF CONTENTS. CHAPTER I. DONATIO INTER VIVOS. SECTION PAGE 1. Two Classes — Inter Vivos and Mortis Causa, 1 2. Definition of Gift Inter Vivos, 1 3. Essentials of Valid Gift, "^ 4. Consideration, 3 5. Consideration Disproportionate or Nominal, 4 6. Love and Affection a SufBcient Consideration to Support a Conveyance of Real Estate, 4 7. Gift or Sale, 6 8. Gift or Loan, 7 9. Gift or Loan — Misunderstanding, 9 10. An Advancement Not a Gift, 11 11. Gift Indefinite, H 12. Good Only in Part, 12 13. Lex Loci, 12 CHAPTER II. DONATIO MORTIS CAUSA. 14. The Earliest English Case, 13 15. How Such Gifts Are Regarded by the Courts, 15 16. Bracton's Definition and Classes, 17 17. Justinian's Definition, 18 18. Swinburne's Definition, 19 19. Definitions, 20 20. Resemblance to a Legacy, 22 21. Difference Between a Gift Inter Vivos and Mortis Causa, 23 22. Donatio Mortis Causa Not Affected by Wills' Act, 24 23. When Can be Made — Last Sickness, 24 24. In Peril of Death, 27 25. In E.Ttremis, 28 26. Existing Disorder— Burden of Proof, 28 27. The Threatened Danger to His Life the Criterion — Belief of Donor, . . 31 28. Gift in Case of Death When Not in Apprehension of It, 31 29. Surgical Operation, 32 V vi Table of Contents. SKCnON PAGE 30. Cioing on a Journey 32 31. tjuicide, 32 'i'L Gift by Keaaon of Old Age, 33 33. A Soldier'8 Gift, 33 34. Length of Time Intervening Between Gift and Deatli, 35 35. Gift By Deed or in Writing, 36 36. Donatio Causa Mortis in Trust for Donee, 36 37. A Conditional Gift Implied, 37 38. Conditional Donatio Causa Mortis, 37 39. Gift Inter Vivos During Last Sickness, 38 40. Will Insufficiently Executed Cannot Be Deemed a Donatio Causa Mortis, 38 4L Gift of Entire Estate Cannot be Made Mortis Causa, 39 42. Effect of a Recovery from Illness, 41 43. Donee Dying Before Donor, . ■ 42 44. Revocation During Lifetime by Duiio, 43 45. Revocation by Will, 43 46. When Title to Thing Given Passes, 44 47. Administrator or Executor Has No Control Over Property Given — Proof in Probate Court, 45 48. Contribution With Legatees, 45 49. Subject to Donor's Debts, 46 CHAPTER III. DONOR AND DONEE. 50. General Rule — Conversion, 47 51. Donee Must Be Certain, 47 52. Infant Donor, 48 53. Infant Donee, 48 54. Husband to Wife, • 49 55. Wife as Donor, 51 56. Wife as Donee of Third Persons, 53 57. Foreigner as Donee, 53 58. Legislature as Donor, 54 59. Slave as Donee, 54 60. Lunatic as Donor, 54 61. One of Two or More Donees Incapable of Taking, 55 62. Administrator or P^xecutorof Donor, 55 63. Donor's Gift to His Illegitimate Children or Mistress, 55 64. Dead Person — Donee in Ventre sa Mere, 55 65. Private Corporation, 56 66. Gift to Officer of Corporation to Unduly Influence His Action 57 67. Corporation as Donee, 58 68. Municipal Corporation as Donor, 58 69. Municipal Corporation as Donee, 59 Table of Contents. vii CHAPTER IV. INTENTION AND PROMISE. SECTION PAGE 70. Intent Essential to Validity of Gift, 61 71. Expression of Intent, 62 72. Mere Intention to Make a Gift, 63 73. Concealed Intention, 64 74. Promise to Make a Gift, • 64 75. Intention to Give Must be Clear — Proof, 65 76. Gift Inter Vivos to Take Effect in the Future, 66 77. Gift of Property Not Yet Owned by Donor, 66 78. Gift Inter Vivos to Take Effect After Death of Donor, 66 CHAPTER V. ACCEPTANCE. 79. Acceptance Essential, 68 80. Acceptance Must be in Lifetime of Donor, 68 81. Acceptance Must be Before Revocation, 69 82. Intelligent Acceptance, 69 83. When Acceptance Unnecessary, ''^0 84. Acceptance of Donatio Mortis Causa, 70 85. Acceptance for Donee by Third Person, 70 86. Presumption of Acceptance by Adult 71 87. Acceptance by Minor, '2 88. When Acceptance Not Presumed, 72 89. Terms of Acceptance, 73 90. Evidence of Acceptance, '^ 91. Effect of Disclaimer, 74 CHAPTER VI. CONDITIONAL GIFT. 92. Parol Condition — Contingent Gift, 75 93. Reservation of Right to Use Gift in Certain Contingency, 77 94. Gift Conditioned to Pay Part of It to Third Person, 77 95. Gift Conditional tliat Donee have Children Born, 78 96. Gift Over if Donee " Die Without Heirs," 78 97. Donatio Mortis Causa, 79 98. Gift .Conditioned on Marriage, 80 99. Donee Takes Gift With Condition Annexed— Estoppel, 80 100. Performance of Condition, 80 viii Table of Contents. CHAPTER VII. CHANGING GIFT TO CONTRACT. SECTION PAGE 101. Gift Cannot be Changed to a Charge, 82 102. Power to Sell Not Convertible into Power to Give, 83 103. Gift Changed to a Trust, 83 104 Gift Changed to an Advancementj 84 CHAPTER VIII. REVOCATION. 105. Donor Cannot Revoke a Gift Inter Vivos, 85 106. Revocation of Incompleted Gift, 87 107. Minor May Revoke — Creditors, 89 108. Gift for Benefit of Third Person, 90 109. Estoppel to Deny Gifts, 91 110. Revocation of Trust, 91 111. Reservation of Right to Revoke Gift, 92 112. Deed of Gift Mortis Causa Cancelled, 93 113. Fraud or Undue Influence 93 114. Revocation of Conditional Gift, 93 115. Delivery in Escrow, 93 116. Revocation by Death, 94 117. Wedding Presents, Intended Marriage Broken Off, 94 118. Unintended Gift— Mistake, 95 119. Immorality Does Not Revoke, 95 120. Chani^e of Position by Donee in View of Gift — Acquiescence, .... 93 121. Gift of Real Estate by Parol, 97 122. Redelivery, 97 123. Donatio Mortis Causa, 98 124. Burden to Show Non-Revocation in a Voluntary Deed of Settlement, . 99 125. Revocation Under Spanish and Mexican Laws, 99 126. Revocation by Birth of Child, 100 127. Civil and French Law, 100 CHAPTER IX. DELIVERY. 128. Introduction, 103 129. Definition of Delivery, 104 130. Rule Requiring Delivery the Same in Gifts Inter Vivos and Mortis Causa, 104 131. Delivery Essential, • 105 132. Reason for Rule Requiring a Delivery, 106 Table of Contents. ix SECTION PAGE 133. Mere Intention Cannot Take the Place of Delivery, 109 134. Delivery Must be Sufficient to Pass Title— Test, 109 135. Parting with Dominion Over the Thing Given, 110 136. Mere Possession by Donee Not Sufficient, Ill 137. Eight to Use Distinguished from Possession, 112 138. Actual and Manual Delivery, 114 139. Actual, Constructive, or Symbolical Delivery, 114 140. The Situation of the Subject-Matter of the Gift Must be Considered, .116 141. Article Incapable of Delivery, 117 142. Conditional Delivery, 117 143. Time of Delivery, 118 144. Future Delivery, 118 145. Condition and Intention of the Donor Must be Considered — Arbitrary Enforcement of Rule, 120 146. Declarations of Donor Insufficient to Show a Delivery, 121 147. Donor Believing that a Further Act was Necessary to Complete Gift, . 121 148. Act of Delivery Slight or Ambiguous but Intent and Belief of Donor Clear, .... 122 149. Baron Pollock's Decision 123 150. Delivery by Way of Bailment, 124 151. Donee Unaware of Thing Given, Although He Knew that Something of Value was Presented 124 152. Donee in Possession at Time of Gift, 125 153. Forgiving-Debt, 127 154. Gift of a Part of a Debt — Impossible to Make a Delivery, 129 155. Gift of Part of Article, • .... 130 156. Delivery of Account Owed by Donee to Donor, 131 157. Article Given Not Present at Time and Place of Delivery, 132 158. Delivery of Key to Chest or Drawer, 133 159. Delivery of Key of Box in Donor's Bank — Separation of Amount of Money Given from Bulk, 138 160. Delivery to Third Person for Donee, 139 161. Delivery to Agent of Donor, 141 162. Donor Revoking Mandate to Deliver to Donee, 142 163. Delivery by Executor or Administrator, 143 164. Donor Repossessing Himself of the Gift After Delivery to Agent, . . . 144 165. Revocation of Agent's Authority After Delivery Made, 144 166. Delivery to Third Person for Future Delivery to Donee, 144 167. Delivery to Third Person, But No Actual Delivery to Donee Until After Donor's Death, 145 168. Presumption Arising from Proof of Delivery to a Third Person, . . . 147 169. Between Meml)ers of the Same Family — Husband and Wife, . ... 148 170. Husband Purchasing Gift for Wife, 152 171. Horse Retained by Husband in His Own Stable — Horse in Livery Stable, 154 172. Remarks on Sufficiency of Delivery by Husband to Wife, 154 173. Money Deposited in Joint Names of Husband and Wife, 156 Table of Contents. SECTION PAGH 174. Delivery by Parent to Child — Infant, 157 175. Possession of Donor — Parent in Possession of Donee — Infant — Guardian, 159 176. Instances of Imperfect Delivery by Fatlier to Cliild, 160 177. Purchase of Gift by Parent for His Child, 162 178. Purchase by the Child with the Thing Given, Eight of Child to the Article Purchased — Sale of Gift, 162 179. Gift by Father to Child of Lottery Ticket, 163 180. Gift by Parent to Adult Child— Person a Member of His Family, ... 164 181. Property Given in Adverse Possession of Third Person, 166 182. Gift of Growing Crop, . . 167 183. Gift of Income of Mill, 167 184. Gift of Registered Bonds, 168 185. Shifting Gift from One Drawer to Another, 168 186. Gift of Money Represented by a Kote, 168 187. Delivery of Siiares of Stock, 169 188. Gift by Surety to Principal of Debt He Pays, 169 189. Gift by Deed or Writing Dispenses with Delivery of Article Given, . 170 190. Unsealed Instrument Not Sufficient to Dispense with Delivery of Thing Given — Estoppel, 171 191. Gift by Deed of Reversionary Interest, 172 192. Deed InsufKcient to Operate as a Delivery, 173 193. Deed or Writing in a Donatio Mortis Causa, 173 194. Delivery of Deed at Recording Office, 173 195. Order to Agent to Deliver Gift to Donee, 174 196. Delivery of Receipt Sufficient, 174 197. Consideration for Deed — Slaves, 174 198. Gift by Deed of Undivided Interest, 175 199. Deed Not Produced— Destroyed, 175 200. Writing Affixed to the Article Given, 175 201. Donor Reserving Interest in or Use of Article Given by Parol, ... 176 202. Donor Reserving Interest in or Use of Article Given by Deed, .... 177 203. Reservation of Right to Use Part of Fund Given, 178 204. Gift of Bonds with Reservation of the Accruing Annual Interest — Trust, 178 205. Gift of Note with Reservation of Accruing Interest, 180 206. Gift to be Returned if Donor Make Demand for it in His Lifetime, . . 181 207. Hire of Slave, Animal, or Chattel, 182 208. Parol Gift to Donee for Life, with Remainder Over to Third Person, . 182 209. Repossession by or Delivery to Donnr, 182 210. Donee Has Burden to Show That Redelivery Was Not a Rescission of the Gift, 185 211. Redelivery or Repossession of Donatio Mortis Causa, 185 212. Donee of Imperfect Gift May Maintain an Action Against a Wrong- Doer, 186 213. Proof of Delivery, 186 214. Question for Jury, 186 Table of Contents. xi CHAPTER X. ESTABLISHMENT OF GIFT. SECTION PAGE 215. Lex Loci Determines Validity of Gift, 189 216. Burden to Show Gift is on Donee, 389 217. Essentially a Matter of Evidence, 190 218. Words of Gift, 191 219. Particularity of Proof, 192 220. Sufficiency of Evidence, 193 221. Number of Witnesses, 195 222. Prior Declarations of Donor, 196 223. Declarations at Time of Gift, 197 224. Declarations Made Subsequent to the Time of the Alleged Gift, . . . 198 225. Subsequent Declarations when Transaction is Doubtful or Donee in Possession, 200 226. Declarations of Drunken Donor Attempting to Regain Possession when Sober, 201 227. Inoperative Deed to Siiow Declarations of a Gift, 201 228. Reference in Will to Gift, 202 229. Declarations of Donee, 202 230. Declarations to Prove a Delivery, 202 231. Declarations Insufficient to Establish Gift, 203 232. Declarations as to Other Gifts, 204 233. Neighborhood Reports, 204 2S4. Intent of the Donor, ... 205 235. Circumstances Attending Gift, ... 205 236. Proof of Gift from Circumstances, 206 237. Value of Gift and Property of Donor — Age of Donor, 207 238. Affection of Donor for Donee, 208 239. Illicit Relations of Donor and Donee, 209 240. Relationship of Donor and Donee, 209 241. Wife to Husband, 209 242. Presumption of Gift by Wife to Her Husband, 210 243. Gift by Wife to Husband of the Rents or Profits of Her Separate Estate, 210 244. Gift by Husband to Wife, 211 245. Purchase of Land by Husband but Conveyance to Wife, • • 212 246. Presumption of Gift by Husband to Wife, 214 247. Parent's Gift to His Child, 215 248. Gift by Parent to Child when the Latter is Married, 215 249. Comments Upon Presumption Arising from Delivery of Property by a Parent to His Child, 220 250. Presumption Arising from Parent Advancing Money to His Child — Loan, 222 251. Presumption of Gift Arising from Proof of Possession, 223 252. Donee's Access to Donor's Papers and Securities, 224 xii Table of Contents. SECTION PAGB 253. Presumption that Gift was a Payment of a Debt, 225 254. Evidence of Acceptance — Presumption, 225 255. Sanity of Donor, 225 256. Equity will not Aid an Imperfect Gift — Specific Performance, .... 225 257. Defendant May Sliow Gift Invalid, 226 258. Statute of Limitations, 226 259. Gift to a Class — to whom as Donee, 226 260. Denying Donor's Title, ... 227 261. Administrator or Executor not Entitled to the Possession, 227 262. Validity of Gift when Creditors not Concerned — Gift Between Kin, . . 227 263. When Title Passes 228 264. Competency of Donee as a ^Vitness, 230 265. Pleading, 231 266. Questions for Jury, 231 CHAPTER XI. NOTES AND CHOSES IN ACTION. 267. Chose in Action, 232 268. Note Payable to Order and Unindorsed by Payee, 234 269. Same Continued — DufSeld v. Elwes — Trustee — Mortgage — Statute of Frauds, . . . , , 236 270. Unassigned Note — Question Settled, 238 271. American Decisions Upon Unassigned Choses in Action, 239 272. Sealed Note, 242 273. All Unassigned Instruments the Subject of Gift, 242 274. Gift of Note Carries Mortgage — Gift of Mortgage Does Not Carry Note, 243 275. Draft or Bill of Exchange, 243 276. Gift of Part of Note, 244 277. Memorandum, 246 278. Non transferable Instrument, 247 279. Book Account, 247 280. Gift of Receipt for the Instrument Given, 247 281. Policy of Insurance, 248 282. Gift of Bond or Note Merged in a Judgment — Gift of Judgment, . . . 249 283. Statutory Eegulations Affecting Transfers, 249 284. Note Given to Equalize Distribution of an Estate — Legacy Duty, . . . 250 285. Check Operates as an Equitable Assignment of a Special Deposit, . . 250 286. Personal Representative Collecting Proceeds of Note Given, 251 287. To Whom Pavment Made 251 288. Donor's Liability on his Indorsement, 251 289. Gift of Expectancy, 252 290. Consideration for the Note Given — Inadequacy of Consideration, . . . 253 291. Desire or Intention to Make a Gift Not SuflBcient, 254 Table of Contents. xiii SECTION PAGE 292. Delivery Essential to Validity of Gift, 255 293. Redelivery of Note, 255 294. Gift by Deed, 256 295. Production of Note, Effect Upon Presumption of Ownership, 257 296. Forgiving Debt, 259 297. Eeceipt for Debt, 262 298. Note Made Payable to Third Person, 264 299. Note Payable to Husband and Wife or to Two or More Persons — De- livery — Survivorship, 266 300. Note of Donor Payable to Donee, 267 301. Lawson v. Lawson — Gift for Mourning, 269 302. Note of Donor Payable to Donee is Valid, 270 303. Donor's Own Mortgage to Donee, 272 304. Subscription to a Charity, Church, College, etc., 273 305. Acceptance of Subscription, 276 306. Acceptance — Revocation — Death of Subscriber, 279 307. Who May Sue Upon Subscription, 280 308. Sunday Subscriptions, 281 309. Conditional Promise — Consideration, 281 310. Liability of a Single Donor or Subscriber — Mutual Subscription Not Sufficient to Bind Donors, 283 "^ CHAPTEK XII. BANK CHECKS AND DEPOSITS. 311. Division of Subject, 287 Checks. 312. Definition of a Check, 288 313. Checks Not Bills of Exchange, 289 314. Check of Donor as a Gift Inter Vivos, 292 315. Check of Donor Accepted or Cashed 293 316. Payment Prevented by Donee Until After the Donor's Death, . . . .291 317. Check of Third Person, 296 318. Rights of Bona Fide Holders of Check Given Inter Vivos Indorsed But Not Cashed Before Donor's Death, 297 319. Donor's Check Not Valid as a Donatio Mortis Causa, 301 320. Check of Stranger the Subject of a Gift Mortis Causa, 304 321. No Intention to Gipe Proceeds of a Check, 305 322. Donor's Check Exchanged for a Stranger's Check, 305 Bank Deposits. 323. Certificate of Deposit— Delivery, 306 324. Money Deposited in Name of Donee, 30S 325. Same Continued — Revocation — Est' ppel 308 326. Acceptance of Deposit — Donee Having no Knowledge of it — Donor Retaining Control Over Deposit, 310 327. Gift of Bank-Book Does Not Pass the Deposit, 312 xiv Table of Contents. SECTION PAGE 3:i8. Wife Retaining After Marriage Money Slie Had on Deposit — Husband as Trustee, 312 Savings-Bank Depdsits. 329. Deposit in Savings Bank in Donee's JSame — Gift Inter Vivos — Pre- sumption of Acceptance, 314 330. Gift of Deposit-Book of a Savings Bank is a Gift of the Fund, .... 317 331. Deposit-Book of a Savings Bank Must be Delivered -Acquiescence, . . 320 332. Gift of Deposit-Book is Not a Gift of the Fund— English Rule, ... 323 333. Donor Reserving Interest on Deposit, 323 334. Redelivery of Deposit-Book to Donor, 325 335. Deposit in Two Names — Gift to the Survivor, 326 336. Gift of a Special Deposit, 329 337. Overthrowing Presumption of Gift Arising from Fact of Deposit in Alleged Donee's Name, 330 Trust Kaised by a Deposit of Money. 338. Trust Raised by Donor Depositing Money in Bank — Notice of Trust — Revocation, 331 339. Same Subject — Retaining Control of the Fund 333 340. Same Continued — Evidence — Revocation, 338 341. Same Continued — Some Massachusetts Cases, 343 CHAPTER XIII. GIFT OF STOCK. 342. Stock May be tlie Subject of a Gift, 346 343. Failure to Transfer Stock on Books of Corporation — American Cases — Acce{)tance, 347 344. Transfer Upon Books of Corporation Essential to Validity of Gift — Trust— American Cases, 350 345. Transfer Upon Books of Corporation Essential to Validity of Gift — English Cases, 351 346. Subscribing for Stock in Another's Name, 352 317. Gift by Survivorship of Stock in Two or More Names, 355 348. Gift by Power of Attorney or Deed — Release, 357 349. Transfer on Books, but Failure to Deliver the Certificate 360 3iO. Reserving Power of Revocation, 362 351. Donee Controlling and Receiving Profits, but Not the Certificate of Stock— Opera Box, 362 352. Donor Reserving and Exercising Control Over Stock, 363 353. Recovery of Donor from Sickness 364 354. Purchase with Notice of Assignment, 364 355. Apportioning Dividends, 365 356. Stock Secretly Given to a Subscriber in Order to Influence Others to Subscribe 365 357. Directors May Not Give Away the Stock of their Corporation, .... 366 358. Corporators May Receive Its Stock as a Gift 366 Table of Contents. xv CHAPTER XIV. GIFT OF EEAL ESTATE. SECTION PAGE 359. Introduction, 368 Gift by Deed. 360. Purchase by Donor and Conveyance to Donee by Vendor — Specific Per- formance — Purcliase-Money Mortgage, 368 361. Husband to Wife— Wife to Husband, 369 362. Courts will Kot Enforce a Voluntary Deed — Delivery of Deed, .... 370 363. Keforming a Voluntary Deed — Restoring Lost Deed, 370 364. Gift in Writing Enforced Between Blood Relations, 371 365. Donee May Maintain an Action for Possession Under the Deed, . . . 371 366. Recitation in Deed of a Consideration, 372 367. A Void Deed Cannot be Construed as a Gift, 372 368. Parol Trust, 373 369. Gift of Easement— Timber, 373 370. Gift Mortis Causa — Mutual Mistake — Revocation of Deed on Recovery, 373 Parol Gift. 371. A Parol Giftrrf Real Estate is Void, 374 372. Gift Followed by Improvements 374 373. Expenditure of Labor, 379 374. Donor Stipulating for Expenditure on the Land Given, 379 375. A Promise to Give is Not Sufficient — Donor Retaining Control of the Property, 380 376. Gift or Contract, 382 377. Donor Inducing Donee to Change His Condition — Will — Contract, . . 3S3 378. Gift Not Inducing Donee to Change His Condition nor to Expend Money or Labor Thereon, 385 379. Slight or Trivial Improvements — Rents a Full Compensation, .... 385 380. Expenditures Must be Made in Consequence of and Relying L'pon the Gift, 387 381. Gift After Improvements Made or Labor Expended 387 382. Possession Without Improvements Made or Labor Expended May be SuflBcient — Free of Incumbrance, 388 383. Adverse Possession After Gift Made, 389 384. Confirming Gift by Will, 393 385. Title Acquired by Donor After Gift Made, 394 386. Possession by the Donee Must be Clear, , 394 387. Gift Incomplete without Posssession taken — Intention to Give, .... 395 388. Gift to Wife, but Possession taken by Husband — Adverse Possession, . 395 389. Donor Regaining Possession, , 396 390. Donee Abandoning Gift, 397 391. Donor Incumbering Land 398 392. Donor Reserving Rent — Taxes Paid by Donor 398 393. Payment of Taxes, 399 xvi Table of Contents. SECTION PAGE 394. Kelationship of Donor and Donee, 399 395. Gift by a Married Woman — Infant, 400 396. Donee Must Show a Definite Promise — Must Show Land Given, . . . 400 397. Land Given — Boundaries, 401 3y8. Sufficiency of Evidence to Establish the Gift, 401 399. Donee Must Show that He Made Improvements or Expended Labor Thereon, 404 400. Declarations of the Donor to Prove or Disprove Gift, 404 401. Acts and Conduct of Donor and Donee, 405 402. When Donee takes Land AVilhout the Incumbrance Thereon, .... 406 403. When Donee Acquires a Title to the Land Given — Judgment Lien, . . 406 404. Eights of Creditors of Donee, 407 405. Kind of Action — Ejectment — Trespasses — Trial by Jury, 407 406. Compensation in Damages, 408 407. Donee Entitled to Recover for Improvements, 410 CHAPTER XV. VOLUNTARY TEUSTS. 408. Introduction, 411 409. Gift Failing for Lack of Conveyance is Invalid as a Declaration of Trust, 412 410. Imperfect Gift Cannot be Construed a Trust, 413 411. Not to be Confounded with Conveyances for a Valuable Consideration, . 413 412. Trust Must be Completed by Donor, 413 413. Donor Constituting Himself a Trustee for the Donee, 415 414. Sufficiency of Language to Create a Trust, 419 415. Donor Must Part Absolutely with His Interest in tlie Property. . . . 419 416. Donor Must Part with His Dominion Over Gift — Assistance of a Court of Equity, 420 417. Mere Intent to Create a Trust is Not Sufficient, 421 418. Trust iMust be Certain, and Not Eest in Intention or Promise — Mere Intent, 421 419. Donor Must Have Intended to Create a Trust, 423 420. Difference Between an Assignment and a Declaration of Trust, .... 423 421. "Wlien Trust is Completed, 424 422. Patrol Declaration Accompanied by Acts, 424 423. Donor Eetaining Deed and Failing to Deliver It — Failure to Commu- nicate with Trustee and Donee, 425 424. Donor Unlawf illy Obtaining Possession of Deed of Trust, 426 425. Delivery of Subject-Matter of Gift, 426 426. Notice to Donee or Trustee of Trust, 426 427. Donor Divestinsr Himself of the Legal Title, 427 428. Donee Divesting Himself of the Equitable Title, 429 429. Failure to Name Beneficiary, 429 430. Deed of Gift as a Testamentary Instrument, 430 Table of Contents, xvii SECTION PAGE 431. Xecessit.v for Instrument of Gift to be Under Seal, 431 432. Donee Induced to Change His Situation by Promise of Donor to Give, 431 433. Orders Addressed by a Creditor to His Debtor or Depositary of a Fund, 432 434. Covenant to Give Upon a Contingency, 434 435. Donor Reserving Conirul Over Trust Fund as Trustee, 434 436. Eevocation, 436 437. Preventing the Making of a Gift by Will, 437 438. Good or Meritorious Consideration, 439 439. Marriage Settlements, 440 CHAPTER XVI. FRAUD AND UNDUE INFLUENCE. 440. Gift Procured by Fraud or Undue Influence is Void, 441 441. Amount of Influence Necessary to Avoid Gift, 442 442. Unsoundness of Mind — Mental Weakness, 443 443. Temper and Disposition of Donor, 444 444. Age of Donor — Disease, 444 445. Improvident Gift to Stranger, 445 446. Unequal Distribution of Property Among Children, 445 447. Value of Gift — Amount of Donor's Remaining Property, 445 44S. Donee Preparing Deed of Gift, 446 449. Gift Intended to Operate as a Will, 447 450. Mistake 447 451. Power of Revociition, Failure to Reserve, 448 452. Witnesses to Gift, 448 453. Importuning Donor — Persuasion 448 454. Burden to Show Fraud or Undue Influence, 449 455. Confldential Relations, 450 456. Principal and Agent — Partners, 451 457. Gift by Client to his Attorney, 453 458. Gift to Clergyman, , 456 459. Physician and Patient, 457 460. Ante-Nuptial Agreements, 458 461. Father to Son, 459 462. Son to Father, 459 463. Brothers and Sisters, 459 464. Gift to Mistress, 460 465. Gift of Inebrinte, 460 466. W^ard to Guardian — Son to Parent 460 467. Wife to Husliand 462 408. W^ho May Bring Suit to Set Aside Gift, 464 xviii Table of Contents. CHAPTER XVII. FRAUDULENT CONVEYANCES. SBCnON PAGE 469. Introduction, 465 470. EarJy English Statutes, 466 471. Statutes Dechiratory of tlie Common L;ivv, 466 472. Incorporeal Property, 467 473. Fraudulent Purpose, 467 474. Gift Must Render Donor Unable to Pay His Then Existing Indebted- ness, 468 475. Subsequent Creditors, 469 476. Subsequent and Sudden Insolvency, 469 477. Gift Made with Intent to Defraud Subsequent Creditors, 470 478. Donor Retaining Apparent Ownership of Gift — Notice of Gift, . . . 470 479. Gift Void as to Prior Creditors, Regardless of the Amount of the Donor's Property, 471 480. Void as to Prior and Effect on Subsequent Creditors, 471 481. Gift Insignificant in Value, 472 482. Gift of Property Exempt from Execution, 472 483. Husband May Give His Services to His Wife — Father's Emancipation of His Minor Child, ... 472 484. Donatio Mortis Causa, 473 485. Fraudulent Gift Binding Between Donor and Donee, 473 486. Fraudulent Donee Liable to Donor's Creditors, . 474 487. Gift by a Third Person to Another's Child, 474 488. Gift by Husband in Fraud of His Wife or Children, 474 CHAPTER XVIII. GIFTS IN FRAUD OF MARITAL RIGHTS. 489. Introduction — An Early Case, 475 490. General Rule, 478 491. Mere Concealment — Actual Fraud, 481 492. Reasons for the Rule, 482 493. Husband Must Be Ignorant of the Conveyance Until After tlie Marriage, 482 494. Conveyance Before Treaty of Marriage Entered Upon, . 484 495. Intended Wife Dealing with Her Property Before Her Engagement, . 485 496. Conveyance of Part of Property, 486 497. Wife Fraudulently Representing Herself Po'^sessed of Property, . . 486 498. The Wife's Property Need Not Have Brought About the Marriage, . . 487 499. Husband Ignorant of His Intended Wife Owning Property, 487 500. Wife Incumbering Her Lands — Leases, 487 501. Release of a Debt or Legacy, 4^8 502. Circumstances of the Parties — Pecuniary Means of the Husband, . . . 488 Table of Contents. xix SECTION PAGE 503. Widow with Children Conveying Estate, 488 504. Consideration for Conveyance — Incumbrance or Debt, 489 505. Innocent Purchaser from Fraudulent Grantee, 490 506. Husband Seducing His Intended Wife, 490 507. Intended Husband Misrepresenting His Own Property to His Intended Wife, 491 508. Acquiescence by Husband After the Marriage, 491 509. Delay in Bringing Suit to Set Aside Conveyance, 491 510. Action by Personal Representatives of Husband — Heirs, 492 511. Husband's Creditors Attacking Conveyance, 493 512. Heir of Wife Attacking Husband's Fraudulent Conveyance, 493 513. The Decree, 493 514. Husband Secretly Conveying His Property, 494 515. When Wife May Sue— Right of Action, 495 516. Personal Property of Husband, 496 517. Married Wbiiian's Acts, 496 CHAPTER XIX. ORIGIN AND ESSENTIALS OF ADVANCEMENTS. 518. Limit of Discu.ssion, 500 519. Confusion in the Use of the Terms Ademption and Advancement, . . . 501 520. E;irly English Law of Personal Effects of Deceased Persons, 501 521. English Statute of Distribution, 503 522. Resemblance to Old English and to Roman Law, 505 523. English Statute of Distribution Common Law in America, 507 524. Equality Basis of Statute and Decisions, 508 525. Definition of Advancements, 510 526. Differs from '"Advances,"' . . , 511 527. "Advancement" Distinguished from a "Gift" or "Debt," 513 528. Distinguished from an " Ademption," 513 529. Difference Between Advancement and Satisfaction, 514 530. Revocation of an Advancement, 515 531. Changing Gift to Advancement, 516 532. Changing Advancement to Gift, 517 533. Changing Debt to an Advancement, 517 534. Chantjing Avancement to a Debt, 517 535. Assent of Donee to an Advancement, 518 536. Donee Refusing to Accept Advancement, 518 537. Intention of Donor Controls, 519 538. Statute Changing Rule as to Intention, 520 539. Relation of Donor to Donee, 522 540. Gift to Grandchildren, 522 541. Advancement to Parent when Grandparent Leave Surviving Him only Grnndoliildren, 526 542. Payment to Son-in-law as an Advancement to Daughter, 526 XX Table of Contents. SECTION PAGE 543. Mother's Gift to Child as an Advancement, 631 544. Gift to Stranger, 532 545. Gift Must be Out of Donor's Own Property, 532 546. Gift Must be Perfected in Lifetime of Donor — Eents and Profits of Keal Estate 533 547. Donor Must Die Intestate, 534 543. Partial Intestacy, 535 549. Will Executed After Advancement Made, 53C 550. To What Property the Law of Advancements Applies, 538 551. Heir Releasing to Ancestor His Prospective Inteiest in His Estate, . . 540 552. Purchaser of Heir's Interest Takes Subject to Advancement Made, . . 543 CHAPTER XX. PRESUMPTION TRUSTS. 553. Purchase in Name of Stranger, 545 554. Purchase of Land by Father and Conveyance to His Child 547 555. Contract by Fatlier for Purchase in Child's Name, 550 556. Conveyance or Gift by Father to Child, 550 557. Recital of Consideration in Deed, 652 558. Gift by Father to Infant Son, 553 559. Gift to Child Already Provided for, 553 560. Purchase in Name of Illegitimate Son, 554 661. Father Remaining in Possession — Receiving Rents and Profits — Life Estate — Reversionary Interest, 554 562. Purchase by Father in His Own and Joint Name of Child — Purchase in Name of Child and Stranger, 555 563. Purchase or Gift of Personal Property for or to Child 555 564. Gift to be Advancement must be by way of Donee's Portion, 556 665. Argument of Court in Rendering Decision on Facts Stated in Foregoing Section, 557 566. Same — Disposal of Items in Foregoing Section — "Setting up in Busi- ness," 558 567. Cost of Education, 559 568. Trifling Sums or Articles — Watch — Horse — Furniture 561 669. Contingent Interest — Annuity, 5G2 670. Parent Paying Debt of Child, 563 571. Child Executing Note to Parent for Money Advanced, 563 572. Receipt for Debt — Surrender of Note or Bond, 564 573. Child Purchasing Property with Parent's Money, 566 674. Donor Purchasing Property with Money Charged as an Advancement, 567 575. Note of Father— Sealed Bill 568 576. Purchase or Gift by Mother for or to her Child, 568 577. Rule of Presumption Applies to a Gift to a Daughter, 569 578. Purchase bv Grandfather in Name of Grandchild, 5^i9 579. Gift by Husband to Wife, 570 Table of Contents. xxi CHAPTEE XXI. EVIDENCE REBUTTING PRESUMPTION. SECTION PAGE 580. Intention of Donor, 573 581. Contemporaneous Declarations and Acts of Donor, 675 582. Contemporaneous Declarations and Acts of Donee, 575 583. Prior Declarations of Donor, 576 584. Subsequent Declarations of Donor, 576 585. Subsequent Declarations Admitted in Certain Forums, 577 586. Subsequent Statements of Donor to Donee, 578 587. Rationale of Doctrine Concerning Subsequent Declarations, 578 588. Contemporaneous Acts and Declarations, 579 589. Admission of Donee, 580 590. Conduct of Parties with Reference to Subject-Matter of Gift, 580 591. Donor's Declarations Concerning Other Gifts Made by Him, 580 592. Memorandum Made by Donor, 581 593. Will Referring to Account to Show Advancements Made 583 594. Statute Making Book-Eniry Sole Repository of Donor's Intention, . . 585 595. Statute Requiring Advancement to be in Writing, 586 596. Parol Evidence to Show Consideration of Deed, 588 597. Evidence to Rebut Presumption Arising from Purchase in Name of and Conveyance to Child, 591 598. Advancement in Writing, 592 599. Will Declaring What Shall be Deemed an Advancement, 593 600. Amount of Intestate's Estate — Value of Gift — Surrounding Facts, . . 594 601. Unequal Distribution, 595 602. Burden — Sufficiency of Evidence — Question for Jury, 596 CHAPTER XXII. HOTCHPOT. 603. Doctrine of Hotchpot, 598 604. For what Property Heir Must Account, .... 600 605. Application to Wife or Widow of Deceased Donor, 601 606. Doctrine Applicable to All Distributees, 602 607. Distributee Not Compelled to Bring Advanced Property into Hotchpot — Over-advanced — Infant, 602 60S. Kind of Property to be Brought In — Value, 604 609. Agreement of Distributee with Other Distributees to Account for Property Advanced, 604 610. Refusal to Come in First Distribution Does Not Bar Right to Come in and Share Second Distribution, 605 611. Estimating Value of Advancement — Time of, 605 XXll Table of Contents, SECTION PAGE G12. Value of Imperfect Gift which Ls Perfected at Later Date, 607 C13. Value Fixed by Will, 608 614. Cliarging Donee with Interest on Property Advanced, 609 615. Kents and Profits — Increased Value, 611 616. Improvements Erected by Donee, 611 617. Property Wasted or Destroyed — Slaves Emancipated, 612 618. Effect on Title to Property Advanced by Bringing into Hotclipot, . . . 612 619. Statute of Limitations, 613 620. Not a Part of Assets of Estate, 613 621. How Question of Advancement Litigated— Partition, 614 622. Competency of Advanced Distributee to be a Witness, 615 APPENDIX. STATUTE OF DISTRIBUTIONS. An Act for the Better Settlement of Intestate's Estates, 616 CHAPTER I. DONATIO INTER YIYOS. 1. Two Classes — Inter Vivos and Mortis sideration to vSupport a Convey- Cansa. ance of Real Estate. 2. Definition of Gift Inter Vivos. 7. Gift or Sale. 3. Essentials of Valid Gift. 8. Gift or Loan. 4. Consideration. 9. Gift or Loan — Misunderstanding. 5. Consideration Disproportionate or 10. An Advancement not a Gift. Nominal. 11. Gift Indefinite. 6. Love and Affection a Sufficient Con- 12. Good Only in Part. 13. Lex Loci. 1. Two Classes — Inter Vivos and Mortis Causa. — Gifts are usually divided iuto two classes : Inter vivos and mortis causa. A gift inter vivos is made to take effect during the life of the donor, either absolute or condi- tionally ; but a gift mortis causa is made during the last sickness of the donor, conditioned upon his death. In many particulars they are alike, and differ in but a few. Thus a dojiatio mortis ca^isa must have all the essentials of a gift inter vivos; but the law attaches to the former the condition that it must be executed during the donor's last sickness, in contemplation of death, and upon the condition that he die from the then sickness ; for if he survives, the gift, ipso facto, is revoked.^ 2. Definition of Gift Inter Vivos. — A gift inter vivos is a voluntary transfer of property by the owner to another, without any consideration or compensation as an incentive or motive for the transaction.^ Popu- 1 Kilby V. Godwin, 2 Del. Ch. 61 ; Kiff v. Weaver, 94 X. C. 274. ''Gray v. Barton, 55 N. Y. 68, 72. 2 Gijh. larlv speaking, the thing given is called n gift. Gifts and ad van cements are sometimes iiseti interchanijeablv as indicating the same transaction. Yet, while an advance- ment is always a gift, a gift is by no means always an ad- vancement* A gift imports a benefit ; and usually an acceptance of the bounty may fiiirly be presumed, until the eontniry appears.^ " A gift inter rifo^^," said the Su- preme Court of Ohio, " has been defined as an immediate, voTuutary, and gratuitous transfer of his personal property, bv one to another."^ A verv lair illustration of a sfift is a bounty paid by the United States government to those enlisting in the army ; * or a pension.* o. Essentials of Yalid Gift. — AVhile it is anticipat- ing the discussion of the subject, it is as well to here state * Decree's EsJate, 3 Breirs. 314. *Ki3wJck e. Maiduiaa, 1 Bmr. 59. "Tbe act of transferring the right a«d possK^on of a persooal chanel, Trherehj one xatm renounoes and another ac- qnires all the title and interest therein :"' Hynson r. Terry, 1 Ark. ?3, S7. * Flanders r. Blandv, 45 Ohio St lOSi, 113; Minchin r. Merrill, 2 Ed. Ch. S33 ; Tajlor c- Fire Department, 1 Ed. Ch. 294 ; Conner r. Hull, 36 Miss. 4'24 ; Young r- Young. 25 Miss,3S; Roberts r. Draper, IS Bradw. 167; Pajne r. Powell, 5 Bash. 24S • LTnch r. Hainault, 5 Low. Can. Jar. 306 ; Livingston r. Livingston, 29 Xel^r. 167, 178 ; McKenzie r. Harrison, 120 N, Y. 260, 265. *Meais r. Bickford. 55 Me 52S; Din-^ore r. Webber, 69 Me. 103; Holt r. Holt, 59 Me, 464. The word 'bonus" used in 36 Vict,, ch. 4S, sect, 372, sub. sect. 5, of the Ontario statute, construed to not mean a trift : Scotti>h Amer. In- Test- Co. r. Elora, 6 Ontario App, 62S. " Gratuitous gift :" Holmes r, Cartier, 5 Low. C Kep. 296. Other definitions of a gift inier riros : Walker r. Crews, 73 Ala. 412 ; Henson r. Kinard, 3 Strob. Eq. 371 ; M'Lean r. Longlands, 5 Yes. Jr. 71 ; Horn r. Gartman, 1 Fla. 66; Irish r. NutUng, 47 Barb. 370 ; Snulh r. Dorsey, 38 Ind. 451. ^Semple r. Unitetl States, 24 Ct. of CL 422. An instrument of writing convey- ing a title to per*ioinal property in which the grantor uses the expressions '' give and bequeath," when followed by a delivery of the property, is a donation inier rivos: Crawford r. Puokett, 14 La- Ann. 639. Tiie Geneva Award w.-i* not a gift in trust for the i^erisons who had sutTered loss at the hands of the Southern Con- feidacy: Taft r. Mardly, 120 X. Y. 474; Leonard r. Nye, 125 Mass. 455. A hus- band and wife conveyed lands to their son, who agreed to provide for them while they lived, and after their death pay a certain sum to their daughter. As to their daughter this was held to be as^Ulement and not a gift : Henderson r. McDonald, 84 ind. 149. DoftAillo Inter Vivos. 3 the tilings essential to make a valid gift. The donor mu-st have the capacity to make a gift ; ^ he must liave an intention to make it ; ^ liLs intention must be to make it now, and not in the future ; "' he must deliver, either actually or constructively, the thing given to the donee,* releasing all dominion over the thing given and investing the donee with whatever dominion he possessed ; '^ there mUst be an acceptance by the donee ;^ it mast be irre- vocable, unless the consent of both the donor and donee is first obtained ; ^ it must be without a valuable consid- eration, for if there be a valuable consideration, however small, fcfr the transaction, it Ls a contract and not a gift ; " the thing given must not be indefinite,'* and the entire transaction must show a valid gift as a whole and not of a part.^'* 4. CoxsiDERATioN'. — A Consideration is entirely un- necessary to uphold a gift. In fact, if there be a con- sideration the transaction is no longer a gift, but a con- tract. " The question as to the adequacy of the coasideration cannot influence the decision of the case, for a considera- tion is only necessary to support an agreement or execu- tory contract." ^^ Consequently in all cases of donation there can be no such a thing as failure of consideration.^^ ' See Sec-tion 50. * See Section 70. ' See Section 72. *See Section 131. *See Section 135. • See Section 79. ^See Section 105; Mima v. Rose, 42 Ga. 121; Shaw v. White, 28 Ala. 637. 'See Section 101. 'Sheedyv. Roach, 124 Mass. 472. ^ McGrath v. Reynolds, 116 Mass. 566. " Stewart v. Hidden, 13 Minn. 43. "Gilmore v. Hayworth, 26 Texas, 89 ; Fulton v. Fulton, 43 Barb. 581 ; Worth V. Case, 42 N. Y. 362. 4 Gifts. Thus, it has been said, " A gift, as implied by its defini- tion, must be without consideration." ^ Altliough a consideration is named in the deed of gift, it is admis- sible to show that tliere w^as none intended or paid.^ 5. Consideration Dispkopoetionate or Nominal. — The disproportion of the consideration to the value of the thins: o'iven is immaterial. If there is some consideration w^iich prompted the transaction, it will render that which would have been a gift a contract.^ Thus where an aged and childless man agreed with a father that if he would name the child after him he would provide for it generously ; and afterward, on the child being so named, in consideration of the naming of the child, he executed his note to the father in the sum of ten thousand dollars, the note was held valid ; for the transaction was a con- tract and not a mere gift, and the promisor having received all he contracted for, the court declined to examine its sufficiency.^ But the recital of a mere nominal considera- tion will not turn a gift into a contract if, from the con- text of the instrument, or from the acts or language of the j^arties, it appears that the pecuniary consideration named was merely formal. In such an instance the transaction remains a gift.^ 6. Love and Affection a Sufficient Considera- tion TO Support a Conveyance of Real Estate. — 1 Jackson v. Twenty-third St. R. W. Co., 15 J. & S. (N. Y.) 85. "A bond witliout any consideration is obligatory, and there is no relief in equity against such a bond ; for it is voluntary, and as a gift, and no consideration is pretended. If a drunken man gives his bond, it binds liira. A gift of anything without a consideration, is good ; but it is revocable before delivery to the donee of tlie tiling given:" Chap. IX, Jenkins, 108, 109. 2 Woods V. Wliitney, 42 Cal. 358; Salmon v. Wilson, 41 Cal. 595; Barker v. Koneman, 13 Cal. 9; Peck v. Vandenberg, 30 Cal. 11. 3 Worth V. Case, 42 N. Y. 362. * Wolford V. Powers, 85 Ind. 294. ^Morris v. Ward, 36 N. Y. 587 ; Hatch v. Straight, 3 Conn. 31. Donatio later Vivos. 5 It has long been a settled rule with the courts that love and affection raises a sufficient consideration to support a conveyance of real estate, especially if the donor and donee are blood relatives ; and the insertion of a nominal sum for the consideration, although paid, will not change the transaction from a gift to a sale.^ It may always b6 shown that the recitation of a consideration in a deed is fcilse, and that the land conveyed was a gift in fact.^ " It is an elementary principle," said the Supreme Court of Iowa, " that the consideration of blood, or natural love, is a good consideration, and that an executed contract or conveyance made upon such consideration is binding be- tween the parties and all others, except subsequent pur- chasers without notice, and creditors."^ Yet if it clearly appears that the amount paid, however small, was an actual consideration, and so regarded by the grantor and grantee, then the deed is one of contract and not of gift, and the courts will so regard it/ But love and affection, or blood relationship, is no longer regarded as necessary to support a voluntary gift of real estate. A voluntary conveyance between a donor and donee not related, and who are in fact violent personal enemies, if intended as a gift, is valid. It is a gift, and by insisting that there must be love and affection, or relationship, or a considera- tion, the entire transaction is turned into a contract ; and it is tacitly thereby admitted that a gift, pure and simple, ^ Morris v. Ward, 36 N. Y. 587 ; Banks v. Merksberry, 3 Litt. 275. ''Pate V. Johnson, 15 Ark. 275, overruling Gullett v. Lamberton, 1 Eng, (Ark.) 109. ^ Mercer v. Mercer, 29 Iowa, 557 ; citing Noble v. Smith, 2 Johns. 82 ; Gran- giac V. Arden, 10 Johns. 293; Pitts v. Mangum, 2 Bailey L. 58S ; Pearson r. Pearson, 7 Johns. 26 ; Carpenter v. Dodge, 20 Vt. 595 ; Moore ;•. Pierson, 6 Iowa, 279. Affirmed in Burgess v. Pollock, 53 Iowa, 273 ; Thornton v. Mulquinne, 12 Iowa, 519 ; Pierson v. Armstrong, 1 Iowa, 282. *Fairley v. Fairley, 34 Miss. 18; Fairly v. Fairly, 38 Miss. 280; Morris v. Ward, 36 N. Y. 587. ' 6 Gifts. of real estate cannot be made. At this period of enlight- ened jurisprudence no court, or at least very few, desire to assume this 250sition.^ 7. Gift or Sale. — It is sometimes very difficult to tell whether the transaction was a gift or a sale. In all such instances the entire transaction must be examined ; and if the evidence shows that an act of sale was intended as an act of donation, and it is clothed with all the formali- ties required by law for the validity of a gift, effect will be given to it as a gift, or vice versa, as the case may be.^ A sale without a price is a donation of the thing sold.^ But where bonds w^ere delivered by one person to another under an express promise, made in writing, by the latter, to return them " whenever called for," the promise was considered a written contract, the terms and conditions of which could not lawfully be varied or modified by parol proof, and such an undertaking entirely incompatible with the idea of an absolute gift.* Yet a payment of money by a father, as a surety for his son was held to be a gift.^ A father in advanced years, and in anticipation of death, conveyed his farm to one of his sons, to be paid for in a conveyance of a part to another son, a brother of the grantee, and a part by note and mortgage, and the remainder of the price was to be a gift. The transaction was held a sale, the conveyance not a gift, although there was a gift of a part of the purchase-money.*' It is quite ' Tiedman on Eeal. Prop., sect. 801 . " Therefore a want or failure of considera- tion is no good avoidance of a deed:" 3 Wash. Real Prop. (5th ed.) 391. "^ Harper v. Pierce, 15 La. Ann. 666 ; Haggerty v. Corri, 5 La. Ann. 433 ; Rhodes v. Rhodes, 10 La. 85 ; In re Corse, 2 Fed. Rep. 307 ; Randall v. Peck- ham. 11 R. I. 600; Huiihey v. Eichelberger, 11 S. C. 36; M'Cord v. M'Cord, 11 Rev. Leg. 510 ; S. C. 5 Leg. News, 342. 3 D'Orgenoy v. Droz, 13 La. 382. *Selleck v. Selleck, 107 111. 389. ^Browns v. Brown, 4 B. Mon. 535. 6 Spear?;. Griffith, 86 111. 552. Donatio Inter Vivos. 7 material on an indictment for illegally selling intoxicating liquor that a sale be proved ; for proof of a gift will not support it ; and so if a gift is charged, a sale cannot be shown/ So proof of a barter or gift will not support the charge of a sale.^ 8. Gift or Loan. — Like in the case of a gift or con-, tract, so in the case of a gift or loan, all the circumstances of the transaction must be considered to determine the respective rights of the parties ; and if what was at first a loan is changed to a gift, the burden lies \\i)Oi\ the alleged donee to'show that the change was made.^ Thus in South Carolina, during the time of slavery, if a father on his son's marriage delivered to him a slave, or permitted the slave to go home with him, or sent the slave to him, it ^^^ prima facie evidence of a gift; but it was always per- missible to rebut the presumption by proof of the cir- cumstances under which the parent gave possession to the son ; such a circumstance was the repossession by the parent, and retention of the slave.^ The relation of the parties justified the presumption of a gift^ Whether or not the transaction amounts to a gift or loan is a question for the jury ; and the court cannot say to it that the law presumes it was intended as a gift unless there was an avowal of a contrary intention at the time of the ^Brannan v. Adams, 76 111. 331 ; Birr v. People, 113 111. 045; State v. Decker, 10 W. L , Jr. 328 ; Schaffner v. State, 8 Ohio St. 642 ; Kober v. State, 10 Ohio St. 444 ; Ralph v. Link, 5 Q. B. (Can.) 145. ^Stevenson v. State, 05 Ind. 409 ; Massey v. State, 74 Ind. 368. A father told a minor son that if lie would take one of his mares to a horse and pay for the service the foal sliould be liis own, and the son did so; it was held that the trans- action was a contract : LinnendoU v. Doe, 14 Johns. 222. 'Selleck v. Selleck, 107 111. 389. See Steedman v. M'Neill, 1 Hill L. (S. C.) 194; Booth v. Terrell, 18 Ga. 20. * Watson V. Kennedy, 61 Strobh. Eq. 1 ; Davis v. Duncan, 1 M'Cord (S. C), 212; Johnson v. Ghost, 11 Nebr. 414; Whitfield?;. Whitfield, 40 Miss. 352; Craw- ford V. Mansoi), 82 Ga. 118; Keeiie r. Macey, 4 Bibb. 35. * Smith V. Montgomery, 5 T. B. Mon. 503. 8 Gifts. delivery. The relationship may justify the jury or court in iDresuming an intended gift in such an instance, but that presumption may be repelled by other circum- stances.^ A father told his son " he would let him have one of three negro boys, he might take choice," and then, after the selection had been made, he " remarked that he would let him have the boy he had selected as a loan to be redelivered when called for." The court decided that the transaction was clearly a loan and not a gift.^ In an action for money loaned, the defendant and one M. testified that they applied to the plaintiff for loans of money to purchase certain stock ; that the plaintiff as- sented, and gave M. a check for the money with which to purchase the stock, including one hundred shares for him- self ; that M. purchased the stock, and that, a day or two thereafter, the defendant, M. and the plaintiff being to- gether, and M. having the certificate of shares in his possession, the defendant and he proposed to give their note for the money advanced to them, and that the plain- tiff declined to receive the notes, and told them that he made them a present of the stock ; and that M. thereuj^on handed to the defendant one hundred shares, gave the plaintiff his one hundred, and took fifty shares himself. The court instructed the jury that the mere apjolication of M. and the defendant to the plaintiff to make the loan, and the consent of the plaintiff to such a2:)plication, did not necessarily constitute a loan from the plaintiff to the defendant, or from the plaintiff to M., if the plaintiff all the time intended the transaction to be a gift and not a loan. There was a verdict for the defendants ; and the court upheld the verdict.^ D., before he married the plaintiff, ^ Keene v. Macev, 4 Bibb. 35 ; Crawford v. Manson, 82 Ga. 118 ; Ide v. Pierce, 134 Ma?s. 260; Falconer v. Holland, 5 S. & M. 689 ; Hick v. Keats, 4 B. & C. 69. ' Smith V. Jones, 8 Ark. 109. ♦• 8 Helm V. Martin, 59 Cal. 57. Donatio Inter Vivos. 9 his second wife, donated and gave to a school association, to aid in establishing it, a certain sum of money ; and after D.'s death and the final settlement of his estate, the trustees of the school association sold its property and out of the proceeds paid the amount he had given them to the defendant, as the only child and heir of D. by a former marriage. D. had no children by his second wife, and the claim was made by this second wife that this money w^as part of the assets of the estate ; but the court held that it was not, that the gift by D. to the school was an absolute gift, and the payment of the money by the as- sociation to his son was entirely voluntary, and conse- quently the amount so paid formed no part of the assets of the estate.^ So where A placed his son-in-law in jios- session of a slave, at the same time declaring it to be a loan ; and the slave remained in the possession of B for more than five years, it was held that it did not amount to a gift, and that the statute of limitations did not apply to the transaction.^ So where a husband received from his wife certain bonds, it was held that whetlier or not the transaction was a gift w^as a question of fact for the trial court, and its decision was not reviewable on appeal.^ 9. Gift oe Loan — Misunderstanding. — Suppose, how- ever, that A give money to B as a gift, but B takes it as a loan, does B become A's debtor for the amount, or is the ownership of the money transferred to B ? We quote the language of a distinguished English judge on this ^Day V. Day, 100 Ind. 460. "^ Moseby v. Williams, 5 How. (Miss.) 520. ^H;iskell V. Hervey, 74 Me. 192. The term " lend " when used in a will is generally equivalent to "give:" Booth v. Terrell, 16 Ga. 20; Hinson v. Pickett, 1 Hill Ch. (S. C.) 35 ; Bryan v. Duncan, 11 Ga. 67. A loan of money sent by a brother to a sister, in accordance with her request, is not changed from a loan to a gift by permission to retain it as long as she might want it. At the furthest it would be due at her death: Rivina's Ap., 37 Leg. Int. 466. 10 Gifts. point : " But then, in my opinion," said he, " in order to make out a gift, it must not only be shown that the cheque was sent as a gift, but that it was received as a gift. It requires the assent of both minds to make a gift as it does to make a contract. No doubt you may infer that a person has assented to that which is obviously for his benefit on slighter evidence than would be required to show he assented to a contract wdiich may be to his pre- judice ; but still it is by no means uncommon, particularly in the case of money transactions between relations, that the party intended to be benefited may prefer to receive as a loan what has been offered as a gift. Surely it is not an extraordinary thing that a man should offer to make a present to his friend and that the friend should say, in answer, ' I am much obliged to you for the money, and it is of the greatest j)ossible use to me ; but I cannot take it as a gift, I can only take it as a loan.' If the person who had advanced the money acquiesced in this, the ultimate agreement would be for a loan, and the transaction would be one of loan, and not of gift, although I quite agree that the person who sent the money might in his turn, say : ' I do not choose to have it taken as a loan ; you must take it as a gift or not at all.' In that case, if the person to whom the money was sent did not return it, but kept it, of course it would be a gift." ^ But this does not exactly answer the question. A may have intended a gift, and B thought it was a loan. In that event both are in error ; but it seems to be conceded that the owner- ship of the property passes to B.^ So it has been said that " if A sends a case of w^ine to B, intending to sell it, but fails to communicate his intention, and B honestly 1 Hill V. Wilson, L. R. 8 Ch. App. 888 ; S. C 42 L. J. Ch. 817 ; 29 L. J. 238 ; 21 W. R. 757. * Wald's Pollock on Contracts, 419 (2d. Am. ed.). Donatio Inter Vivos. 11 believing it to be a gift, consumes it, there is no ground for holding B to be responsible for the price either in law or equity, if he be blameless for the mistake." ^ 10. An Advancement not a Gift. — An advancement cannot be taken as a gift ; nor can it be insisted that an actual gift is an advancement. Thus in England if a father gives his son a sum of money to pay the latter's debts, it is an "advancement by portion," within the meaning of the statute on the subject of advancements. " Whenever a sum is paid for a particular j)urpose," said Vice Chancellor Wood, " which is thought good and right by the father, and which the son himself desires, if it be money which is drawn out in considerable amount, and not a small sum, it must be treated as an advance. The payment of the money is the important thing — the court does not look to the application. As to the debts, supj)ose the young man had represented to his father that it was extremely important they should be paid, in order that he might keep his position in the army, and the father had j^aid those sums in order to assist him, it would have been clearly an advance." ^ 11. Gift Indefinite. — It is one of the essentials of a valid gift that the thing given shall be definitely desig- nated ; for if the thing given cannot be accurately ascer- tained, the gift will fail.^ 1 Benjamin on Sales, p. 373 ; Kegina v. Middleton, 2 L. E. C. C. 38, 56 ; S. C. 42 L. J. M. C. 73; 28 L. T. 777 ; 12 Cox, C. C. 260, 417. "^ Boyd V. Boyd, L. R. 4 Eq. 305 ; Edwards v. Freeman, 2 P. Wms. 435 ; Block- ley V. Blockley, L. R. 29 Ch. 250; S. C. 54 L. J, Ch. Div. 722 ; 33 W. R. 777, dis- approving of opinion of Jessel, M. E., in Taylor v. Taylor, L. R. 20 Eq. 155. See Milnes v. Sherwin, 33 W. R. 927; Turner v. Turner, 53 L. T. 379; Evans v. Maxwell, 50 L. T. 51 ; Holliday v. Wingfield, 59 Geo. 206 ; Wal- lace V. Owen, 71 Ga. 544 ; Bay v. Cook, 31 111. 336. ^Sheedy v. Roach, 124 Mass. 472 ; Holeman r. Hart, 3 Strobh. Eq. 66. 12 Gifts. 12. Good Only in Part. — If a gift is only good in part, the whole gift must fail, if the intention of the donor is only to make the gift as a whole.^ But if there be several articles intended to be given, part of which are not effectually given, yet the gift will be valid as to those given, unless it appears that the donor would never have given such part without the part fairly had also been given. 13. Lex Loci. — The lex loci always governs the validity of a gift ; thus it was held that a gift of slaves made in Maryland between parties there residing, was to be controlled by the law of that State when the gift w^as drawn in question in Kentucky.^ So if a gift is com- pleted in one State by a resident of another State, its validity w^ill be tested by the law of the State where it was completed — the place of delivery.^ So where a gift was completed in Tennessee, between parties temporarily there, on their return to Texas, the gift was adjudged ac- cording to the law of the former State.* The validity of a gift must be determined by the law of the place where it was made, without reference to the domicile of the donor.^ iMcGrath v. Reynolds, 116 Mass. 566, ^See Section 215; Tarlton v. Briscoe, 4 Bibb. 73 ; Adams v. Hayes, 2 Ired. L. 3G1 ; Davis v. Boyd, 6 Jones L. 249 ; Edrington v. Maytield, 5 Tex. 363 ; Gamble V. Dabney, 20 Tex. 69. 3 Weatherby v. Covington, 3 Strobh. L. 27 ; Tillman v. Moseley, 14 La. Ann 710 ; Claiborne w. Tanner, 18 Tex. 68; O'Briens. Hilburn, 22 Tex. 616; Faulk v. Faulk, 23 Tex. 653 ; Maiben v. Bobe, 6 Fla. 381 ; McCraw v. Edwards, 6 Ired. Eq. 202 ; Burt v. Kimbell, 5 Port. (Ala.) 137 ; McCullough v. Walker, 20 Ala. 389. * Parks V. Wiilard, 1 Tex. 350; Henderson v. Adams, 35 Ala. 723; Howard v. Copley, 10 La. Ann. 504; HoUomon v. Hollomon, 12 La. Ann. 607; Crawford v. Puckett, 14 La. Ann. 639 ; McCraw v. Edwards, 6 Ired. Eq. 202. 5 Emery v. Clough, 63 N. H. 552. CHAPTER II. DONATIO MORTIS CAUSA. 14, 15. 16. 17. 18. 19. 20. 21. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. The Earliest English Case. How Such Gifts Are Regarded by the Courts. Bracton's Definition and Classes. Justinian's Definition. Swinburne's Definition. Definitions. Resemblance to a Legacy. Difierence Between a Gift Inter Vivos and Mortis Causa. Donatio Mortis Causa Not Affected by Wills' Act. When Can be Made — Last Sickness. In Peril of Death. In Extremis. Existing Disorder — Burden of Proof. The Threatened Danger to His Life the Criterion — Belief of Donor. Gift in Case of Death When Not in Apprehension of It. Surgical Operation. Going on a Journey. Suicide. Gift by Reason of Old Age. A Soldier's Gift. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. Length of Time Intervening Be- tween Gift and Deatli. Gift by Deed or in Writing. Donatio Mortis Causa in Trust. A Conditional Gift Implied. Conditional Donatio Mortis Causa. Gift Inter Vivos During Last Sickness. Will Insufficiently Executed, Can- not be Deemed a Donatio Mortis Causa. Gift of Entire Estate Cannot be Made Mortis Causa. Effect of a Recovery from Illness. Donee Dying Before Donor. Revocation During Lifetime by Donor. Revocation by Will. When Title to Thing Given Passes. Administrator or Executor Has no Control Over Property Given — Proof in Probate Court. Contribution With Legatee. Subject to Donor's Debts. 14. The Earliest English Case. — The earliest Eng- lish case on the subject of donatio mortis causa, is Jones V. Selby/ decided in 1710. Critically examined, how- ever, the case does not seem to have been a case of donatio mortis causa, but the court in which it was pending and all courts since then so regard it. That was a case where the alleged donor by will gave the donee £500, and several months afterward gave her a trunk, and called 1 Finch's Precedents, 300 ; S. C. 2 Eq. Abr. 573, case 2 ; Gibb. Ch. 342. 13 14 Gifts. liis two servants as witnesses to the gift of the trunk. At the time of the gift he does not seem to have been sick, nor in peril of death ; for he several times afterward called his servants' attention to the fact of the gift, asked them if they remembered it, and once took a candle and went and showed them where the trunk was placed. Three years after this he made a second will, and gave the donee £1,000, but took no notice therein of the gift of the trunk, or anything in it. At his death the donee opened the trunk and found in it articles of considerable value, and a government " tally " for £500. The court held that there was not sufficient evidence to prove that the tally was in the trunk at the time of the gift, and also that the £1,000 given by the second will was a satisfac- tion of the £500 given by the first will and the £500 tally. This is all there is in the case, and all loose language used with reference to a donatio mortis causa has no necessary connection wdth the case, although the court seems to have regarded the transaction as a gift causa mortis. Speaking of this case, the Supreme Court of Connecticut said, " That the commencement of the case upon this head seems to have been the effect of that part of the English statute of frauds, which relates to nun- cupative wills, and a struggle to support, in courts of equity, claims, which but for that statute, would have been brought forward in spiritual courts. The law in relation to those donations, has, however, been introduced into, and made a part of the common law ; and so far as it has been recognized, is to be enforced." ^ The second case on this subject was Drury v. Smith ^ (1717), and the third Lawson v. Lawson (1718) ; ^ where a gift of a purse of 1 Raymond v. Sellick, 10 Conn. 480, 485. 2 1 P. Wra. 404 ; S. C. 2 Eq. Cas. Abr. 575, pi. 3. 3 1 P. Wm. 441 ; S. C. 2 Eq. Cas. Abr. 575, pi. 4. Donatio llortis Causa. 15 one hundred guineas by a husband to his wife, was hekl to be a good causa mortis} This is the first case of a genuine donatio 7nortis causa reported,^ The third case is Miller v. Miller^ (1735), gift of two notes payable to bearer. The fourth is Snellgrave v. Bailey* (1744), in which it was held that a gift of a bond, as a donatio mortis causa, was valid. Finally the law was settled in Ward V. Turner,^ and in Tate v. Hilbert.'' In Ward v. Turner Lord Hardwicke clearly showed that these kind of gifts had their origin in the civil law, citing numerous authori- ties to prove his assertions ; and in Tate v. Hilbert, Lord Loughborugh happily supplements this decision of Lord Hardwicke.^ 15. How Such Gifts are Regaeded by the Courts. — ^The early cases manifest a decided hostility to these kind of gifts. Thus, in the earliest case the chancellor said : " That these sort of donations, especially where they were of the same kind with what was given by the will, ought to be fully proved in all circumstances ; otherwise they were not to be countenanced, because it would open a way to perjury and fraud greater than the statutes already in force had provided against," and ^ A gift of an order or bill drawn on his goldsmith was also held, in this case, a good gift. ^ In Drury v. Smith, the case of Smith v. Casen, an unreported case of the date of December 8, 1718, is referred to. 3 3 P. Wms. 356. *3 Atk. 214. 5 2 Ves. Sr. 431. «2 Ves. Jr. HI ; S. C. 4 Bro. C. C. 286 (1793). ' The case of Hedges v. Hedges, Finch's Ch. 269 ; S. C. Gibb. Eq. 12, 13 ; 2 Eq. Gas. Abr. 263 ; 2 Vernon, 615 ; 7 Vin. Abr. 138, 215, cannot be regarded as a case of donatio mortis causa. In Ward v. Turner, supra, Lord Hardwicke refers to Ousley ?'. Carrol, an unreported case, of June, 1722, decided in the Prerogative Court, but it only incidentally touched the question, and the same is true of Shar- gold V. Shargold, there cited by him (a deed of gift by the poet Pope). For custom of London, see Tomkyns v. Ladbroke, 2 Ves. Sr. 591. 16 Gifts. " that he set there to condemn frauds, and therefore might 2)resume them, unless they proved the contrary." ^ Some- what in the same line the Suj^reme Court of Connecticut, after citing this case, expressed itself by saying : " But gifts in any form are justly not in favor with the law, be- ing necessarily vague, and so much open to fraud ; and, therefore, new j^rinciples are not to be adopted to sustain them." ^ But these are expressions taken from the older cases; and they are in harmony with few of the modern cases. Speaking of the right to make such gifts, it was said that it was " excejDtional, and although we cannot sa}'' that courts bear against gifts causa morti, yet the evidence to establish them should be clear and unequivocal, and will be closely scrutinized."^ The Supreme Court of Michigan, in speaking of this kind of a gift, said : " It was urged strongly on the argument, that the law treats such transactions with disfavor, and that they are contrary to public policy, and not to be sustained where it can be avoided. There is no doubt some such language in the books. But it is only used in the sense that such acts are scrutinized carefully to ascertain whether freely and in- telligently done. There is no middle class between lawful and unlawful acts. And it is the duty of courts to enforce all lawful rights, so as to carry out the intention of the parties. That intention should always be observed if lawfully expressed,* and it is only incumbent on legal tribunals to be very careful to ascertain the facts. There is much room for frauds and mistakes in cases of this kind, and therefore care should be used to sift the evi- ^ Jones V. Selby, supra. "^ Raymond v. Sellick, 10 Conn. 480, 485 ; Parcher v. Saco, etc., Savings Inst., 78 Me. 470; Champney v. Blanchard, 39 N. Y. Ill ; Bedell v. Carll, 33 N. Y. 581 ; Hebb v. Hebb, 5 Gill (Md.), 506. 3 Trenholm v. Morgan, 28 S. C 268, 278. * See Section 72. Donatio Mortis Causa. 17 dence. But where there is no doubt about the facts, it would be a legal wrong and gross injustice to refuse to act upon them fairly and without hesitation." ^ 16. Bracton's Defixitiox axd Classes. — Bracton, one of the earliest writers on the English law, has de- scribed a donatio mortis causa at considerable length. " There are amongst other donations," says he, " a dona- tion in view of death, one when a person is not crushed by any fear of a present danger of death, but gives solely from the contemplation of mortality ; another when a person, moved by the imminent danger of death, gives in such terms that the thing forthwith becomes [the prop- erty] of the acceptor. A third, as [for instance] if a per- son moved by danger does not give in such terms, that the things forthwith becomes the acceptors, but only then, when death has followed. And a donation in view of death may be manifold, as [for instance] if a j^erson in contemplation or suspicion of death, gives to a certain person, which kind of donations are frequently made by sick persons, or by those who are going into battle, or are about to sail by sea,^ or one about to travel abroad, and have in themselves a tacit condition, that such kinds of donations may be revoked, if the sick man recovers,^ if the soldier returns safe from action, if the sailor returns from his voyage and the traveler from his journey. And donations which are thus made from suspicion of death, are confirmed by the death of the debtor, and they are made [on this understanding], that if any thing happens ^ Ellis V. Secor, 31 Mich. 185, 188 ; S. C. 18 Am. R. 178 ; Dresser v. Dresser, 46 Me. 48 ; Kurtz v. Smither, 1 Dem. N. Y. 399. * It is curious to note how perilous a sea voyage was regarded in Bracton's time ; for here it is almost classed with the fatality of death ; and so we may note with regard to traveling '' abroad." ' It is hardly necessary to say that at the present day this is the only kind of donatio mortis causa. 2 18 Gifts. humanly to the testator, he, to whom the legacy is made, shall have the legacy, but if the testator recovers, he shall retain or regain the legacy,^ or if he to whom the legacy is given, dies first. And if two joersons, who have made mutual donations to each other in view of death, die at the same time, the heir of neither shall claim, because neither has survived the other. And such a donation is in reality [a donation] in view of death, when a testator wishes himself to jDOSsess the legacy, rather than the legatee, and the legatee [to possess it] rather than his heir. But if it were so given in view of death, that it could not in any case be revoked, the object in giving is more than a giving in view of death, and ought to be accounted of the same effect as any other donation be- tween the living, and therefore as between husband and wife it is not valid.^ It is allowable to make a donation in view of death, not only on account of infirm health, but on account of danger, and aj^proaching death from an enemy or from robbers, or on account of the cruelty or hatred of a powerful man, or on account of an immi- nent voyage by sea or journey by land, or if a person is likely to i3ass through a place beset with snares, for all tilings show urgent danger." ^ 17. Justinian's Definition. — The definition of Jus- tinian is one often cited in the earlier cases, and it is as well to give it here. " A donation mortis causa,^^ says he, " is that which is made to meet the case of death, as when anything is given uj)on condition that, if any fatal acci- dent befalls the donor, the person to whom it is given ^ It is hardly necessary to state that a will is not here referred to nor under consideration. ^ We have so far left the barbarian behind us that a husband may now make a valid gift to his wife. ^ BractoD I, chap. 26, p. 475. (Sir Travers Twiss' edition and translation.) Donatio Mortis Causa. 19 shall have it as his own ; but if the donor should survive, or if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given. These donations mortis causa are now placed, in all respects, on the footings of legacies. It was much doubted by the jurists whether they ought to be considered as a gift or as a legacy, partaking as they did in some respects of the nature of both ; and some were of opinion that they be- longed to the one head, and others that they belonged to the other. AVe have decided by a constitution that they shall be in almost every respect reckoned amongst leg- acies, and shall be made in accordance with the forms our constitution provides. In short, it is a donation mortis causa, when the donor wishes that the thing given should belong to himself rather than to the person to whom he gives it, and to that person rather than to his own iieir." ^ 18. Swinbttrne's Definition. — A definition frequently cited by the old cases is that of Swinburne, who wrote his work on Wills shortly before 1590. " A gift in considera- tion of death is," says he, (1) " Where a man moved with ^ Sandar's Institutes of Justinian, p. 147. Justinian cites Telemachus' gift to PirEeus, which is as follows (we use Bryant's translation of the Odyssey) : "And then discreet Telemachus replied : ' We know not yet, Piraeus, what may be the event ; and if the suitors privily should slay me in the palace, and divide the in- heritance among them, I prefer that thou, instead of them, shouldst have the gifts; but should they meet the fate which I have planned, and be cut oiT, then shalt thou gladly bring the treasures, which I gladly will receive' " Book XVII, 1. 93-100. See Staniland v. Willott, 3 MacN. & G. 664, and Dexheimer v. Gau- tier, 34 How. Pr. 472. "Tlie phrase dono dare was appropriated in Roman law to the mode of transferring property by gift ; r/are signifying that the vhole prop- erty in the thing was passed by delivery, and dono expressing the motive from which the delivery was made:'' Hammond's .lustinian, p. 147. See quotation from the Digest in Hambrooke v. Simmons, 4 Russ. Ch. 25. See, also, Ward v. Turner, 2 Ves. Sr. 431 ; and Tate v. Gilbert, 2 Ves. Jr. Ill ; S. C. Bro. Ch. 286. In Holt N. P. 357 the civil law distinction between the two kinds of gift is succinctly pointed out. 20 Gifts. the consideration of his mortality, doth give and deliver something to another, to be his, in case the giver die ; otherwise if he live, he to have it again. Of (2) gifts in case of death there be three sorts : One, where the giver, not terrified with fear of any present peril, but moved with a general consideration of man's mortality, giveth anything. Another, when the giver being moved with imminent danger, doth so give that straightways it is made his to whom it is given. The third is, when any being in peril of death, doth give something, but not so that it shall presently be his that received it, but in case the giver do die. This (3) last kind of gift is that which is compared to a legacy. But the other two are reputed simple gifts, if the giver do not make express mention of his death ; and so they cannot be revoked, but take full effect from the time of making of the gift, if the same be not fraudulent." ^ 19. Deftj^itions. — But these definitions of donatio mortis causa, taken from the civil law, have not been accepted in their full length and breadth, " They are un- doubtedly taken from the civil law, " said Lord Hard- wicke, " but not to be allowed of here further than the civil law on that head has been received and allowed ;" and the chancellor then proceeds at considerable length, in what is regarded as the leading English case.^ "A do- natio mortis causa" says a writer on wills,^ " or, as it has ^ Swinburne on Wills, 22. Upon this classification Mr. Koper says, " It ap- pears that the third alone is the proper donation mortis causa, the other two being nothing more than pure gifts inter vivos. This is also apparent from the definition of a donation mortis causa given by Justinian after the contest whicli prevailed upon the subject had subsided :" Koper on Legacies, p. 2. See Bunn v. Markham, Holt, N. P. 352, note ; Tate v. Gilbert, 2 Ves. Jr. Ill ; S. C. 4 Bro. Ch. 286; Ward v. Turner, 2 Ves. Sr. 431. ^ Ward V. Turner, 2 Ves. Sr. 431. See, also, Tate v. GUbert, 2 Ves. Jr. Ill ; S. C. 4 Bro. Ch. 2S6. 3 Flood on Wills, 2. Donatio Mortis Causa. 21 been styled, an improper kind of legacy, may be gener- ally defined, or rather perhaps described, as a duly wit- nessed ^ gift, either direct or in trust,'^ of something, the property in "which can, and does actually, pass by mere delivery,^ made by a person in his last illness, or appre- hensive of approaching death,^ but to take effect only on that event happening ^ at or about the time anticipated, or within a reasonable time afterward,^ and provided there be no revocation of the gift by the donor's recovery and his subsequent resumption thereof." ^ " To con- stitute a donatio mortis causa,^^ said the Supreme Court of New Hampshire, "there must be three attributes: (1) the gift must be 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." ^ ^Citing Tate v. Hilbert, 2 Ves. Sr. Ill; W' alters v. Hodge, 2 Swanst. 97; Thompson v. Heffernan, 4 D. & War. (Ir.) 285 ; Cosnaiian v. Grice, 15 Moo. 1*. C. 215 ; Hayslep v. Gymer, 1 A. & E. 162 ; S. C. 3 N. & M. 479. "^ Citing Blount r. Burrow, 4 Brown, C. C. 72 ; Hills v. Hills, 8 M. & W. 401 ; S. C. 5 Jur. 1185. * Citing Miller v. Miller, 3 P. Wms. 356 ; Ward v. Turner, 2 Yes. Sr. 441 ; Bunn V. Markham, 7 'J'aunt. 224 ; Trimmer v. Danby, 23 L. J. Ch. 979. * Citing Just. Inst. 2, 7, 1 ; 2 Black Com. 514 ; Gardner v. Parker, 3 Madd. 102 ; Duffield V. Elwes, 1 Bligh N. S. 497, 530. * Citing Tate v. Hilbert, 2 Ves. Jr. Ill; S. C. 4 Bro. C. C. 286; Edwards v. Jones, 1 Myl. & Cr. 226 ; S. C. 5 L. J. Ch. 194 ; Staniland v. Willott, 3 Mac. & Gor. 664. ^Citing Veal r. Veal, 27 Beav. 303 ; S. C. 29 L. J.Ch. 321, where three months elapsed between the date of the gift and death. ''Citing Ward v. Turner, supra; Bunn r. Markham, 7 Taunt. 224. See Brown I'. Brown, 18 Conn. 410, 415. 8 Keniston v. Sceva, 54 N. H. 24 37. See Prince v. Hazleton, 20 Johns. 502, 514 ; Bedell v. Carll, 33 N. Y. 581 ; Wells v. Tucker, 3 Binn. (Pa.) 366, 370; French v. Eaymond, 39 Vt. 623 ; Miller v. Jeffress, 4 Gratt. 472 ; Dexheimer v. Gautier, 34 How. Pr. 472. The following cases contain definitions of gifts mortis causa, more or less accurate according to tlie phase of the subject pending before the couit at the time : Hen- schel V. Manerer, 69 Wis. 576. A gift causa morlu is that of a "chattel made by a person in his last illness, or in periculo mortis, subject to the implied condition 22 Gifts. 20. Resemblance to a Legacy. — A donatio causa mortis is frequently compared to a legacy ; and in some respects they are similar. A legacy usually can only be given by a written will, duly signed by the donor, and attested in accordance with the statute of wills ; until the testator has died, the title, and usually the possession, re- main in him. But in a gift causa mortis a written instru- ment is not necessary, it may be and usually is made by parol, and the possession of the thing given must be abso- lutely delivered to the donee before the death of the donor and of the donee. A legacy is always given in view of the possible death of the donor and so must a gift causa mortis be given ; but in the former instance the donor need, and usually is, not sick nor in present j^eril of death, while in the case of the latter it must be given in antici- pation of a speedy death from a present sickness or im- pending peril. But the nearest resemblance is the am- bulatory character of both of them ; for a legacy does not become vested in the donee until the donor die, and it may be revoked at any time before his death, and in this latter particular it corresponds with a gift causa mortis. The most characteristic mark of distinction be- tween a legacy and such a gift is the change of j^ossession. *' From the nature of the donatio, it is apparent that the that if tlie donor recover, or if the donee die first, the gift shall be void :" Mich- ener v. Dale, 23 Pa. St. 59; Taylor v. Henry, 48 Md. 550; Conser ?•. Snowden, 54 Md. 175; Hebb v. Hebb, 5 Gill (Md.), 500- Willerain v. Dunn, 93 111. 511 ; Kid- den V. Thrall, 125 N. Y. 572 ; Kiff r. Weaver, 94 N. C. 274 ; Cross v. Cross, L. E. 1 Ch. (Ir.) Div. 389 ; Drew v. Hagerty, 81 Me. 231 ; Dresser v. Dresser, 46 Me. 48 ; Earle v. Botsford, 23 N. B. 407 ; Smith v. Dorsey, 38 Ind. 451 ; Irish v. Nutting, 47 Barb. 370; Vandor v. Eoach, 73 Cal. 614 ; Kilby w. Godwin, 2 Del. Cli. 61 ; Eoberts v. Draper, 18 Bradw. 167 ; Trenholm v. Morgan, 28 S. C. 268; Dickescliied v. Exchange Bank, 28 W. Va. 340; Snell's Eq. 158; 1 Watson Eq. Comp. 136; Williard's Eq. Jur. 554; Toller Ex. 233; Pom. Eq. Jur, § 1146. A conveyance accompanied by an agreement that the grantee will support the grantor for his life takes effect at once, and is not a donatio causa mortis : W^ille- min V. Dunn, 93 111. 511. Donatio Jlortis Causa. 23 infallible test which must distinguish it from a testament- ary gift, is delivery, a change of dominion in jjrcesenti. Without this there is really nothing to distinguish it from an ordinary testamentary bequest."^ In the case of a legacy, the legatee recovers or receives it from the executor or administrator of the donor ; but in the case of a donatio mortis causa, neither the executor nor administrator has anything to do with it. " A donatio mortis causa is claimed against the executor, wherever a legacy is claimed from him."^ Both are taken subject to the donor's debt.^ 21. Difference Between- a Gift Inter Vivos and Mortis Causa. — In all resj^ects gifts inter vivos and mortis causa are alike with these important exceptions : That a gift mortis causa must be made, as has been said, by a person in his last illness, on apj^rehension of approaching death, conditioned to take effect only on this event happening at or about the time anticipated, or within a reasonable time afterward, with the pro- viso that there be no revocation of the gift by the donor's recovery, or by his actual resumption thereof. These exceptions are peculiar to gifts mortis causa and form no part of gifts inter vivos. The resemblance be- tween them is : That the donor must have the capacity of mind to make such a gift, the donee capacity to receive or accept it ; that there shall be no undue influence exercised by the donee over the donor ; that something must be given ; and that there must be an actual or construct- iTi-enholm v. Morgan, 28 S. C. 268, 278 ; Edwards v. Jones, 1 Mylne & Craig, 226 ; Brvson v. Browrigg, 9 Ves. Jr. 1 ; Drew v. Hagerty, 81 Me. 231 ; Jones v. Brown, 34 N. H. 439 ; Gano v. Fisk, 43 Ohio St. 462 ; Ashton v. Clerk, Sel. Ch. Gas. 14; Enaery v. Clough, 63 N. 11. 552; Harris i). Clerk, 2 Barb. 94; affirmed, 3 N. Y. 93. 2 Flood on Wills, 21 ; Emery v. Clough, 63 N. H. 552. 3 Bloomer v. Bloomer, 2 Bradf. 339. 24 Gifts. ive delivery of the article of gift by the donor to the donee in their joint lives. It should be borne in mind that a donor on his death-bed, fully aware of the near approach of his dissolution, may make an absolute gift or a gift inter vivos, the fact of his near death not vitiating it.^ 22. Donatio Mortis Causa Not Affected by the Wills' Act. — The English act of Parliament concern- ing wills did not abolish the right of a dying man to make a donatio mortis causa, nor in any way affect such rights ; ^ nor does the act of Parliament, imposing a duty or tax on legacies — generally known as the "legacy duty" — affect such gifts, for they are free from its pro- visions.^ In this country the same rule prevails with regard to the wills' act as prevails in England.* 23. When Can Be Made — Last Sickness. — Justinian defined a donatio mortis causa as " that which is made to meet the case of death, as when anything is given upon condition that, if any fatal accident befalls the donor, the person to whom it is given shall have it as his own."^ This is broader than the English definition ; and, as we 1 Edwards v. Jones, 1 Mylne & Craig, 226 ; Emery v. Clough. 63 N. H. 552 ; Diiffield V. Elwes, 1 Bligh, 497; S. C. 1 Dow. & CI. 1, reversing 1 Sim. & Stu. 239 ; Kaiche v. Alie, 1 Rev. Leg. 77 ; Dichescliied v. Exchange Bank, 28 W. Va. 340 ; Newton v. Snyder, 44 Ark. 42. 2 Moore v. Darton, 4 De Gex. & Sm. 517 ; S. C. 20 L. J. Ch. 626; Meach v. Meach, 24 Vt. 591, 596. ^ Farquharson v. Cave, 2 Colly. 356, 366. * Dole V. Lincoln, 31 Me. 422. See Section 41. {All property given, not valid.) Where a father attempted to make a donatio mortis causa, but only succeeded in making a bailment of the subject-matter of the gift, and at the same time he gave instructions as to the settlement of his landed estate, in which he directed a por- tion of tlie gift to be used and made provision for the payment of his debts, the entire transaction was held to be in contravention of the wills' act: McCord v. McCord, 77 Mo. 166. ^ Sandar's Justinian, p. 147. Donatio Mortis Causa. 25 liave seen, Bracton ^ lays down several instances in wliicli such gifts are valid, which are now held invalid. " It is of the essence of a donatio mortis caiisa,''^ said Sir Lan- celot Shadwell, vice-chancellor, " that the gift shall be proved to have been made in contemplation of the donor shortly terminating life by reason of extreme sickness or extreme old age."'^ Whether the last condition would now make the gift valid may well be doubted.^ In an- other English case it is said that " the person who gives must express or declare himself in such manner as that it may appear that he does it in view and contemplation of his death, which he expects to follow some time after." * This definition, however, is from an old case and is incom- plete. If it means that he shall verbally declare himself, or in writing, then it is too restricted ; for any signs that convey to the donee, or to some one for him, the design or intention of the owner is sufficient. That part of the definition that the donor makes it " in view and contem- plation of his death " is accurate, but the clause " which he expects to follow some time after " is capable of a too extended meaning. It is too indefinite, for all men expect death to follow the making of a gift. " The gift must be made in contemplation of the near approach of death by the donor," said the Supreme Court of California.^ Blackstone defines it to be a gift made by " a person in his last sickness, apprehending his dissolution near." ^ Williams, in his work on Executors, says : " If a gift be not made by a donor in peril of death — i. e., with relation to his decease by illness affecting him at the time of his * See Section 16. 2 Edward v. Jones, 7 Simm. 325, 335. ^See Section 24. *Partlirick v. Friend, 2 Colly. 363. s Daniel v. Smith, 64 Cal. 346 ; Daniel v. Smith, 75 Cal. 548. 6 2 Bl. Com. 514. 26 Gifts. " 1 gift — it cannot be supported as a donation mortis causa. This is quite an accurate statement of the law. In a modern English case it was said : " It appears that the donor at the time was in bed, having an illness from which he never recovered. It is not necessary that the donor should have in contemplation his immediate dissolution, but only the gift should be made upon the suppo- sition that he will not recover. In this case it was, in fact, his last illness, and, so far, the facts are sufficient to satisfy the rule." ^ In an American case it is said that " the gift must be conditional, only to take effect by the death of the donor by his existing disorder ; " ^ and in another American case it is said that " there must be a transfer or delivery of property in expectation of death from an existing illness, the donation depending on the condition of death from such illness." * In still another case, after reviewing the authorities at length, and jooint- ing out a modification of the rule, it was said : " The modification of this rule, as I have suggested, relates mainly to the manner of the apjiroach of death, and I think there will no case be found where such a gift is up- held, in which there was not either peril of death from some cause imminent and impending, or the conceived near approach of natural death. It is not indeed nec- essary that the party should be in extremis, according to some of the earlier cases, but the gift will be presumed to be in contemplation of death, when the donor is on his death-bed, or languishing in what proves to be his last ill- ness." ^ In a North Carolina case it was said of a gift claimed to be a donatio mortis causa, " Indeed, it is not ^Williams' Executors, 845 (6th Am. ed.). 2 Meredith v. Watson, 23 E. L. & Eq. 250 ; S. C. 2 Eq. Kep, 5. 3 Ilebl) V. Hebb, 5 Gill (Md.), 506. * Smith V. Dorsey, 38 Ind., p. 457. ^ Irish V. Nutting, 47 Barb. 370, 386, Donatio Mortis Causa. 27 easy to conceive how a donatio mortis causa could be es- tablished by any proof in a case like this, where the tes- tator was not surprised by sickness, but lived for months afterward, and had abundant opportunity to make his testamentary disjiositions in the regular and ordinary way." ^ These quotations are amply sufficient to show that the donor must be laboring under an apprehension of pending death from a disease or sickness then afflicting him — a sickness which is his last illness, in order to make a gift mortis causa valid.^ 24. " In Peril of Death." — It is often said that a gift made " in peril of death " is a valid donatio mortis causa ; but just what is meant by this phrase does not clearly ap- pear. It does not mean in extremis, for that is not essen- tial to the validity of a gift of this kind. SupjDOse, how- ever, a man is under a sentence of condemnation, to be executed by hanging, shooting, or in any other effectual 1 Shirley v. Wliitehead, 1 Ired. Eq. 130. ^Robson V. Jones, 3 Del. Ch. 51. Where the donor was eighty years of age and quite ill, but did not die until five months afterward, the gift was upheld, there being a continual sickness : Grymes v. Hone, 49 N. Y. 17. So where the donor did not die for six weeks: Williams v. Guile, 117 N. Y. 343, affirming 46 Hun, 645 ; Conser v. Snowden, 54 Md. 175 ; Taylor v. Henry, 48 Md. 550 ; Hebb V. Hebb, 5 Gill (Md.), 506; Sessions v. Moseley, 4 Cush. 87; First Nat. Bank v. Balcom, 35 Conn. 351 ; Raymond v. Sellick, 10 Conn. 480 ; Henschel v. Mauer, 09 Wis. 576 ; S. C. 2 Amer. St. Rep. 757 ; Kiff v. Weaver, 94 N. C. 274 ; Nicholas v. Adams, 2 Whar. (Pa.) 17 ; reversing 1 Miles, 90 ; Overton v. Sawyer, 7 Jones (N. C.), L. ; Rhodes v. Childs, 64 Pa. St. 18 ; Gourley v. Linsenbigler, 51 Pa. St. 345 ; McCarven's Estate, 7 W. N. C. 261 ; Kenistons v. Sceva, 54 N. H. 24; Huntington v. Gilmore, 14 Barb. 243 ; Harris r. Clark, 2 Barb. 94; S. C. 3 N. Y. 93 ; Van Slooten v. Wheeler, 21 N. Y. Snpp. 336 ; Worth v. Case, 42 N. Y. 362 ; Champney v. Blanchard, 39 N. Y. Ill ; Merchant v. Merchant, 2 Bradf. 432 ; Dole v. Lincoln, 31 Me. 422 ; Weston v. Hight, 17 Me. 287 ; Thomjison v. Thompson, 12 Tex. 327; French v. Raymond, 39 Vt. 623 ; Holley v. Adams, 16 Vt. 206 ; Smith v. Kittridge, 21 Vt. 238 ; Sheegog v. Perkins, 4 Baxt. 273 ; Gass ?;. Simpson, 4 Coldw. 288 ; Gratton v. Appleton, 3 Story, 755 ; S. C. 8 L. Rep. 116 ; Lee V. Luther, 3 Wood & M. 519 ; Miller v. Miller, 3 P. Wms. 357 ; Tate r. Hil- bert, 2 Ves. Jr. Ill ; Jones v. Selby, Finch Cli. 300; Hedges v. Hedges, Finch, 269 ; S. C. Gill 12 ; 2 Vern. 615; Blount r. Burrow, 1 Ves. Jr. 456 ; S. C. 4 Bro. C. C. 71 ; Cosnahan v. Grice, 7 L. J. N. S. 81 ; 15 Moo. P. C. 215. 28 Gifts. manner, and the day or time for his execution is set ; or suppose he is in the hands of a body of lynchers, may he not make a gift inortis causa f It may be that he has hope of a pardon, or of a new trial or of a rescue ; but that is no more reason why the gift should be void than if he had a hope, in the case of sickness, that he would re- cover ; for few men die who are not possessed with a hope of surviving their sickness up to the moment of the final struggle. There is no reason why such a gift is not valid/ Yet " a general apprehension of death from the mortality of men will not be sufficient, but it must be an apprehension arising from the peculiar sickness, or peril, or danger." ^ The threatened danger to his life must be the moving cause of his making the gift.^ 25. " In Extremis." — The old authorities seem to in- cline toward the proposition that a man must be in ex- tremis to make a gift mortis causa valid ; and while some of the modern cases * considers that such a rule would be preferable, they admit that such is not the modern rule.^ *' It is not needful," said Earl, J., " that the gift be made in extremis when there is no time or opportunity to make a will. In many of the reported cases the gift was made weeks, and even months, before the death of the donor when there was abundant time and opportunitv for him to have made a will." ^ 26. Existing Disorder — Burdex of Proof. — "As we have already said it was essential, to make the attempted ^See for a discussion of the phrase ''in peril of death," Robson v. Robson, 3 Del. Ch. 51 ; Craig v. Kittredge, 46 N. H. 57. ''Sheegog v. Perkins, 4 Baxt. 273 ; Gass v. Simpson, 4Coldw. 288. 3 Gass V. Simp.-on, 4 Coldw. 288, 298. * Robson V. Robson, 3 Del. Ch. 51. * Robson V. Robson, 3 Del. 51 ; Gourley r. Linsenbigler, 51 Pa. St. 345 ; Rliodes V. Chikls, 64 Pa. St. 18 ; Williams r. Guile, 117 N. Y. 343, affirming 46 Hun, 645. 6 Ridden v. Thrall, 125 N. Y., p. 579. Donatio Mortis Causa. 29 gift an eflfective gift mortis causa, that the donor should die of the very disorder with which she was suffer- ing when the gift was made, and that there should have been no intervening recovery." Consequently it was held not to be enough to show that the gift was made when the donor was sick, and that she died some three months afterward. The court said that it devolved upon the donee to show that there was no intervening recovery, and that the donor died from the very disease with which she was seized when she made the gift.^ It must be also shown by the donee that the donor made the gift " with a view to and in expectation of death from the existing dis- order.^ But these statements have been severely shaken by a recent decision. In the case under consideration a sufferer from disease was about to undergo a severe surgi- cal operation, but it was not doubtful if he would survive. In view of this fact he made a gift. The oj^eration was performed and he died, but his death was occasioned by heart disease, and it did not appear that the fatal disease had any connection with the operation. " Counsel for the appellant," said Earl, J., "would add one more prerequi- site to an effectual gift, and that is that the donor, when the gift has been made in the apprehension of death from disease must have died of the same disease, and he calls our attention to exj^ressions of judges to that effect. I have examined all the cases to which he refers, and many more, and find that these expressions were all made in cases where the donor died from the same disease from which he apprehended death when he made the gift, and that none of them were needful to the decisions made. 1 Conser v. Snowden, 54 Md. 175 ; Hebb v. Hebb, 5 Gill (Md.), 506 ; Blount v. Burrow, 1 Ves. Jr. 546 ; S. C 4 Be v. C. C. 71. 2 Taylor v. Henry, 48 Md., p. 559; Thompson v. Thompson, 12 Tex. 327; French v. Raymond, 39 Vt. 623. See Grymes v. Hone, 49 N. E. 17, and Williams V. Guile, 117 N. Y. 343, affirming 46 Hun, 645. 30 Gifts. The doctrine meant to be laid down was that the donor must not recover from the disease from which he appre- hended death. I am quite sure that no case can be found in which it was decided that death must ensue from the same disease, and not from some other disease existing at the same time, but not known. There is no reason for this additional prerequisite. The rule is that the donor must not recover from the disease from which he then apprehended death. If he recovers the gift is void ; if he does not re- cover, and the gift is not revoked, it becomes effectual. In this case the condition was that if he did not recover from the consequence of the operation and return from the hospital the gift should take effect. That was a per- fectly lawful condition for him as the owner of the prop- erty to impose, and no reason can be perceived for refusing to uphold a gift made under such circumstances. A donor may have several diseases, and may, in making a gift, apprehend death from one and not from the others, and shall the gift be invalid if before he recovers from the disease feared, he dies from one of the other diseases ? In such a case it might be, and generally would be, diffi- cult, if not impossible, to tell what share any of the dis- eases had in causing the death. No medical skill could ordinarily tell that the donor would have succumbed to the disease feared if the other disease had not been pres- ent. Here the immediate cause of death appeared to be heart disease, and the autopsy did not disclose that there was any connection between the hernia or the operation and the heart disease. But who could tell that the death ^vould have ensued from the heart disease at that particu- lar time but for the operation ? No medical skill can tell that the shock from the operation, and the debility and disturbance caused thereby did not hasten death ; and the death, therefore, in a proper sense, may have ensued, Donatio Mortis Causa. 31 and probably did ensue from both causes. Sound policy requires the laws regulating gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged. AVe, therefore, confine our decision to the precise facts of this case, and we go no further than to hold that when a gift is made in the apprehension of death from some disease from which the donor did not recover, and the apparent immediate cause of death was some other disease with which he was afflicted at the same time, the gift becomes effectual." ^ 27. The Threatened Danger to His Life the Cri- terion — Belief of Donor. — There is no doubt that the donor must consider his life in immediate or almost im- mediate, danger. He must be, at the time of the gift, under the belief that he is in peril of death, or surrounded by threatened dangers from which he has an immediate existing apprehension of death ; and in contemplation of death from sickness, peril or danger, he is thereby moved to make the donation.^ A groundless apprehension of death is as effectual to make a gift conditional as if the danger was real. " No one," said Gibson, C. J., " would hesitate to say that the gift of a man in the predicament of Parolles, when s^^ortively doomed by his friends, in the guise of ferocious enemies, might be recalled." ^ 28. Gift " in Case of Death " When Not in Ap- prehension OF it. — A gift inortis causa, made while the donor is in full health, or while suffering from a disease that in reasonable expectation will not produce death in the near future, is invalid. Thus a deposit made in a J Ridden v. Thrall, 125 N. Y. 572 ; S. C 21 An. St. 758 ; 26 K E. Eep. 627. 2 Gass V. Simpson, 4 Coldw. 288, 298 ; Parthrick x. Friend, 2 Colly, 363, note. 'Nicholas v. Adams, 2 Whart. (Pa.) 17. Donor must be very near death in his belief : Keyl v. Westerhaus, 42 Mo. App. 49. See Nelson v. Sudiek, 40 Mo. App. 341. 32 Gifts. bank, while the donor was in full or medium health, " payable also to A, in case of the death of " the donor, was held to be an invalid gift.^ 29. Surgical Operation. — A donor about to undergo a very severe surgical oj)eration may make a valid gift mortis causa, although he have expectations of surviving the operation ; and it matters not that several days inter- vene between the operation and death, and then he die of another disease." 30. GoiXG ON A Journey. — Expressions are used in the old authorities that if a man is going on a journey or voyage ^ to a distant land, he may make a valid gift ; * but it is safe to say that such is not the law now, and it has been so expressly decided. Thus, where one was about to take a journey from Illinois to Massachusetts, handed a sum of money to another with the request that in case he never returned from his journey, the holder should give it to a designated charitable institution ; and he returned safely, but died without making any further valid disposition of the money, it was held that the foots constituted neither a gift inter vivos nor causa mortis.^ 31. Suicide. — A gift causa mortis made in contempla- tion of suicide is not valid, for the donor's life is not in peril when the gift is made.*' ^ Parcher v. Saco, etc., Savings Inst., 78 Me. 470; Craig v. Kittredge, 46 N. H. 57; Kenistons v. Sceva, 54 N. H. 24. See Blancliard v. Sheldon, 43 Vt. 512; Brown v. Moore, 3 Head, 670 ; Walsh v. Kennedy, 9 Phila. 178 ; S. C. 2 W. N. C. 437 ; 31 Leg. Int. 60 ; Smith v. Smith, 30 N. J. Eq. 564 ; Voorhees v. Combs, 33 K J. L. 494. 2 Ridden v. Thrall, 125 K Y. 572 ; S. C. 21 Am. St. Rep. 758; 26 N. E. Rep. 627, affirming 55 Hun, 185. ^ 2 Reeves Hitt. Common Law, 98. *See tlie question from Bracton, Section 2. ^Roberts r. Draper, 18 Bradw. 167. 6 Earle v. Botsford, 23 N. B. 407. Donatio Ifortis Causa. 33 32. Gift by Reason of Old Age. — In his commeuta- ries Kent says that " the apprehension of death may arise from infirmity or old age, or from external and anticipated danger." He cites the Digest^ to support this state- ment,^ and no other authority. This undoubtedly was the rule of the civil law, but no English or American case can be cited to support it, while on the other hand the statement is expressly denied.^ 33. A Soldier's Gift. — Efforts have been made to enforce the gift of a soldier, made, when he enlisted, upon the condition that, if he never returned from the war for which he enlisted, the gift should become absolute. Thus, an alleged donee of a gun had previously borrowed it of the owner, who. had just enlisted to serve as a soldier in the late war of the rebellion. As he was parting with the claimant, the latter asked him, " What about that gun of yours I have?" when the former answered, "Well, if I never return, you may keep the gun as a present from me." He never returned ; but it was held that the facts did not make a gift, neither inte?^ vivos nor causa mortis} So, where a soldier was home on a furlough, he deliv- ered three promissory notes he held on a third party to the plaintiff : " I give you these notes ; if I never re- turn, they are yours." The donor died in the army at the front. It was held an inter vivos. " The element of ill- ness," said the court, " in any degree does not enter into the case, nor does it come within the category of the conceived near approach of death from an impending or appre- hended peril. The alleged donor was in good health, many hundred miles from the seat of war, and if he 1 Dig. 39, 6, sects. 3, 4, 5, 6. 2 2 Kent Com. 444. 3 Irish r. Nutting, 47 Barb. 370, 385. * Smith V. Dorsey, 38 Ind. 451. 3 34 Gifts. ' snuiFed the battle, the thunder of the captains and the shouting,' it was indeed 'afar off' — too far to give any one not utterly craven-hearted the least apprehension or disturbance. The only expression he made having any relevancy to a possibly expected war was that he was going to a dangerous place and might never return. So it is dangerous to leave home on a railroad journey or a steamboat excursion, or to ride forth after a pair of spirited horses ; but no one would think either of these such an impending peril as to justify a man in giving away his earthly goods, under the conception that death was near at hand if not already knocking at the door. In short, a vague and general impression that death may occur from those casualties which attend all human affairs, but which are still too remote and uncertain to be regarded as objects of present contemj^lation and apprehended danger, is not sufficient to sanction such a gift as the one which is claimed in this case. The party must be in a condition to fear approaching death from a proximate and impend- ing peril, or from illness preceding exi^ected dissolution." ^ But the authorities are divided upon this question. The cases given are where the donor had just enlisted, or where he was returning to his regiment at the expiration of his furlough. In the latter instance it does not appear whether his regiment was in the extreme front, in imme- diate contact with the enemy, or not. But in Tennessee a case somewhat different from those cited above was upheld. There a man left that State, in 1862, for the ^ Irish ?'. Nutting, 47 Barb. 370; Sheldon v. Button, 5 Hun, 110; Dexheimer V. Gautier, 34 How. Pr. 472; S. C. 5 Rob. (N. Y.) 216; Gourley r. Linsenbigler, 51 Pa. St. 345. " In my opinion, tliese latter decisions are clearly correct. If such gifts were valid as donatio causa mortis, on the same ground gifts made at any time by persons having a chronic disease, although in no immediate danger, would be equally good, because their lives are more likely to be shortened than those of persons in health" (Pomeroy Eq. Jur., sect. 1146, note 1). Donatio Mortis Causa. 35 purpose of avoiding the Confederate conscription, and of going to Kentucky and joining tlie Federal army. This he accomplished and died in the front. Before going he, made a conditional gift of a certain sum of money, to be- come absolute in case he never returned ; and the gift was upheld.^ A similar rule seems to have been indorsed in Illinois, where the gift was made at the time of the enlist- ment.^ In Indiana a soldier home on a furlough depos- ited a sum of money, and the depositor executed a written instrument, acknowledging the receipt of the money, promising to pay it on demand, and, in case of the depos- itor's death, agreeing to pay it to the depositor's sister or her guardian. The donor died, and the money was paid over to the guardian according to the agreement. This was held to be a valid gift to the sister, and that her brother who survived the dead soldier was not entitled, as heir, to a part of it.^ 34. Length of Time Ixterventxg Between Gift AND Death. — There is no rule regarding the interval of time between the making of the gift and the death of the donor. The gift must be made by the donor in view of his approaching death ; and this is one of the essential points in the transaction. In one case the donor lived five months after making the gift, and it was held valid. In referring to this fact the court said : " But we are re- ferred to no case or principle that limits the time within which the donor must die to make such a gift valid. The only rule is that he must not recover from that illness. If he do so, the gift is avoided." ^ It is clear that the ^ Giiss V. Simpson, 4 Coldw. 288. 2 Virgin V. Gaither, 42 111. 39. 3 Baker V.Williams, 34 Ind. 547. *Grymes v. Hone, 49 N. Y. 17 ; Williams v. Guile, 117 N. Y. 343, aiErming 46 Hun, 645. 36 Gifts. donor need not be in such extremity as is requisite to give effect to a nuncujDative will ; and the making of a will after the alleged f/o^ia^io causa mortis is not conclusive evi- dence that the gift was not made during such a last sick- ness as the law requires.^ 35. Gift by Deed or in Writing. — In early times a gift causa mortis would not be made in writing or by deed " where the delivery of such writing or deed took the place of an actual manual delivery of the thing given. But it is now settled that such a gift is valid." In such an instance if the donor recover the gift is revoked, even though it be by deed.* Of course there must be a de- livery of the writing or deed, either to the donee or to some person for the donee ; ^ and some authorities hold that there must also be a delivery of the thing given.® The deed or writing cannot serve the 2:)urpose of a will, unless it is executed as the statute of wills requires a will to be executed.'^ 36. Donatio Causa Mortis in Trust for Donee. — A donatio causa mortis may be made in trust for the benefit of the donee. In this respect it does not differ from a gift inter vivos ; ^ but the trust must be a part of ^Nicholas v. Adams, 2 Whart. (Pa.) 17; reversing Adams x\ Nicholas, 1 Miles, 90. See, also, Ridden v. Thrall, 125 N. Y. 572. 2 See Tate v. Hilbert, 2 Ves. Jr., p. 120. 2 Section 75 ; Ward v. Turner, 2 Ves. Sr. 431, 439 ; Ellis v. Secor, 31 Mich. 185 ; Singleton v. Cotton, 23 Geo. 261 ; Burney v. Ball, 24 Geo. 505 ; Kenistons v. Sceva, 54 N. H. 24; Johnson v. Smith, 1 Ves. Sr. 314; Gaunt v. Tucker, 18 Ala. 27. See Farqnharson v. Cave, 2 Colly, 356, 365 note. ^Cnrtiss v. Barrns, 38 Hun, 165; Smith v. Downey, 3 Ired. Eq. 268. ^Kemper v. Kemper, 1 Duv. (Ky.) 401. « Smith V. Downey, 3 Ired. Eq. 268; McGrath r. Reynolds, 116 Mass. 566. Gonira Ellis v. Secor, 31 Mich. 185. 'Smith's Eq. 531. The fact that a gift was made by deed when the donor was sick a-bed and knew he would never recover, does not alone make the gift one cansa mnrtis: Carty v. Connolly, 91 Cal. 15. s Dresser v. Dresser, 46 Me. 48; Dunne v. Boyd, 8 Ir. Eq. 609 (1874). Donatio Jlortis Causa. 37 tlie donation, and be either contemporaneous with it, or be so coupled with it by contemporaneous words of refer- ence as in effect to be incorporated with it/ Where a gift causa mortis was made in trust, directions being given as to the disposition of a part of the money, but none as to tlie remainder, the gift was upheld so far as the direc- tions were specific, and void as to such remainder." 37. A Conditional Gift Implied. — A donatio causa mortis is always a conditional gift — conditioned that the donee survive the donor, and that it is only to be effectual on the death of the donee. It is not necessary, however, that the donor should so expressly limit the gift at the time he makes it, nor in fact at any time. " This bond was given in the extremity of sickness," said Sir John Leach, " and in contemplation of death ; and it is to be inferred that it was the intention of the donor that it should be held as a gift only in case of his death. If a gift is made in expectation of death, there is an implied condition that it is to be held only in the event of death." ^ " The con- dition," said an American court, " need not be expressed, as it is always implied when the gift is made in the extremity of sickness, or in contemplation of death."* A further condition is that the donor may at any time revoke the gift. 38. Conditional Donatio Causa Mortis. — Like a gift inter vivos, a gift causa mortis may be made upon a condition. Tlie expression of the condition, however, 1 Dunne v. Boyd, 8 Jr. Eq. 609 (1874). ^ Beals V. Crowley, 59 Cal. G65. 'Gardner v. Parker, 3 Madd. 102; Edwards v. Jones, 1 My. & Cr. 226; Staniland v. Willott, 3 MacN. & G. 661; Earle v. Botsford, 23 N. B. 407. * Emery r. Clough, 63 N. H. 552; Henschel r. Maurer, 69 Wis. 576; S. C. 2 Am. Et Rep. 757 : Conser r. Snowden, 54 Md., p. 183; Taylor v. Henry, 48 Md., p. 559. See Edwards i'. Jones, 7 Sim. 325, 335. 38 Gifts. must form a part of the donation, and be either contem- poraneous with it, or be so coupled with it by contempo- raneous words of reference as in effect to be incorj^orated with it.^ 39. Gift Inter Vivos During Illness. — Although there is a joresumption that a gift made during the last illness of the donor is a donatio mortis causaf yet this presumption may be overcome, and it be shown that a gift made under such circumstances was in fact an abso- lute gift — a gift inter vivos. " Where a gift of personal property is made with intent to take effect immediately and irrevocably," said the Supreme Court of Wisconsin, " and is fully executed by complete and unconditional delivery, it is certainly binding upon the donor as a gift inte?' vivos, even if the donor at the time is in extremis, and dies soon after." ^ But where such intent is not manifest and the gift is otherwise made, under such circumstances it will ordinarily be regarded as a gift causa mortis." ^ 40, A Will Insufficiently Executed Cannot be Deemed a Donatio Causa Mortis. — If a gift by will fails because the instrument is not executed as the statute requires, it cannot be deemed and construed a donatio causa mortis; and this, too, even though the will only fails because it is improperly attested.^ Thus some 1 Dunne v. Boyd, 8 Ir. Eq. 609 (1874). 2 Gardner v. Parker, 3 Madd. 102. 3 Citing Tate I'. Leithead, Kay, 658, and McCarty v. Kearnan, 86 111. 291 ; Carty V. Connolly, 91 Cal. 15. *Henschel v. Maurer, 69 Wis. 576 ; 2 Am. St. Rep. 757 ; Rliodes v. Cliilds, 64 Pa. St. 23 ; Grymes v. Hone, 49 N. Y. 17 ; S. C. 10 Am. Rep. 313; Dresser v. Dresser, 46 Me. 48. A deed executed on death-bed of donor was held not to be a donatio mortis causa ; and the mere fact that it was thus executed did not cast on the donee the burden of showing that it was not such a gift: Carty v. Connolly, 91 Cal. 15. 5 Mitchell V. Smith, 33 L. J. Ch. 596 ; S. C. 12 W- R. 941 ; 10 L. T. (N. S ) Donatio Mortis Causa. 39 months before his death a testator gave his nephew, who was residing with him, certain promissory notes, of which he was the holder and payee, with the words : " I give you these notes," adding soon after, that S. should have them at his death, but that he wished to be master of tiiem as long as he lived. On the same day all the notes were indorsed w^ith these words : " I bequeath, pay the within contents to S., or his order at my death," and this indorsement was signed by the testator, and attested by a single witness. This was held to be only a testamentary disposition of the pro23erty, which failed through infor- mality, and was not donatio causa mortis ; but it Avas said that if the payee had not expressed an intention to keep the ownership during his life, the disposition might liave been construed as a gift inter vivos in trust for the donor for life, and afterward for the indorsee absolutely.^ 41. Gift of Entire Estate Cannot Be Made Mor- tis Causa. — In Pennsylvania the court declined to up- hold a gift causa mortis of the entire estate of the donor, because it overthrew the provisions of the statute of wills. In that case the donor went to the house of his sister-in- law, taking all her property with her, and rented a room in the house. Some of the articles were in two trunks, others in the band-box, and others hanging in a closet in the room. Three days after making this move, the donor died. Shortly before her death she said, addressing the donee, " I am dying ; all that I have is here, and all is yours ; do everything for me ; there are my keys, take them." The articles in the trunk were worth several 801 ; 4 De. G., J. & S. 422 ; Earle v. Botsford, 23 N. B. 407 ; McGrath v. Rey- nold«, 116 Mass. 566. ' Mitchell V. Smith, supra. If it is the design of the donor that an instrument should operate in his lifetime it will not be construed as a will, though containing expressions like those frequently used in drawing wills : Faulk v. Faulk, 23 Tex. 653. 40 Gifts. hundred, probably two thousand, dollars. " The gift in the case before us," said the court, " professes to embrace all the donor's property, and to be made in prospect of death, and is therefore a will, if it receive the sanction of law. . . , This case is so entirely peculiar in its char- acter that, if we take our statute of wills as the general rule for such dispositions, as we are bound to do, and treat the case of donationes mortis causa as exceptions which are not to be extended by way of analogy, then we are clear of all embarrassment as to the principle on which the case is to be decided. It is not pretended that any gift like this has ever been held good, and it may be safely declared that no mere gift made in prospect of death and professing to j^ass all one's property to another, to take effect after death, can be valid under our statute of wills, no matter what delivery may have accompanied it. If this is not true, then it is j^lain that the statute of wills, so far as it is intended to change all modes of disposing of personal property at death which it does not provide for, is repealed by the decisions of the courts. It is not necessary to point out the danger of sustaining such a donation as this, for no thinking mind can fail to see it, and it was this very consideration that led to the precautions which are provided in the statute on the sub- ject of nuncupative wills. We cannot even glance at the these precautions without seeing that they were designed to defeat a gift sustained by such evidence as was given in this case, and to j^revent oral dispositions in the nature of last wills from being made under such susj)icious cir- cumstances." ^ But of this case it was subsequently said : " In that case there was a variety of chattels — they were not specified — nothing more than a constructive delivery 1 Headley v. Kirby, 18 Pa. St. 326 ; S. C. 1 Araer. L. Reg. (O. S.) 25 ; Marshall V. Berry, 13 Allen, 43 ; Meach v. Meach, 24 Vt. 591. Donatio 2Iortis Causa. 41 occurred — the language was evidently testamentary — and it referred exj)ressly to all her property. In these par- ticulars the case is broadly distinguished from the present, and it does not decide that where a single chattel is the whole of a man's estate, or the ' principal part of his prop- erty,' it may not be given causa mortis. The doctrine of that case, predicated of the circumstances then before the court, is not to be questioned, for it rests on sound rea- sons ; but, if applied to a case like this, it would defeat all gifts made as memorials of gratitude and affection in the most solemn manner." Consequently a gift of the principal part of the donor's property was uplield ; ^ and so has a gift of all his property been held valid.^ 42. Effect of a Eecovery from Illxess. — If the donor recover from the sickness during which he made the gift, the gift is revoked, and he may reclaim it. All the authorities are agreed w^on this point ; ^ for the gift is always made upon the condition, expressed or implied, that it is to be void if the donor recover from his present illness.* In such an instance, upon his recovery the donor may revoke the gift ; and if he do not do so in his lifetime, his personal representative may do so. Thus where the donor recovered and then became insane, it was held that his committee could recover the thing given from the donee.^ The question is one that necessarily arises, what is a recovery ; or what is such a recovery as ^Micliener r. Dale, 23 Pa. St. 59- See Harmon v. Osgood, 151 ^[ass. 501. ''Thomas v. Lewis, 15 S. E. Kep. (Va.) 389. Of course it is void if there are any debts: Wetmore v. Brooks, 18 N. Y. Suiip. 852 (by statute.) 2 Grymes v. Hone, 49 N. Y. 17. * Gardner v. Parker, 3 Madd. 185; Merchant v. Merchant, 2 Bradf. 432; Rhodes v. Childs, 64 Pa. St. 18 ; Thompson v. Thompson, 12 Texas, 327; Smith V. Downey, 3 Ired. Eq. 268; Thomas v. Lewis, 15 S. W. Rep. 389. ^Staniland v. Willott, 3 MacN. & G. 664; Henry v. Fowler, 3 Dal}-, 199. Qucere, does the birth of a posthumous child work a revocation of a donatio morlis causa? Bloomer v. Bloomer, 2 Bradf 339. It certainly does not. 42 Gifts. will defeat the gift ? This is difficult to answer, for there is no light upon the subject. A man who is in imminent peril because of a sickness or disorder that possesses him is usually confined to his bed ; and if he so far recover as to leave his room and his house, and to attend to some of his daily affairs, it cannot be said that the gift is unre- voked. A man with a chronic disease may be afflicted for years wdth his disorder, and may well know and con- sider that he never will recover ; and yet a gift made while he is going about his usual and daily occupations could not be considered as made during his last illness, al- though he might die within the next twenty-four hours. A man having the heart disease severely is usually in imminent peril of death, and still performs all the avoca- tions of a well man ; yet a gift made by him as a donatio mortis causa would not be valid though he were stricken and die within the next three minutes, unless, at the time of the gift, he had clear ]3remonition of his approaching death. Perhaj)s, it may be said that if the donor so far recover that he has such hope of his complete or tempo- rary recovery that he does not consider that he will die of his present severe illness, and believes that he will again recover his accustomed condition of health ; and he so far approaches the condition his belief leads him to be- lieve he will attain as to be able in a measure to re- sume his usual avocations or superintend his affairs, although he does not leave his residence, the gift may be considered revoked. Further than this it is difficult to go. 43. DoxEE Dying Before Donor. — If the donee die before the donor, the gift is avoided and a nullity ; ^ for the gift is upon the condition, imj^lied by law, that the donee survives the donor.^ ^ Gourley v- Linsenbigler, 5 1 Pa. St. 345. ^ Smith «). Ferguson, 90 Ind. 229 ; Huntington v. Gilmore, 14 Barb. 243 ; Jones Donatio 3Iortis Causa. 43 44. Revocatiox During His Lifetime by Doxoe. — All the authorities admit that the donor, at any time during his lifetime, may revoke a donatio mortis causa ; for the gift, although assented to by the donee, is not per- fected until the donor dies/ Of course, a very sick man, fully expecting to die from his then sickness, may make an irrevocable gift inter vivos ; for the fact of his sickness does not i^revent him from so doing ; and if he make such a gift, it is irrevocable after it is perfected. But this rule is made with the proviso that the revocation is made when the donor has mind enough to understand what he is doing ; for a revocation by a donor insane at the time, which is not subsequently ratified by him during a lucid interval, is no revocation ; and the gift would still remain good. Yet if the donee were to acquiesce in the revoca- tion of the donor when insane, and were, at least, to de- liver up the article given, this would amount to an aban- donment on his part ; and he could not again reclaim it, more especially could he not reclaim it after the demise of the donor, who even should die without knowledge of, or a lucid interval betAveen, the revocation and his death. 45. Revocation by Will. — A gift mortis causa, it is said, cannot be revoked by the will of the donor ; and the reason assigned for this is that the will not operating until the donor's death, and such donor, at his decease, is divested of his property in the subject V. Selby, Finch, 300 ; Henschel v. Maurer, 69 Wis. 576 ; S. C. 2 Am. St. Rep. 757 ; Michener v. Dale, 23 Pa. St. 59. See Section 123. 1 Dickeschied v. Bank, 28 W. Va. 340, 360; Emery v. Clough, 63 N. H. 552; Gano V. Fisk, 43 Ohio St. 462 ; Bunn v. Marham, 7 Taunt. 224; Daniel v. Smith, 64 Cal. 346 ; Parish v. Stone, 14 Pick. 198 ; Henschel v. Maurer, 69 Wis. 576 ; S. C. 2 Am. St. Rep. 757. See Section 42. Tliis was the rule of the Roman law: Sandar's Justinian, p. 147. 44 Gifts. of the gift, no right or title in it joasses to his rejDresenta- tives.^ 46. When Title to Thing Given Passes. — Some little confusion has arisen concerning the time when the title to the thing given passes from the donor to the donee. Does it pass at the time delivery is made to the donee, or only when the donor dies ? Or does it pass at the time of the delivery, conditioned that if the donor recover, or revoke the gift, or the donee does not survive the donor, it shall revert to the donor ? There is some confusion in the books on this subject, probably rising from the two rules recognized by the Roman law. At E-ome two modes of donatio mortis causa were recognized. " In one, the subject of the gift was given on condition that it should become the property of the donee in the event of the donor's death; in the other, the subject of the gift became at once the property of the donee, but on condition that he should return it to the donor in the event of his re- covery." ^ The English courts seem to have adopted the former rule. Thus it is said in one reported case that " A donatio mortis causa leaves the whole title in the donor, unless the event occurs which is to divest him." Again : " A party making a donatio mortis causa does not part with the whole interest, save only in a certain event ; and it is of the essence of such a gift that it shall not other- wise take effect." ^ So in a very celebrated case, speaking of the power of the courts to enforce an incomplete gift, Lord Eldon said : " I apprehend that in a case where a donatio mortis causa has been carried into effect by a 1 Emery v. Clough, 63 N. H. 552 ; Jones v. Relby, Finch, 300 [quaere) ; Ham- brooke v. Simmons, 4 Kuss. 25 [quccre); Johnson r. Smith, 1 Ves. Sr. 314. 2 Smith's Equity, 528. 3 Edwards v. Jones, 1 Mylne & Cr. 226. The court liere is ''speaking of the gift itself, and not of the mere act of delivery, or that which is equivalent thereto :" Stanilaad v. Willott, 3 MacN. & G. 664. Donatio Mortis Causa. 45 court of equity, that court of equity lias not considered the interest as vested by the gift, but that the interest is so vested in the donee that that donee has a right to call on a court of equity, and, as to the personal estate, to compel the executor to carry into effect the intention manifested by the person he represents." ^ Some American cases have adopted this rule.^ On the other hand, it is said that the " title to a gift causa moi'tis passes by the de- livery only in the lifetime of the donor, and his death perfects the title in the donee by terminating the donor's right or power of defeasence ;" ^ and this is the better view.* 47. Administratoe, or Executor Has No Control Over Property Given — Proof ii;^ Probate Court. — The property given does not pass to the administrator or executor of the donor. He has no control over it. It is not necessary to prove it in the Probate Court, even though it be in writing or a deed,^ No act or assent on the part of the administrator is necessary. The gift is not taken from him, but against him.^ If the adminis- trator or executor obtain possession of the subject-matter of the gift, he is liable to an action of assumpsit for its value.'^ 48. Contribution with Legatees. — Unlike legacies, if the assets of the estate are insufficient to pay all the I Duffield V. Elwes, 1 Bligh (N. S.), 497, 534 ; S. C. 1 Dow. H. 268. ^ Huntington v. Gilmore, 14 Barb. 243. 3 Emery v. Clough, 63 N. H. 552. * Nicholas v. Adams, 2 AVhart. (Pa.) 17; Marshall r. Berry, 13 Allen, 4.3, 46; Trorliclit v. "Weizenecker, 1 Mo. App. 482; Daniel v. Smith, 64 Cal. 346 ; Parish V. Stone, 14 Pick. 198 ; Devol v. Dye, 123 Ind. 321. The case of Barnes v. People, 25 111. App. 136, is certainly erroneous ; donatio inter vivos, Section 263. 5 Emery v. Clough, 63 N. H. 552 ; Raymond v. Sellick, 10 Conn. 480, 485. «Tate V. Hilbert, 2 Ves. Jr. Ill ; Gaunt v. Tucker, 18 Ala. 27 ; Ashton v. Daw- son, Sel. Ch. Cas. 14; Borneman v. Sidlinger, 18 Me. 225. ' Michener v. Dale, 23 Pa. St. 59. 46 Gifis. legatees, a donee of a gift mortis causa is not liable to con- tribution. He lias his gift at the death of the testator and retains it in full, although every devise under the will must fail because of the lack of assets or property of the estate/ 49. Subject to Donor's Debts. — A donor may not make a gift unless he has left sufficient property to pay his debts. His creditors stand first, the donees second. He must be just before he is generous — just to his credit- ors, generous to his beneficiaries. A donatio mortis causa is always, therefore, liable to be taken to pay the donor's creditors, if there be not sufficient property of his estate to pay them.^ But if the donee is a creditor of the estate it is no defense to an action brought by him to re- cover the property from the administrator, that the gift is necessary to j^ay the donor's debts, where there is a suffi- cient amount of assets left to pay all the other creditors than himself. In such an instance he elects to take the gift rather than to insist that his claim shall be paid.^ He may not, however, insist that both his claim be paid and his gift upheld, if he thereby would deprive any of the other creditors of the amounts due them. 1 Emery v. Clough, 63 N. H. 552 ; Gaunt v. Tucker, 18 Ala. 27. 2 Tate V. Leitliead, Kay, 658; Mitchell v. Pease, 7 Cush. 350; Chase v. Bed- ding, 13 Gray, 418 ; Wetmore v. Brooks, 18 K Y. Supp. 852 (by statute) ; Davis V. Key, 125 Mass. 590 ; ]\Iicliener v. Dale, 23 Pa. St. 59. The creditors may reach the property on trustee process: Harmon v. Osgood, 151 Mass. 501. 3 Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425 ; S. C. 37 Am. Kep. 371. CHAPTER III. DONOR AND DONEE. 50. General Eule — Conversion. 62. Administrator or Executor of Do- 51. Donee Must Be Certain. nor. 52. Infant Donor. 63. Donor's Gift to His Illegitimate 53. Infant Donee. Children or Mistress. 'A. Husband to Wife. 64. Dead Person — Uonee in Ventre sa 55. Wife as Donor. Mere. 56. Wife as Donee of Third Person. 65. Private Corporation. 57. Foreigner as Donee. 66. Gift to Officer of Corporation to 58. Legislature as Donoi-. Unduly Influence His Action. 59. Slave as Donee. 67. Corporation as Donee. 60. Lunatic as Donor. 68. Municipal Corporation as Donor. 61. One of Two Donees or More Inca- 69. Municipal Corporation as Donee. pable of Taking. 50. General Rule — Conversion. — Any one not in- sane, and twenty-one years of age, and not a married woman, may be a donor, as a general rule. Of cour.?e, one not the owner of proj)erty cannot give it away so as to confer a title on the donee any more than he may sell it. A gift of such j^roperty, using all the formalities of a valid gift, including a delivery to the donee, would be a conver- sion, and either the donor or donee, or both, would be liable to the owner for its value. As between the donor and donee, the gift would be valid, as much so as if it were a sale. 51. Donee Must Be Certain. — The object of the donor's bounty must be clearly pointed out, and not rest in mere conjecture or be a matter of speculation. Thus, where a lady drew a check on her son-in-law, who had her moneys in his hands, in favor of her daughter, his wife, but afterward told him to hold the money in trust for his 47 48 Gifts. wife during her life and afterward for her children, it was held that the oral direction superseded the written check, and that, under the oral directions, the objects of the gift were not sufficiently designated/ 52. Infant Donor. — An infant cannot bind himself by a sale of his property, nor can he bind himself by a gift of it. Neither the one nor the other is binding upon him ; and very much less so upon his guardian, when he has one. His guardian may revoke his disposal of his property, both by sale and gift, and recover possession thereof; for the possession of an infant's estate is in his guardian.^ " And it is to be known," says Bracton, " that all jjersons are prohibited to make a donation, who have not a general and free administration of their own affairs, as those minors, who are under guardianship or curator- ship, and who do not know how to regulate themselves, but they may receive (under the authority of a guardian) and may make their own condition better. But they can- not give away, nor make their own condition worse. And for this reason they cannot give away, because they can- not consent to a donation, neither with nor without the authority of a guardian."^ 53. Infant Donee. — An infant may be a donee, and the gift will be binding upon his adult donor. A gift to an infant belongs to the infant and not to his parent ; and the latter may not use the thing given for his own use and benefit. If a minor receives a gift of much value, the usual j)ractice is to have a guardian appointed to take 1 Hughes V. Stubbs, 11 Jnr. N. S. 913; S. C. 13 L. T. N. S. 492. See Eoberts V. Eoberts, 11 Jur. N. S. 992 ; Holeman v. Fort, 3 Strob. Eq. 66 ; Sheedy v. Roach, 124 Mass. 472; Barnura v. Reed, 136 111. 338. ^Borufff. Stipp, 126 Ind. 32. ^ 1 Bract. (Twiss ed.) 94 ; 4 lb. 275. An emancipated minor cannot make a binding gift of his property : Johnson v. Alden, 15 La. Ann. 505. Donor and Donee. 49 charge of the property given.^ But it is easy to see that a gift may entail upon an infant's estate, although it was absolutely unconditional, such a burden and expense that its acceptance would be a positive injury to him. In such an instance the courts would, no doubt, refuse to up- hold it, and this, too, even if his guardian consent to it, in an instance where its acceptance was clearly a burden without adequate comj^ensation." 54. HusBAXD TO Wife. — A husband may make a gift directly to his wife without the intervention of a trustee ; and equity will sustain it. Such a gift may be by deed or by parol ; and may be of personal or real property.^ ^ Keeler v. Fassett, 21 Vt. 539 ; Jackson v. Combs, 7 Cow. 36 ; Miles v. Boyden, 3 Pick. 213 ; Cowell v. Daggett, 97 Mass. 434 ; Kenningliam v. M'Langhlin, 3 Hon. 80 ; Perry v. Carmichael, 9o 111. 519 ; Clark v. Smith, 13 S. C. 585. Brac- ton recotinizes the validity of a gift to a minor : 1 Bract. (Twiss ed.) 93, 101. '•^ A father may give his child his own earnings, at least wlien not in fraud of his creditors : Mo> dy r. Walker, 89 Ala. 619 ; and the son may then make a \'alid contract with him concerning them : Danley v. Kector, 5 Eng. (Ark.) 211. ^ Deraing v. Williams, 26 Conn. 226 ; Slanning v. Style, 3 P. Wms. 334 ; Lucas V. L-icas, 1 Atk. 270 ; Freemantle r. Bankes, 5 Ves. 79 ; Battersbee v. Farrington, 1 Swanst. 106; Latourette v. Williams, 1 Barb. 9; Neufville V.Thomson, 3 I'dw. 92; McKennan r. Phillips, 6 Whart. 571 ; Kee v. Vasser, 2 Ired. Eq. 553; Stan- wood V. Stanwood, 17 Mass. 57 ; Phelps v. Phelps, 20 Pick. 556 ; Adams v. Brack- ett, 5 Met. 280; Jones v. Obenchain, 10 Gratt. 259; Schooler v. Schooler, 18 Mo. App. 69; McCoy v. Hyatt, 80 Mo. 130; Armitage r. Mace, 96 N. Y. 538 ; Phillips V. 'Wooster, 36 N. Y. 412; Whiton r. Snyder, 88 N. Y. 299 ; Shuttle- worth i'. Winter, 55 N. Y. 624 ; San ford r. Finkle, 112 111. 146; Succession of Hale, 26 La. Ann. 195; Hilton v. Morse, 75 Me. 258 ; Lane v. Lane, 76 Me. 521 Tullis V. Fridley, 9 Minn. 79 ; Bradshaw r. Mayfield, 18 Tex. 21 ; Hawkins v Lee, 22 Tex. 544 ; Fitts v. Fitts, 14 Tex. 443 ; Clawson v. Clawson, 25 Tnd. 229 Sims V. Rickets, 35 Ind. 181 ; Kane v. Desmond, 63 Cal. 464 ; Hart v. Roberlson 21 Cal. 346; Hess v. Brown, 111 Pa. St. 124; Walsh v. Cliambers, 13 Mo. App 301 ; Bettes v. Magoon, 85 Mo. 301 ; Ruse v. Bromberg, 88 Ala. 619; Lammons V. Allen, 88 Ala. 417 ; Craig r. Monitor, 76 la. 577 ; Callender v. Horner, 26 Neb. 687 ; Tyrrell r. York, 57 Hun, 292; Fruhauf r. Bendheim, 127 X. Y. 587. Such a gift creates in her a separate estate without words to that effect: Carpenter v. Franklin, 89 Tenn. 142; and when she is his executrix she is not chargeable with it as such: //i re Stevens, 83 Cal. 322 ; Hayes r. Alliance, etc., Ins. Co., 8 Jr. Rep 149 (1881) ; Walter v. Hodge, Wils. Ch.445. "The legal unity of husband and wife have, in Georgia, for most purposes, 4 50 Gifts. Formerly it was held that she could not take a gift from him ; and this arose because of the legal fiction that hus- band and wife are one, and possession by the donee being essential to the validity of every gift, her possession was her husband's, and thus, as toward her, he could not di- vest himself of the possession of the thing given ; and the gift must, therefore, fail/ To this there was an exception in the case of pin money or paraphernalia.^ The earnings of a wife become hers without any express gift, if she is permitted to receive and retain them in her own name for her own benefit.^ been dissolved, and a legal duality established. A wife is a wife, and not a hns- band, as she was formerly. Legislative chemistry has analyzed the conjugal unit, and it is na longer treated as an element, but as a compound. A hnsband can make a gift to his own wife, although she lives in the house with him and at- tends to her household duties, as easily as he can make a present to his neighbor's wife. Tills puts her on an equality witli other ladies, and looks like progress. Under the new order of things, when he induces her to enter into the business of keeping boarders, and promises to let her have all the proceeds, he is allowed to keep liis promise if she keeps the boarders. It would seem that the law ought to tolerate him in being faithful to liis word in such a matter, even though he has pledged it only to his wife, and we think it does :" Chief Justice Bleckley in McNaught v. Anderson, 78 Geo. 499. ' Lucas V. Lucas, 3 Atk. 270 ; Phillips v. Barnet, L. R. 1 Q. B. Div. 436; Roe v. Wilkins, 4 A. & E. 86. Where a statute provided that all her personal property consisting of money should be his so long as it was not invested, and a husband allowed his wife to purchase land with the proceeds of her separate estate, was not conclusive that it was a gift, though title to the land was taken by her in her own name : Yesler v. Hochstettler, 30 Pac. Rep. 398. In New Jersey she may take a mortgage on liis lands through the intervention of a third person: Stoy V. Stoy, 41 N. J. Eq. 370. ^ Burton u Pierpoint, 2 P. Wms. 78; Jervoise v. Jervoise, 17 Bev. 566; Grant V. Grant, 34 L. J. Ch. 641 ; Williams v. Mercier, 9 Q. B. Div. 337; Macqueen's H. & W. 115 ; Sianning v. Style, 3 P. Wms. 333. ^Carpenter v. Franklin, 89 Tenn. 142. Even as against his then existing cred- itors he may make the gift : Trcsch w. Wirtz, 34 N. J. Eq. 124 ; afErmed 36 N. J. Eq. 356 ; Peterson v. Mulford, 36 N. J. L, 481. Contra, Cramer v. Reford, 17 N. J. Eq. 367. Although a wife deliver back a deed-gift of lands to her husband, the lien of a judgment against her at the time will attach: Craig t^. Monitor Plow Works, 76 la. 577. In Mnssachusetts the power of a husband oi- wife to make gifts to each other is limited to a certain amount and of certain property : Pub. Stat., 1882, p. 819, Donor and Donee. 51 bb. Wife as Donor. — Whether or not a Avife's gift of her personal property to a person not her husband is valid depends upon the law of the place without reference to her domicile/ If the common law there })revail3 in its full vigor, then she cannot make a gift without her hus- band's consent ; and this is true of her donatio moi^tis causa, which is put upon the same footing with her will.^ In all such instances, his consent may be inferred from circumstances ; and whether such inference is to be made is ordinarily a question of fact for the jury.^ But she may make a valid gift direct to her husband, and his acceptance is his assent that it may be made ; and sect. 3; Spelman v. Aldricli, 126 Mass. 113; Araer v. Chew, 5 Met. 320; Thompson v. O'rfullivan, 6 Allen, 303; G:iy v. Kingsley, 11 Allen, 345 ; Adams v. Brackett, 5 Met. 280; Marshall v. Jaquiih, 134 Mass. 138 ; Carley v. Green, 12 Al'en, 104; Baxter d. Knowles, 12 Allen, 114; Edgerly v. Whalan, 106 Mass. 307 ; Phelps v. Phelps, 20 Pick. 0.36. 1 Emery v. Clough, 63 N. H. 552. - Jones V. Brown, 34 N. H. 439. " During the life of the husband, it is not settled by decisions, that we aie aware of, how far the powers of the wife extends in giving away or dispoi^ing of her property. It would seem a reasonable rule that when the husband has failed to reduce the property to his possession, from inability as firom its situation, or from want of time, no assent of the husband could be procured, and the wife would have no power to give away the property. But when the wife has continued to retain the control and management of her prop- erty by the assent of the Imsband, then her sale of the property inter vivos might be effectual. On this principle her donatio causa mortis might be good in such a case, unless the rules applicable to legacies should be held to apply. . . . But a donatio causa mortis is of the nature of a legacy. It becomes a valid gift only upon the decease of the donee. Now a married woman, by her husband's assent, may bequeath by will personal property in possession which belonged to her at her marriage, or which had fallen to her afterward : Cutter v. Butler, 5 Fost. (N. H.) 355. A general assent that a wife may make a will, is hardly sufficient. There must ordinarily be evidence of an assent to the particular will which is made by the wife. The assent may be proved by circumstances as well as by direct proof. Thus, if, after the wife's death, the husband suffer the will to be proved, and de- liver the goods accordingly, the testament is good. If tliese principles are ap- plicable, as we think they are, to the case (^f a donatio causa mortis, the lui?-b:ind in tills case wnuld be bound by the gift, by his wife, of the things which he saw divided:" Jones r. Brown, supra; Russ i'. George, 45 N. H. 467; Fettiplace v. Gorges, 1 Ves. Jr. 46; S. C. 3 Bro. C. C. 8. ^ Russ V. George, 45 N. H. 467. 52 Gifts. it is valid unless she can prove fraud, duress, or the like on his part.^ To sustain such a gift the husband must produce cogent evidence of her intention to make it.'^ But if the law of the place where the gift is made gives a married woman the control over and right of disposal of her personal property, free from her husband's control — as many of the married woman's property acts do — then she may give away such property as freely as if she were a feme sole, and she may, no doubt, make of it a donatio mortis causa, for her husband's consent is not es- sential to its transfer or the validity of the gift." So she may, without his consent, even though no enabling statute is in force, make a valid gift, mortis causa even, of her separate personal property.* 1 Lynn n Ashton, 1 R. & M. 188; Essex r. Atkins, 14 Ves. 542 ; Smyley v. Eeese, 53 Ala. 89; Black v. Black, 30 N. J. Eq. 215 ; In re Jones, 6 Biss. 68 ; Lishey v. Lishey, 2 Tenn. Ch. 5. 2 Rich V. Cockell, 9 Ves. 369 ; Rieper v. Rieper, 79 Mo. 352 ; Stiles v. Stiles, 14 Mich. 72; Witbeck v. Witbeck, 25 Mich. 439; Smith v. Osborn, 33 Mich. 410; Hooker v. Axford, 33 Mich. 453 ; Hoxie v. Price, 31 Wis. 82. ^Kilby V. Godwin, 2 Del. Ch. 61. *Kilby ('. Goodwin, 2 Del. Cii. 61. That a married woman may make a gift of her jiroperty to lier husband, s( e, also, Duifee v. McCiurg, G Mich. 223 ; Wales V. Newbould, 9 Mich. 45 ; Penniman v. Perce, 9 Mich. 509 ; Golding v. GoJding, 82 Ky. 51 ; Farmer v. Farmer, 39 N. J. Eq. 211 ; Black v. Black, 30 N. J. Eq. 215 ; Stevens v. Stevens, 2 Hun, 470 ; Little v. Willetts, 37 How. Pr. 481. He has the burden of showing a valid gift ; and the fact that a deed of land was made to him, having been purchased with her money, in the absence of proof that it was so made by her direction, consent, or knowledge, i,s no evidence of a gift, and war- rants no presumption against her interest : AVales?;. Newiionld, ^^j^-a. Proof of mere use by the husband does not establish the gift: "Whiter Zane, 10 Mich. 333. But if she permit it to become so mingled with his that it cannot be dis- tinguislied, it is a relinquishment to him so far as his creditors are concerned : Glover v. Alcott, 11 Mich. 470; Carew v. Mathews, 49 Mich. 302 ; Zinn v. Law, 32 W^. Va. 447. But a wife who contributes money for the purchase of land, and allows a deed for it to be taken in his name, she not insisting upon any agree- ment that the land was hers, will, after his death, be conclude d from insisting that the land is lier own : Campbell v. Campbell, 21 Mich. 43S. But, see, Le- land V. Walker, 23 Mich. 324, as to securities taken in his name A wife who purchased furniture with her separate estate and put-' it in the husband's posses- sion made therelv a gift of it so far as his crtditors were concerned: Shirley v. Donor and Donee. 53 5^. Wife as Donee of Thied Persons. — Previous to the enactment of the usual married woman's property acts, a wife coukl not take a gift from a donor who was not her husband unless the latter assented to it. Such a gift vested the title to the property in her husband by reason of his marital rights, and consequently he had the right to say whether he would be the recipient of a gift. So his consent was necessary, although the property was expressly given for the sole and separate use of the wife, independent of his control ; but if so given such property was beyond his or her creditors' control.^ 57. Foreigner as a Donee. — In Louisiana, when the civil law was in force, it was decided that a resident and native of France could take a gift mortis causa, the laws of that country allowing an American to take such a gift Shirley, 9 Paige Ch. 363, previous to the passage of an act enabling her to hold her property free from his right to reduce her property to liis possession ; but after the passage of such a law, such conduct on her part is not a gift : Fitch v. Eathbun, 61 N. Y. 679. A husband who receives money belonging to his wife receives it as her agent, and upon the presumption thus raised she may recover it. If she expend it on his lands or for his use or benefit, without any agreement, it will be regarded a gift. If she expend It on liis 1 nds, independent of any agreement or promise, for the purpose of securing herself a home, and he drives her from his house, equity will give her relief; otherwise if she desert him: Black v. Black, 30 N. J. Eq. 215 ; Grantliam v. Grantham, 34 S. C. 504. A husband is entitled to his wife's service in the family : Black v. Black, supra. In some States she may make a conveyance of land directly to him : Allen v. Hooper, 50 Me. 371, but this cannot be done without an enabling statute : Kinna- man v. Pyle, 44 Ind. 275 ; Luntz v. Greve, 102 Ind. 173 ; Hunt v. Johnson. 44 N. Y. 27 ; S. C. 4 Am. Rep. 631. In Missouri a parol gift by a husband to his wife is void: McGuire v. Allen, IS S. W. Rep. 282. A husband on leaving the State executed a valid bill of sale for all his per- sonal property; and his wife, fir a valuable consideration, obtained possession of this bill of sale, whereupon he returned and took possession of the property. It was held that she had not given him the property described in the bill of sale : Paul V. Jennings, 23 Atl. Rep. 483. 1 In Matter of Grant, 2 Story, 312 ; S. C. 5 L. Rep. 11 ; Jarry v. Trust and Loan Co., 1 1 L. Can. Rep. 7. 54 Gifts. from a native and inhabitant of France.^ But in another case the court seems to have been of opinion that, even though a native of this country could not take a gift in a foreign country, yet a native and inhabitant of tliat country was not for that reason incapacitated from taking a gift in this country.^ There is, however, nothing in the common law which prevents a foreigner from being a donee of personal property ; but in nearly all countries where the common law prevails a foreigner cannot be the donee or grantee of real estate. 58. Legislature as Donor. — Unless restrained by the Constitution, the Legislature of a State may make a gift of the property of the State, either to an individual or to a corporation.^ 59. Slave as Donee. — Under several laws of the Southern States, a slave could not be the donee of prop- erty, for the property of a slave belonged to his master ; * but this did not i^revent him from receiving a gift of his own liberty.^ 60. Lunatic as Donor. — A lunatic can no more make a gift of his property than he can sell it; but just as he ^ Succession of Mager, 12 Rob. -584. ''Duke of Richmond v. Milne, 17 La. 312. ^ Yosemite Stage, etc., Co. v. Dunn, 83 Cal. 264. The case involved the validity of a right of way through the Yosemite Valley Reservation. Pay for extra services performed by porters, pages, watchmen, and doorkeepers of a Legislature, rendered during a session of the Legislature, is a gift within the prohibition of the Constitution of California: Robinson v. Dunn, 77 Cal. 473. So the Legisla- ture cannot make a gift to a person injured in the service of the State : Bouin r. Hart, 93 Cal. 321. But if services rendered a State are valid the court cannot hear evidence that an appropriation to pay fur them was in fact a gift : Stevenson t;. Colgan. 91 Cal. 649. What is not a gift in violation of the Constitution of South Dakota: see Cutting v. Taylor, 51 N. W. Rep. 949. *Valsain v. Cloutier, 3 La. 176; Cole v. Lucas, 2 La. Ann. 946; Lange v. Richoux, 6 La. 560; Blakely v. Tisdale, 14 Rich. Eq. 90. ^ Prudence v. Bermodi, 1 La. 240; Pauline r. Hubert, 14 La. Ann. 161 ; Maver- ick V. Stokes, 2 Bay (S, C), 511. Donor and Donee, 55 may make a sale of it or will of it in a lucid interval, so he may make a gift of it ; and the person attacking the validity of his gift upon the ground of his insanity has the burden of showing his incapacity to make the gift.' 61. One of Two or More Donees Incapable of Taking. — If one of two or more donees is incapable of taking the gift, the other takes the whole ; and so, if land be given to a father and son and there be no son, it is said that the father takes it all.^ 62. Administrator or Executor of Donor. — The administrator or executor of a donor may take a gift from his decedent the same as any other person. In such an instance, however, he is called upon to make clear proof of the gift ; for his possession is presumed to have been derived from his donor as his personal representative and not in his own right.^ 63. Donor's Gift to His Illegitimate Children or Mistress. — In some of the Southern States, statutes were enacted forbidding gifts, in whole or in part, from the donor to his mistress or to his illegitimate children. The construction usually placed upon these statutes was that the gifts were void only at the election of the donor's wife and legitimate children, and if they failed to avoid it the next of kin of the donor could not do so.^ 64. Dead Person — Donee in Ventre sa Mere. — A gift cannot be made to a dead person, not even a ^ Hebert v. Winn, 24 La. Ann. 385 ; Vandor v. Roach, 73 Cal. 614 ; Bedell v. Carll, 33 N. Y. 581. See Case IX, Jenkins, 108, 109. ^Shelly's Case, 1 Coke Rep., p. 101, citing 17 E. 3, fol. 29, ed. 18, E. I. 59. 3 Estate of Corson, 137 Pa. St. 160; Estate of Stewart, 137 Pa. St. 175. *Ford V. McElray. 1 Rich. Eq. 474; Breithaupt v. Bauskett, 1 Rich. Eq. 465; Taylor v. McRa, 3 Rich. Eq. 96 ; King i'. Johnson, 2 Hill Ch. 624 ; Hull v. Hull, 2 Strobh. Eq. 174. 56 Gifts. winding sheet for his body ; for a dead person has no power to accept it/ Nor can one be made to an unborn infant.^ Qb. Private Corporation. — Tlie funds and property of private corporations constitute a trust fund for the benefit of the stockholders, and any disposal of them in violation of that trust is illegal and may be avoided. Therefore, a gift of the funds of the corporation by the directors is a direct violation of the trust unless the char- ter of the corporation authorizes the disposition of such funds in that way.^ Nor can the directors condone a misapplication of the corj)orate funds ; * nor can a majority of the stockholders authorize a donation of the property of the corporation to another corporation, in which new corporation such majority of stockholders are also stock- holders.^ So a stockholder may enjoin a railroad offering to donate its funds to an exhibition which it is claimed will increase the corporate receipts if established.^ So back pay, not agreed uj^on at the time he accepted the office, and which was not an inducement to his acceptance, cannot be given to an officer of a corporation.'^ When- ^ Hay lie's Case, 12 Coke Rep. 113. ^Da[)ree v. Dupree, Btisb. Eq. 164. ^ Frankfort Bank v. Johnson, 24 Me. 490 ; AVardens, etc., St. James' Church V. Rector, etc., 45 Barb. 35G; Salem Bank v. Gloucester Bank, 17 Mass. 1 ; Jones V. Morrison, 31 Minn. 140; Minor v. Mechanics' Bank, 1 Pet. 46, 71. * Minor v. Mechanics' Bank, 1 Pet. 46, 71. * Polar Star Lodge v. Polar Star Lodge, 16 La. Ann. 53. ® Torapkinson v. South, etc., Ry., 35 Ch. Div. 635. But see State Board of Agri- culture V. Citizens' St. Ry., 47 Ind. 407, where such a subscription was enforced. 'American, etc., Ry. Co. v. Miles, 52 III. 174; Merrick v. Peru Coal Co., 61 111.472; Holland t*. Lewiston, etc.. Bank, 52 Me. 564; Bennett v. St. Louis, etc., Co., 19 Mo. App. 349 ; Barrill v. Calendar, etc., Co., 50 Hiin, 257 ; Ogden v. Murray, 39 N. Y. 202; Blatchford v. Ross, 5 Abb. Pr. N. S. 434; Commonwealth Ins. Co. V. Crane, 6 Met. 64 ; Jones i'. Morrison, 31 Minn. 140 ; Kilpatrick v. Pen- rose, etc., Co., 49 Pa. St. 118 ; Maux, etc., Co. v. Branegan, 40 Ind. 3()1 ; Smith ?•. Woodville, etc., Co., 66 Cal. 398; Holder v. Lafayette, etc., Ry. Co., 71 111. 106; Citizens' Nat. Bank v. Elliott, 55 la. 104; Loan Asso. i'. Stonemetz, 29 Pa. St. 534; Donor and Donee. 57 ever an agent or officer of a corporation accepts a gift to unduly influence his action in corporate matters, the cor- poration is entitled to it or its proceeds and may maintain an action for that purpose/ So, if a cor^^oration is formed for the purpose of purchasing a patent and using it in manufacturing articles or the like, and the promoters of such corporation elect their friends directors, and give them money or stock of the corj)oration in compensation therefor, the gift is void ; and such directors must account for the money received, or, on winding up the company, pay for the stock at the highest figure it reached between the time w^hen the gift Avas made and when the corporation is wound uj).^ 6G. Gift to Officer of Corporation to Unduly In- fluence His Action. — An officer of a corporation can- not secretly accept a gift the acceptance of which is con- ditioned upon his binding the corporation to do or not to do a particular thing. Such an action on his j)art is a betrayal of his trust ; and he may be compelled to account to the corporation either for the gift or its value. Thus Illinois Co. v. Hough, 91 111. 63; Gridley v. Lafayette, etc., Ey. Co., 71 111. 200; Hulton V. West, etc., Ry. Co., L. R. 23 Ch. Div. 654 ; Northeastern Ry. Co. r. Jack- son, 19 W. R. 198 ; New York, etc., Co. v. Ketchum, 27 Conn. 170 ; Lafayette, etc., Co. V. Cheeney, 87 111. 446. But the grant of an annuity to a disabled clerk has heen upheld : Clarke v. Imperial, etc., Co., 4 B. & Ad. 315 ; so a gift to a deceased superintendent of a bank: Henderson v. Bank, 59 L. J. (( h.) 794. ^ Tyrrell v. Bank of London, 10 H. L. 26 ; General Exchange Bank v. Horner, 39 L. J. (Ch.) 393 ; In re St.ipleford, 49 L. J. (Ch.) 253 ; Boston, etc., Co. v. Ansell, 59 L. J. Re}). 345 ; Sheriddn v. Sheridan, etc., Co., 38 Hun, 396 ; Imperial, etc., Asso. V. Coleman, L. R. 6 App. Cas. 189; Bank of London v. Tyrrell, 5 Jur. (N. S.) 924; Jacobus v. Munn, 37 N. J. Eq. 48. 2 Pearson's Case, L. R. 5 Ch. Div. 336; 25 W. R. 618; affinuing S. C. 4 Ch. Div. 2-22; Metcalf's Case, L. R. 13 Ch. Div. 109; Leeke's Case, L. R. 10 Cli. App. 469 ; Ex parte Pelly, L. R. 21 Ch. Div. 492 ; De Ruvigne's Case, L. R. 5 Ch. Div. 306; Hay's Case, L. R. 10 Ch. App. 593; Oremerod's Case, 25 W. R. 705; McKay's Case, L. R. 2 Ch. Div. 1 ; Weston's Case, L. R. 10 Ch. Div. 579 ; Clarke's Case, 37 L. J. (N. S.) 222. 58 Gifts. if a director receives a commission from a person obtain- ing a loan from the corporation through the director's in- fluence, the latter must account to the corporation for the amount thus received by him.^ So where the director of a railway receives a bonus for the location of its road at a certain place." So for bringing about a consolidation of two corajDanies.^ So where a director of an insolvent cor- j^oration accepts a gift for secretly reinsuring the com- pany's risks in a certain other insurance company.^ Nor can a corporation make a present to one of its retired offi- cers, or even to one still serving it, for past services.^ 67. CoKPORATiON AS DoNEE. — A Corporation may be a donee, having full power to accept any gift not foreign to the object of its incorporation ; ^ but it cannot claim the benefit of a gift made before it was incorporated where the donor die before its organization.'^ 68. Municipal Corpoeation as Donor. — A muni- cipal corporation, unless expressly authorized by its charter or a statute, cannot make a donation of its property, money or bonds.^ Thus a borough council cannot use the corporate ^ Farmers, etc., Bank v. Downey, 53 Cal. 466 ; Imperial, etc., Assn. v. Coleman, L. R G H. L. 189. '^Bestor v. Wathen, 60 111. 13S; Linder v. Carpenter, 62 111. 309; Fuller v. Dame, 18 Pick. 472; Holladay v. Patterson, 5 Greg. 177. 'Gaskell V. Chambers, 26 Beav. ',lQ>y); General Exchange Bank v. Homer, 39 L. J. (Ch.) 393. But not so if all concerned assented: Soiithall v. British, etc., Asso., L R. 6 A pp. 614. * Bent V. Priest, 86 Mo. 475. 5 Henderson v. Bank, 40 Ch. Div. 170 ; S. C. 58 L. J. Cii. 197 ; 59 L. J. 856 ; 37 W. R. 332 ; Ellis v. Ward, 25 N. E. Rep. 530 ; Beers v. New York Life Ins. Co., 20 N. Y. Supp. 788. ^ Williams v. Western Star Lodge, 38 La. Ann. 620 ; De Camp r. Dobbins, 31 N. J. Eq 671 ; Cruse v. Axtell, 50 Ind. 49; Baker r. Clark Inst., 110 Mass. 88 ; Miller V. Chittenden, 2 la. 315; Vansant ?■. Roberts, 3 Md. 119. 'Succession of Hardesty, 22 La. Ann. 3.')2. 8Bissell V. City of Kankakee, 64 111. 2J0 ; English r. People, 96 111. 566; Mather v. City of Ottawa, 114 111. 659; Tash v. Adams, 10 Cush. 252 ; Hood v. Lynn, 1 Allen, 103; Gerry v. Stoneham, 1 Allen, 319. Donor and Donee. 59 funds for the purchase of a gold chain to present the re- tiring mayor/ So a municipal corporation cannot, with- out a statute authorizing it, make a donation of the cor- jDorate funds for the purpose of providing a Fourth of July celebration for the inhabitants of such municipality, even though such practice has been followed for years.^ But a corporation, when authorized by statute, may donate money or bonds to hire volunteers in defense of the county against a rebellion to enable it to fill its quota of men under the calls of the President for troops, and thereby avoid an anticipated draft.^ It cannot make such a dona- tion without a statute expressly authorizing it ; * but if it do its acts may be ratified by the Legislature and rendered legal.^ 69. Municipal Corporations as Donee. — If there is no statute prohibiting it, a municipal corporation may take and accept a gift, whether made orally, by deed or by devise, the same as an individual.^ Thus a gift of money for repairing the highways of a town is valid ; '^ so 1 Attorney-General v. Batley, 2G L. J. (N. S.) 392. " Hood V. Lynn, 1 Allen, 103. 'Speert'. School Directors, 50 Pa. St. loO; Hilbish r. Catherman, 64 Pa. St. 154 ; State v. Richland Twp., 20 Ohio St. 362 ; Thompson v. Pittson, 59 Me. 545 ; Broadhead v Milwaukee, 19 Wis. (324 ; State i-. Tappan, 29 Wis. 664; S. C. 9 Am. Rep. 622 ; Sperry v. Horr, 32 la. 184 ; Booth v. Woodbury, 32 Conn. 118 ; Shackford v. Newington, 46 N. II. 415; Lowell v. Oliver, 8 Allen, 247; Freeland V. Hastings, 10 Allen, 570; Comer r. Folsom, 13 Minn. 219; Dayton v. Rounds, 27 Mich. 82; Veagie v. China, 50 Me. 518 ; Clark Co. v. Lawrence, 63 111. 32, 40; Bowles V. Landaff, 59 N. H. 164; Gould v. Raymond, 59 N. H 260. * Stetson V. Kempton, 13 Mass. 272; Fiske v. Hazzard, 7 R. I. 438 ; Shackford V. Newington, 46 N. H. 415. ^ Booth V. Woodbury, 32 Conn. 118 ; Knnkle v. Franklin, 13 Minn. 127 ; Comer V. Folsom, 13 Minn. 219; Hibish r. Catherman, 64 Pa. St. 154. « Sargent v. Cornish, 54 N. H. 18 ; Chambers v. St. Louis, 29 Mo. 543; Town of Haraden v. Rice, 24 Conn. 350 ; Perin v. Carey, 24 How. 465 ; Worcester v. Eaton, 13 Mass. 371 ; Downing v. Marshall, 23 N. Y. 366 ; Sutton v. Cole, 3 Pick. 232; Fox's Will, 52 N. Y. 530; S. C. 94 U. S. 315; American Bible Society v. Marshall, 15 Ohio St. 537. ■f Town of Hamden v. Rice, 24 Conn. 350. 60 Gifis. for bridges ; ^ to build a town hall ; ^ of a sum of money, the income of which to be expended in the purchase of United States flags for display on all proper occasions ; ^ for the maintenance of schools ; ^ for the education of the poor ;^ for a school-house ; ^ for a court-house and jail ; ^ for a public common ; ^ and for prospecting for and devel- oping a coal mine near it.'' ' James v. Allen, 3 Meriv. 16 ; Kelley v. Kennard, 60 N. H. 1. 2 Coggeshall v. Pelton, 7 John. Ch. 292 ; French v. Quincy, 3 Allen, 9. ^ Sargent v. Cornish, 54 N. H. 18. * Sutton, First Parish of, v. Cole, 3 Pick. 232 ; Dunbar v. Soule, 129 Mass. 284. "McDonogh Will Case, 15 How. 367 ; Le Couteaulx v. Buffalo, 33 N. Y. 333. ^Castleton v. Langdon, 19 Vt. 210. ' Jackson v. Pike, 9 Cow. 69. 8 State V. Atkinson, 24 Vt. 448. ^Delaney r. Salina, 34 Kan. 532. Inasmuch as a gift to a municipal corpora- tion to be held in trust for a specified purpose is not, in fact, a gift to the corpo- ration, we omit a discussion, referring the reader to Dillon's Munc. Corp., sects. 566 to 574 (4tli ed.). Such transactions are, in fact, contracts. CHAPTER IV. INTENTION AND PROMISE. 70. Intent Essential to Validity of Gift. 70. Gift Inter Vivos to Take Effect in 71. Expression of Intent. tlie Future. 72. Mere Intention to Make a Gift. 77. Gift of Property Not Yet Owned 73. Concealed Intention. by Donor. 74. Promise to Make a Gift. 78. Gift Inter Vivos to Take Effect 75. Intention to Give Must be Clear After Death of Donor. —Proof 70. Intent Essential to Validity of Gift. — An intention on the part of tlie donor to make the gift in question, and an intent on the part of the donee to accept as a gift, is essential to its validity.^ If the donor had no intent to make a gift, or if the donee had no intention to accept the thing given as a gift, there is no gift executed ; for both the intent to give and an intent to accept are essentials to every gift. But if the donor has no intent to give, yet the donee, not aware of his intentions, and supposing the transaction is a gift, accepts it as such, the donor, if the donee, before aware of the actual intent of the donor, were to expend money and labor, or either, upon the thing given, might be estopped from claiming the transaction was not a gift, if ho lias been negligent in misleading the donee into the belief tliat tlie transaction was only a gift ; still if he had not been negligent in so misleading him, yet knowingly permitted him to labor under the belief that it was a gift, he would be estopped in reclaiming the thing given. For manifestly to allow the donee to expend money or labor upon the article he supposes to be a gift to him would be inequitable and 1 See Sections 79, 82. 61 62 Gifts. unjust ; and a court of equity would not tolerate such con- duct. Usually the intention to give is openly expressed by the donor. Most men desire full credit from the donee for the favor they have done him ; and do not hesitate to inform him that they are then making him a gift. Such expressions of intention are always admissible as a part of the res gestae} And so, as has been elsewhere shown,^ prior and subsequent declarations by the donor, showinsr his intentions are admissible in evidence when the validity of the gift is drawn in question. The intent, however, may follow the delivery ; for, as has been shown, ^ if the owner of a chattel deliver it to another, and afterward inform him that he may keep it as a gift, and it is so accepted by such other person, there is a good gift, although no intent to make a gift existed at the time of delivery.^ 71. Expression of Intention. — Loose expressions have been used with reference to the declaration by the donor of his intent to make the gift ; and it is scarcely believed that the authors of them meant the full force of the mean- ing their language conveys. Thus it is common to say that " to constitute a gift, there must be an expression of intention to make a gift." ^ But it is believed that such is not the invariable rule, if it is meant thereby that there 1 In Matter of Ward, 2 Redf. 251 ; Booth v. Cornell, 2 Redf. 261 ; Fiero r. Fiero, 5 T. & C. 151 ; Reed v. Reed, 52 N. Y. 651 ; Bedell v. Carll, 33 N. Y. 581 ; Shnttleworth v. Winter, 55 N. Y. 624; Irish v. Nutting 47 Barb. 370 ; Stevens v. Stevens, 2 Redf. 265 ; Williams v. Guile, 117 N. Y. 343. affirming 46 Hun, 645 ; Hooper v. Goodwin, 1 Wils. Ch. 212; S. C. 1 Swanst. 486. 2 See Sections 222, 223, 224. ^See Section 152. *See Armitage i'. M;ice, 14 J. & S. (N. Y.) 550. If the intent to give is doubt- ful, but consistent with any other theory, the gift is void : Morse v. Meston, 152 Mass. 5. 5 Stevens v. Stevens, 2 Redf. 265, 277 ; In Matter of Ward, 2 Redf. 251. See Section 236. Intention and Promise. 63 must be a verbal expression of an intent. The intention to give may be ascertained or may be made apparent or conveyed to the donee in other ways than by the use of verbal or written language. A look, accompanying the act of delivery, may be sufficient ; or permitting the arti- cle to remain for a long time in the possession of the do- nee, accompanied by a failure to demand possession of it, may be sufficient when accompanied by other indicia of a gift. In all instances of alleged gifts the question of in- tention is one of fact for the jury, or the court when the jury is waived.^ Thus in South Carolina, during the period of slavery, by a parent's merely putting his daughter, at her marriage, in possession of a slave, with- out reserving the right to reclaim it, or otherwise qualify- ing the possession, an intention to give was presumed.^ 72. Mere Intention to ^Iake a Gift. — While an intention, either secretly entertained or ojoenly expressed, to make a gift, is essential to its validity, yet a mere in- tention is not of itself sufficient to make a valid gift.^ "A declaration of an intention to give is not a gift." ■* " To make a complete gift, there must not only be a clear in- tention, but the intention must be executed, and carried into effect." ^ In another case it was said : " The evi- dence establishes only a clear intention to relinquish ; the testator meant to do a further act ; he Avas preparing to do it ; it was not done ; the court cannot supply it." ^ » M'Cluney v. Lockhart, 4 McCord (S. C), 251. "^ Edings V. Wlialey, 1 Rich. Eq. (S. C.) 301 ; Morisev r. Bunting, 1 Dev. L. (N. C.) 3. ^ Mnhan v. .Jane, 2 Bibb. 32 (intention expressed to free a slave) ; May v. Mav, 36 111. App. 77. * Northrop v. Hale, 73 Me. 66 ; Tomlinson v. Ellison, 104 Mo. 105 ; Duncombe V. Richards, 46 Mich. 1G6. ^Cotteen v. Missing, 1 Madd. Ch. 103; Hooper v. Goodwin, 1 Swanst. 486. ^Hooper v. Goodwin, 1 Swanst. 485; Parish r. Stone, 14 Pick. 198; Pope r. Burlington Savings Bank, 56 Vt. 284; S. C. 48 Amer. R. 781 ; Board, etc., t>. 64 Gifts. This rule applies both to a gift inter vivos and mortis causa} 111 such instances, in order to j)erfect the gift, there must be a delivery by the donor to the donee, a renunci- ation, expressly or impliedly, by him of all dominion over the thing given, and an acceptance by the donee.^ Nor does it make any difference in the rule if the inten- tion is reduced to writing.^ 73. Concealed Intention. — The donor's intention to make a gift must be in some way conveyed to the donee, so he may understandingly accept the thing tendered as a gift. If it is not made manifest to him, there is no gift. Thus, if A make a claim on B, and B delivers his promis- sory note to A, and by his words or acts induces A rea- sonably to understand that it is delivered in settlement of the claim, it is no defense to an action on the note that B secretly intended it as a gift.* 74. Promise to Make a Gift. — So a promise, unsup- ported by a valid consideration, to make a gift does not constitute a gift ; nor can such a promise be enforced,^ even though the promise be made in writing, and the writing delivered to and accejDted by the donee.° This rule Auditor-General, 68 Mich. 659; "Williamsons. Colcord, 1 flask. 620; Hooper r. Goodwin, 1 Wils. Ch. 212; S. C. 1 Swanst. 486; Brownlee v. Fen wick, 103 Mo. 420. 1 Egerton v. Egerton, 2 C. E. Gr. 419. 2 r,riuk V. Gould, 43 How. Pr. 289 ; Jackson v. Twenty-third Street Ry. Co., 88 N. Y. 520 ; Bedell v. Carll, 33 N. Y. 581 ; Nolen v. Harden, 43 Ark. 307. ^ Harmon r. James, 7 'nd. 263; Cotteen v. Missing, 1 Madd. Ch. 103. *Nye V. Chace, L39 Mass. 379. ^ Walker v. Crews. 73 Ala. 41 2 ; May r. May, 36 111. App. 77 ; Doty v. "Willson, 47 N. Y. 580 ; Hunter v. Hunter, 19 Barb. 631 ; Williamson v. Colcord, 1 Hask. 620 ; Lee v. Luther, 3 Woodb. & M. 519 ; Williams v. Barton, 13 La. 409 ; Grice V. Pearson, 7 La. Ann. 94 ; Bush v. Decuir, 11 La. Ann. 503. ^Mercer v. Mercer, 29 la. 557 ; Sanilac Co. v. Auditor-General, 68 Mich. 659. A promise to a minor that if he would not drink, smoke, or play cards for money, or play billiards, until he is twenty-one years of age, he, the promisor, would Intention and Promise. 65 applies to a gift mortis causa^ even though death take effect so soon after the making of the promise as to prevent a delivery.^ But where a husband and wife conveyed lands of the former to a third person, at the request of the lat- ter, under a j)romise of the grantee to pay off certain liens on the premises, and then convey them to the wife ; and the grantee paid off the liens, such payment was held to constitute an executed gift to the wife, and not a mere promise to make the gift.^ A 2:)romise to give may, however, be made valid by a devise of the thing given.'* 75. I:s"TEjsrTiox to Give Must be Clear — Proof. — In order to uphold a gift, especially one mortis causa, the in- tention to make it must be clearly shown — there must be " a clear intention to give." ^ UsUally such intention is shown by proof of the donor's declarations,'' which is treated at length elsewhere.'^ So the relations of the donor and donee, their regard for each other, and ex- pressions of like and dislike, love and aversion, may be proved to show the donor's intent, on the one hand, or to rebut the claim that he had an intention to give, on the otlier.^ give a certain sum on that day, is only a promise to give and not binding: Hamer v. Sidway, .57 Hun, 229 ; Keyl v. Westerhaus, 42 Mo. App. 49. 1 Coxt). Hill, 6 Md. 274, 284; Fearing v. .Jones, 149 Mass. 12. 2 Hooper r. Goodwin, 1 Wils. Cli. 212; S. C. 1 Swanst. 486. 3 White V. Cannon, 125 111. 412. * Decker v. Waterman, 67 Barb. 460. A loan of money at the highest rate of interest, made under tlie inducement of a promise by the borrower that he will make a valuable gift of personal property to the lender, is usurious: Hendrick- son V. Godsey, 54 Ark. 155. M':gerton v. Egerton, 2 C. E. Gr. 419; In Matter of Ward, 2 Eedf. 251; Stevens v. Stevens, 2 Redf. 265; Green v. Carlill, 4 Ch. Div. 882; S. C. 46 L. J. Ch. 477. 6 Powell V. Olds, 9 Ala. 861 ; Olds v. Powell, 7Ala. 652. ^ See Sections 222, 223, 224. « Conner v. Root, 11 Colo. 183. 5 / 66 Gifts. 76. Gift Intek Vivos Takes Effect in the Future. — A gift intei^ vivos to be valid must take effect at once/ and there must be nothing to be done essential to the validity ; ^ for if it is to take effect in the future, there is no gift, but only a promise to give.^ So a gift to take effect at the death of the donor is void.* Instructions by the donor to his agent or administrator to deliver uj) the property at a future date, or after his death, is also ineffectual to make a valid gift.^ 77. Gift of Peoperty Not Yet Owned by the Donor. — A donation of property not at tlie time owned by the donor is a nullity, for a gift can only be of present property.^ But a conditioned vendee may make a gift of the jDroperty purchased.'^ So the owner of an animal may give it by deed to one person and its increase there- after born to another.^ 78. Gift Inter Vivos to Take Effect After Death of Donor. — A verbal gift to take effect after the death of the donor, unaccompanied by delivery, and not to be delivered nor to be the property of the donee until after ^ McFarlane v. Flinn, 8 Nov. Sco. 1G2 ; Smith v. Dorsey, 38 Ind. 451 ; Hynson V. Terry, 1 Ark. 83 ; Reed v. Spaulding, 42 N. H. 114; Payne v. Powell, 5 Bush. 248; Allen v. Polereczky, 31 Me. 338. 2 Smith V. Dorsey, 38 Ind. 451 ; Kidder v. Kidder, 33 Pa. St. 268. ^Spencer v. Vance, 57 Mo. 427 ; Bennett r. Cook, 28 S. C. 353; Vogel v. Gast, 20 Mo. App. 104; Roberts v. Draper, 18 Bradw. 167; Dole v. Lincoln, 31 Me. 422; Campbell's Estate, 7 Pa. St. 100. * Frost V. Frost, 33 Vt. 639. 5 Campbell's Estate, 7 Pa. St. 100; Kidder v. Kidder, 33 Pa. St. 268; Trough's Estate, 75 Pa. St. 115; Zimmerman v. Streeper, 75 Pa. St. 147; S. C. 5 Leg. Gaz. 126. ''Soileau v. Rougeau, 2 La. Ann. 766; Rliodes r. Rhodes, 10 La. 85. 7 Hatch V. Lamos, 65 N. H. 1. ^ Banks v. Marksberry, 3 Litt. 275 (a gift of a woman slave). Where a condi- tional vendee made a gift of land and then paid off tlie amount he owed thereon, the payment was held to be for the benefit of the donee, and could not be recovered back by his administrator: Hatch v. Lamos, 65 N. H. 1. Intention and Promise. 67 the donor's death, is void and cannot be enforced.^ Yet if the gift is by deed and the deed is delivered to the donee, the gift will be valid ; ^ but an instrument in wriV ing, merely expressing an intention tp make a gift at- some time in the future during the lifetime of the donor, is in- effectual, and no rights can be acquired under it.^ * BonnafFe v. Bonnaffe, Mann. (La.) 339 ; Duncan v. Duncan, 5 Litt. 12 ; Knott V. Hogan, 4 Met. (Ky.) 99. ' Banks v. Marksberry, 3 Litt. 275. ' Gammon Theological Seminary v. Kobbins, 128 Ind. 85. CHAPTER V. ACCEPTANCE. 79. Acceptance Essential. 85. Acceptance for Donee by Third 80. Acceptance Must be in Lifetime of Person. Donor. 86. Presumption of Acceptance by 81. Acceptance Must be Before Kevoca- Adult. tion. 87. Acceptance by Minor. 82. Intelligent Acceptance. 88. When Acceptance Not Presumed. 83. When Acceptance Unnecessary. 89. Terms of Acceptance. 84. Acceptance of Donatio Mortis Causa. 90. Evidence of Acceptance. 91. Effect of Disclaimer. 79. Acceptance Essential. — Like in a contract, there must be two persons to every gift ; for an acceptance of the thing given is as essential as the acceptance of the terms of a proposed contract.^ " To complete the in vest- ure of title," said the Maryland Court of Appeals, " there must be the mutual consent and concurrent will of both donor and donee, or trustee or guardian acting for the donee, in the acceptance of the gift."^ 80. Acceptance Must be in Lifetime of Donob. — The acceptance must be within the lifetime of the donor ; it cannot be made after his death.^ But where the donee was handed a cloth pocket, such as ladies then habitually ^ Peirce v. Burroughs, 58 N. H. 302 ; see Section 254 ; Branch v. Dawson, 36 Minn. 193. 2 Nickerson r. Nickerson, 28 Md. 327 ; Taylor v. Henry, 48 Md. 550 ; S. C. 30 Am. Eep. 486 ; Hitch v. D;ivis, 3 Md. Ch. 266; Thomas v. Tliomns, 107 Mo. 459; Hunter V. Hunter. 19 Barb. 631 ; Thouvenin v. Eodrignes, 24 Tex. 468; Fuselier V. Masse, 4 La. 423. There is no difference in the necessity for an acceptance at common law and the civil law; both require it: De Levillain v. Evans, 39 Cal. 120. 3 Helfenstein's Est., 77 Pa. St. 328 ; Phipps v. Jones, 20 Pa. St. 260 ; Love v. Francis, 63 :Mich. 181; Eskridge r. Farrar, 34 La. Ann. 709. 68 Acceptance. 69 carried, by the donor, who said : " Here I give you this ; I make you a present of it ; I have another, and want you to wear them, they are so very handy," she being at the time in full health ; and three weeks after the donor died ; and the donee, on opening the pocket, found therein a pocketbook, which she knew was there, containing six shares of stock, which she did not know was there until she opened the pocketbook, it was held that there was a valid gift of the stock. But it must be observed of this case that the point was not made that there was no know- ing acceptance of the stock until after the donor's death. The validity of the acceptance seems to have been undis- puted, the real controversy having been whether the donor intended to give the stock.^ A third person, however, may accept the gift as trustee for the donee, and it will be valid, although the latter does not know of it until after the donor's death." 81. Acceptance Must be Before Bevocatiox. — The donee, or some one authorized to do so in his behalf, must accept the gift before it is revoked or recalled by the donor ; for until acceptance, the donor has full power to revoke the gift, although every other act has been per- formed that is essential to make a perfect gift.^ 82. Intelligent Acceptance. — Not only must there be an acceptance, but the acce^^tance must be made with an intelligent assent. The acceptance of the possession of the thing given is strong evidence of an acceptance of the gift, but it is not the same thing as an acceptance, no conclu- ^ Allerton v. Lang, 10 Bosw. (N. Y.) 362. ' Tate V. Leithead, Kav, 658. See Standing v. Bowring, L. R. 31 Ch. Div. 282. ^ Love V. Francis, 63 Mich. 181. The statement of the text, however, is very doubtful in the light of Standing r. Bowring, L. E. 31 Ch. Div. 282. This subject is renewed under the Sections with respect to the time when the title to a gift passes. 70 Gifts. sive evidence of it, especially if the gift is burdened with conditions requiring a j^erformance of some act or the assumjDtion of some obligation on the part of the donee.^ 83. When Acceptance Unnecessary. — When, how- ever, the acts of the donor are such as to raise a trust and make himself a trustee for the donee, an acceptance by the latter is not essential to the validity of the gift.^ 84. Acceptance of Donatio Mortis Causa. — In the case of a gift mortis causa, although the gift is revocable at any time before death, or so long as the donor possesses sufficient intelligence to understand his act, or by his subse- quent recovery, yet the donee must accept the gift before the donor's death, or some one must accept it in his behalf^ 85. Acceptance for Donee by Third Persons. — The donee is not required to accept a gift in person ; he may authorize an agent to accept it ; or if an agent without authority accept it, he may afterward ratify it, even after the donor's death.'^ But the mere fact that the acceptor is an agent of the donee does not render his acceptance valid ; for he has no authority, from the mere fact of agency, to make a binding acceptance. Something more must be shown, either that he had authority to accept, or else his act was ratified by the donee before a revocation by the donor.^ But an infant cannot ratify the acts of an unauthorized agent or attorney. He cannot empower him to act for him ; and therefore he cannot affirm what he has assumed to do for him in his name.*^ > Higman v. Stewart, 38 Mich. 513 ; Armitage v. Widoe, 3G Mich. 124. ^ Higman v. Stewart, 38 Micii. 513. 3 Darland v. Taylor, 52 la, 503. * Forbes v. Jason, 6 Bradw. 395. ^Bush V. Decuir, 11 La. Ann. 503; Forbes v. Jason, 6 Bradw. 395; Hunter v. Hunter, 19 Barb. 631. ^Armitage v. Widoe, 36 Mich. 124. Acceptance. 71 86. Presumption of Acceptance by Adult. — If the gift is a benefit to the donee, courts will presume an ac- ceptance by him, unless the facts proved show the con- trary.^ This rule rests upon another, which is that a per- son is presumed to do what it is his interest to do, and not to act against it." Such is the case of a devise of an estate, where a disclaimer must be shown in order to defeat the devise ; ^ or a conveyance of property.* So it is a general rule that all gifts are presumptively beneficial, and it is unnecessary to show that to be the case in order to raise the presumption of an acceptance.^ The law even goes so far as to raise a presumption that the donee had knowl- edge of the gift ; especially is that the case where the donor exercised no authority over the gift after the act of donation is completed on his part.'' So where the gift consisted of the forgiving of a part of the debt, by an in- dorsement on the note and mortgage a receipt of payment of the part given, it was presumed that the donee had ac- cepted the gift, and evidence of acceptance deemed unnec- essary.'^ So where the holder of a note executed by her grandson, destroyed it, and afterward stated that she ex- pected to live but a short time and in the event of her death she did not desire him to be obliged to pay it, it it was held that such acts constituted a completed and 1 Guard v. Bradley, 7 Ind. 600; Stewart v. Weed, 11 Ind. 92 ; Goss v. Singleton, 2 Head. 67. "^ Creps V. Baird, 3 Ohio St. 277 ; Clawson v. Eichbaum, 2 Grant. Cas. 130 ; Higman v. Stewart, 38 Mich. 513. »Tovvnson i'. Tickell, 3 B. & Aid. 31 ; Thompson & Leacli's Case, 2 Salk. 618. * Bensley v. Atwill, 12 Cal. 231 ; Lidy Superier v. McNaraara, 3 Barb. Cli. 375 ; S. C. 49 Am. Dec. 184; Peavey v. Tilton, 18 N. H. 151 ; S. C 45 Am. Dec. 365 ; Merrills v. Swift, IS Conn. 257 ; S. C. 46 Am. Dec. 315 ; MaUory v. Stodder, 6 Ala. 801; Mitcliell v. Ryan, 3 Ohio St. 377 ; Barns v. Hatch, 3 N. H. 304; Renfor v. Harrison, 10 Mo. 411. 5 Goss I'. Singleton, 2 Head. 67; Child r. Child, 5 N. Y. Wkly. Dig. 16; De Levillain v. Evans, 39 Cal. 120. ^ Howard v. Savings Bank, 40 Vt. 597. 'Green v. Langdon, 28 Mich. 221. 72 Gifts. valid gift to the grandson, mortis causa, of the amount of the note, and his acceptance would be presumed/ 87. Acceptance by Minor. — In the case of a gift to a minor the law does not presume an acceptance so readily as if he were an adult. If it is made to appear that the gift is for his advantage, the law accepts it for him and Yv-ill hold the donor bound ; but if it is not for his advan- tage, the law will repudiate it at his instance, even though lie may in terms have accepted it.^ No formal acceptance on the part of the minor is necessary ; and the gift is a good one even though the minor has no knowledge of it.^ 88. When Acceptance not Presumed. — But there are many instances in which the presumption of an ac- ceptance of a gift will not be presumed. These are where the acceptance imposes a burden upon the donee, or will work him an injury, and it may be said that they are in- stances of contracts rather than of gifts. This is especially true of gifts to infants. Thus to an infant was executed a contract for the purchase of a tract of land at the price of |1 3,000, and upon which only $400 had been paid, it was held that there was no presumption of an ac- ceptance ; and it was said that the same rule would pre- vail if the donee were an adult ; for an acceptance involved the assuming of an obligation to pay large sums of money, 1 Darland v. Taylor, 52 la. 503. ^Section 254. DeLevillian ?•. Evans, 39 Cal. 120; Donner v. Palmer, 31 Cal. 500 ; Dow V. Gould & Cuiry Silver Mining Co., 31 Cal. 629. =* Pruitt V. Pniitt, 91 Ind. 595 ; Rinker v. Einker, 20 Ind. 185 ; Wyble v. Mcl'he- ters, 52 Ind. 393; Baker v. Williams, 34 Ind. 547 ; Williams v. Walton, 8 Yerg. 387; S. C. 29 Am. Dec. 122; Minor v. Rogers, 40 Conn. 512; S. C. 16 Am. Rep. 69; Keingon v. Rautigam, 43 Conn. 17 ; Gardner v. Merritt, 32 Md. 78 ; Howard V. Copley, 10 La. Ann. 504 ; Jndd v. Esty, 6 Low. Can. 12. The Spanish law is the same: Pierce v. Giays, 5 Mart. (La.) 370; Fnselier v. Maspe, 4 La. 423; Diiplessia v. Kennedy, 6 La. 231 (in this case it was held that a minor might accept, although he had a guardian}. Acceptance. 73 and there could be no presumption that any one would voluntarily assume such a burden.^ But where a mother conveyed a tract of land to her five-year-old son, upon the ex23ress condition that he pay to his brother or the other donee on his arriving at full age, $300, the court held that a presumjDtion of acceptance was raised by the mere proof of the gift. The value of the laud given, however, does not aj^pear,'^ 89. Terms of Acceptance. — The gift, to be valid, must be accepted by the donee upon the exact terms in Avhich it is tendered. If it is an absolute and unconditional gift, the acceptance must be absolute and unconditional, or the donor must a2:ree to the modification of the terms made by the donee ; if the gift is conditional, then the donee must accept and become bound by the terms of the condi- tion. In these respects there is no difference between a gift and a contract.^ & 90. Evidence of Acceptance. — An acceptance may be shown by the language used by the donee, by his taking the instrument given or tendered into his jDossession ; or, if the delivery is to a third person, by his subsequent de- mand for its possession, or efforts to obtain possession, even after the gift has come into the hands of the donor's personal representatives.'^ So the production of a bond, allesred to have been o'iven, bv the donee in court, wdien suit has been instituted upon it by him,^ or the commence- ment of a suit concerning the thing given,*^ or a claim to the right to hold possession of the thing given, is sufficient ^ Arraitage v. Widoe, 3G Mich. 124 ; Ezell v. Giles Co., 3 Head. 583. ^Pruitt V. Pniitt, 91 Ind. 595. 3 Armitage v. Widoe, 36 Midi. 124. * Hunter v. Hunter, 19 Barb. 631. * ]\IcLean v. State, 8 Heisk. 22. ^Mallettr. Page, 8 Ind. 364. 74 Gifts. evidence of an acceptance.^ In Canada the registration of the deed of gift, by the donee, is an acceptance of the 91 . Effect of Disclaimee. — A disclaimer operates as evidence that an acceptance was never made ; and if an acceptance was never made, the property remains in the donor. This is even true of a gift in trust for a third person. The law does not force the donee to ac- cept the gift, whether made in trust or otherwise ; and it is therefore competent for the person appointed trustee to refuse both the gift and the office attached to it, before he has done any act to deprive himself of the right to make the disclaimer or refusal. If the gift is of an estate, by will or by deed, there is some conflict of authority whether the disclaimer may be by deed or parol ; but there is no doubt that the renunciation may be by deed, by matter of record, or by any written instrument, or by an answer in court, especially in chancery.^ The effect of the refusal or disclaimer is that the trust will relate back, and be held to have been made at the time of the gift, if no act has been done to preclude the party ; and all parties are j)laced precisely in the same situation relative to the trust property as if the disclaiming party had not been named in the trust instrument ; and if a devise in trust is dis- claimed by the trustee, the legal title will vest in the heirs of the devisor. But in such an instance the donee may apply to a court of chancery to have a trustee appointed ; and the effect of the appointment is to divest the heir, who, by the former renunciation, has become a cestui que trust of the legal estate.^ ' Thouvenin v. Eedrigues, 24 Tex. 468 ; Poirier v. Lacroix, 6 Low. Can. Jur. 302. 2 Charlebois v. Caliill, 20 Low. Can. Jur. 27 ; Judd v. Esty, 6 Low. Can. Kep. 12 ; Dupuis V. Cedillot, 10 Low. Can. Jur. 338. ^ Tharpe v. Duiilap, 4 Pleisk. 674. *Goss V. Singleton, 2 Head. 67. CHAPTER VI. CONDITIONAL GIFT. 92. PaPol Condition — Contingent Gift. 96. Gift Over if Donee Die Without 93. Reservation of Riglit to Use Gift in Heirs. Certain Contingency. 97. Donatio Mortis Causa. 94. Gift Conditioned to Pay Part of it 98. Gift Conditioned on Marriage. to Tliird Person. 99. Donee Takes Gift With Condition 95. Gift Conditioned that Donee have Annexed — Estoppel. Children Born. 100. Performance of Condition. 92. Parol Condition — Contingent Gift. — There can be usually no condition or limitation to a parol gift ; ^ such a gift is void, and not the condition. For by annexing a condition to the gift there is no gift in prce,- sentl, and the donor may revoke it. The gift is not ab- solute. But suppose the gift is made, conditioned to take effect upon the donee performing the condition. If the donor delivers the thing given to the donee, and the lat- ter performs the condition, although the gift is a jDarol one, yet upon performance the gift becomes a vested one and is irrevocable. Tims a husband said to a wife, " if you like to learn upon it, I will give you this piano." She learned to play upon it, and at his death, although the piano remained in their common residence, it was held that she was entitled to the instrument.^ Suppose, how- ever, the condition is not that the donee shall do some- thing sjDCcified (and the performance of such a condition usually turns the gift into a contract, or rather the trans- action is a contract), but that the gift shall become vested on the happening of a certain event over which neither » Hynson v. Terry, 1 Ark. 83 ; Fitzhugh v. Beale, 4 Munf. 186. ^ Whittaker v. Whittaker, 21 L. R. Ch. Div. 657 ; S. C. 51 L. J. Ch. Div. 737 ; 46 L. T. (N. S.) 802 ; 30 W. R. 787. 75 76 Gifts. the donor nor the donee have any control. If the trans- action is simj^ly a promise to make a gift on the liappen- ing of such an event, it is very clear that there is no valid gift — only a promise to make one ; but if the thing is handed over to the donee Ly the donor, conditioned to become vested on the happening of such event, then the happening of the event, accomj^anied by the donor's ac- quiescence in the donee's retention of the possession of the article given, will justify the court in holding or the jury in finding that the gift had become perfected and the title to the property vested in the donee ; and there is no reason why the gift should not be deemed perfected as soon as the event has happened, although, up to that time, the donor could revoke it ; yet the cases seem to be against this suggestion.^ But where some time has elapsed between the occurrence of the event upon which the gift is made contingent and the controversy over the validity of the transaction as a gift, the court or jury, where the donor has taken no steps to annul or revoke the gift, nor expressed or made manifest any intention to recall it, is justified in reaching the conclusion that he has ratified all that preceded the controversy, and thus confirmed the gift. Of course, if he had by word of mouth or written language confirmed it, there could be no controversy over its validity. But a marked distinction is apparent be- tween a gift conditioned that if a certain event hap23ened the donor might recover the j)roperty, or rather that it should revert to him or the gift be deemed annulled and a conditional gift. Such a transaction is not a gift.^ 1 Smith r. Dorsey, 38 Ind. 451 ; Irish v. Nutting, 47 Barb. 370 ; Bedell v. Carll, 33 N. Y. 581 ; Dexheimer v. Gaiitier, 34 How. Pr. 472. ^ Smith r. Dorsey, 38 Ind. 451. "Where the evidence showed that the donor told the donee, after the delivery to the latter of certain couijons for collection and on the eve of the former's departure for a distant city, to take the coupons and remit the proceeds to the donor as they became due if the donor lived, but if he never came back, to keep them in part payment of services already ren- Conditional Gift. 77 93. E,ESERVATio?ir OF Right to Use Gift iisr a Cer- tain CoNTixGENCY. — A reservation of the right to use the thing given upon the happening of a certain condi- tion does not invalidate the gift. Thus the owner of a skive gave hini upon the condition subsequent that she shoukl have the right to borrow him if she shoukl again take up housekeeping, or to receive something like hire if she should stand in need of his work ; and this was held not to avoid the gift. " It imposed," said the court, " on the donee an obligation which the donee was bound to fulfill ; and the subsequent payment of hire, so far from avoiding the gift, was the performance of the condition, upon which it was made, and operated to perfect it, if any thing was wanting." ^ So where a creditor took the obliga- tion of his debtor, payable to himself upon the condition that he call for it before his decease, and if he did not so call, then payment thereof to be made to a third person, it was held that this was a valid gift, it appearing that the creditor adopted this method to secure himself if he should need any part of the fund for his j)ersonal use." 94. Gift Conditioned to Pay Part of it to Third Persons. — If A make a gift to B of a certain sum of V money, upon the condition that B pay a part of the money to C, the remaining part in B's hands is still a gift ; the transaction is not a contract. So if A give B notes he holds on third persons, upon condition that B collect them and pay a part thereof to C, whom A owed, the transaction is still a gift as between A and B,^ though derecl by the donee to the donor ; it was held that tlie jury were warranted in finding a present conditional gift to the donee, which would conf r upon him a good title to such coupons as were not due at the donor's death : Tyndale v. Randall, 154 Mass. 103. 1 M'Kane v. Bonner, 1 Bail. L. S. C. 113. 2 Blanchard v. Sheldon. 43 Vt. 512. ^ Riegel v. Wooley, 81* Pa. St. 227. A right reserved in the plies to one serving a stranger.^ 102. Power to Sell Not Conveetible In^to Power TO Give. — It is self-evident that a power given to sell does not authorize a gift of the thing to be sold, for such powers are construed strictly and must be strictly followed.*^ So a power to give cannot be considered as authorizing a sale, although the courts would undoubtedly look with more leniency upon the last transaction than on the former. 103. Gift Changed to a Trust. — A gift once per- fected cannot be changed by the donor, without the consent of the donee, into a trust; nor can a trust, without the consent of the beneficiary, be changed by the grantor into a gift.^ ^ Harris v. Currier, 44 Vt. 468 ; Taylor v. Taylor, 1 Lea, 83 ; Bartholomew v. Jackson, 20 Johns. 28 ; Force v. Haines, 2 Harr. (N. J.) 385. See Article in 20 Cent L. Jour., p. 326. ^ Wells V. Caldwell, 9 Humph. 609 ; White v. Jones, 14 La. Ann. G81 ; Little v. Dawson, 4 Dall. Ill ; Davison v. Davison, 2 Beas. (N. J.) 246. ^Taylor v. Taylor, 1 Lea, 83 ; Harris v. Currier, 44 Vt. 468 ; Hays v. ISIcCon- nell, 42 Ind. 285 ; Hertzog v. Hertzo?, 29 Pa. St. 465. * Hill V. Williams, 6 Jones Eq. 242. '" Vestry, etc , v. Barksdale, 1 Strobh. Eq. 197. « Dupont v. Wertheman, 10 Cal. 354. See Sellerk v. Selleck. 107 111. 389. " Lemon v. Wright, 31 Geo. 317. See Marcy v. Aniazeeu, 61 N. H. 131, 134. 84 Gifts, 104. Gift Changed to an Advancement. — An abso- lute gift to a child of the donor may be changed into an advancement, with the consent of the donee, and no con- sideration for the change is essential ; and an advancement may be changed, by consent, into an absolute gift, and it is not necessary that it should be done by will.^ If a parent convey property to his child as an advancement and then turn it into a gift, he may not turn it back into an advancement without the child's consent."^ > Wallace v. Owen, 71 Geo. 544 ; Harper v. Parks, 63 Geo. 705. 2 Sherwood v. Smith, 23 Conn. 516; Meeker v. Meeker, 16 Conn. 383. The mere declaration of the parent or child cannot change an advancement to a gift : Sweet V. Northrup, 12 AVk. Dig. 377. See "Advancements." CHAPTER VIII. REYOCATIOX. 105. Donor Cannot Revoke a Gift inter 117. Wedding Presents, Intended Mar- Vivos. riage Broken Off. 106. Revocation of Incomplete Gift. 118. Unintended Gift — Mistake. 107. Minor May Revoke — Creditors. 119. Immorality Does Not Revoke. 108. Gift for Benefit of Third Person. 120. Change of Position by Donee in 109. Estoppel to Deny. . View of Gift — Acquiescence. 110. Revocation of Trust. 121. Gift of Real Estate by Parol. 111. Reservation of Right to Revoke 122. Redelivery. Gift. 123. Donatio Mortis Causa. 112. Deed of Gift Mortis Causa Can- 124. Burden to Show Non-Revocation celled. in a Voluntary Deed of Settle- 113. Fraud or Undue Influence. ment. 114. Revocation of Conditional Gift. 125. Revocation Under Spanish and 115. Delivery in Escrow. Mexican Laws. 116. Revocation by Death. 126. Revocation by Birth of Child. 127. Civil and French Law. 105. Donor Cannot Revoke a Gift Inter Vivos. — Since a perfected gift is an executed contract in the law, it can no more be revoked by the donor without the con- sent of the donee than if there was a valuable considera- tion moving from the latter to the former ; but the gift must be a perfected one — one to which nothing more is essential to pass the title to the donee. " It has been held too often to admit of doubt or discussion," said the Ken- tucky Court of Appeals, " that an executed gift or gratuity cannot be revoked by the donor, no matter what may have been the condition of the donee, or what charities he shall receive, or property acquire in the future, unless the dona- tion or gratuity were the result of fraud or mistake in its execution. And there is no reason why an executed gift of personal property shall not be revoked that does not sustain the irrevocability of gratuitous labor, care, 85 86 Gifts. board, or education after completion. One is no more the executed donation of value than the other, and the same principle of law is equally applicable to both." Consequently, where an institution, organized to care for and maintain orphan children until their maturity, took a child to rear it, and after the child had fully entered the institution it drew a pension from the government by reason of the fact that its father had been a soldier in the army, it was held that the institution could not revoke its acceptance of the child and that it was not entitled to the pension money .^ So, where a* father bid off property at an administrator's sale in his own name, paid for it with his own money, and had the deed made in his own and his child's name, it was held that he could not in after years revoke the gift.^ In another case, speaking of a gift inter vivos, it was said : " It seems to be agreed on all hands that it is essential to every gift of this class that it should be irrevocable by the donor;" and there are many cases to this effect.^ The gift cannot be invalidated. If a gift for any reason is void, as, for instance, because of the disabilities of the donor or donee 1 St. Joseph's Orphan Society v. Wolpert, 80 Ky. 86 ; S. C. 3 Ky. L. ftep. 573. '■'Eckert v. Gridley, 104 111. 306; White r. Cannon, 125 111. 412. •''Knott V. Plogan, 4 Met. (Ky.) 99; Duncan v. Duncan, 5 Liit. 12; Walden ?•. Dixon, 5 T. B. Mon. 170; Brown v. Brown, 4 B. Mon. 535 ; Gault v. Trumbo, 17 B. Mon. 682; McCloskey v. McCloskey, 29 La. Ann. 237; Dresser z;. Dresser, 46 Me. 48; Gardner v. Merritt, 32 Md. 78 ; Allen v. Polereczky, 31 Me, 338; Smith V. Dorsey, 38 Ind. 451 ; Esswein v. Seigling, 2 Hill Ch. (S. C.) 600; Hall V. Howard, Rice (S. C), 310; Trowell v. Carraway, 10 Heisk, 104; Woodson v. Pearce, 5 Sneed, 415 ; Sheegog v. Perkins, 4 Baxt. 273 ; Henry v. Groves, 16 Gratt. 244; Mayo V. Carrington, 19Gratt.74; Kelloggr. Adams, 51 Wis. 138 ; Gallaudet's Case, 9 Ct. of CI. 210 ; Whiting v. Barrett. 7 Lans. 106 ; Matthews v. Kentz, 2 Amer. L. Rec. 371; Greenfield's Estate, 14 Pa. St. 489; Harris t>. Clark, 2 Barb. 94; affirmed, 3 N. Y. 9 ? ; Welsch v. Belleville Savings Bank, 94 111. 191; Stone v. Hackett, 12 Gray, 227 ; Ryburn v. Pryor, 14 Ark. 505; Garner r. Graves, 54 Ind. 188; Raymond v. Pritohard, 24 Ind 318; Easly v. Dye, 14 Ala. 158; L^fleur r. Girard, 2 Low. Can. Jur. 90; Poi.e v. Randoli)h, 13 Ala. 214; Smith v. Smiili. 7 C. &, P. 401 . If the gift is by deed, tlie donor cannot revoke it by securing p .-,- sessinn of and destroying the deed : Watts v. Starr, 86 Geo. 392. Revocation. 87 to make and receive a gift, it may be revoked by the donor.^ So a father may not revoke a gift made to his minor son unless the latter consent ; ^ nor can a donor revoke a gift by a subsequent devise of the thing given,^ nor revoke it in his will.'^ Even a voluntary settlement cannot be revoked.^ 106. Revocation of Incompleted Gift. — So long, however, as the gift remains incompleted — so long as something remains to be done, either by the donor or donee, to complete the transaction — the donor may re- voke the gift. A very familiar instance is where there has been no delivery of the thing given ; in all such instances there may be a revocation.'' Even if the gift is made to a minor, the donor, before it is completed, may revoke it.''' Where the payee of a note j^laced it in the 1 Manny v. Rlxford, 44 111. 129. 'Smith V. Smith, 7 C. & P. 401. But can a minor consent to the revocation of a gift? As it is an executed contract, it would teem not. The gift in controveisy in til is case was a watch ; and possibly an article of wearing apparel stands on a different footing from other property. ^ Mahan v. Jane, 2 Bibb. 32; Jeukins v. Jenkins, 1 Mill (S. C), 4S ; Sanborn v. Goodhue, 28 N. H. 48. * Villers V Beaumont, 1 A'ern. 100; Bale v. Newton, 1 Vern. 4G4; Boughton v. Bough ton, 1 Atk. 625. ^ Beird v. Nutthall, 1 Yern. 427 ; Allen v. Arme, 1 Vern. 365 ; Clavering r. Clavering, Prec. Ch. 235; S. C. 2 Vern. 473, affirmed 1 Bro. P. C. 122; Oxley V. Lee, 1 Atk. 625; Beatson v. Beatson, 12 Sims. 281; Naldred v. (liiham, 1 P. Wms. 577 ; Colton v. King, 2 P. Wms. 358. Contra, Chadwick V. Doleman, 2 Vern. 628. "Wliere a magistrate accepted the offer of a prisoner to pay a certain sum of money to the poor of the parish if a criminal case pending before him were dismissed, it was lield that the donor could recover back the money after lie liad paid it: Taylor v. Lendey, 9 East. 49. "Where a husband had Lind conveyed to his wife, and after her death erased her name and inserted his own, it was held ihat lie did not thus vest the fee in himself: Berry v. Kinnaird, 20 S. W. Rep. 511. ''Johnson v. Stevens, 22 La. Ann. 144 ; Board, etc., r. Auditor-General, G8 Mich. 659 ; Dole r. Lincoln, 31 Me. 422 ; Cranz v. Kroger, 22 111. 74 ; Miller v. Le Piere, 136 Mass. 20 ; People n Johnson, 14 111. 342 ; Faxon v. Durant, 9 Met. 339 ; Gano I'. Fisk, 43 Ohio St. 462; Houser v. Singiser, 1 Leg. Chron. (Pa.) 145. ' Dismukes v. Musgrave, 2 La. 337 ; Whiting v. Barrett, 7 Lans. 106. 88 Gifts. hands of a third jDerson, and directed the maker to pay the amount due on it to such third person on the payee's decease, and afterward died, it was considered that such third person was not entitled to the note as against one who, by the subsequent will of the payee, was made legatee of the note and executor of the will, for the reason that it was not a valid gift inter vivos, because it did not go into absolute and immediate effect, the donor having parted only with the possession and not the dominion over the property ; and it was invalid as a donatio mortis causa, for the note was not delivered in the donor's last sickness, nor when he was in peril of death, nor under any special apprehension of such peril.^ A was employed by B at a monthly salary. He directed B to pay one-fourth of his salary, each month, to C, for the benefit of the latter's wife and children, as a donation or gift from him. B failed to pay the money, and C died, whereupon A sued B for the amount he was directed to jDay C. It was held that he could recover, because the gift was not com- pleted by delivery — the payment by B to C ; but it was said, if A had made some binding promise to the benefi- ciaries, the gift, or rather contract, would have been valid, and A could not have recovered it.^ If A had paid the money to C, of course there could have been no revoca- tion.^ So, where A agreed with B, if the latter would collect a large sum of money, he could retain out of it a certain named sum as a gift for his (A's) lifetime, and then at his (A's) death he was to pay it to C without in- terest, it was held that the gift was a completed one and could not be revoked.* But a parol gift of an account on 1 Craig V. Kittredge. 46 N. H. 57. * Burke v. Steele, 40 Ga. 217 ; Swartz v. Earls, 53 111. 237. 'Howard College v. Pace, 15 Ga. 486. That an undelivered gift may be revoked, see Carswell v. Ware, 30 Ga. 267. * Gordon v. Green, 10 Ga. 534. Revocation. 89 a third person is executory and revocable at any time before the money or part of it is paid to the donee ; and notice to the debtor not to pay it excej^t to his own cred- itor, the donor, is a revocation/ So, where A, having certain funds to his credit at his banker's, directed them to carry j)art of such funds to the account of certain per- sons as trustees for his wife and after her death for his son, and such sums were accordingly carried over by the bankers to the account of such persons in their books, and the dividends were from time to time carried to the same accounts, but the testator never communicated the facts to the trustees, and there was some evidence that the testator had directed the transfer under an impression that he should be able, by that means, to evade the legacy duty, and that he had shown an intention to exercise some acts of ownership over the funds, the court held that the appropriations were void and that the testator might at any time have revoked them. Consequently his personal representatives received the amount of the de- posit.^ Even though the donor delivers the gift to a third person for the donee, yet, if he retain any control over it inconsistent with a relinquishment of the dominion over it, he may revoke the gift.^ 107. Minor May Revoke — Creditoes. — But if the gift is made by a minor, he may revoke it when he be- comes of age, although his subsequent creditors cannot elect to revoke it for him.^ So his administrator, if the minor died during his minority, may rescind the gift and 1 Chandler v. Chandler, G2 Ga. 612. ^Gaskell v. Gaskell, 2 Yong. & J. 501. City V^harton v. Walker, 4 B. & C. 163 ; S. C. 6 Dowl. & Ry. 288. ^ Meiggs V. Meiggs, 15 Hun, 453. Heirs may ratify an incomplete gift : Ventress V. Brown, 34 La. Ann. 448. * Johnson v. Alden, 15 La. Ann. 505 ; Holt v. Holt, 59 Me. 464. 90 Gifts. recover back the thing given/ even though the donee be the donor's father.'^ 108. Gift for Benefit of Third Person. — If the gift is made in favor of a third person, there can be no revocation without the consent of the beneficiary. This is particularly true where proj^erty is conveyed to another as a gift, upon the express condition that the donee shall pay a third person a certain sum of money or perform for him a specified benefit. In all such cases the benefi- ciary must consent to the revocation before the gift can be revoked.^ In such an instance the consent of both the donee and the beneficiary is essential to enable the donor to revoke the gift.^ So, where an agent bought land in the name of a third person, intending it as a gift to him, it was held that he could do no act to revoke the gift, even though the donee had not actually acce^oted.^ But where a father directed the proceeds of certain bales of cotton to be apj)lied by his factor in payment of a specific debt of his son, it was held that he could countermand the direction at any time before the factor had apj)ropri- ated the money as directed, or before he had entered into any engagement with the son's creditor to hold it to his use.^ But if the donor deliver the thing given to a third person to deliver in the future to the donee, he may revoke the gift at any time before the donee has actually or constructively received the custody of the article given. " If it be delivered to a third person," said the Supreme Court of Massachusetts, " with authority to deliver it to ^Dinsmore v. Webber, 59 Me. 103. ^ Eskridge v. Farrar, 34 La. Ann. 709 ; Duplessis v. Kennedy, 6 La. 231 ; Poirier v. Lacroix, G Can. L. Jur. 302. * Crawford v. Puckett, 14 La. Ann. 639 ; Nolen v. Harden, 43 Ark. 307. ^Giannoni v. Gunny, 14 La. Ann. 632. * Walton V. Tims, 7 Ala. 470. Revocation. 91 the donee, this depositary, until the authority is executed by an actual delivery to and acceptance by the donee, is the agent of the donor, who may revoke the authority and take back the gift." ^ 109. Estoppel to Deny Gift. — A donor may so con- duct himself as to estop himself to deny the validity of the gift. Thus, a father purchased land and had it con- veyed to his infant son. He then made improvements thereon and occupied it as a residence. In order to bor- row money on the property to pay for the improvements, he had himself appointed as guardian of his son, and in his sworn petition for the appointment stated that the property belonged to the son. It was held that he was estopped from afterward recovering title to the property on the ground that the son held it only in trust for him.'^ 110. Revocation of a Trust. — Like a gift for the benefit of a third person, a trust once created cannot be revoked, unless all jDcrsons interested consent to the revo- cation. Thus a mortgagee of an equitable mortgage, created by a deposit of the title deeds, signed a memo- randum, written by the mortgagor, accompanying the de- posit, which contained directions to the mortgagor to pay off the mortgage debt by certain quarterly installments, and after paying a sj^ecified amount to the mortgagee, to invest the remainins; installments in consols for the benefit of the children of a third person. Afterward the mort- gagee signed a memorandum written by the mortgagor, ^Sessions v. Moseley, 4 Cusli. 87; Smith v. Ferguson, 90 Ind. 229; Grenier v. Leroux, 1 Leg. News, 23 L ^Kramer r. Kramer. 68 la. 567. See McCarthy r. McCarthy, 3G Conn. 177; Bnmer v. Bruner, 115 111. 40. If the heir ratify an invalid gift, lie is estop; ed to reclaim the property : Brown v. Niethammer, 141 Pa. St. 114 ; Yentress v. Brown, 34 La. Ann. 448. 92 Gifts. directing him to continue to pay the instalhnents of the debt to her, and not invest them in consols as previously- directed ; but it was held that the effect of the first mem- orandum and the notice thereof to the mortgagor created a valid and irrevocable trust, which the mortgagee could not annul, and that the children of such third person were entitled to the amount of the funds thus put in trust.^ In this case the beneficiaries had no knowledge of the trust until after the attempted revocation.^ 111. Keservation of Right to Revoke Gift. — If the gift is a perfected one, a reservation of the right to re- voke it is void ; this is especially true of a reservation in- serted in a deed of gift of a chattel. Such a reservation is inconsistent with the operative portion of the instrument ; and for that reason void.^ But if the reservation of a right to revoke arises only on the happening of a certain contingency, then it is valid ; and the right may be en- forced when the contingency happens.* A reservation of the right to revoke may defeat a gift. Thus where a father by deed transferred personal property to his son, and the latter delivered to his father an instrument recit- ing the deed of gift, agreeing to care for his father and furnish him money to live on, and stipulating that he would transfer back the property at any time his father desired it, this was held not to be a gift, because of the power of revocation, but was a valid trust, and the property 1 Paterson v. Murphy, 11 Hare, 88 ; S. C. 17 Jur. 298 ; 22 L. J. Cli. 882 ; 1 Eq. Eep. 173 ; 1 W. K. 274 ; 17 E. L. & Eq. 287 ; Moore v. Darton, 4 DeG. & S. 517. '^See two kindred cases: Bayley v. Boidcott, 4 Russ. 345 ; Maguire v. Dodd, 9 Irish Ch. (N. S.) 452. ^ Daniel v. Veal, 32 Ga. 589 ; Rosenbiirg v. Rosenburg, 40 Hun, 91. A reserved right of revocation is not inconsistent with the creation of a valid trust ; and if not exercised by the donor during his life, the gift remains valid : Lines v. Lines, 142 Pa. St. 149. See Rosenburg v. Rosenburg, 40 Hun, 91. * Yonn V. Pittman, S2 Ga. 637. Revocation. 93 thus transferred was held by the transferee in trust for the donor ; and the son having agreed to pay, at his father's death, certain named sums to designated persons, he was hekl a trustee, at the donor's death, for such persons to the amount they were entitled to, and the remainder of the property, it was said, belonged to the son.^ 112. Deed of Gift Moetts Causa Cancelled. — If a conveyance is made as a gift, in expectation of death, and death does not follow from the then illness, a court of equity will entertain a bill to cancel the deed, even if it be for real estate, on the ground of mutual mistake.^ 113. Fraud or Undue Influence. — If a gift is brought about by fraud or undue influence, as has been elsewhere discussed,^ it may be revoked by the donor * or his personal representatives or heirs, according to the descent of the property given. 114. Revocation of Conditional Gift. — If a donor make a conditional gift and deliver the thing given to a third person to deliver to the donee when the condition is performed, the donor may revoke the gift at any time be- fore the performance of the condition.^ 115. Delivery in Escrow. — A gift may be delivered to a third person in escrow for the donee. Such gifts are in fact conditional gifts, and may be revoked at any time before they have become absolute. Thus where the donor delivered a deed of gift to the husband of the donee, in ^ Rosenburg v. Rosenburg, 40 Hun, 91. ^Houghton V. Houghton, 34 Hun, 212; Forshaw d. "VVelsby, 30 Beav. 243; "WoUaston v. Tribe, L. R. 9 Eq. 44 ; Garnsey v. Mundy, 24 N, J. Eq. 243. ^See Section 35. *Saufley v. Jackson, 16 Tex. 579 ; Millican v. Millican, 24 Tex. 426. *Houser v. Singiser, 1 Leg. Chron. (Pa.) 145; Lyon v. Marclay, 1 Watts (Pa.), 271. 94 Gifts. pursuance of a distinct understanding and agreement that it should not be recorded or take effect without the donor's consent, and that if she desired to have it re- turned to her unrecorded, the contemplated gift should become inoperative and void ; it was held that a delivery in violation of the understanding and agreement was in- effectual to make the gift valid, and that tlie gift could be revoked. A decree was entered ordering the gift-deed cancelled.^ 116. RevocatiojST by Death. — If the article is deliv- ered to a third person to be delivered by him to the donee, this dejDOsitary, as we have seen, until the authority is executed by an actual or perhaps a constructive delivery to and acceptance by the donee, is the agent of the donor, who may revoke the authority and take back the gift ; " and, therefore, if the delivery do not take place in the donee's lifetime, the authority is revoked by his death." '^ This is true even where the donor has given a power of attorney authorizing the making of the gift.^ 117. Wedding Presents, Intended Maeriage Broken Off. — If an intended husband make a present, after the treaty of marriage has been negotiated, to his intended wife, and the inducement for the gift is the fact of her promise to marry him, if she break off the marriage, he may recover from her the value of such present.* But he may not recover back a gift made to a person to induce him to introduce the donor to a woman and by means thereof to gain her favor.^ ^ Fritz V. Brustle, 41 Leg. Int. 4. "Sessions v. M< seley, 4 Cusli. 87; Smith v. Ferguson, 90 Ind. 229. ^ Hergesheimer's Estate, 3 Pa. C. C. 159; Keyl v. Westerliaus, 42 Mo. App. 49. * Williamson v. Johnson, 62 Yt. 378; S. C. 20 Atl. Rep. 279; Robinson r. Cummings, 2 Atk. 409 ; 14 Yin. Abr., title Gift, pi. 7 ; Fonb. Eq., sect. 15 ; 1 Com. Dig. 313; Stauffer v. Morgan, 39 La. Ann. 632; S. C. 2 So. Rep. 98. ^ Robinson v. Cummings, supra. See Section . Revocation. 95 118. Unintended Gift — tMistake. — A gift may be void and for that reason may be revoked. Suppose a donor of a golden vessel gives it away, laboring at the time under the impression that it is a gilt one. Here is a mistake ; he has given what he had no actual intention to give, and it makes no difference that the donee knew it was a golden one. To allow a rescission by the donor of the gift works no injury to the donee, while it restores to the donor a thing he never knowingly parted with. But if the donor intended to give a vessel of gold and by mistake gave one of gilt, the gift is binding both upon him and the donee ; for the donor suffers no damage from the transaction, while, if the facts were reversed, he would be a loser.^ Such at least is the Roman law ; but why should there be any difference ? In either in- stance there was no actual intention to give the thing given ; there was an actual mistake on the part of the donor ; and by what right has the law to say he values a gold vessel higher than a gilt one ? Intention to give the thing given is one of the essential parts of a valid gift, and if that be absent there can be no gift ; so that to hold the gift of a gilt vessel valid when a gold one was in- tended is to hold valid a gift where there was no intention to make it. The loss to the donor is not necessarily a part of the consideration in the argument ; it is totally imma- terial.^ 119. Immokality Does Not Revoke. — A gift com- pleted cannot be revoked because of the immoral purpose for which it was given. In this respect it is like a eon- tract based upon an illegal consideration ; for when the latter is executed it cannot be rescinded, and the courts ^Savigny L. 22 de V. O. (25, 1) ; 1 Wliart. Cont., sect. 195. 'See generally, on mistake, Section 450. 9G Gifts. will leave the persons to it where they have placed them- selves.^ Tims past cohabitation alone will not render a gift by the party holding such a relation to the donee void or illegal.^ 80 usually a gift upon an illegal condi- tion will be valid, the condition being void/' 120. Change of Position by Donee in View of Gift — Acquiescence. — A gift, although imperfect, may become of such a vested character as to prohibit the donor's revoking it. Thus a father dying w^illed his farm, dividing it between them, to his two sons, each half charged with an equal annuity in favor of their mother. The two sons and mother lived together two years, and the sons paid off* their father's debts. One of the sons being ready to marry, the mother and tlie other son moved to the latter's part of the farm, leaving the first son in possession of his part ; and they divided equally bet)veen them, with the assistance of others, their father's personal property. At the time of this division the mother said she would forgive her sons the two years' ar- rears of the annuities, and repeated it afterward several times, both before and after the marriage, assigning as a reason that they had fed, clothed, and housed her, had given her all she wanted, had paid \\cr husband's debts, had been good to her, she wished them well, and that they could not pay the debts, keep her, and pay the an- nuities. After the death of the married son, she attempted to withdraw the gift of tlio aruiiiity his part of the farm had been charged with, although she made no such attfiript as to tlie surviving son, and attempted to enforce ' Carter r. Montgomery, 2 Tenn. Ch. 216; Bivins v. Jarnigin, 3 Baxt. 282; Hill V. Freeman, 73 Ala. 200 (a. oontrart). * Smith V. Dii Bose, 78 Geo. 413 ; Bcall v. Beall, 8 Ga. 210, 224 ; Ilargroves v. Freeman, 12 Ga. 342 ; Davis v. Moody, 15 Ga. 175. » Iloggatt V. Gibbs, 15 La. Ann. 700. Revocation. 97 it against the land ; but the court hehl that this she could not do, even though her intention not to enforce the an- nuity was only expressed verbally, because of the fact that she had acquiesced so long in the understanding of all of them, and the circumstances and conditions of the son and mother had become altered/ 121. Gift of Real Estate by Parol. — A parol gift of real estate may be revoked, but at what period after the making of the gift is not settled. Thus in Alabama it is said that the gift creates a mere tenancy at will, and it may be revoked or disaffirmed by the donor, unless an adverse possession under it had continued for the statutory period.^ But, as has elsewhere been shown at length, this is not the law in many of the States. It seems clear, upon principle, that a donor cannot revoke a parol gift of land after the time at which the donee is entitled to enforce a specific performance for conveyance of the legal title, or can successfullv defend as-ainst an action brought by the donor for possession of the land given. At these periods of time the gift has become a perfected one, and it is irrevocable. The circumstances, however, of the donee may have not been sufficiently changed to entitle him to hold the land, but they may be such as to entitle him to damages.^ 122. Redelivery. — It by no means follows that a de- liverv back bv the donee to the donor of the thins: siven will amount to a revocation. There are many cases which hold that it does not;* but the redelivery may be accom- panied by such circumstances that the fact of redelivery 'Long r. Long, 16 Gr. Ch. (Can.) 239 ; S. C. 17 lb. 251. * Collins c. Johnson, 57 Ala. 304 ; Hubbard r. Allen, 59 Ala. 283. ' See Pearee v. Gibbon, 6 Rev. Leg. 649. *See Sections 209, 210. 7 08 Gifts. will be construed as a revocation. Tims where a donor, in anticipation of death, by an agreement in writing dis- posed of his effects, and at the same time delivered the possession of tliem, a redelivery by the donee to the donor was considered to be a revocation of the gift.^ But such is not necessarily the case, as has been said. Thus the gift of a note, fully executed, was held not revoked by the fact that the donee redelivered it to the donor, under an agreement with her that she could collect thereon such an amount as she might need for her sup2:)ort if she should become poor.' 123. Donatio Mortis Causa. — A gift donatio mortis causa may be revoked by the donor at any time before his death, although all the formalities have been observed necessary to make such a gift valid ; ^ and after the act of revocation he may give it to another. Indeed giving it a second time, to another person, is a revocation of the first gift,^ even if it is given by will executed subsequent to the gift, according to some of the" cases.^ But if the will is executed before the gift is made, the gift is not revoked.'^ Of course, as is elsewhere discussed,"^ 1 Wigle V. Wigle, G Watts, 522. •^ Marston ?'. Marston, 64 N. H. 146. 2 Taylor v. Henry, 48 Md. 550, 559 ; S. C. 30 Aiu. Eep. 486 ; Duncan v. Duncan, 5 Litt. 12; Parish v. Stone, 14 Pick. 198; Gass v. Simpson, 4 Coldw. 288; Harris v. Clark, 2 Barb. 94; afBrmed 3 N. Y. 93; Dole v. Lin- coln, 31 Me. 422. *Pari. Adams, 2 Whart. 17, 22; Eeddel v. Dobree, 10 Sims. 244. " See Section 42. Revocation. 99 a recovery of the donor from his then sickness is of itself a revocation of the gift/ 124. Burden to Show Non-Revocation in a Volun- tary Deed of Settlement. — In the case of a voluntary settlement by deed, as a marriage settlement, the donee must show very distinctly the intent of the donor to make the gift, for in the absence of a certain intent to make the gift irrevocable, the omission of a power to re- voke it is jirima facie evidence of a mistake, and casts the burden of supporting the settlement upon the donee.^ " A person taking a benefit under a voluntary deed which is not subject to a power of revocation has thrown upon him the burden of proving that the gift was meant by the donor to be irrevocable," and " a voluntary gift not sub- ject to a power of revocation, but not meant to be irrevo- cable, may be set aside by the donor." ^ 125. Revocation Under Spanish and Mexican Law. — In the States of Louisiana, Texas, California, and perhaps in Colorado, as well as in the Territories of New Mexico and Arizona (perhaps) the Spanish and Mexican law has been in force with respect to gifts between hus- band and wife. These laws in this respect differ from the common law. " Such donations," it is said, " are pro- hibited in order that the parties may not be prejudiced thereby, and dispossess themselves of their property, through their mutual affection ; and also because the one 1 Staniland v. Willott, 3 MacN. & Gor. 664 ; Wells r. Tucker, 3 Binn. 366 ; Chevallier v. Wilson, 1 Tex. 161 ; Bates v. Kempton, 7 Gray, 382. 2 Russell's Appeal, 75 Pa. St. 269. ^Wollaston V. Tribe, L. R. 9 Eq. 44; Hall v. Hall, L. R. 14 Eq. 365; Coutts v. Acworth, L. R. 8 Eq. 558; Forshaw v. Welsby, 30 Beav. 243; Phillips v. Mul- lings, L. R. 7 Ch. Ap. 244; Phillipson v. Kerry, 32 Beav. 628; Huguenin t>. Baseley, 14 Ves. 273 ; Cooke v. Lamotte, 15 Beav. 234 ; Garnsey v, Mundy, 13 Aiu. L. Reg. 345 ; Miskey's Appeal, 107 Pa. St. 611. 100 Gifts. who was the most avaricious woukl be in a better condi- tion than the other who gave freely. And if they do make any such gifts after marriage they will not be valid, if one of the parties become thereby poorer and the other richer, unless he who made the donation did not revoke or annul it during his life, for then it would re- main valid. But if the party making the donation re- voke it during his life by expressly saying : ' I do not wish such a donation made to my wife should be valid ;' or if he observe silence in this respect, and afterward give or sell the same thing to another person ; or if the party receiving the donation die before the party who made it, in either of these cases the first donation will become void." ^ In construing this law and others, the Supreme Court of California said : " By this, and others of like import, a donation made by a wife to her husband or by a husband to his wife, was revocable during the life and at the instance of the donor ; and conversely it became valid if not revoked at the death of the donor, if the donee then survived." ^ 126. Bevocation by Birth of Child. — Under the law in force in Louisiana in 1820, if a husband and wife gave to the survivor the property of the first one of them dying, if there be no child born of their marriage, the do- nation was revoked by the birth of a child, and not re- vived by his death during their joint lives.^ 127. Civil a-^d French Law. — French writers on the civil law speak of gifts as contrats de bienfaisance, or con- ' Law 4, Title 11 of the 4 Partidas, translated in Fuller v. Ferguson, 26 Cal., p. 574. * Fuller V. Ferguson, 26 Cal., p. 574 ; Labbe v. Abat, 2 La. 553 ; Holmes v. Pat- terson, 5 Mart. 693 ; Scott v. Ward, 13 Cal. 45ed. This is tenable ground, and sufficient to show that dominion over the fund was not relinquished : Daniel v. Smith, 75 Cal. 548. The declaration of .1. that hi! had given a slave to B. and then hireil it from him, without a delivery of the slave, is insufficient to perfect a parol gift: Bryant v. Ingraham, 16 Ala. 116. See generally on delivery, Jones v. Deyer, 16 Ala. 221 ; Stallings v. Finch, 25 Ala. 618; Hunley i: Hunley, 15 Ala. 91; O'Brien v. O'Brien, 4 Ontario, 450; Delivery. 107 and to prevent mistake and imposition." ^ Such gifts open the door for fraud and perjury ; and as these gifts are usually claimed upon parol evidence, it is dif- ficult to meet and overthrow such claims, when the alleged Brunson v. Branson, Meigs, 630 ; Dunbar v. Woodcock, 10 Leigh. 628 (bond) ; Payne v. Powell, 5 Bush. 248 ; Brown v. Brown, 4 B. Mon. 535 ; Poullain v. Poul- lain, 79 Ga. 1 1 ; Evans v. Lipscomb, 31 Geo. 71 ; Noble v. Smith, 2 Johns. 52 ; Grangiac v. Ardeii, 10 Johns. 293 ; Little v. Willets, 55 Barb. 125 ; Cooper v. Burr, 45 Barb. 9 ; Hunter v. Hunter, 19 Barb. 631 ; Huntington v. Gilmore, 14 Barb. 243 ; Doering v. Kenamore, 86 Mo. 588 ; McCord v. MoCord, 77 Mo. 166 ; Trough's Est., 75 Pa. >St. 115. A bought a piano on agreement that she was to have tlie title when she paid for it. She died before completing full payment, and after her death her administrator paid off the debt. Before she died she sent the piano to B as a gift. Held, a valid gift: Nicholson v. Thomas, 8 W. N. Cas. 195. See generally. Carter v. Buckingham, 1 Handy, 395; Armitage V. Mace, 96 N. Y. 538; S. C. 16 J. & S. 107. When a gift of a chattel is found or stated in a case, a delivery is presumed ; and it will be presumed that tlie donee cuntinued in possession until the contrary is shown : Spiers v. Alexan- der, 1 Hawks. 67 ; Caldwell v. W^ilson, 2 Speer Eq. 75. Owing to the fact that the difference between the common and civil law with reference to the delivery of gifts has not been observed, an error has crept into a few cases with respect to the necessity of a delivery. In a note to the case of Lunn v. Thornton, 1 C. B. 379, Manning, J., says : " With respect to donations inter vivos, gifts by parol are revocable and incomplete, until acceptance {i. e., acquiescence in the gift) by the donee, but gifts by deed are perfect and complete, and vest the property in the donee, until disclaimer (which disclaimer may be by parol) ; and after acceptance, in the former case, and until disclaimer in the latter, the property vests in the donee, without any delivery." Jn Flory v. Denny, 7 Excli. 581, Parke, B., aji- proves this language. Similar language was used in a note to London, etc., K. Vt'. Co. V. Fairclongh, 2 M. & Gr. 674, 691, and in the argument to W^inter v. Winter, 4 L. T. N. S. ''39. The Canadian Common Pleas followed these decisions, hold- ing that it is sufficient to complete such a gift that the conduct of the parties should show that the ownership of the chattel had been changed : Queen v. Car- ter, 13 C. P. 611 ; and this latter case was followed in Viet v. Viet, 34 Q. B. (Can.) 104, thotigh the gift was probably good without resorting to such extreme language. But the Canadian cases have been discredited in that country : Travis '('. Travis, 12 Ont. App. 438, affirming 8 Ont. 516. But see Danby v. Tucker 31 W. E. 578 ; Reeves v. Capper, 5 Bing. N. C. 56 ; S. C. 6 Scott, 877 ; 2 Jur. 1067 ; Bourne t'. Fosbrookc, 18 C. B. N. S. 515 ; S. C. 34 L. J. C. P. 164 ; 11 Jur. N. S. 202. Seethe recent English case of Cochrane v. Moore, 25 Q. B. Div. 57 ; S. C. 59 L. J. Q. B. 377 ; 63 L. T. 153 ; 38 W. R. 538 ; 54 J. P. 804 ; 6 T. L. R. 296. In the case of a gift mortis causa, the delivery must be before the death of the donor : Ges- cheidt V. Drier, 20 N. Y. Supp. 11. 1 Noble V. Smith, 2 Johns. 52 ; Harris v. Clark, 3 N. Y. 93, 113 ; Delmotte v. Taylor, 1 Redf 417. 108 Gifts. donor is dead, unless a delivery to the donee is made an absolute and requisite test in determining whether or not a gift was actually consummated — not intended but con- summated.^ ^ Brinckerhoff V. Lawrence, 2 Sandf. Ch, 400; Chevaliier r. Wilson, 1 Tex. 161 ; Dickerchied v. Exchange Bank, 28 W. Va. 340. In North Carolina it was ruled that the reason a delivery was required was in order to identify the property, and that it might answer the purposes of notoriety ; but when the identity could be proved, a delivery was not necessary : Arrington v. Arrington, 1 Hay.'l. The entire subject has been discussed at considerable length by Fry, L. J., in a recent case, involving an examination of many of the old authorities. Said he : " In Bracton's day seisin was a most important element of the law of property in land ; and, however strange it may sound to jurists of our day and country, tiie lawyers of that day applied the term as freely to a pig's house as to a manor or a field. At that time the distinction between real and personal property had not grown up : the distinction then recognized was between things corporeal and things incorporeal ; no action could then be maintained on a contact for the sale of goods, even for valuable consideration, unless under seal ; the distinction so familiar to ns now between contracts and gifts had not fully developed itself. The law recognized seisin as the common incident of all property in corporeal things, and tradition or the delivery of that seisin from one man to another as essential to the transfer of the property in tliat thing, whether it were land or a horse, and whether by way of sale or of gift, and whether by word of mouth or ofdeedunderse.il. This necessity for delivery of seisin has disappeared from a large part of the transactions known to our law ; but it has survived in the case of feoffments. Has it also survived in the case of gifts?" After a review of many old authorities and cases he says: " This review of the authorities leads us to conclude that according to the old law no gift or grant of a chattel was effectual to pass it whether by parol or by deed, and whether with or without considera- tion unless accompanied by delivery ; that on that law two exceptions have been granted, one in the case of deeds, and the other in that of contracts of sale where the intention of the parties is that the property shall pa'^s before delivery ; but that as regards gifts by parol, the old law was in force when Irons v. Smallpiece [2 B. & A. 551 J was decided ; that that case therefore correctly declared the ex- isting law ; and that it has not been overruled :" Cochrane v Moore, 25 Q. B. Div. 57 ; S. C. 59 L. J. Q. B. 377 ; 63 L. T. 153; 38 W. R. 588 ; 54 J. P. 804 ; 6 T. L. R. 296. "Upon long consideration I hare come to the conclusion that actual delivery in the case of a 'gift' is more than evidence of the existence of the proposition of law which constitutes a gift, and I have come to the conclusion that it is a part of the proposition itself. It is one of the facts which constitute the proj)0- sition that a gift has been made. It is not a piece of evidence to prove the existence of the proposition; it is a necessary part of the proposition, and, as such, is one of the facts to be proved by evidence :" Lord Esher, M. R., in Delivery. 109 133. Mere Intention Caxnot Take the Place of a Delivery. — Mere intention, however clear or hoAvever em- j)hatieally and publicly expressed, can never take the place of a delivery, either constructive or actual. Intention to give is essential to the validity of every gift, but it is only one of the requisites to vest the title to the thing given in the donee. But a clearly expressed intention, especially if accompanied by acts corroborating it, may aid an am- biguous delivery, which would otherwise fail ; and so acts indicating a clear intent to give may also aid an ambiguous delivery, though not to the extent that a clearly expressed intention may. So, too, a clearly expressed intent, especially if accompanied by acts corroborating it, will more effect- ually aid a delivery which has been made as complete as the condition of the parties or the circumstances of the transaction will at the time permit.^ But a court will not hokl as discharged a debt due a decedent, on the mere ground of his intention not to enforce it, or of his treat- ing it as not obligatory.^ 134. Delivery Must Be Sufficient to Pass Title — Test. — A delivery to render a gift good must be such that the title passes to the donee ; if it does not pass, the gift is void. In the instance of a donatio mortis causa, the vesting Cochrane v. Moore, 25 Q. B. Div. 57, 75 ; S. C. 59 L. J. Q. B. 377 ; 63 L. T. 533; 33 W. R. 588 ; 54 J. P. 804. If the donee obtain possession of the subject-matter of the gift, supposing there is a valid gift, he is not liable for interest (in case it is a fund) on the fund given, even though he retain it a long time : Hooper v. Goodwin, 1 Swanst. 486. ^ Devol V. Dye, lliS Ind. 321; Gammon Theological Seminary i'. Robbins, 128 Ind. 85; Walker v. Crews, 73 Ala. 412; Delmotte v. Taylor, 1 Redf. 417; Dick- ersclieid v. Exchange Bank, 28 W. Va. 340; Hitch v. Davis, 3 Md. Ch. 266; Hunter v. Hunter, 19 Barb. 631. ^Robson r. Jones, 3 Del. Ch. 51 ; Lee v. Luther, 3 Wood & M. 519; Trough's Estate, 75 Pa. St. 115; Carter v. Buckingham, 1 Handy, 395; Jones v. Deyer, 16 Ala. 221 ; Donover v. Argo 79 la. 574. Something by way of delivery must be done to show that tlie donor's intention has been carried into effect: Tomlinson V. Ellison, 104 Mo. 105. 110 Gifts. of the title is, of course, conditional ; bat the delivery must be as complete as if it were a donatio inter vivos} Of a gift inter vivos it was said : " The consummation of every parol gift is delivery. There must be an actual transmu- tation of possession and property ; and the real question in all such cases is whether the donor has parted with his dominion over it." ^ In an early Texas case it was said : " The test of delivery — of the consummation of a parol gift of a chattel — is the change of property — the imme- diate right to entire dominion over the subject of the gift — a perfect title, which is as good against the donor as any one else. . . . The change of property must in all cases be complete at the instant of the gift. The right which had been in the donor must eo instanti of the gift be vested in the donee." ^ 135. Parting with Dominion Oyer the Thing Given. — It is a common remark that to make a gift valid the donor must make such a delivery as will give the donee the present dominion over the property intended to be given.* This is no doubt true ; but this is nothing more than the assertion that the title must pass to the donee, for we understand that if the right of disposal in the donor is lost to him, then he has parted with his do- minion over the article given, although he may have re- gained the physical possession of it, either with or without the consent of the donee." An old case, however, will ^Gilmore v. Whiteside«, Dudley Eq. 14. '^M'Dowell V. Murdock, 1 Nott. & McC. 237. ^Chevallier i'. Wilson, 1 Tex. 161 ; Dickerschied v. Exchnnge Bank, 28 W. Va. 340 ; Walker v. Crews, 73 Ala. 412 ; Pennington v. Gittings, 2 G. & J. 208 ; Gart- side V. Pahlraan, 4o Mo. App. 160. * (lilmore v. Whitesides, Dudley Eq. 14. MValker v. Crews, 73 Ala 412; Devol r. Dye, 123 Ind. 321. "The owner must part with his dominion and cimtrol of the article before the gift takes effect ; mere words alone convey no title, and a present gift must be intended ; the donor must intend to part with the title and control of the thing at the time of making Delivery. Ill illustrate the distinction between the words " j^ossession " and " dominion." An intestate in his last illness ordered a box to be carried to the house of the defendant, to be delivered to her, but gave no directions respecting it, nor" said anything about giving it to her. On the next day the key was brought to the intestate, who desired it to be taken back, saying that he should want a pair of breeches out of it. It was held that there was no valid gift, the court saying : " In the case of a donatio mortis causa, possession must be immediately given ; that has been done here; a delivery has taken place, but it is also necessary that by parting with the possession, the de- ceased should also part with the dominion over it. That has not been done here. The bringing back the key by her the next morning to the intestate, and his declaration that he should want one of the articles of his apparel con- tained in it, are sufficient to show that he had no inten- tion of making any gift or disposition of the box." ^ So where the owner of a slave, having previously placed it with B, told him that if he never called for it, his (the owner's) wife was to have it, and afterward died, without calling for it, and made no disposition of it by will, it was held that there was no gift, for the reason that the donor never relinquished his dominion over the slave." 136. Mere Possession by Donee Not Sufficient. — A delivery, of course, results in placing the donee in the the gift. A gift to take effect in the future is void :" Gammon Theological Seminary v. Eobbins, 128 Ind. 85 ; Sheegog v. Perkins, 4 Baxt. 273 ; Penning- ton V. Gittings, 2 G. & J. 208. ^ Hawkins v. Blewitt, 2 Esp. 663. ^ Ptallings V. Finch, 25 Ala. 518. On this subject see Nasse v. Thoman, 39 Mo. App. 178 ; Gartside v. Pahlman, 45 Mo. App. 160 ; Board v. Callihan, 33 W. Va. 209; Frame v. Frame, 32 W. Va. 463. Where a decedent expecting to die shortly from a disease possessing liim, a short time before his death handed to another a certificate of deposit for safe keeping, requesting him to see that the dprodcnt's children got the money in case he died, it was held that there was no valid gilt, be- cause of a lack of a delivery: Dunn v. German-American Bank, 18 S. W. Eep. 1139. 112 Gifts. possession of and dominion over the article given ; but his mere possession is not sufficient. Speaking of a gift of certain furniture the Surrogate Court of New York city said : " In respect to the furniture, there was a change of possession. But nothing to show that it was done with the knowledge or acquiescence of the testator. The fact that the furniture was in her possession before his death, is not of itself sufficient to warrant the presumption that there was an actual delivery. It should appear that she took possession of it with the knowledge and assent of the donor ; for without this, nothing is shown on his part but the intention to give, which is not enough." ^ Possession to render a gift valid must be of such a character as to indicate an abandonment of dominion by the former owner, and its acquisition by the possessor.^ A wife re- ceived a banker's draft for the amount of a legacy given to her separate use. She gave the draft to her husband, who paid it into his current account, and on the same day placed it upon a deposit account in his own name, and then showed his wife the deposit note. Shortly after this he died. She having showed that she never intended to give up the control of the money, his executors were ordered to pay her the amount of the legacy.^ 137. Right to Use Distinguished from Possession. — There is a radical distinction between the right to use — the right to make use of — a tiling and the right of possession. The right to use an article confers upon the person hold- ing it the power to use the article without being a tres- > Delmotte t'. Taylor, 1 Redf. 417 ; Dunbar v. Dnnbar, 80 Me. 152; Miller v. Jeffreys, 4 Gratt. 472 ; Dlckeschied v. Exchange Bank, 28 W. Va. 340 ; Bigelow V. Paton, 4 Mich. 170. ^ Evans v. Lipscomb, 31 Ga. 71. ■■ Greeny v. Carill, 4 Cb. Div. 882; S. C. 46 L. J. Ch. 477 ; Trimmer v. Darby, 25 L. J. Ch. 424. Delivery. 113 passer — a wrong-doer — without conferring a property in the thing ; but the right of possession gives the right to control the article even as against the actual owner, and is such a right as gives a qualified property in the person entitled to it. A right to merely use an article does not give the person having such right a right to maintain an action in trespass against one injuring it, nor replevin for its possession ; hut a i-ight of possession gives the per- son having the right full authority not only to maintain an action in trespass but also in replevin. Two Iowa cases well illustrate this distinction. Thus, a donor gave her grandchild, as it was claimed, a piano, which was in the house and possession of the donor. The donee lived with her father, who lived with his mother in her family and in her house. The grandchild used the j^iano after- ward, as she did before. About six months before any dispute arose about the piano, the son and his family, including the grandchild, moved into another house, but the piano remained in the house of the donor, and was there when levied upon by the creditors of the donor. It was held that the alleged donee had the right to use the piano, but had not the right of possession.^ The other case is where a father took his fourteen-year-old child to a music store, and bought and presented to her a piano. She had it conveyed to his house, where she lived as a member of the family; but the bill of sale for it was made to him, and he executed a mortgage on the instrument to secure the purchase-money. The piano was put in his parlor, where it remained with his furniture until it was levied upon by his creditors ; but from the time of its de- livery at the house until levied uj^on, it was " hers exclu- sively, and under her sole and exclusive control," so the court found. There was no conveyance in writing to her iWilley V. Backus, 52 la. 401. 114 Gifts. by the father, nor any notice of her ownership put on record ; yet the court hekl that she had not only the riglit of use but the right of possession, and that the gift was valid as against his subsequent creditors.^ 138. Actual and Manual Delivery. — The adjective " actual " is very frequently used in connection with the word " delivery," and some confusion has arisen in its use. Thus in a New Hampshire case it is said that " without actual delivery the title does not pass." ^ Some confusion has arisen from the use of this word — some writers and courts having construed it to mean a manual delivery. But by the phrase " actual delivery " we are not to understand that a manual delivery — the handing in person of the subject-matter of the gift to the donee, or the handing by a third person, at the request of the donor and in the latter's presence, of such subject-matter to the donee. Such a transaction is not to be understood ; but by the use of the phrase nothing more is meant than such a delivery as will pass the title, whether that be a manual or a symbolical delivery. In a few cases, however, we shall see that in a donatio mortis causa a manual delivery is required.^ 139. Actual, Constructive, or Symbolical De- livery. — In some of the older cases, especially in in- stances of donationes mortis causa, it is declared that there must be an actual delivery ; but this rule has long since been abrogated. The delivery may be either actual, con- structive, or symbolical ; and the one is as effectual to pass the title as the otlier.^ In a Texas case it was said : ^ Piersoti v. HeiFey, 19 la. 114. See Section IfiO. ^ Reed v. Spaulding, 42 N. H., p. 119. ^ E^swein v. Seigling, 2 Hill (S. C), CIi. 600. The Virginia statute has no reference to gifis mortis cnusa: Thomas v. Lewis, 15 S. E. Rep. 389. * Devol V. Dye, 123 Iiid. 321 ; Gammon Theological Seminary v. Robbins, 128 Ind. 85; Love v. Francis, 63 Mich. 181 ; Dickeschied v. Exchange Bank, 28 W. Delivery. 115 " Where tlie thing is incapable of actual delivery, or where the situation of the parties, or the circumstances of the case will not admit of it, it may be symbolical or con- structive." ^ In an early case in North Carolina a gift, where only a symbolical delivery was made, was upheld. In that case the donor, while in good health said to the donee, a child : " I give you all my corn, and all my hogs, my horse Tinker, and my negro slave. Here, take of the corn I have given you." And he gave him an ear or two of corn. In delivering the opinion of the court, Taylor, J., said : " Where the things given are not present to be delivered, a symbolical delivery is allowable by the law of this country. The horse was in the yard and might have been delivered ; and the gift is clearly not good as to him. The corn, hogs, and negro were not there, but two or three miles off. As to them, the de- livery of the ear of corn was a good delivery, if delivered in the name of all." ^ A and B were partners in a brewery, in which a clock, the property of either A or of the partnership, was used. Four mouths prior to his death A told a witness that he had given the clock to C, and at the request of A the witness went and demanded the clock from B, who said he could not give it on that day, but would in three days after. On other occasions, Va. 340; Miller v. LePiere, 136 Mass. 20; Eeid v. Colcock, 1 N. & McC. 592; Powell V. Leonard, 9 Fla. 359. ^ Hillabrent v. Bower, 6 Tex. 45 ; Arrington v. Arrington, 1 Hav. 1 (delivery of a dollar instead of the negro given, who was absent in another State ; held a valid gift) ; Poullain i\ Poullain, 79 Ga. 11. ^ We have given the entire opinion: Lavender )• Pritchard, 2 Hay. 293. On a second trial the court considered that there was only a delivery of the corn : Lavender v. Pritchard, 2 Hay. 337. In Gardner v. Parker, 3 Madd. Ch. 102, it wa=; said that Snellgrove v. Bailey, 3 Atk. 214, established the proposition that a delivery of a mere symbol in a donatio mortis causa was not a sufficient delivery. That there may be a symbolical gift in such an instance, see Phipps V. Hope, 16 Ohio St 586; Hamor v. Moore, 8 Ohio St. 239; Taylor v. Kelly, 5 Hun, 115. 116 Gifts. both before and after the death of A, B promised to give up the clock, but did not do so. Still later he refused to give up it up. It was held that the promise made by B to give up the clock was evidence to go to the jury of his assent to the disposal of the clock, if it were partnership property ; and also evidence to show that everything necessary to make a gift effectual had been done by A whether the clock was partnership proj)erty or the ex- clusive property of A.^ 140. The Situation of the Subject-Matter of the Gift Must be Consideeed. — In determining whether there has been a valid delivery, the situation of the sub- ject of the gift must be considered. Thus if it is actually present, and capable of delivery without serious effort, it is not too nmcli to say that there must be an actual de- livery, although the donor need not in j^erson or by agent hand the article to the donee, if the latter assumes the possession. " An actual delivery has never been required, other than such as the nature of the property intended to be transferred was susceptible of." ^ " The rule, we think, has been greatly modified by the more modern decisions on the subject. It is that the delivery must be according to the nature of the thing, and usually that means accord- ing to the physical nature of the thing to be delivered, ^ Malone v Reynolds, 2 Fox & Smith (Ir.) 59. Doctrine of constructive delivery recognized: Stephenson v. King, 81 Ky. 425. In Bunn v. Markham, as reported in Holt's Nisi Prius, 352, it was said that in a donatio mortis causa there must be an actual delivery of the article where it is capable of delivery, and a symbolical delivery would not be sufficient. In Alabama, after a review of many cases, the court formulates the following rule: " Delivery, actual or constructive, is essential to the validity or consumma- tion of a parol gift of a chattel; and where the delivery is constructive, it must clearly appear that the donor lias parted with his dominion over the thing, in order to pass the title to the donee and aflTectuate the gift :" Bates v. Vary, 40 Ala., p. 434. '^ Gilraore v. Whitesides, Dudley Eq. 14. Delivery. 117 such as the bulk or weight, and does not refer to the lo- cality of the thing." ^ 141. Article Incapable of Delivery. — So strongly do the early cases insist upon an actual delivery to com- plete a gift, it was said that if the thing given is incapable of a delivery there can be no gift made of it.^ But the modern cases hold that in such an instance if there be some act equivalent to a delivery it is sufficient." 142. CoxDiTioxAL Delivery. — A gift to be valid must not only be delivered, but the delivery must be uncondi- 1 Stephenson v. King, 81 Ky. 425 ; 50 Am. Rep 172 ; Devol v. Dye, 123 Ind. 321. " Wliile a delivery is absolutely necessary to the validity of a gift, yet it is not necessary that ihere should be a manual delivery of the thing given. It will be sufficient if the delivery be as complete as the thing and the circumstances of the parties will permit. If the article given be too bulky to admit of a manual delivery, but there is a surrender of the possession and control by the donor to the donee, with a clear expression of the intention of the donor to give, and the donee accepts the gift, and assumes control of the property, it will be sufficient :" Gammon Theological Seminary v. Robbins, 128 Ind. 85 ; Ross v. Draper, 55 Vt. 404; Devol v. Dye, 123 Ind. 321 ; Farquharson v. Cave, 2 Colly. 356 ; Reddel v. Dobree, 10 Sim. 244. A and B, brothers, buried a certain sum of silver, belong- ing to them equally. B died and C became his executor. Thirteen years after- ward A, who was old and unmarried, told C that he wanted his brother D to have his portion of the buried treasure; and that after his death it must be dug up and equally divided between D and himself as executor. A made the same statement and direction to D. Afterward A and C concluded to dig up the treasure, without waiting for the former's death. They sent for D, and he and C made search for the money, which was in two boxes, but only found one, until A came and pointed out the place of its burial. Both boxes were carried jointly to the house occupied by A and C, near by. Six days after A died, and the day after his burial C and D divided the money equally. It was held that D had a good title to the money, the act of sending him to the place of burial of the money, to dig it up, being a sufficient delivery : Carradine v. Carradine, 58 Miss. 286; Dickeschied v. Exchange Bank, 28 W. Va. 340; Hitch v. Davis, 3 Md. Ch. 266; Powell v. Leonard, 9 Fla. 359 ; Beaver v. Beaver, 117 N. Y. 421 ; McKenzie V. Harrison, 120 N. Y. 260; Porter v. Gardner, 60 Hun, 571 ; Miller v. Neff 33 W. Va. 197. For a delivery of colts pastured on the farm of the donor but which was occupied by the donee, see Porter v. Gardner, 60 Hun, 571. ^ Pennington v. Gittings. 2 G. & J. 208 ; Adams v. Hayes, 2 Ired. L. 361. ' Deppe V. People, 9 Bradw. 349. See Cochrane v. Moore. 25 Q. B. Div. 57 ; S. C. 59 L. J. Q. B. 377 ; 63 L. T. 153 ; 38 W. R. 588 ; 54 J, P. 804 ; 6 T. L. R. 296. \^ 118 Gifts. tional. It must " be delivered absolutely and uncondi- tionally." Thus where the donor enlisted in the military service during the war of the Kebellion, and a short time before starting for the army, in which he died, said to a friend, in regard to a gun which he had loaned that friend, " Well, if I never return, you may keej) the gun as a present from me ;" it was held that these facts made J v neither a sjift intei' vivos nor jnortis causa} 143. Time of Delivery. — It is not essential that a delivery be made at the time the words of gift are used, or, in other words, at the time the gift is made. If the article given is already in the possession of tlie donee, then no delivery is necessary ; so the delivery may fol- low at any time before the death of the donor,'^ and be- fore he revokes the gift.^ But this rule has been vigor- ously denied in the case of a donatio mortis causa, and a delivery required at the very time of making the gift. Indeed, the weight of authority may be said to still follow the rule requiring an actual and present delivery."^ 144. Future Delivery. — A delivery to pass the title in the future is ineffectual, as much so as if there had been no attempt to make a delivery. Thus, if the prop- erty is delivered to a third person, with instructions to deliver it to the intended donee upon the haj^pening of a future event, and in the meanwhile the donor retain con- ^ Smith V. Dorsey, 38 Tnd. 451. ^ Diipuy V. Dupont, 1 1 La. Ann. 226. ^Carradiiie v. Carradine, 58 Miss. 286; "Wing v. Merchant, 57 Me. 383; Gilles- pie V. Burleson, 28 Ala. 551 ; Evans v. Lipscomb, 31 Ga. 71, qualifying Aiidersun V. Baker, 1 Ga. 59o; Grant v. Grant, 34 Beav. 623; S. C. 34 L. J. Ch. 641 ; 11 Jur. N. S. 787 ; 13 L. T. 721 ; 13 W. R 1057 ; Alderson v. Peel, 64 L. T. 645 ; S. C. 7 T. L. R 418. *Dicheschied v. Exchange Bank, 28 W. Va. 340. Proof of possession merely is no proof of tiiC lime of delivery : Cole v. Luca.s, 2 La. Ann. 946. Delivery. 119 trol over the gift, the gift is ineffectual.^ Of course, in the instance of a gift moytis causa, the statement is not strictly true ; for there the donor may at any time revoke the gift, and to this extent the donee is the agent of the donor. In such an instance, on the request or command of the donor, the bailee may with perfect safety redeliver the property to the donor without incurring any liability to the donee. But where at the time a note for money loaned was executed, payable three years after date, with interest payable annually, the j)ayee executed and deliv- ered to the payor a writing stipulating that, if the payee should not collect the note in her lifetime, her representa- tives should surrender it to the payor, adding "as I intend it as a gift from me to him," and the payee retained the possession of the note during her lifetime, but died within a year after the execution of the writings, it was consid- ered that there was no valid gift, for the reason that there had been no delivery, and the writing she executed only contained a promise to give.^ So, where the payee of a note j3laced it in the hands of a third ]3arty and directed the maker to pay it to such third party on the payee's decease, it was held that there was no gift, even if such third person retained it until the payee's death.^ But where a testator directed his executor to draw a sum of money from his bank and divide it among his servants according to directions given, and the executor obtained the money, notified both the testator and the servants of the fact, but delayed payment until the death of the former, it was held that there was a valid gift.* Yet ^Devol I'. Dye, 123 Ind. 321 ; Walker v. Crews, 73 Ala. 412; Knott v. Hogan, 4 Met. (Ky.) 99. If the gift is in writing, with all the formalities of a will, it may- be probated as a will, and the gift will be valid: Bonnafee v. Bonnafee, Manning (L.i.), 3.'^9 ; Phipps v. Hope, lO ^Oliio St. 586; Horn jv^Gartman,.! Fla. 63 ■•'Knott V. Hogan. 4 Met. (KyT) 99 ; Trough's Estate, 75 Pa. St. 115. 3 Craig V. Kittredge, 46 N. H. 57 ; Sims v. Walker, 8 Humph. 502. * Barclay's Estate, 2 W. N. C. 447; S. C. 33 Leg. Int. lOS. See Eichardson v. Seevers, 84 Va. 259. 120 Gifts, where the donor handed to B, a few days before his death and while in good liealth, a box with a letter addressed to C, and requested B to forward the box to C " in case anything should happen" to him, the donor, and in a few days thereafter the donor committed suicide, Avhereupon B delivered the box, with its contents and the letter, to C, it was held that there was not a valid gift/ 145. The Conditiojv and Intention of the Donor Must be Consideeed — Arbitraey Enfoecement of the BuLE. — Not only is the application of the rule requiring a delivery to be mitigated and applied according to the situation of the subject of the gift, but the conditions and intention of the donor at the time of making the gift must be considered ; and this is especially true of a gift mortis causa. " The intention of the donor," says the Supreme Court of Indiana, " in peril of death, when clearly ascer- tained and fairly consummated, within the meaning of well- established rules, is not to be thwarted by a narrow and illiberal construction of what may have been intended for and deemed by him a sufficient delivery. The rule which requires delivery of the subject of the gift is not to be en- forced arbitrarily." ^ Thus where the donor lived alone and when taken very ill wrote on a slate that she desired the donee to have all her personal property, and of her intention there was no doubt ; and the slate was found by her bedside at the time she was discovered dead ; it was held that, as she had done all that was possible for her to 1 Earle r. Botsford, 23 N. B. 407. Gift not to take effect until after death ; not valid: Basket v. Hassell, 107 U. S. 602; Daniel t. Smith, 75 Cal. 548; S. C. 64 Cal. 346; Trough's Estate, 75 Pa. St. 115. Mortgage to be cancelled when donor dies : Scales v. Maude, 6 DeG., M. & G. 43 ; S. C. 25 L. J. Ch. 433 ; 1 Jur. N. S. 1147. ^ Devol V. Dye, 123 Ind. 321 ; Gammon The ^logical Seminary v. Eobbins, 128 Ind. 85 ; Delmotte v. Taylor, 1 Redf. 417 ; Duffell v. Noble, 14 Tex. 640 ; Jackson v. Street Rule, 88 N. Y. 520 (reversing 15 J. & S. 85) ; Bigelow v. Paton, 4 Midi. 170. Delivery. 121 do to effect a delivery, an actual delivery of the slate was not necessary.^ 14G. Declaeatioxs of Doxoe, Insufficient to Show A Deliveey. — Where the donor remains in possession, or it is not shown that the gift was ever in the possession of the donee or in the possession of some person for him, his declarations, however often repeated, that he had made the gift will be unavailing to support the averment of a gift. Such declarations cannot take the place of a delivery.^ 147. Donor Believing That a Further Act was Necessary to Complete Gift, — If the conduct of the donor is such as to show that he considers that the per- formance of some further act is necessary in order to com- plete the gift, then until that act is performed, or until he makes it manifest that he does not consider its joer- formance as necessary in order to perfect the gift, the gift is not completed. This is especially true where the trans- action is involved in some ambiguity or uncertainty, es- pecially with reference to the delivery. In all such instances it is clear that the donor considers that he has dominion over the property, and that he has not parted with his title to it — that he is yet under a promise to make the gift. These statements finds support in an early English case. In that case A died intestate, the owner of personal property and entitled to bank annuities in a trustee's name, the dividends being payable to B. C, one of A's heirs, addressed a letter to B, and after men- tioning the intestate's projDcrty, said " my share I shall 1 Ellis r. Lacor, 31 Mich. 185 ; S. C. IS Amer. Rep. 178. ^ Anderson r. Baker, 1 Ga. 595; Wyche v. Greene, 11 Ga. 159; Hansell r. Bryan, 19 Ga. 167 ; Fulton v. Fnlton, 48 Barb. 581 ; 'Hunter v. Hunter, 19 Barb. 631 ; Huntington v. Gilmore, 14 Barb. 243; Kintzel v. Kintzel, 133 Pa. St. 71 ; Backer v. Meyer, 43 Fed. Eep. 702. See Sections 224, 225. 122 Gifts. relinquish to you for your benefit only." A deed of release and assignment from C to B, of all of C's interest in A's effects was afterward by C's direction prepared for his execution, but never executed, C having died the day before that on which he had directed his solicitor and a witness to attend him to attest the execution of the re- lease ; but having joined with B and the other heirs of A in executing a release to the trustee of the bank annuities on the trustees transferring them to B, it was held that as to the several personal estates there was no valid gift to B, but as to the bank annuities and their produce there was a valid gift. " It is sufficient to say," said the Master of the Bolls, " that in the present case there was not a comj^lete act. A further act was intended, but never actually completed." ^ 148. Act of Delivery Slight » or Ambiguous but Intent and Belief of Donor Clear. — If the language used by the donor is clear and unambiguous, showing a clear intent to make the gift and a belief on his part that he had done all that was necessary to complete it, then the act of delivery if slight and ambiguous will be aided thereby, not, however, dispensing with an actual delivery ; but renderino; the srift valid where it would be deemed in- valid if the acts of delivery were uncertain or ambiguous. So if there is a clear act of delivery, accompanied by words of a gift of a somewhat doubtful import, the act of delivery may be resorted to, to determine the intent the alle2;ed donor had in his mind when he made the deliverv and used the lan2;uao;e attributed to him. Or, in other words, a good delivery may aid doubtful words of gift ; and unambiguous acts of delivery may be aided by clear words of gift.^ 1 Hooper v. Goodwin, Wils. Ch. 212; Rupert v. Johnston, 40 Q, B. (Can.) 11. '^Fearing r. Jones, 149 Mass. 12; Anderson i'. Baker, 1 Ga. 595. Delivery. 123 149. Baron Pollock's Decision. — As late as 1883, j an attempt to modify the stiff and inflexible rule requir- ing a delivery, was made in England. Baron Pollock, after an extended discussion of the rule with respect to a delivery, declared the true rule of the law to be this : " The question to be determined is not whether there has been an actual handing over of propert}^ manually, but whether, looking at all the surrounding circumstances of the case, and looking particularly at the nature and char- acter of the chattel which is proposed to be given, there has or has not been a clear intention expressed on the l^art of the donor to give, and a clear intention on the part of the recipient to receive and act upon such gift." And although this is a mere dictum, he declared that " whenever such a case should arise again " he was " con- fident that that would be the basis of the decision of a court of common law, and, of course, the same result would follow in a court of equity." In this instance he was referring to a gift inter vivos} The court held tliat the posting of a piece of paper, with the donee's name and a date written on it, signed by the donor in her own writing, upon a picture in the donor's house, where the donee, her sister, frequently visited, was not of itself enough to show a gift — not because of lack of delivery, but because tliere was nothing to show an intention to give the picture. But as to a silver sugar-bowl, a dessert service, and some old Chelsea dishes and plates, it was held that a declaration of a gift in the presence and to the donee, and the handing over to such donee one dish in the name of the whole, was a sufficient delivery, although none of the articles were re- moved from the house of the donor. Seven years later, ' Danhy v. Tucker, 31 W. E. 578, following a dictum in "Ward v. Andlord, 16 M. & W.802, 871. 124 Gifts. the rule announced by Baron Pollock was overturned by the Queen's Bench, in a lengthy opinion by Justice Fry, in which the court adhered to the case of Irons v. Small- piece,^ and declared that it had not been overruled by the decision of Baron Pollock. The case is an exhaustive review of all the modern and old English cases and firmly settles the rule that a delivery is essential. There it is held that the gift of a chattel capable of delivery, made per verba de prcesenti by a donor to a donee, and assented to by the donee, Avliose assent is communicated to the donor, does not pass the property in the chattel without delivery.^ 150. Delivery by avay of Bailment. — If the de- livery amounts only to a bailment, then the gift is incom- plete ; for there is no unconditional delivery. Thus where a father in his last illness placed a package of money in the possession of his son to take care of, and some few days afterward directed him, in case he should not get well, to take the money and, after paying the fu- neral and other designated expenses, to divide the re- mainder equally between himself and his brothers and sisters, it was held that the delivery was made by way of bailment and not in execution or contemplation of a gift, and that there was no donatio mortis causa? 151. Doxee Unaware of Thing Given, although He Know^s that Something of Value is Presented. — It is not necessary that the donee, at the time of the de- livery or even at any time before the death of the donor, should know what was given. Thus where the donor sealed up a note in an envelope and delivered it to the 12B. & A. 551. 2 Cochrane v. Moore, 25 Q. B. Div. 57 ; S. C. 59 L. J. Q. B. 377 ; 63 L. T. 153 ; 38 W. R. 588 ; 54 J. P. 804 ; 6 T. L. R. 296. =*McCordt). McCord, 77 Mo. 166. Delivery. 125 donee, saying to lier that it contained a gift for her, but requesting that it be not opened until after liis death, the gift was held valid, although the donee did not know what the gift was until she opened the envelope.^ So where a testator made a will, and included in it £100 for his executors, in whose hands he placed the will ; and subsequently made a fresh will, but kej^t the former, and directed it to the first executor, saying it contained some- thing for him, the two transactions occurring in his last sickness where the testator was in hourly expectation of death, the gift was upheld as a donatio mortis causa? 152. Donee in Possession at Time of Gift. — If the donee has possession at the time of the gift, having ob- tained such possession either lawfully or unlawfully at some time previous thereto, the law does not require him to first deliver the subject-matter of the gift to the donor and then the donor redeliver it to the donee. Such a transaction would be a useless formality.^ Thus, where a wife told her husband, on her death-bed, that he might have a note she owned and which was then in a bureau drawer in the house they jointly occupied, and the note remained in the drawer until after her death, the gift was upheld ; because it was in his house and presumjDtively accessible to him.'^ A donee had possession of a barge, and he used it as a servant of the owner. The owner gave it to him, and thereafter the donee used it as his own, pay- ' Worth V. Case, 42 N. Y. 362. See Wadd v. Hazleton, 62 Hun, 602. = Hill V. Chapman, 2 Bro. C. C. 612. ^Providence Institute, etc., v. Taft, 14 R. I. 502; Wing v. Merchant, 57 Me. 383 ; Frame v. Frame, 32 W. Va. 463 ; Carradine v. Carradine, 58 Miss. 286 ; Porter v. Gardner, 60 Hun, 571; Tenbrook v Brown, 17 Ind. 410; Alderson v. Peel, 64 L. T. 645; S. C. 7 T. L. Kep. 418; Waring v. Edmonds, 11 Md. 424; Penfield v. Thayer, 2 E. D. Smith, 305; Roberts v. Roberts, 15 W. R. 117; Champney v. Blanchard, 39 N. Y. HI ; Esswein v. Seigling, 2 Hill (S. C), Ch. 600. *Stevens v. Stevens, 2 Hun, 470; Williams v. Fitch, 18 N. Y. 546. 126 Gifts. ing the wages of the crew. The gift was deemed valid.^ But all the courts have not acquiesced in the rule that a delivery is unnecessary when the article given is in the hands of the donee, especially in the case of gifts mortis causa. In Maine it was said that such a delivery was not effectual in the instance of the latter kind of gifts. " It is the opinion of the court," said Walton, J., " that the gift of a savings-bank book, causa mortis, to be valid must be accomjDanied by an actual delivery of the book from the donor to the donee, or to some one for the donee ; and that the delivery must be made for the express purjDOse of consummating the gift ; and that a previous and con- tinuing possession by the donee is not sufficient." ^ The same court extended the rule to a gift inter vivos between husband and wife.^ So where A gave B his earnings to deposit in a savings bank, and B de^DOsited them from time to time, under an entry, both in the deposit book and in the bank ledger, " B, trustee of A ;" and A occasionally took the deposit book for the purpose of making a deposit, but always returned it to B ; and on one of these visits he said to the bank officials, " This deposit is payable to B in case of my death," to which the treasurer replied, " She has the control during your life, but it is not payable to her after your death," and then A said, " Then make it so ;" whereupon the bank treasurer added to the entries in the ledger and deposit book the words, " Payable, also to B in case of death of A ;" and these entries remained without further change to the time of A's death, it was held that the gift was not valid either as a gift inter vivos or mortis causa, for the reason that there was no intent to 1 Winter v. Winter, 101 E. C. L. 997 ; S. C 4 L. T. (N. S.) 639 ; 9 W. R 747. ^ Drew V. Hagerty, 81 Me. 231, 243. Where tlie delivery and the alleged act of gift are simultaneous, the intent to give must accompany the delivery : Beaver v. Beaver, 117 N. Y. 421. 3 Lane v. Lane, 76 Me. 521. Delivery. 127 make an immediate gift, and that it was not good as a donatio mortis causa, because not made in the last ilhiess of the donor/ In Virginia, the rule with reference to a donatio mortis causa is drawn very close. In such an in- stance it is held that there must be an actual delivery of the thing itself, or of the means of getting possession and enjoyment of the thing ; or if the thing be inactive, of the instrument by using which the share is to be re- duced to possession. It is also held that it is not the pos- session of the donee, but the delivery to him by the donor, which is material ; and that an after-acquired pos- session of the donee is nothing, and a previous and con- tinuing possession, though by the authority of the donor, is no better.^ 153. Forgiving Debt. — A debt due from the donee to the donor is the subject of a gift. If this debt is evi- denced by a note or other instrument of writing, the de- livery of the note or instrument, with intent to make a gift of the debt, will be a sufficient delivery.^ So a delivery of a receipt instead of the instrument itself will be suf- ficient, especially if there is some reason why the instru- ment cannot then be delivered. Thus a mother holdina- o ^ Parcher v. S;ico, etc , Institution, 78 Me. 470. * Miller v. Jeffress, 4 Gratt. 472; Yancey v. Field, 85 Va. 756. The same rule is adopted in New Hampshire : Cutting v. Gilman, 41 N. H. 147 ; Egerton v. Eg- erton, 17 N. J. Eq. 419 ; Walsli's Appeal, 122 Pa. St. 177; S. C. 1 L. E. Am. 535 ; Kenney r. Public, 2 Bradf. 319; Dlckeschied v. Exchange Bank, 28 W. Va. 340. A was executor of an estate, and as such in posse-^biim of it. The heirs wrote to him to retain one thous;ind dollars for the extraordinary trouble he had liad, which he did. It was held that this was a valid gift: Esswein v. Seigling, 2 Hill (S. C), Ch. 600. In North Carolina it was held that a gift of negroes to a donee nlready in possession was void unless there was some distinct act of deliverv: Adams v. Hayes, 2 Ired. L. 361. Merely showing possession is no showing as to the time of delivery : Cole v. Lucas, 2 La. Ann. 946, unless the gift is a note either indorsed to the donee or in blank : Breier ?'. Weier, S3 111. App. 386. ' See BrlnckerhofF v. Lawrence. 2 Saudf. Ch. 400. A retention of the bond with- out cancellation is not a gift : Nelson v. Cartmel, 6 Dana, 8 ; Young v. Power, 41 Miss. 197. 128 Gifts. lier son's note secured by mortgage gave liim a receipt for one year's interest, with the intent and understanding that it was a gift, and she also indorsed over a similar receipt on the mortgage ; this was held to be a valid gift of the in- terest.^ So the mere indorsement of payments upon the mortofase, with intent that the amount indorsed shall operate as a gift to the extent of the credit, is a sufficient delivery.^ But if the parties consider, and so act, that a delivery of the instrument evidencing the debt must be delivered in order to complete the gift, then a delivery of that instrument is requisite, and no words or other acts will be sufficient to uj^hold as a gift what was nothing more than a mere intention. Thus a father held his daughter's note for money advanced to purchase an estate. At the time she purchased the estate he used some ex- pressions showing his intention to give her the amount of the sum advanced to her, but he soon after took her note payable seven days after date. She regularly settled the interest falling due during his life. Fifteen years after the execution of the note, the ftither indorsed on it as follows : "I direct that this promissory note be delivered up to be cancelled after my death, to the intent that my daughter shall be exonerated from payment of same." This memorandum was dated and signed with the father's initials, and was in his handwriting. It was also attested by one witness. It was also shown that at A^arious times the fither told his daughter to take possession of the note, particularly so in his first illness. This note, with the conveyance securing it, he kept in his deed box, and they were labeled, " These belong to H. C," his daughter. ' Travis I'. Travis, 8 Ontario, 516 ; afSrined 12 Ontario App. 438. See where a receipt operated as a donatio mortis causa of the debt : Moore v. Darton, 4 De. G. & Sm. 517. 2 Green v. Langdon, 28 Mich. 221 ; Lewis' Est., 139 Pa. St. 640; but see Bus-, well V. Fuller, 31 N. E. Eep. 294. Delivery. 129 Recovering from his first illness, he was fatally stricken down in the same year a few months afterward ; but dur- ing this last illness he said nothing concerning the note. About an hour before his death, when he w^as insensible, his daughter got the key to the deed box, and found therein the note and conveyance, securing it, and on read- ing the instrument she replaced them in the box. It was held that these facts did not show a gift, eithQY inter vivos nor mortis causa, nor by will, because there was not the requisite number of witnesses.^ 154. Gift of a Part of a Debt — Impossible to Make a Delivery. — If a donor desire only to forgive a part of the debt held against the donee, then he is not required to deliver up the instrument evidencing the debt, and thus lose his right of a superior proof of his claim. Thus, where the donor held the note and mortgage of the donees, and, desiring to qancel a j)art of the debt and make them a present of it, he, in the presence of one of them, indorsed the amount he desired to cancel, which was less than the whole debt, upon the note and mortgage ^ Cross V. Cross, 1 Irish Eq. 389 (1877). The court quotes the following lan- guage : " I think the cases go farther, to this extent, that if the settlement is in- tended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converleil into a perfect trust:" Milroy v. Lord, 4 De. G., F. & J. 264, 274. Letters writtten by a mortgagee to tlie mortgagor declaring that " I now give this gift, to become due at my death, unconnected with my will ; and I hereby request and direct my executors to cancel the mortgage deed," do not operate as a gift : Scales v. Maude, 6 DeG., M. & G. 43 ; S. C. 25 L. J. Ch. 433 ; 1 Jur. N.S. 1147. Forgiving interest on note: Lewis' Estate, 139 Pa. St. 640. There is a palpable distinction between the forgiving a part of a debt as a gift, and the acceptance in p:iyraent in full of less than the amount due. The one is binding, the other may not be according to the circumstances of the debtor or the transaction: McKenzie v. Harrison, 120 N. Y. 260. When the donor, supposing he was about to die, destroyed a bond lie held against his debtor, as a gift of the indelitedness to him, but recovered : it was held that there was no gift : Rowe v. Marchant, 86 Va. 177. 130 Gifts. and the donee present agreed to the cancellation, it was held that the gift, as to so much of tlie debt as was can- celled, was valid as to both donees, and that a receipt in writing for the amount cancelled was unnecessary. "As the debt," said the court, " which was the subject of the gift, when considered with reference to the fact that the donee was the debtor and that only part of the debt was attempted to be given, did not admit of actual de- livery, and as all was done that could well be done, under the circumstances, to render the gift effectual, we do not think the act and intention of the donor should be defeated merely because the subject did not admit of an actual or technical delivery." ^ So, where the payee indorsed upon the note a year's interest as a gift, that alone was held to make the transaction a valid gift of that year's interest.^ B}^ the terms of a mortgage the debt secured was " to be paid by the mortgagor to the mortgagee when called on by said mortgagee, and the said mortgagor does not agree to pay the sum to no [any] one else except said mortgagee." The mortgagee never made a demand for the money, and died. It was held that by his death the consideration of the mortgage became a gift to the mortgagor.^ 155. Gift of Part of Article. — In 1890, by the Court of Queen's Bench, it was decided that a gift of an ^ Green v. Langdon, 28 Mich. 221. Tiie court was ready to admit that, if a gift consists of tangible personal property, which admits of a delivery, there must be one; "and the same rule would probably apply where the note or bond of a third person is the subject of the gift. Whether, if the whole mortgage debt, in the present case, had been the subject, delivery of the note and mortgage, or one of them, would not have been essential to the validity, we need not in- quire." See, on tliis exact point, Cochrane v. Moore, 25 Q. B. Div. 57 ; S. C. 59 L. J. Q. B. 377 ; (>3 L. T. 153 ; 38 W. R. 583 ; 54 .J. P. 804 ; 6 T. L. R. 296. See "Wetmore v. Brooks, 18 N. Y. Supp. 852: a retention on condition that part be a[)plied to donor's debts rendered gift void. ^Travis i\ Travi>, 8 Out. 516; affirmed on appeal, 12 Ont. App. 438. ^Sebrell v. Couch. 55 Ind 122. There was no other evidence than the mortgage. Delivery. 131 interest in an article, as one undivided fourth part of a horse, was invalid unless there was a delivery to the donee. In this case the parties resided in England and the horse was in France. The owner in England there, face to face, gave the donee one undivided fourth j)art of the horse. A few days after, he wrote to the trainer having the horse in charge, and in whose stables it was, and told him of the gift ; but he did not inform the donee that he had so written to the trainer. These facts were held not to con- stitute a valid gift as against a subsequent creditor of the donor.^ The court at great length discusses the question whether a delivery is requisite to render a gift valid, but seems to have overlooked, at least in the opinion, that the gift was only a part of an article ; and to require the donor to yield up the possession of the horse to the donee was to require him to part with the possession of an animal when his interest was three times as sjreat as that of the donee.-^ 156. Delivery of Account Owed by Doxee to DoxoR. — If the donee be indebted to the donor, the lat- ter may make him a present of such indebtedness. Such a transaction is nothing more than a forgiving of the debt. If such indebtedness be evidenced by a writing, a delivery up of such writing will be sufficient, especially if cancelled by the donor ; and if it be only an account, then delivering to the donee a statement in writing that the indebtedness is cancelled will be sufficient if properly accepted.^ This would be nothing more than a receipt. But suppose the account is entered at length in the account-books of the donor, and he cancels the account 1 Cochrane v. Moore, 25 Q. B. Div. 57 ; S. C 59 L. J. Q. B. .177 ; 63 L. T. 153 ; 38 W. R. 588; 54 J. P. 804; 6 T. L. R. 296; Clock v. Chadeagne, 10 Hun, 97. ^The gift of an undivided part may be affected by a deed : Ilam v. Van Orden, 84 N. Y. 257. ^Champiiey v. Blanchard, 39 N. Y. Ill ; Young v. Power, 41 Miss. 197. 132 Gifts. with the intent to make it a gift to the donee, and all the other formal parts of a gift are executed, except some formal act of delivery ; would the cancellation of the ac- count be a delivery ? We think it would, if the proof of intent to give was clearly and uncontradictorily made out,^ In a Tennessee case it was shown that the donor intended to give a note to his father which he held against him by inserting a provision in his will to that effect, but the scrivener who drew the will, told him that was not neces- sary, and that he might make the gift by declaring his intention on the back of the note, which he did, retaining the note in his possession. The note was never delivered to the father, but the son directed his wife, the residuary legatee, that after his death it be given to him, and she so acted as to lead him to believe that she had promised to do so. It was held that a court of equity would perpetually enjoin its collection.^ 157. Akticle Given not Present at Time and Place OF Gift. — The fact that the article given is not at the place where the words of gift are uttered does not dispense with a delivery. This is true of a gift 7inortis causa. Thus where a donor attempted to give a bank-deposit to the donee, and her bank-book was in the possession of her agent in another State, the gift was held invalid, although she was then in full expectation of almost immediate death.'^ ^ Deppe V. People, 9 Bradw. 349; Young d. Power, 41 Miss. 197. 2 Richardson r. Adams, 10 Yerg. 273. See Sims v. Walker, 8 Humph. 502, where the preceding case is distinguished, and a promise by one who had no in- terest in the matter was held not to create a trust, as was held in the first case. Gift of dower by owner cannot be proved by casual declarations: Kintzel v. Kintzel, 133 Pa. St. 71. See Section 279. AVhere a father loaned his sons a sum of money and so charged it on his books ; and afterward he transferred the debt to the credit side of the ledger, with intent to make a gift of the sum, the gift was held valid : Albert v. Albert, 74 Md. 526. 3 Case V. Dennison. 9 R. I. 8S ; Roberts v. Wills, Spencer (N. J.), 591 ; Dunbar V. Dunbar, 80 Me. 152. Delivery. 133 But where the note was in the hands of the donor's agent, and was not present, a direction from the donor to this agent to give it to the donee in pursuance of his design to make a present of it was held to be a sufficient delivery.^ Where, however, no direction was given by tlie donor to her agent to deliver the note to the donee, although full words of formal gift were used, addressed to the donee, the gift was held invalid." So where the donor, a few days before his death and in his last sickness, conveyed to his sister a farm on which she and her husband then and had resided for several years, and at the same time told her there was personal property on the farm, except- ing some of it for himself, that would be of no service to him, but might be to her, and said : " I will give it to you," the farm and the property on it being fifteen miles away ; it was decided that there was no gift either inter vivos or mortis causa.^ 158. Delivery of Key to Chest or Drawer. — The delivery of a key to a chest with words of gift of the chest, is a sufficient delivery.* In the case just cited the donor handed to the donee certain keys and said : " I give you the chest that is over at Sergeant Rowe's, and all that is in it." This was while the donor was sick abed ; and a week afterward he died. At his death the administrator of the donor took possession of the trunk and its contents, the donee never having received actual possession of it. It was held that this was a valid gift. ' Southerland v. Sontherland, 5 Bush 591. Delivery was not actually made to the donee until after the donor's death : Contra, Picot v. Sanderson, 1 Dev. L. 309; Waring i;. Edmonds, 11 Md. 424. ^Stevens v. Steven , 2 Hun, 470. •^ Huntington r. Gilmore, 14 Barb. 2-13. See, also, a similar case of delivery of a cow : Brink v. Gould, 43 How. Pr. 289 ; and a colt on the farm : Porter v. Gardner, 60 Hun, 571. * Marsh V, Fuller, 18 N. H. 360. 1^4 Gifts. The delivery of the key was held a sufficient delivery of the property, not as a symbolical delivery, but because it was the means of obtaining possession.^ Thus A lodged at B's house, and had furniture and plate there in his separate room. He declared that he gave to B's wife everything in his room, but there was no actual delivery, except that he give her the key when he went out of town. While once thus out of town he died. It was held that there Avas a sufficient delivery and a valid gift.^ A great many cases contain dicta that the delivery of a key to a chest, trunk, or drawer may be sufficient ; but there are not many instances in wdiicli such a delivery has been upheld, there nearly always being some other essential part of a valid gift left unperformed." Thus a payee of sealed notes, ten days before his death, said to a third person that he did not w^ant the maker to pay them. Within forty-eight hours of his death, while confined to his bed and expecting to die, he told the maker that the notes were his, that they were in a drawer in another room, that the key of the drawer was in a secretary in the room where he lay, and told him to get the notes. After the maker's departure the payee told his housekeeper that he had given the maker the notes. The maker was ap- pointed the executor, by his will, of the payee, who dis- posed of all his property except these notes, and no reference was made to them in the will. Four or five days after the payee's death, the donee took possession of the notes ; but the gift was held invalid, for lack of a de- livery.^ A donor in his last sickness called for his trunk, 'Coleman v. Parker, 114 Mass. 30; vSheegog v. Perkins, 4 Baxt. 273. So where donee already had the keys : Taylor v. Taylor, 56 L. J. Ch. 597. 2 Smith V. Smith, 2 Str. 955. 5 Dicta. McEwen v. Troost, 1 Sneed, 185. * Horner's Appeal, 2 Penny. 289. See, also, Somerville's Est., 2 Connelly, 8G ; S, C. 20 N. Y. Supp. 76. Delivery. 135 which was brought to him and put on a table. He opened it, and in the presence of the donee, with aid of a third person, counted out certain amounts of money and bonds, and declared he gave them to the donee. The donor then put the money and bonds back in the trunk, and his assistant took and put it in a closet in the donor's room, occupied exclusively by him. When the donor locked the trunk he gave the key to his assistant and '^ said that he wanted him to keep it for the donee. The/f*" assistant retained the key. It was held that this did not show a valid delivery.^ A donor in extremis caused India bonds, bank notes, and money to be brought to him from his iron chest and laid on his bed ; he then caused them to be sealed up in three parcels, and the amounts and names of the donees written on them. He then delivered them to his son, and charged him to deliver them to the donees as designated ; and then directed him to replace them in the chest, which was done. Afterward the donor delivered to one of the donees the key to the chest, and charged her to keep it, telling her that the contents of the chest were to be hers aud the other donees. Several times afterward he spoke of the gifts and who were the donees ; but on learning that his son had obtained j^ossession of the key, he expressed great displeasure and caused it to be put in a basket, with other keys, then in his bedroom. Thus things remained until his death. It was held that the gift was invalid because the donor had resumed the possession.^ In this case the key was returned to the donor ; so where the donor delivered his dressing case key to A and told him to give B the contents after his death, the gift was held invalid, although A made the delivery after the donor's death as directed.^ Where the 1 Hatch V. Atkinson, 56 Me. 324; Delmotte v. Taylor, 1 Ee.lf. 417. « Bann v. Markham, 7 Taunt. 224 ; S. C. 2 Marsh, 532 ; Holt, N. P. 352. 3 Powell V. Hellicar, 26 Beav. 261. 136 Gifts. donor told his daughter that his notes were " in a little box OQ the bureau there ; I want you to take them and divide them equally among your children ;" and he told her to get the key to the box, and she did and tried to see if it would fit, and it did ; and she then delivered the key to her husband who retained it until the donor's death, it was held that there was no delivery.^ So taking the key of a trunk from the place where it is kept, and the put- ting of goods into the trunk and returning the key to its place, at the request of the owner in his last sickness, ap- prehending death and expressing the desire to make a gift of the trunk and contents mortis causa, is not a de- livery sufficient for that purpose.^ A donor delivered to B a locked ash box, and told her to go at his death to his son for the key ; and that the box contained money for herself, and entirely at her disposal when he was dead, but that he should want it every three months whilst he lived. The box was twice delivered to the donor by his desire, and he delivered it again to B, and it remained in her possession at his death. On the donor's death B broke open the box, the son having refused to give her the key, and found a check drawn by C in favor of the donor, and inclosed in a cover indorsed with her name. All this time the son kept the key. It was held that there 1 Gano V. Fisk, 43 Oliio St. 462. 'Coleman v. Parker, 114 Mass. 30. In Nova Scotia it was held that the de- livery of the key of a chest containing money, with the expression " all the money in that chest I give you," is not a sufficient delivery : Estate of Hartm.m, 2 Thorn. 62. See Travis v. Travis, 12 Ont. Aj.p. 43S ; S. C. affirming 8 Ont. 516. A testator during his last illness handed to his wife the key of a bjx containing papers, together with a promissory note for $400, wliich he intended to give her, but the box and its contents remained as much in the possession of the testator as before the alleged gift ; and the note, with the papers, came to the executor's hands. It was held that there was no gift: Young v. Derenzy, 26 Gr. (Ch.) 509; Farquharson v. Cave, 2 Colly. 355. Delivery of the box. but retaining the key, will not be a sufficient delivery : Warriner v. Rogers, 42 L. J. Ch. 581 ; 16 L. E. Eq. 340; 21 W. E 766 ; 28 L.T. N. S. 863. Delivery. 137 was no delivery, no relinquishment of dominion over the box, and that the son was the agent of the donor.^ A father gave his daughter the furniture in his rooms, the keys to which were given her by her husband, and she subsequently removed the furniture to her residence, though it did not appear that she took possession of it with her father's knowledge and assent. It was held that there was not a sufficient delivery, a mere taking- possession without the donor's knowledge not being suffi- cient." A donor had been confined to her room for twenty years, and the last six years to her bed. The donee had lived with and taken care of her for twent}-- seven years. In the room the donor kept a bureau and trunks containing silver coin and jewelry. Six weeks before she died she handed to the donee the keys of the bureau and trunk, and said : " Mary, here are these keys ; I give them to you ; they are the keys of my trunk and bureau ; take them and keep them, and take good care of them ; all my property, and everything, I give to you ; you have been a good girl to me, and be so still. . . . You know I have given it all to you, take whatever you please ; it is all yours, but take good care of it." Neither the trunks, the bureau, nor their contents were removed by the donee nor even handled. The gift was upheld, the donee having the means of assuming the absolute control of the articles given at her pleasure being a suffi- cient delivery.^ But where bonds were found in a box at the donor's house, indorsed " These bonds belong to and are " the donee's j^roperty, signed by the donor ; and the donee was the donor's housekeeper, and had the key to the box before his death, and retained it ; it was held that there was no gift."* 1 Reddel v. Dobree, 10 Sim. 244. ^Delmottet'. Taylor, 1 Red f. 417. ^ Cooper V. Burr, 45 Barb. 9. * Trimmer v. Darby, 25 L. J. Ch. 424. 138 Gifts. 159. Delivery of Key of Box in Donor's Bank — Separation of Amount of jMoney Given from Bulk. — A donor went abroad for his health, and on his return died within four days. He was an invalid w^hen he went abroad, and returned because of his sickness. Before going abroad he delivered the keys of his tin box and private drawer in a safe, which were in the bank of which he was president, to the cashier, with Avhom they remained until after his death. After his return, fully aj^prised of his pre- carious condition, he declared to the cashier his intention to give the donee $5,000, either in cash or bank stock, and said that he had put $2,000 in gold in a bag and marked the donee's name upon it, and left it in the tin box in the bank's vault. He directed the cashier to go to the bank and count out $3,000 more in gold coin, and put it in a sack and mark it as the other sack was marked ; and directed that, in case of his death, the sacks should be delivered to the donee. The cashier counted the gold coin out of the tin box, placed it in sacks, and marked it as directed, after which he informed the donor that his instructions had been carried out, to which he replied approvingly. The sacks containino; the coin remained in the tin box and the drawer until the donor's death, the cashier still re- taining the keys. At the time of the donor's death the tin box was found to contain, in addition to other large sums of money, a sack containing $2,000, marked in the handwriting of the donor as follows : " $2,000. This belongs to P. G. Dye. 11-15-1886." Dye was the donee. There was also a j^ackage of $1,000 in currency, counted out in the same way for an- other donee, and put in an envelope, marked, and de- posited in the tin box. These were held valid gifts, the court saying : " It clearly appears from the facts found in the present case that the sacks containing the ojold coin, as Delivery. 139 well as the package in which the currency was sealed, were delivered to the cashier of the bank for the use of the intended donees. Each parcel of money contained, written upon it, what, in effect, amounted to the declara- tion of a trust in favor of the person who was indicated to be the owner of its contents. The money was carefully counted and placed in packages, thus separating it from all the other money and valuables of the donor. Upon each parcel or package appeared a written declaration made by, or at tlie request of, the donor, indicating as plainly as language could the intention of the latter in respect to the title and ownership of the property. The character of the property was such that no prudent person would have directed its removal from the vault of the bank. The donor had relinquished the key to his private drawer and tin box to the cashier of the bank, thereby effectually surrendering, so far as could be, all dominion over the property, and affording to the donee the means of obtaining possession of it. . . . Our conclusion is that the facts show a valid delivery to the cashier for the use of the donee, and that the delivery was made in view of impending death." ^ 160. Delivery to Third Persox for Doxee. — But a delivery need not be made to the donee in person ; it may be made to a third person for him, even without the 1 Devol V. Dye, 123 Ind. 321. See, also, Thomas v. Lewis, 15 S. E. Eep. 3S9. In Kentucky it was held that the delivery liy the decedent of the key of her desk, and the actual delivery to her mother of the letter of A containing a full descrip- tion of the notes and bonds held by him as agent of the decedent, was a siiificient dcliverv to make a gift mortis cauRa complete: Stephenson v. King, 81 Ky. 425. The key must be delivered as a delivery of the gift, and not as the means of ac- qtiiring the possession. Thus, if A delivers to B a key to his drawer in the house, and tells B to take out his watch and give it to T, and B fails to dser, 46 Md. 48; Newton v. Snyder, 44 Ark. 42; Dickeschied v. Exchange Bank, 28 W. Va. 340; Barclay's Estate, 2 W. N. C. 447; S. C. 38 Leg. Int. 108. But see Walsh v. Kennedy, 2 W. N. C. 437. A wife, in her last sickness, requested her husband to give to her daughter her wearing apparel, watch, and ring, all then in her possession, for her use, which he promised to do, and after her death he made an inventory of them, locked the articles in a stron£ box, gave the key to his wife's friend, and sent the box to the daughter. It was held that there was a valid gift, the delivery to the wife's friend being a sufficient delivery of the articles, which at the wife's death be- longed to the husband : Lucas v. Lucas, 1 Atk. 270. A dying person told her servant to take the keys of her dressing-case, and to deliver her watch and trinkets which it contained to the plaiutifl". The servant took the keys, and kept Delivery, 141 A delivered to B $300 and took from him a writing where- in he agreed to pay A the sum he received with interest, " on demand, if she call for it before she deceased, if not to be paid to " C " by her order." A retained this ftaper, and it was with her other papers at her death. She never collected any part of the money. Her inten- tion was in taking the paper to have it so drawn that C would have whatever she should not use of the $300. This was regarded as a gift to C, vesting the title to the money in him, subject to be defeated only by A taking some further action in regard to it; and she never having taken any, the transaction was a gift inter vivos} But where A, shortly before her death, "ex- pressed her anxiety," as the report of the master in chancery ran, to a third person, in the absence of B, " that B should have her furniture," and said " that she gave all the furniture to B and desired " such person " to take care of it for B," but there was no delivery, actual or symbolical, of any j^art of the furniture, a finding of the master that there was no gift was affirmed.^ 161. Delivery to Agent of Donor — But to render a delivery to a third person valid, such person must not receive it as the agent of the donor ; he must receive it as the agent of the donee. If he receive it with the se- cret intent of keeping and claiming it as his own, he nevertheless is the agent of the donee, and may be held to an account. But a delivery by the donor to his own them until after the death of her mistress. It was held that the gift was void : Powell V. Hellicar, 26 Beav. 261 ; S. C. 5 Jur. N. S. 232 ; 28 L. J. Ch. 355. A father indorsed a note to liis child, delivered it to the child's motlier for it, and then collected the principal and interest. This was held to be a gift : Second Nat. Bank v. Merrill, etc.. Works, 50 N. W. Eep. 503. 1 Blanchard v. Sheldon, 43 Vt. 512. ^ Blake v. Pegram, 109 Mass. 541. If the person to whom it is delivered is not to deliver the gift to the donee until after the donor's death, the gift is void : Au- gusta Sav. Bank v. Fogg, 82 Me. 538. 142 Gifts. agent, or to a person wlio receives it as tlie agent of the donor, is nothing more than a retention of the gift by the latter, and is no delivery whatever. So the delivery of property to a third person, accompanied by instructions to deliver it to the donee at the donor's death, the latter meanwhile retaining control over the property, is in- effectual ; because such third person is merely the bailee or agent of the donor.^ 162. DoxoR Revokixg Mai^date to Deliver to DoiSTEE. — Of course if the agent charged with the duty of making the delivery to the donee is the agent of the donor, the gift may be countermanded at any point of time before a delivery is made to the donee, or at any time before the agent ceases to be the agent of the donor and becomes the agent of the donee. In many cases it is difficult to determine when the power to revoke the agent's authority and to countermand the order have ceased. In Canada arose a very close case, which illustrates the question under discussion. A mother being ill, gave the key of a drawer in a bureau where a mortgage made by her son to her was kept, to another son, telling the latter that she desired that he give the mortgage to her son, the mortgagor, if she should not see him again. The donee was afterward sent for, came to the house, and saw his mother alone. She said to him that " your mortgage is there in that drawer, when you go home you can take it with you." He went away without taking it. After her death the son having 1 Devol V. Dye, 123 Ind. 321; Tomlinson i'. Ellison, 104 Mo 105; Duncan v. Duncan, 5 Litt. 12; Perk v. Rees, 27 Pac. Rep. 581 ; Stephenson r. King, 81 Ky. 425. '-A mere delivery to an agent in the cliai-icter of an agent for the giver, would amount to nothing; it must be a delivery to the legatee, or some one for the legatee:" Farqnharson v. Cave, 2 Colly. 356, 367 ; Newton v. Snyder, 44 Ark. 42. See the extreme case of Diefendorf v. Diefendorf, 132 N. Y, 100, where the gift was held valid. Delivery. 143 the key gave the mortgage to him. It was held that the mandate to the son having the key was revoked when the mother saw the donee, and as there was no delivery after that by her, there was no git\.^ If the gift is delivered to a third person for the donee, with authority to deliver it to the latter, then until the authority is executed, and the article delivered to the donee and accepted by him, such depositary is the agent of the donor, and the latter may revoke the gift and reclaim the 23roperty.^ Thus where the owner of choses in action de- 230sited them with A, to be equally divided between his wife and children ; and the depositor later authorized A, in case of his death, to dispose of enough choses to secure himself against loss as depositor's indorser, the gift to the wife and children was held invalid.^ And it may be stated generally that if the donee is an adult person, the donor may reclaim the property given, and placed in the hands of a third person for the donee, at any time before the donee has accepted the gift ; for acceptance is essential to the validity of all gifts. Thus an order by the donor to his agent to collect certain rents and pay them to A as a gift may be revoked at any time before A is informed of the gift.* 163. Delivery by Executor or Administrator. — If the gift has not been perfected by the donor in his life- time, so as to effectually debar his right and power to re- 1 Travis v. Travis, 8 Ontario, 516 ; affirmed 12 Ont. App. 438. See Sterling v. Wilkinson, 83 Va. 791. 2 Dickeschied v. Exchnnge Bank, 28 W. Va. 340. This statement is fully sup- ported by the case cited, but is diametrically opposed to Standing v. Bowring, 31 L. R. Ch. Div. 282. And see also Wells v. Collins, 74 Wis. 341. ^Sterling v. Wilkinson, 83 Va. 791. * Wells V. Collins, 74 Wis. 341 But as the law presumes an acceptance, if the gift is beneficial, where the donee i^ a minor, as soon as the delivery is made to a third person for the donee, the gift is complete and irrevocable. See, also, Standing v. Bowring, supra. 144 Gifts. claim it, then neither his executor nor administrator, unless so directed by his will, can deliver the gift to the donee and bind the heirs of or creditors of the donor/ 164. Donor Repossessustg Himself of the Gift After Delivery to Agent. — If the depositary is the agent of the donor, the latter may recall the gift at any time ; and if the agent, after his power is revoked, deliver the gift, the transaction will be a nullity, and the donor may reclaim the gift from the donee, and so may the do- nor's executor or administrator.^ 165. Revocation of Agent's Authority After Delivery Made. — If the depositary is nothing more than the agent of the donor, yet if he delivers the gift to the donee before his authority is recalled by the donor, the gift will be valid, and thereafter it cannot be re- voked.^ 166. Delivery to Third Person for Future Deliv- ery TO Donee. — In discussing the sufficiency of a delivery of a donatio mortis causa, it was said in an early IMaine case that " there must be an actual delivery to perfect the gift, but it may be made to a third person, for the use of the donee, if such thii'd person retain possession up to the time of the death of the donor." * It is quite evident that the court had no reference to a delivery by the donor to such third person to be delivered to the donee if the donor should die. This point was not involved. In a New York ease language somewhat similar is used.^ This language ^ Picot V. Sanderson, 1 Dev. L. 309. Ticot V. Sanderson, 1 Dev. L. 309 ; Barnes v. People, 25 111. App. 136; Dicke- schied v. Exchange Bank, 28 W. Va. 340. ^ Picot V. Sanderson, 1 Dev. L. 309. * Borneinan v. Sedlinger, 15 Me. 429, citing Drury v. Smitli, 1 P. "VVms. 404. ""And there must be a continuing possession:" Huntington v. Gilmore, 14 Barb. 243. Delivery. 145 applies, however, to instances where the donor did not intend that a delivery be made until after his death ; but where the delivery in a donatio inter vivos is to a third person, for the donee, in the character of an agent for the giver, to make tlie delivery only after the giver's death, the gift is invalid/ So, if the delivery is to an agent, with directions to deliver the gift to the donee after the death of the donor, and if he should recover then to return the property, the delivery is insufficient.^ 167. Delivery to Third Persox, but No Actual Delivery to Doxee Until After Doxor's Death. — In discussing what is the effect of a depositary's failure to deliver the gift to the donee until after the donor's death, the Supreme Court of Massachusetts said : " If it be de- livered to a third person, with authority to deliver it to the donee, this depositary, until the authority is executed by an actual delivery to and acceptance by the donee, is the agent of the donor, who may revoke the authority and take back the gift ; and, therefore, if the delivery do not take place in the donee's lifetime, the authority is revoked by his death ; the jDroperty does not pass, but remains in the donor, and goes to his executor or administrator. But if intended as a gift causa mortis, it would not become ab- solute and irrevocable till the death of the donor ; and, therefore, if delivered to and accepted by the donee, after tiie decease of the donor, it is sufficient." ^ This language 1 Newton v. Snyder, 44 Ark. 42. "^ Walter v. Ford, 74 Mo. 195. In Vogel v. Gast, 20 Mo. App. 104, it is a query whether a direction from the donor to the bailee to deliver the property to the donee perfects the gift if the order be not executed by the bailee : supporting the general rule, Dickeschied v. Exchange Bank, 28 W. Va. 340. Thus, a donor wrote on two bonds, given him by his son, that they were a free gift to the latter, and gave them to his daughter, but without any direction as to their disposal, and they so remained until after his death. It was held that this was not a good gift: Robson v. Jones, 3 Del. Ch. 51. ^ Sessions v. Mosely, 4 Cush. 87. 10 146 Gifts. receives an illustration from an Illinois case. There a do- nor was sick and expected to die in a few days. She called the donee's daughter to her side and said, naming her, " Take this j^ackage and take care of it, and if I die before your father comes back give it to him." The donee re- turned before the death of the donor. Before his return the donor told his daughter that she could put the gift in a small paper box in the trunk from which it was taken, and it was there put ; but the next day the daughter, by direction of her mother, and without the knowledge of the donor, took the gift out of the donor's trunk and put it in her mother's trunk, where it remained until the donor's death. It was held that when the father returned, before the donor's death, the daughter had no authority to deliver the package to him ; and that the language used also showed that the donor intended to retain the control and possession of the gift if the donee returned during her life- time so that she herself might make the gift to him.^ But the doctrine of these cases has not met with universal ap- proval or adherence. Thus in Michigan, where a father put property in the hands of a third person to be delivered to his daughter upon his death, it was held to be a suffi- cient delivery to create a trust in favor of the daughter.^ So where a father delivered bonds to a trustee for his children, to be delivered after his death, the gift was held good, although the trustee had delivered the bonds to the donor's administrator, because he considered the gift void.^ ^ Barnes v. People, 2o 111. App. lo6. In Sessions v. Mosely, mpra, it is admitted that a delivery to u third person of a donatio mortis causa is valid, altliough the depositary do not deliver it to the donee until after the donor's death. - Bostwick V. Maiiaffv, 48 Mich. 342. Where the depositary retained the money until the donor's death, without the knowledge, and against his intent, of the donor, the gift was deemed good, and the donee allowed to recover the amount from such depositary : Miller v. BiUingsly, 41 Ind. 489. 3 Wyble V. McPheters, 52 Ind. 393. Delivery. 147 So where the donor gave to a trustee certain shares of rail- road stock, reserving to himself the income from them during his life, and then they were to be delivered to the donees, the gift was upheld as a valid trust/ A few other cases will illustrate the point we are discussing. A gave B a note 23a.yable to herself and signed by C, directing him to take it and do the best he could with it, and fur- nish her with what means she needed to live on, and, after her death, pay her debts and erect a certain kind and sized monument over her grave, and what remained give to D. This gift was construed as invalid for lack of delivery,^ It is clear that this case is rightly decided; for the donor, by her agent, retained the absolute use and do- minion over the thing given. This was an instance where the property was to become the donee's only in the event of the death of the donor before it was consumed, or be- fore more than enough was left to pay her debts and buy her a monument. It is quite clear that a gift inter vivos to take effect only in the event of the donor's death is void.^ 168. Presumption Arising from Proof of Delivery TO A Third Person. — If the property is delivered to a third person, accompanied by the use of language or acts which clearly show that the owner intended it as a gift for the donee, the presumption is raised, in the absence of coun- 1 Stone V. Hackett, 12 Gray, 227. See Kekewick v. Manning, 1 DeG., i\I. ccs. In recent times the rule of delivery has been very much relaxed, unless in England, although a few courts seem to be unaware of the fact. 3 Poulhiin V. Poullain, 79 Ga. 11 ; S. C. 7G Ga. 420 ; 72 Ga. 412. 168 Gifts. 184. Gift of Registered Boxds. — A donor pur- chased certain registered bonds, and had them registered in the donee's name. He retained the bonds until his death, when they were found among his papers. He regu- larly removed the coupons and collected the interest, and deposited it with a trust company in the donee's name, and he gave to the company a slij) containing the donee's signature, to be pasted in the signature book. The donee had the pass-book in which these deposits of interest were credited, but never drew against the deposit. It was shown that the donor had declared that he wanted to create a fund for the donee's benefit. It was held that there was a valid gift, the act of having the bonds registered in the donee's name being a sufficient delivery.^ 185. Shifting Gift from One Drawer to An- other. — Where a donor told his wife, who had the key to the bureau in his house where he kept his securities, that he gave to their daughter two certain bonds, and told her to go to the drawer in which they were kept, and transfer them to another drawer in the bureau, which she did, and so informed him several times, and he a number of times recognized them as the property of his daughter, expressing a wish that they remain uncashed until his daughter became of age ; and the interest which arose upon them in his lifetime was, by his direction, paid to the daughter, the mother at all times retaining the key to the drawer ; it was held that there was not a sufficient de- livery, and that the gift was invalid.'-^ 186. Gift of Money Represented by a Note. — There is a distinction between the gift of a note and the gift of the money it represents when collected that some- 1 Matter of Townsend, 5 Dem. (N. Y.) 147. The bonds amoiinted to $120,000. ''Bryson v. Brownrigg, 9 Ves. 1. But see Devol v. Dye, 123 lud. 321. Delivery. 169 times becomes quite material in determining tlio sufficiency of a delivery. Thus where the holder and payee of a note delivered, shortly before his death, to B, with directions to collect and apply it to certain purposes for the benefit of his wife, but died before the money was collected and applied, it was held that there was no gift, because the proceeds, and not the note, was the thing given ; and as such proceeds had not come into the possession of either the wife or B, before the donor's death, there was no suffi- cient delivery.^ 187. Delivery of Shares of Stock. — In the case of a gift of shares of stock it is not necessary to the de- livery to have a formal transfer made upon the books of the company or corporation. Thus a donor owned one hun- dred and twenty shares of bank stock, included in one certifi- cate. He made an absolute assignment in writing of twenty shares to the donee, and handed the certificate to his wife, to be kept by her and delivered to the donee at his death. At the time the donor was eighty years of age, in failing health, and so continued until his death, which occurred about five months thereafter. It was held that this was an assignment of the twenty shares of stock, and passed the equitable title to it to the donee.'^ 188. Gift by Surety to Principal of the Debt He Pays. — Where a father became surety for his natural sons upon a note, and when it fell due paid the note, took it up, and retained it until his death, his often prior and subsequently repeated declarations, in connection with the sons' testimony, that the payment was a gift of the debt were held sufficient to show a gift, without a delivery to them of the note. It was considered that the money paid * Thompson v. Dorsey, 4 Md. Ch. 149. ^Grymes v. Hone, 49 N. Y. 17. 170 Gifts. was the gift, and the payment to the creditor was the de- livery, constituting an irrevocable gift.^ 189. Gift by Deed or Writing Dispenses with De- livery OF Article Given. — A delivery of the thing given may be dispensed with only in one instance, it is believed, and that is where the donor executes a written instrument of gift. This instrument may be a simple writing, duly signed by him, or a duly acknowledged deed. Both stand on the same plane. But the writing or deed must be delivered, either actually or construct- ively.^ The writing or deed is accepted as the equivalent of proof of delivery.^ " A gift by deed is good between the parties," said the West Virginia Court of Appeals, " if it goes into effect at once, without delivery, for the delivery of the deed answers the place of the delivery of the property, when the property is capable of actual delivery." ^ But if in the instrument the donor reserves the title to the property, until his death, or until a speci- fied time, then the gift is void ; for it stands on a foot- ^ After the death of the father the sons executed to the administrator a note for the amount of the payment, with interest, on which a judgment at law was rendered; but upon filing a bill in chancery setting up the gift, a perpetual in- junction against its enforcement was decreed : Browns v. Brown, 4 B. Mon. 535. 2 Kuckman v. Ruckman, 4 N. J. L. Jr. 134; In re Way, 10 Jur. N. S. 836 ; S. C. 34 L. J. Ch. 49 ; 13 W. R. 149. ^ 'Wycke v. Greene, 11 Ga. 159 ; Irons v. Sraallpiece, 2 R & Aid. 551 ; Banks v. Marksberry, 3 Litt. 275; Mims r. Sturtevant, 18 Ala. 359; Rlakey v. Blakey, 9 Ala. 391 ; Forney v. Remey, 77 la. 549 ; Hynson v. Terrey, 1 Ark. 83 ; Sewall v. Glidden, 1 Ala. 52. *Hogue V. Bierne, 4 V7. Ya. 658, 671 ; Powell v. Leonard. 9 Fla. 359; Wycke V. Greene, 11 Ga. 159 ; Ewing ?■. Ewing, 2 Leigh. 337. .\ gift hy deed of ' all the estate which he owns at the date of deed, or should own at his death," does not pass money of which he was the owner at his death, though it was in the donor's pos- session at the date and delivery of the deed: Butler v. Scofield, 4 J. J Mar. 139 ; Anon., 3 Swanst. 400, note ; Young r. Power, 41 Miss 197 ; Walker v. Crews, 73 Ala. 412; Flower's Case, Nov. 67; Bohn v. Headley. 7 H. & J. 257; Fri-bie v. M'Carty, 1 Stew. & Por. 56 ; M'Ewen v. Troost, 1 Sneed, 185 ; Caines v. Marley, 2 Yerg. 582 ; Nicholas v. Adams, 2 Whart. 17. Delivery. 171 ing with a promise to make a gift. The deed or writing, to be effectual, must be delivered with the intention to at once not only transfer the title, but also the pos- session of the property, to the donee. There must be no postponement of that event.^ Upon this question, however, as we have elsewhere shown, there is some vari- ance of opinion ; for the owner of personal property may give it away by deed, and in the instrument reserve to himself the right to use it during his natural life." 190. Unsealed Instru:ment Not Sufficient to Dis- pense WITH A Delivery of Thing Given — Estoppel. — In the previous section no distinction is made between a writing under seal and one not sealed, but in a few cases this distinction is made. Tlius, in Alabama it is said that a gift by sealed deed is good because the donor is estopped from saying that the 2:)roperty has not passed to the donee, but no written declaration, not under seal, will consummate the gift. In the case of a gift by writing, it is said that the doctrine of estoppel does not apjoly. " Hence, a parol declaration of gift (whether verbal or by unsealed writing) stands upon the footing of a mere promise to give." The ' Connor v Trawicks, 37 Ala. 289. 'A will executed subsequently to the execution of the deed creates no pre- sumption thai the latter liad never been delivered, or th:it it was not considered a valid instrument bv the jiarties: Lewis v. Amer, 44 Tex. oil). In Louisiana, under the civil law, a gift by deed was valid, even tho igh the donor die witiiout having made any delivery of it, not having made any oiher disposition of tlie property given: Holmes v. Patterson, 5 La. 693. A deed of gift of a policy of insurance delivered t > a third persm was held good, even though the donor re- tained possession of the policy; an! the donor having collected the amount due on a policy when surrendered, as provision for such collection wa.s made, he was compelled by the vice-chancellor to secure to the amount of the value of the policy assigned by the deed : Fortesque v. Barnetl, 3 ^My. & K. 30. Wiicre a statute re- quired the deed of gift of a slave to be acknowledged and recorded, a defective acknowledgment and a fnilure to record wns held not to prevent the deed being considered as a parol declaration of the donor's wishes, and if a deliverv of the slave w:is shown, the gift, even as a mortis cauaa. was valid : Sewall v. Glidden, 1 Ala 52; Cranz v. Kroger, 22 111. 74 ; Lohff y. Germer, 37 Tex. 578. 172 Gifts. court denied the claim made that title by deed passed be- cause the delivery of the deed was a symbolical delivery, saying : " It is rather upon the principle of estoppel that, for the purpose of consummating a gift, the delivery of a deed is as effectual as the delivery of the j^roperty." Again it is said : "Although it is true that in modern times the seal has been stripped of much of its ancient force, the doc- trine of estoppel by deed is still maintained. Hence, where a gift of personal joroperty is made by deed, the delivery of the deed transfers the right to the property, for the reason that the form of the instrument imports a consideration for the transfer, and the maker of the deed is estopped thereby from asserting that he has not granted to the donee a power of control and dominion over the property conveyed by the deed." ^ 191. Gift by Deed of Eeversionary Interest. — The assignment by deed of an equitable reversionary interest in personal property is not to be treated as a mere agreement ; and, although it be voluntary, it is not an incomplete gift for lack of a delivery, but is a transfer of the beneficial interest of the assignor.^ ^ Connor v. Trawick, 34 Ala. 289. Suppose, however, a statute has wiped out all distinction between sealed and unsealed writings as instruments of evidence, would not an unsealed instrument be as effective for the purpose of a delivery as a sealed one? "We think it would. Earlier ca«es in Alabama support the rule announced in the text: M'Cutchen v. M'Cutchen, 9 Port. (Ala.) 650, 656; Perry V. Gr;iham, 18 Ala. 822 ; Summerlin v. Gibson, 15 Ala. 406 ; Thompson v. Thomp- son, 2 How. (Miss.) 737 ; Miller v. Anderson, 4 Rich. Eq. 1 ; Busby v. Byrd, 4 Rich. Eq. 9; Jaggars v. Estes. 3 Strobh. Eq. 379; Morrow r. Williams, 3 Dev. 263. Dispute in the authorities alluded to : Gammon Theological Seminary v. Robbins, 128 Tnd. 85; Payne v. Powell, 5 Bush. 248 (gift held void) ; W^arriner V. Rogers, 42 L. J. Ch. 58l"; 16 L. R. Eq. 340; 21 W. R. 766 ; 28 L T. N. S. 863. J was indebted to P by bond. P by deed poll, in consideration of natural love for E, the wife of J, agreed that this bond, and all benefit and advantage to be had thereby, should, after his death, be wholly for the use of E and her issue by J. After this P put the bond in suit, but died before payment of it. It was held that this was a revocation of the gift: Richardson r. Sedgwicke, 3 Bro. P. C. 576. 2 Vogle V. Hughes, 2 Sm. & G. 18 ; S. C. 18 Jur 341 ; 23 L. J. Ch. 328 ; Keke- Delivery. 173 192. Deed Ii^sufficient to Operate as a De- livery. — ^There are a few cases which hold that even a deed is not sufficient to operate as a delivery ; and if the property remains in the possession of the donor the gift is void.^ But if there has been a possession of the prop- erty transmitted by the donor to the donee it has been held that the deed estops the donor from denying that a gift was not intended and that no delivery had been made.^ 193. Deed or Writing in a Donatio Mortis Causa. — It has been directly decided that a donatio mortis causa cannot be perfected by the delivery of a deed without a delivery of the thing given. This is upon the ground that a gift made in this way is in contravention of the statute prescribing certain formalities in the execution of a will, and that to thus allow the deed to have effect, when not executed as those statutes require wills to be executed, would be to overturn their provisions.^ But as there is no difference in the requisitions to make a perfect de- livery in a donatio inter vivos and donatio moiiis causa, it is difficult to see why any difference should be drawn in this instance ; and in view of the modern cases it may well be doubted if this old rule is any longer the law. 194. Delivery of Deed at Recording Office. — If the donor deliver the deed at the office of register of deeds for the purpose of registration, that is a sufficient de- wich V. Manning, 1 De G., Mac. & G. 176. The case of I\Ieek v. Kettlowell, 1 Hare. 464; S. C. 1 Ph. 312, is practically overruled. 1 Marshall v. Fulgham, 4 How. (Miss.) 216; IVIcWillie v. Van Vacter, 35 Miss. 428, 443 ; Carradine v. Collins, 7 S. & M. 428 ; Smith v. Downey, 3 Ired. Eq. 268 ; Thompson?'. Thompson, 2 How. (Miss.) 737. 2 Newell V. Newell, 34 Miss. 385. 5 Smith V. Downey, 3 Ired. Eq. 268 ; Tate v. Hilbert, 2 Ves. Jr. Ill ; Smith r. Ferguson, 90 Ind. 229. 174 Gifts, livery to pass the title ; ^ but a mere leaving of the deed at that place, without saying more, has been doubted as a sufficient delivery.^ 195. Order to Agent to Deliver Gift to Donee. — A written order to his agent to deliver the subject- matter of the gift to the donee is insufficient to constitute a delivery, if the donor resume the possession before ac- tual delivery to the donee.^ But suppose the agent should accept the command of the order, and agree with the do- nee to deliver the proj^erty to him ; would it not be a good gift ? Would he not cease to be the agent of the donor and become that of the donee ? We think he would, and the gift would be valid. 196. Delivery of Receipt Sufficient. — A receipt given by a depositary of property may be a sufficient de- livery of the property when such receipt is delivered to the donee of property. Thus a bond was in the hands of the donor's attorney for the purpose of collection. An action had been brought upon it in court. The owner gave it verbally to the donee, and gave him the attorney's receipt for it. This was held to be a valid gift of the bond, and that he could recover from the attorney the proceeds of the bond which he had collected.* 197. Consideration for Deed — Slaves. — In Ken- tucky a gift by deed was held to dispense with an actual iPrisbie v. McCarty, 1 Stew. & Por. o6; Mallett v. Page, 8 Ind. 364; Horn v. Gartman, 1 Fla. 63; Ruckman v. Kuckman, 4 N. J. L. Jr. 134. 2 M'Ewen V. Troost, 1 Sneed, 185. ^ Picot V. Sanderson, 1 Dev. L. 390. * Elara V. Keen, 4 Leigh, 333 ; Jones v. Silbv, Prec. in Ch. 300 ; Stephenson r. King, 81 Ky. 42-5, 432. A delivery of a receipt for stock was held in'^nfficient : Ward V. Turner, 2 Ves. Sen. 431, but this ruling cannot be regarded as stating the law as laid down by modern authorities. A warehouse receipt is sufficient : Gallaudet's Case, 9 Ct. of CI. 210. Delivery. 175 delivery only when there was a good consideration ; but that the relationship of a father to his child was a suffi- cent consideration to uphold the gift.^ If there was no consideration for the deed, then the deed must be re- corded, by statute, or the slave delivered.'^ 198. Gift by Deed of Undivided Interest. — AVhere a gift was made by deed of an undivided one-fourth part of a chose in action, it was deemed a valid gift, which, however, could not be enforced in a court of law but could be in equity ; yet if it was to be construed as a gift of the money represented by the chose in action, the gift was invalid.^ 199. Deed Not Produced — Destroyed. — If the gift was by deed and the property given was also actually de- livered, it is not necessary, in order to support the gift, to produce the deed ; for the fact of the gift may be shown by parol. But the withholding of the deed casts sus- picion over the entire transaction.^ So if it is shown that the deed was never delivered, but it was destroyed by the donor, the donee can take no advantage of the fact that the instrument was once in existence.^ But if such a re- tention is shown as is not inconsistent with the presump- tion of a delivery, then the donor cannot affect the validity of the gift by destroying the deed ; and slight evidence of its contents is sufficient to establish the gift.*" 200. Writing Affixed to the Article Given. — If the article given is not delivered, then writing the terms 1 Bank v. Marksberry, 3 Litt. 275. == Howard v. Samples, 5 Dana, 30G ; Chadoin v. Carter, 12 B. Mon. 383 ; Mahnn V. Mahan, 7 B. Mon. 579; Pyle v. Maulding, 7 J. J. Mar. 202. In Mississippi the same rule applied to the gift of a slave : Marshall v. Fulgham, 4 How. 216. 'Hogue V. Bierne, 4 W. Va. (558. *Blakey v. Blakey, 9 Ala. 391. SReid I'. Butt, 25 Ga. 28. 6Mims V. Sturtevant, 18 Ala. 359, 365. 176 Gifts. of the gift iijoon tlie article, however certain they may be, will not constitute the transaction a gift. Thus a person wrote on the parcels of property the names of the persons for whom they were intended, and requested a person to see them delivered to the donees ; yet it was held that there was no gift, for a want of delivery/ But in all such instances the writins: can be used in determinino; the inten- tion of the donor ; and where the question of delivery is a close or even doubtful one, resort may be had to this fact of the writing to aid the upholding of the gift.^ 201. Donor Reserving Interest in or Use of Ar- ticle Given by Parol. — There is some conflict in the cases, whether in a parol gift the donor can reserve an interest in the article given, especially if the reservation is for the life of the donor, and the retention of the pos- session of it is essential to its enjoyment. Such a gift, by some of the cases, is void.^ Going through the form of a delivery will not make the gift valid.^ Thus where a father assigned in trust for his son a certificate of deposit, reserving the right to use the money during his life, but directing the residue to be paid to the son at the donor's death, it was held a void gift, although the as- signee surrendered the certificate and took out a new one during the life of the assignor.^ But where a father, desiring, during his lifetime, to distribute his j^roperty 1 Bonn V. Markham, 7 Taunt. 224 ; Young v. Young, 80 N. Y. 422 ; Montgomery V. Miller, 3 Eedf. 154 ; Trimmer v. Darby, 25 L. J. Ch. 424. ^DevoluDye, 123 Ind. 321. 3 Cox r. Hill, 6 Md. 274, 284; Anderson v. Thompson. 11 Leigh, 439; Mil- ler V. Anderson, 4 Rich. Eq. 1 ; Busby v. Byrd, 4 Rich. Eq. 9 ; Barker r. Barker, 2 Gratt. 344; Ragsdale v. Norwood, 38 Ala. 21; Kirkpatrick v. Davidson, 2 Kelly (Ga.), 297. * Busby V. Byrd, 4 Rich. Eq. 9; Henderson v. Adams, 35 Ala. 723; Yarbor- ough V. West, 10 Geo. 471 ; Booth v. Terrell, 16 Geo. 20; Booth v. Terrell, 18 Geo. 570. 5 "Withers v. Weaver, 10 Pa. St. 391. Delivery. 177 among his cliildren, reserving its use to himself, conveyed a tract of land to his son and took back a note for the purchase-money, payable to liis heirs four years after his decease, with interest payable to himself, but to cease at his death ; the note being secured by a mortgage on the laud with like conditions, it was held that the transaction constituted a valid gift inter vivos to the heirs of the prin- cipal sum, the interest of the donor making it necessary for him to hold the notes, while he lived, for his own security ; and that the placing of the mortgage on record was all he could do consistent with his own rights ; and he became a trustee for the heirs, and they alone could enforce payment of the principal.^ 202. DoxoE, Reseryin^g Interest In or Use of Article Given by Deed. — A reservation of an interest in the gift by the donor, where the gift is evidenced by deed or a written instrument, is a valid reservation, and does not avoid the gift.^ Such an instrument becomes operative as a conveyance in prcesenti, so as to vest the title in the do- nee, although the enjoyment of the j)roperty may be post- poned until after the death of the donor.^ And it has ^ Love V. Francis, 63 Mich. ISl. In this case tlie fatlier had gone so far as to secure a foreclosure for the interest and the principal, hut the foreclosure as to the latter was held to be a nullity and not binding on the heirs. The possession of the life tenant is not adverse to tlie remainderman : Banks v. Marksberry, 3 Litt. 275; Anderson v. Dunn, 19 Ark. 650. Where a mother gave her children a slave, retaining a life interest therein, the life interest was held void and the gift good: Va?s v. Hicks, 3 Murphy, 493. A gift to a trustee for the donee of a sum of money, reserving the interest for life of the donor, is a valid gift of the principal at the donor's death: Reed r. Bar- num, 136 111. 388. ^Thompson v. Wornack, 9 La. Ann. 5">5 ; Summerlin v. Gibson, 15 Aln. 406. ^Summerlin v. Gibson, 15 Ala. 406; Adams v. Bronghton, 13 Ala. 731 ; Wilks V. Greer, 14 Ala. 437 ; Caines v. Marley, 2 Yerg. 582 ; Bolin v. ITeadley, 7 H. & J. 257; Thompson v. Womack, 9 La. Ann. 555; Banks r. Marksherry, 3 Litt. 275. In Mississippi such a gift was held void, because there was no actual delivery of the slaves given, and the writing did not dispense with a delivery: Thompson v. Thompson, 2 How. 737 ; Horn v. Gartmnn, 1 Fla. G3. 178 Gifts. been held that, although the deed is absolute on its face, the reservation may be shown by parol.^ 203. Reservatiox of Eight to Use Part of Fund Given. — If the donor reserves the right to use a part of the fund given, without designating how much or what part of it, or to use the whole of it if he need so much for his personal comfort or business, then the gift is in- complete, because the donor has not relinquished his do- minion over the fund given. So the same would be if several articles were given, and the right reserved to take a part or all of them ; or even of a single article."^ But where A signed a memorandum, in which he particularized some Kussian bonds, and to whom he would give them, and at the same time delivered them to B, verbally direct- ing him that he was to pay him. A, the interest for life, and hold the bonds for the persons named in the paper after his death, it was held that there was a valid gift to the persons named in the memorandum.^ 204. Gift of Boxds with Beservation of the Accruing Annual Interest — Trust. — The owner of certain coupon bonds placed them in two envelopes, and indorsed upon each envelope a memorandum, signed by him, to the effect that a specified number of the bonds therein belonged to his son W., and the remainder to his son J., but that the interest to become due thereon was " owned and reserved " by him during his life, and that at his death " they belong absolutely and entirely to them and their heirs." He exhibited the packages, with the indorsements, to the wives of the two sons, and said that 'Summerlin v. Gibson, 15 Ala. 406. 2 Daniel v Smith, 75 Cal. 548 ; S. C. 64 Cal. 346 ; Basket v. Hassell, 107 U. S. 602. Interest of a mortgage forgiven : Scales v. Maude, 6 De M. & G. 43 ; S. C. 25 L. J. Ch. 433 ; 1 .lur. N. S. 1147. 3 Langley v. Thomas, 26 L. J. Ch. 609. Delivery. 179 what he had thus done was in pursuance of a settled j)ur- pose, and that he believed he had made a valid disposition of the bonds. At that time he lived at W.'s house, where there was a safe formerly owned by him, but which he had given to a son of W., reserving the right to use it ; and which he did use as a deposit for his valuable papers, but rarely going to it, being in the habit of depositing and re- moving the papers when W. requested it. After exhibit- ing the packages he placed them in the safe. After this the packages were generally kept, not in the pigeon holes used by him, where the bonds had been |)reviously kept, but in the compartment in the safe where the papers of W. were kept, and there they were found after the death of the donor, which occurred eighteen months after he declared that he made a gift of the bonds. As installments of interest became due he cut off the coupons, W. sometimes assisting him. W. never exercised any ownership over the bonds as against his father, and they were at all times under the control of the latter, up to his death. J., the other donee, never had any control over the bonds, nor access to the safe. At one time the father, when solicited for a loan, said he supposed he might, with his sons' consent, take some of their bonds ; and he told another person that what he had left he had given to W. and J. The donor had, before making the indorsements, given J. $1,000, and he afterward took a $1,000 bond from one of the packages, which was stated in the indorsement as belonging to J., and gave it to a third person. It was decided that these facts did not show a valid executed gift, for the reason that the donees at no time during the life of the donor had exclusive possession of the bonds, or the legal right to such possession ; nor could the gift be upheld as a trust.^ ^ Young V. YounM'Meekin v. Erumraet, 2 Hill Ch. 638. ^Rinker v. Rinker, 20 Ind. 185 ; Adams r. Lansing, 17 Cal. G29. 'Marsh v. Fuller, 18 N. H. 360; Lord v. Vreeland, 24 How. Pr. 316; Estate of Chalker, 5 Redf. 480; Van Slooten v. Wheeler, 21 N. Y. Supp. 336. *Mann v. Mann, 2 Rich. L. 123. If ihe maker of a note pay it to the adminis- trator, whose decedent had made it a donatio mortis causa, without the production of the note, he cannot, when sued by tlie donee, set up payment to the administra- tor : House V. Grant, 4 Lans. 296. ^ Fowler v. Lockwood, 3 Redf. 465. See Kurtz v. Smither, 1 Dem. (N. Y.) 399 ; Harris v. Hopkins, 43 Mich. 272. 228 Gifts. of the courts, especially those of England, until a late clay. In scores of instances courts have required of a wife or a child as strict proof as if they were strangers to the donor ; and there are many instances in which they have regarded the gifts with suspicion, because of the close intimacy existing between the donors and donees. Such a rule more often tends to subvert justice than to i:)romote it, and more often to thwart the intentions of donors than to consummate them.^ One who purchases the subject- matter of the gift from tlie donor, with a knowledge that the donor's title has been rendered doubtful by his attempt to give it, is in no better position than the donor himself when the validity of the transaction is attacked.^ In all contests of this character, the donee cannot pose as an in- nocent purchaser^ unless, perhaps, he has bestowed labor or money upon the article given to the extent that to require him to relinquish it would entail upon him a loss far be- yond the benefit he has received by the use of the prop- erty. If, however, all the forms of a valid gift have been observed, the purchaser, however innocent, cannot claim the subject-matter of the gift from the mere fact that he was deceived by appearances."^ 263. When Title Passes. — We have elsewhere dis- cussed the question, when does the title pass in a gift mortis causa f In the case of a gift inter vivos the cases are not one as to the time the title passes. In England the ques- ^See Boudreau v. Boudreau, 45 111. 480, where "reasonably strict proof of the gift" was required. ^ Barker v. Frye, 75 Me. 29. ^Swartz V. Hazlett, 8 Cal. 118; First Nat. Bank r. Wood, 128 N. Y. 35; Gillan V. Metcalf, 7 Cal. 137; Hatch v. Lamos, 65 N. H. 1. * Turner v Thurmond, 28 Geo. 174; Bell v McCawley, 29 Geo. 355; Landrum V. Russell, 29 Geo 405; Joeckel v. Joeckel, 56 Wis. 436; Moultrie v. Jennin^^s, 2 McMull. 508 ; Cummings v. Coleman, 7 Eich. Eq. 509 ; Caston v. Cunningham, 3 Strob. L. 59. EstahUshment of Gift. 229 tion was considered at considerable length. There an aged lady caused a large amount of consols to be trans- ferred into the joint names of herself and her godson, do- ing so with the express intention that he, in the event of surviving her, should have them for his own benefit, but that she should have the dividends during her life. At the time she was warned that if she did so she could not revoke the legal effect of the transaction. The first notice the godson had of the gift was two years afterward, when her solicitors wrote him claiming to have the fund retrans- ferred to the donor. The court held that when the trans- fer was made the legal title vested in the donee, notwith- standing his ignorance of the gift and the absence of his assent, and that the gift was valid and irrevocable. In this case the transfer was ui^on the books of the Bank of England. " If the matter were to be discussed now for the first time," said Lord Holsbury, " I think it might well be doubted whether the assent of the donee Avas not a preliminary to the actual j^assing of the property. You certainly cannot make a man accept as a gift that which he does not desire to possess. It vests only subject to re- pudiation." ^ There are cases, however, which hold that the title does not pass until the donee assents to the gift, when it is placed in the hands of a third person.^ If the gift is made directly to the donee, then the title does not pass until he assent ; and no title can pass until there has been a delivery, or the donee has constituted himself a trustee for the donor."^ '.Standing v. Bowring, L. R. 31 Ch. Dlv. 2S2 ; reversing 27 Ch. Div. 341 ; But- ler and Baker's Case, 3 Coke Rep. 26 b ; Thompson v. Leach, 2 Vent. 198 ; Sig- gers V. Evans, 5 E. & B. 367 ; Smith v. Wheeler, 1 Vent. 12S ; Small v. Marwood, 9 B. & C. 300. See Hurlbut v. Hurlbut, 49 ilun, 189; Thomas v. Tliomas, 107 Mo. 459 ; Barnura v. Reed, 130 111. 388. 2 Thompson v. Gordon, 3 Strob. L. 196. Under the head of Revocation will be found cited a number of cases to this effect. ^Donatio mortis causa. See Section 46. 230 Gifts. 264. Competency of Donee as a Witness. — A do- nor, in an action between the donee and creditors of the donor involving the validity of the gift, is a competent witness, and he is not disqualified on account of interest.^ So the husband of the donee has been held competent to show that the transaction with his wife was a loan and not a gift under like circumstances.^ And a wife, it has been held, is a competent witness in an action against her husband's executor, to prove a parol gift by him, the dissolution of the marriage by death removing the objec- tion arising out of the conjugal relation.^ But the weight of authority, both in jDrincij^le and number of cases, is that she is not a comj^etent witness.* So under a statute providing that no party to an action, or person directly interested in the event thereof, shall testify therein of his own motion when any adverse party sues or defends as the executor or administrator of any deceased person, the husband of an alleged donor, in an action between her administrator and one claiming certain 23roperty as a gift, the subject of the litigation involving the validity of the gift, is not a competent witness on behalf of the adminis- trator as to matters occurring before her death.^ So a donee, in an action against the administrator of the do- nor's estate, is not, it has been held, a competent witness in his own behalf.^ But, on the contrary, donees have ' Easley v. Dye, 14 Ala. 158 ; Durham v. Shannon, 116 Ind. 403 ; Smith v. Little- john, 2 M'Cord L. 362. See Devlin v. Greenwich Savings Bank, 125 N. Y. 756. ^Watson V. Kennedy, 3 Strob. Eq. 1. ^Caldwell r. Stuart, 2 Bail. L. 574. * Trowbridge v. Holden, 58 Me. 117 ; Conkliti c. Conklin, 20 Hun, 278 ; Hay v. Hay, 8 Rich. Eq. 384; Schick v. Grote, 42 N. J. Eq. 352; Hopkin.s v. Mancliester, 16 R. I. 663. ^Conner v. Root, 11 Colo. 183. 6 Cornell v. Cornell, 12 Hun, 312 ; Wertz v. Merritt, 74 la. 683. This is espe- cially true where the executor is the donee : Smith v. Burnet, 34 N. J. Eq. 219; S. C. 35 N. J. Eq. 314 ; White v. White, 16 Wkly. Dig. 45 ; Waver v. Waver, 15 Hun, 277. Estahlishment of Gift. 231 been admitted to testify to the transaction constituting even a mortis causa} 265. Pleadiin^g. — Under a general allegation of a gift, the donee may show either a gift inter vivos or mortis causa} Under the chancery practice it is necessary to set out in detail the facts showing a gift, and the general allegation that a gift was made is insufficient. So, too, under that practice, if the allegations show a gift inter vivos, j)roof of a gift mortis causa cannot be introduced.^ 266. Questions for Jury. — Whether or not the al- leged donor intended to make a gift, and whether or not there Yfas a delivery, actual or constructive, are questions for the jury, under the instructions of the court, where the delivery is controverted as to what is sufficient to con- stitute it.* 1 M'Gonnell v. Murray, 3 Ir. Eq. 460 (1869) ; Cosnahan v. Grice, 15 Moo. P. C.215. 2 Walsh V. Bowery Savings Bank, 15 Daly, 403 ; S. C. 26 N. Y. St. Rep. 95 ; 28 N. Y. St. Rep. 402; 7 N. Y. Supp. 97, 669. See Bedell v. Carll, 33 X. Y. 581, 586. 5 ^Valter v. Hodge, 1 Wils. CIi. 445. *M'Cluney v. Lockhart, 4 M'Cord, 251 ; Thomas v. Degraffenreid, 17 Ala. 602; Hassell v. Tynte, Ambl. 318; Richards v. Symes, 2 Atk. 319; S. C. 3 Barnard. 90 ; 2 Eq. Cas. Abr. 617 ; Hambrooke v. Simmons, 4 Russ. 25 ; Jacques r. Fourth- man, 137 Pa. St. 428. If equivocal language has been used, it is a question for the jury whether the donor intended a gift : Keeney v. Handrick, 23 Atl. Rep. 1068. CHAPTER XI. NOTES AND CHOSES IN ACTION. 267. Choses in Action. 290. 268. Note Payable to Order and Unin- dorsed by Payee. 291. 269. Same Continued— DnfEeld v. Elwes —Trustee — Mortgage— Statute 292. of Frauds. 270. Unassigned Note, Question Settled. 293. 271. American Decisions Upon Unas- 294. signed Glioses in Action. 295. 272. Sealed Note. 273. AH Unassigned Instruments the 296. Subject of Gift. 297. 274. Gift of Notes Carries Mortgage — 298. Gift of Mortgage Does Not Carry Note. 299. 275. Draft or Bill of Exchange. 276. Gift of Part of Note. 277. Memorandum. 300. 278. Non-transferable Instrument. 301. 279. Bank Account. 280. Gift of Eeceipt for the Instrument 302. Given, 281. Policy of Insurance. 303. 282. Gift of Bond or Note Merged ina 304. Judgment — Gift of Judgment. 283. Statutory Eegulations Affecting 305. Transfer. 306. 284. Note Given to Equalize Distribu- tion of Estate — Legacy Duty. 307. 285. Check Operates as an Equitable Assignment of a Specific De- 308. posit. 309. 286. Personal Representative Collecting Proceeds of Note Given. 310, 287. To Whom Payment Made. 288. Donor's Liability on Indorsement. 289. Gift of Expectancy. Consideration for the Note Given — Inadequacy of Consideration, Desire or Intention to Make a Gift Not Sufficient. Delivery Essential to Validity of Gift. Kedelivery of Note. Gift by Deed. Production of Note, Effect Upon Presumption of Ownership. Forgiving Debt. Receipt for Debt. Note Made Payable to Third Person. Note Payable to Husband and Wife, or to Two or More Per- sons--Delivery — Survivorship. Note of Donor Payable to Donee. Lawson v. Lawson — Gift for Mourning. Note of Donor Payable to Donee is Valid. Donor's Own Mortgage to Donee. Subscription to a Charity, Church, College, etc. Acceptance of Subscription. Acceptance — Revocation — Death of Subscriber. Who May Sue Upon Subscrip- tion. Sunday Subscriptions. Conditional Promise — Considera- tion. Liability of a Single Donor or Subscriber — Mutual Subscrip- tions Not Sufficient to Bind Donors. 267. Chose in Action. — A chose in action, such as 232 Notes and Choses in Action. 233 notes, bonds, written contracts, and the like, held by the donor, may be the subject of a gift either inter vivos or mortis causa. The early authorities contain evident mis- givings upon the subject and hedge around such gifts with difficulties ; but as early as 1710 it was admitted that a government " tally," which may be regarded as nothing more than a claim against the government,^ could be the subject of a gift moi^tis causa.^ So in 1744 the same doctrine was recognized as applicable to a bond,^ and afterward to a bank-note payable to bearer.^ The argument against the validity of the gift of a bond was that there was no actual delivery, the note or bond being but a chose in action, and therefore there was no delivery but of the paper. But it was answered that though it were true that a bond, which is a specialty, is a chose in action, and its princi]3al value consists in the thing in action, yet some property is conveyed by the delivery ; and to the degree that the law books say the person to whom the specialty is given, may cancel, burn, and de- stroy it ; the consequence of which is that it puts it in his power to destroy the obligee's power of bringing an action, because no one can bring an action on a bond with- out a profert in court. Another thing, it was answered, made it amount to a delivery, that the law allowed it a locality ; and therefore a bond is bona notabilia so as to require a 23rerogative administration, where a bond is in one diocese and goods in another. In the case from which this argument has been drawn, nearly all in the language of the court, care was taken to call attention to the difference then in law between a sj^ecialty and a note ; for it was said that the destruction of a specialty, which is ^ Jacob's Law Diet., subject " Talley." "^ Jones V. Selby, Finch's Prec. in Ch. 300. ^Snellgrove v. Bailey, 3 Atk. 214. * Miller v. Miller, 3 P. Wms. 356. 234 Gifts. the foundation of the action itself, destroyed the demand, but the delivery of a note payable to bearer was only a delivery of the evidence of the contract, and not a good delivery of the j^ossession of the money represented by the note. And the court proceeds to illustrate its position by saying that if one were to loan money taking back a receipt for it, and a mortgage to secure its payment, the receipt being evidently in no Avay a promise to i^ay but merely evidence of payment made of the money described in the mortgage, and the mortgagee delivers over the re- ceipts as a gift of the money and the mortgage securing it, that would not have been a valid delivery ; for neither the possession of the money nor the mortgage would have been made, which was essential to the validity of the gift.^ 268. Note Payable to Okder and Unindorsed by Payee. — 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 causa. Thus in 1735 it was said : " But then as to the note for £100 which was merely a chose in action, and must still be sued in the name of the executor, that cannot take effect as a donatio mortis causa, inasmuch as no property therein could pass by the de- livery."^ A number of early cases hold to this rule.^ But at an early date ^ this doctrine was much shaken, and the decision then rendered finally became the rule of decision in England. The case was one of a bond de- livered by the payee, without indorsement or assignment, to the donee as a gift mortis causa. The court held it ^ Ward V. Turner, 2 Ves. Sr. 431. "^ Miller v. Miller, 3 P. Wms. 356. 3 Ward V. Turner, 2 Ves. Sr. 431 ; Parthrick v. Freind, 2 C0II7, 362. * 1744. Notes and Ckoses in Action. 235 sufficient to pass the equitable interest of the donor, and refused to decree that the donee deliver up the bond to the administrator of the donor. The court by way of illustration said : " Put the case, if a chattel in possession had been bought by the intestate, and the bill of sale taken in a third person's name in trust, the legal prop- erty would have been in the trustee, and only the equi- table interest in the cestui que trust ; and yet if the cestui que trust had delivered it over to the defendant, that would have been a good gift donatio causa mortis as to the equitable property. This comes very near the case of a chose in action, and the cases are so." ^ Another early case was decided nearly three-quarters of a century afterward. That was a gift of a bond as a donatio mortis causa; and the court held it valid, and liberty was granted to the donee by the court to use the executors' names in suing on the bond, he indemnifying them. The court said that " the case of Snellgrove v. Bailey " has es- tablished that there may be a donatio mortis causa of a bond, though not of a simple contract, nor by the delivery of a mere symbol." ^ The question was virtually put to rest by a decision of the House of Lords in 1827, though the legitimate deduction to be made from that case does not seem to have been acquiesced in until 1859.* In the House of Lords case, a donor made a gift, as the court found, mortis causa, of a conveyance in fee of lands to secure a certain sum of money, with the usual covenant for 2^ayment of the money lent, and a bond by way of * Snellgrove r. Bailey, 3 Atk. 214. The court relied upon Drury v. Smith, 1 P. Wms. 404, where a testator, having made a will disposing of all his estate, afterward gave by parol a note to one, to deliver over to his nepliew, if the tes- tator sliould die of his present sickness. The nephew brought a bill against the executrix for the note, and the gift was upheld. ■ 3 Atk. 214. 'Gardner v. Parker, 3 Madd. Ch. 184. * Veal V. Veal, 27 Beav. 303 ; 6 Jur. (N. S.) 527 ; 20 L. J. Ch. 321. 236 Gifts. collateral security ; also an assignment of a mortgage debt of another certain sum, 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. There was no assignment in writing by the donor to the donee of these securities ; but the gift was upheld. 269. Same Continued — Duffield v. Elwes — Trus- tee — Mortgage — Statute of Frauds. — The real ques- tion involved was stated at length by Lord Eldon, as fol- lows : " Whether the act of the donor being, as far as the act of the donor itself is to be viewed, complete, the per- sons who represent that donor, in respect of 23ersonalty — the executor, and in resj^ect of realty — the heir-at-law, are not bound to complete that which, as far as the act of the donor is concerned in the question, was incomplete ; in other words, where it is the gift of a j^ersonal chattel or the gift of a deed which is the subject of the donatio mortis cawsa, whether, after the death of the individual who made that gift, the executor is not to be considered a trustee for the donee, and whether, on the other hand, if it be a gift affecting the real interest — and I distinguish now between a security upon land and the land itself — whether if it be a gift of such an interest in law, the heirs-at-law of the testator is not by virtue of the operation of the trust, which is created not by indenture but a bequest arising from operation of law, a trustee for that donee." And he added : " I apprehend that really the question does not turn at all upon what the donor could do, or what the donor could not do ; but if it was a good donatio mortis causa, what the donee of that donor could call upon the representative of the donor to do after the death of that donor." After a lengthy discussion of the cases, Lord Eldon declared : " The opinion I have formed is that this is a good donatio Notes and Choses in Action. 237 mortis causa, raising by operation of law a trust ; a trust which, being raised by operation of law, is not within the statute of frauds, but a trust which a court of equity will execute ; and therefore, in my humble judgment, this declaration must be altered by stating that this lady, the daughter [the donee], is entitled to the benefit of these securities."^ The court commented at length upon a decis- ion of Lord Hardwicke's,^ wherein his lordship had de- cided that if a mortgagee gave to a mortgagor the deeds of the mortgage, the statute of frauds would not stand in the way, and the gift was a valid gift of the money for which the deeds were a security .'"^ Some thirty years after the decision by the House of Lords, the Court of Exchequer held that a gift inter vivos of two mortgages or debent- ures, assuming that the property in the mortgage debts did not pass by such gift, yet that the donor's execu- tor could not maintain detinue for the documents against the donee. In the argument of the case it was said that the question was whether the property in the mortgage debts passed to the donee, to which Martin, B., said: "Surely this is not the question. If the obligee of a bond gives it to a third person, the obligee's executors cannot claim back the paper on which the bond is written, though the gift may not operate as a valid assignment of the debt." The court refused to enter a decree giving the documents to the executors ; for the gift Avas a valid gift of the parch- ment, and the claim that because the gift failed the donee got no title to the documents could not be upheld."^ 1 Duffield r. Elwes, 1 Bligh (N. S.), 497, reversing 1 Sim. & St. 239 ; S. C. 1 L. J. Ch. 239. ^ Kichard r. Svmes, 2 Atk. 319 ; S. C. 3 Barn. 90 ; 2 Eq. Cas. Abr. 617. ^ Lord Eldon points out that the case of Ilassel r. Tynte, Ambl. 318, was really not a decision on this point, although Lord Hardwicke expressed a doubt whether a mortgage deed could be made the subject of a gift. * Barton r. Gainer, 3 H. & N. 387. The court quoted Sheppard's Touchstone, p. 249, as follows : " A man may give or grant his deeds — i. e., the parchment, 238 Gifts. 270. Un ASSIGN-ED Note — Question Settled. — In 1859 the question was put at rest in England by a decision of the Master of the Kolls. That was a case of an unassigned note as a donatio mortis causa, and it was held to be a valid gift. After reviewing the decisions, the Master admitted the embarrassment under which he labored, but put his decision uj^on a then unreported case,^ decided in 1832 by Sir John Leach, whose decision in Duffield v. Elwes was overruled by Lord Eldon in the House of Lords. For this reason the Master attached peculiar sig- nificance to his decision in this unreported case. The facts in the unreported case were that bills were drawn on the East India Company in favor of Colonel Weguelin or order, and were accepted ; but it did not appear from the papers whether they were indorsed by Colonel Weguelin or not. Shortly before his death, Weguelin gave the bills to his wife. The Master in taking an ac- count of the estate included them in the outstanding estate of the testator ; but the widow took exception to his report, and Sir John Leach sustained them and made a declaration that there was a good donatio mortis causa. The Master of the Holls, in the case of 1859, after review- ing the authorities and this then unreported case, says : " I also think it a much more healthy state of the law that the validity of such a gift should not depend on whether the testator had written his name on the back of the bills or not, if it be clear that he intended to give paper, and wax — to another at his pleasure, and the grantee may keep or cancel them. And, therefore, if a man hase an obligation he may give or grant it away, and so sever the debt and it." Bank notes have been lield the subject of a gift from an early date : Powel v. Cleaver, 2 Bro. C. C 500 ; Miller v. Miller, 3 P. Wms. 356. 'Rankin v. Weguelin, Reg. lib., B. 1831, folio 2385, now reported in 27 Beav. 309. See McCullouch v. Bland, 2 Giff. 428 ; S. C. 6 Jur. N. S. 1183 ; 3 L. T. N. S. 357 ; 9 W. R. 657, and Richardson t. Richardson, 3 L. R. Eq 686 ; S. C. 36 L. J. Ch. 653. Notes and Glioses in Action. 239 tliem."^ Taking this view of the matter, the donor's writing his name across the back of the paper is only evidence of his intention to make the gift ; and that intent and his acts therewith connected may be proved aside from such indorsement. The okl rule that impeded the holding of such gifts as valid, because the donee could not maintain an action thereon,^ is swept away by the more enlightened rule which compels the personal representa- tive of the donor, upon being indemnified for whatever costs he may be compelled to pay, to permit the action to be brought in his name ; or by the equitable rule enforced by statutes or codes that the real party in interest may bring an action upon a note he holds, whether it was in- dorsed to him or not, leaving the matter of non-indorse- ment as a question of evidence. Indeed, it is said in an American case that " the true reason why a bond will pass to a donee causa mortis is not because he has the power of destroying it, nor because profert must be made of it when sued, nor even because it is a security of a higher nature than some other choses in action ; but it is because the donee has in equity a right to enforce pay- ment of it and to treat the executors of the donor as trustees for his benefit. In other words, a bond, like a note of a third person, is assignable in equity ; and the principle that courts of equity will not compel the com- pletion of a mere voluntary gift or conveyance does not apply to donations causa mortis.^^^ 271. American Decisions Upox Uxassigned Choses IN Action. — The American courts had the advantage of this discussion on this point under consideration, and 1 Veal ?;. Veal, 27 Beav. 303. 2 Miller v. Miller, 3 P. "Wms. 3o6. 3 Brown v. Brown, 18 Conn. 410 ; S. C. 46 Am. Dec. 328. See Kiff v. Weaver, 94 N. C. 274. 240 Gifts. reached a conclusion with much more ease than they otherwise would have done. In Massachusetts it was de- cided, in 1837, that an unassigned or unindorsed note could be the subject of a valid donatio inter vivos. In answer- ing the objection that such a gift was void the court said : " But as a good and effectual equitable assignment of a chose in action may be made by parol, and as courts of law take notice of and give effect to such assignments, there seems to be no good foundation for this objection. It is true that the cases, which are numerous, in which such equitable assignments have been supported, are founded on assignments for a valuable consideration ; but there is little, if any, distinction in this respect between contracts and gifts inter vivos ; the latter, indeed, when made per- fect by delivery of the things given, are executed con- tracts. By delivery and acceptance the title passes, the gift becomes perfect, and is irrevocable. There is, there- fore, no good reason why j^roperty thus acquired should not be protected as fully and effectually as j^roperty ac- quired by purchase. And so we think that a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale." ^ To the contention that the donee could not maintain the action in the name of the donor's adminis- trator, the court said : " But if an equitable assignment is sufficient to complete the gift, it follows that the admin- istrator is a trustee, and cannot set up his legal right in order to defeat the trust." ^ This decision has deen fol- lowed in that State, both with respect to gifts inter vivos and mortis causa? The same rule of decision holds good 1 Grover v. Grover, 2i Pick. 261 ; S. C. So Am. Dec. 319. ^Tlie court, be-^ides the English autliorities, relied upon "Wriglit v. Wright, 1 Cow. 598, which is not, as we shall see, a sound authority ; but it contained a dic- tum which supported the court's conchision. ^ Sessions v. Moseley, 4 Gush. 87 ; Bates i'. Kempton, 7 Gray, 382. Notes and Choses in Action. 241 in Maine/ in Kentucky,^ in Georgia,'^ in California,^ in Alabama,^ in Virginia/ in Michigan,^ in South Carolina,^ in North Carolina,^ in Connecticut/*' in New York," in Pennsylvania,^^ in Tennessee,^^ in Canada,^* in New Jersey ,^^ in Minnesota,^''' in New Hampshire,^^ in Indi- ana,^^ in the Federal courts,^^ and in West Virginia,^^ but, not possibly, in Ireland.^^ ^ Borneman v. Sidlinger, 15 Me. 429 (a note and mortgage) ; Wing v. Merchant, 57 Me. 383 ; Trowbridge v. Holden, 58 Me. 117; Parker v. Marston, 27 Me. 196. ^ Stephenson v. King, 81 Ky. 425 ; Ashbrook v. Eyon, 2 Bush. 228 ; Southerland V. Southerland, 5 Bush. 591 ; Turpin v. Thompson, 2 Met. 420. 3 Hill V. Sheibley, 64 Geo. 529. *Druke v. Heiken, 61 Cal. 346 ; S. C. 44 Am. Rep. 553. ^ Jones V. Deyer, 16 Ala. 221 ; Walker v. Crews, 73 Ala. 412 (citing Borum v. King, 37 Ala. 606j. ^ Elam V. Keen, 4 Leigh, 333. ' Ellis V. Secor, 31 Mich. 185. 8Trenholm v. Morgan, 28 S. C. 268. 3 Kiff w. Weaver, 94 N. C. 274 ; S. C. 34 Alb. L. Jr. 11, distinguishing Overton V. Sawyer, 7 Jones (N. C.) L. 6 ; Fairly v. M'Lean, 11 Ired. (N. C.) L. 158 ; and Brickhouse v. Brickhouse, 11 Ired. (N. C.) L. 404, which were actions at law. 1" Brown v. Brown, IS Conn. 410; S. C. 46 Am. Dec. 328 ; Camp's Appeal, 36 Conn. 88. " Wright r. Wright, 1 Cow. 598 ; Contant v. Schuyler, 1 Paige, 316 ; Stevens v. Ste- vens, 5 T. & C. 87 ; House v. Grant, 4 Lans. 296 ; Westerlo v. DeWitt, 36 N. Y. 340 ; S. C. 2 Trans. App. 332 ; 93 Am. Dec. 517 ; Bedell v. Corll, 33 N. Y. 581 ; Walsh v. Sexton, 55 Barb. 251 (U. S. bonds in a box) ; Gray v. Barton, 55 N. Y. 68 ; Taber V. Willetts, 44 Hun, 346 ; S. C. 8 N. Y. St. Repr. 825 ; Montgomery v. Miller, 3 Redf. 154; affirmed 78 N. Y. 282; Stevens v. Stevens, 2 Hun, 470; Kurtz v. Smither, 1 Dem. 399 (bank certificate of deposit) ; Grangiac v. Arden, 10 Johns. 293 (a lottery ticket) ; .Johnson v. Spies, 5 Hun, 468. i^Gourley v. Linsenbigler, 51 Pa. St. 345 ; Wells v. Tucker, 3 Binn. 366. ^^ Richardson v. Adams, 10 Yerg. 273 ; Donnell v. Doniiell, 1 Head. 267. " Purdham v. Murray, 9 Ont. App. 369, reversing 29 Grant. Ch. 443. '^Egerton v. Egerton, 17 N. J. Eq. 419; Corle v. Monkhouse, 25 Atl. Rep. 157. '« Tnllis V. Fridley, 9 Minn. 79 ; Stewart v. Hidden, 13 Minn. 43. '^ Keniston v. Sceva, 54 N. H. 24 ; Abbott ?•. Tenney, 18 N. H. 109. iMVhite V. Callinan, 19 Tnd. 43. " Chancy v. Basket 6 Repr. 769 ; S. C. smb name, Hassell v. Basket, 8 Biss. 303 ; affirmed 107 U. S. 602 ; S. C. 108 U. S. 267. 20 Martin v. Smith 25 W. Va. 579 *^Lee V. Magrath, 10 Ir. Rep. (1882) pp. 45, 313. In Louisiania a donatio inter 16 242 Gifts. 272. Sealed Note. — In some States, where the okl distinction between sealed and unsealed instruments is kept up, the donor's own sealed note, given by the donor to the donee is a valid gift, and it may be en- forced against his estate after his death, " A voluntary bond," said Chief Justice Gibson, " is botli in equity and in law, a gift of the money." ^ " It is not now to be doubted," said Justice Bell, "that though a jmrol unexecuted promise to make a gift inter vivos without consideration is void, an agreement under seal to do so may be enforced as a legal obligation."^ These cases were followed in the case of a sealed uote,^ so also in the case of a mortgage under seal.^ So where seals are presumptive evidence of a consideration, such presump- tion is not overcome by proof that a valuable considera- tion was not paid.^ 273. All Un assigned I^^steuments the Subject of Gift. — ^It may be stated that any written obligation is the subject of gift, without indorsement or assignment. Illus- trations have already been given of notes, bonds, and mort- gages. But the cases do not stop here ; and it is said that " All evidence of indebtedness which may be regarded as re^^resenting the debt, whether with or without in- dorsement, are the subject of a donatio mortis causa,^^ '^ vivos of a note must be proved before a notarv public and two witnesses to make the gift valid : Succession of De Pouilly, 22 La. Ann. 97. This is by reason of the provisions of the code. iSherk v. Endress, 3 W. & S. 255; Ross's Appeal, 127 Pa. St. 4. ''Yard v. Patton, 13 Pa. St. 278, 285. 3 Mack's Appeal, 68 Pa St. 231 ; In re Estate of Cowen, 3 Pitts. 471. *Stoy V. Stoy, 41 N. J. Eq. 370 ; Aller v. Aller, 40 N. J. L. 446. 'Van Amburgh v. Kramer, 16 Hun, 205 ; Anthony v. Harrison, 14 Hun, 198, affirmed 74 N. Y. 613, without an opinion. 6 Kiflf V. Weaver, 94 N. C. 274. Notes and Choses in Action. 243 and of course of intei^ vivos} Even a gift of an un- assigned I. O. U. is valid.^ 274. Gift of Note Caekies Mortgage — Gift of Mortgage Does not Carry Note. — A valid gift of a note secured by mortgage carries with it the mortgage, though such mortgage Avas never delivered nor assigned to the donee, and even though the note was unassigned by the donor, the payee.^ But a delivery of the mortgage, although duly assigned, without a delivery of the note, does not make a valid gift of the note, and the mortgage cannot be enforced.* Yet where a father gave his son a mortgage he held against him, on his death-bed, saying, " Take this, but do not wrong your children, and do not mortgage your property," the gift was held to be a good causa mortis to the son alone, although the son had already mortgaged the estate, of which the father was not aware.^ 275. Draft or Bill of Exchange. — A bill of ex- change in favor of the donor, is the subject of a gift, 1 Brown v. Brown. 18 Conn, 410 ; S. C. 4G Am. Dec. 328 ; Westerlo v. De Witt, 36 N. Y. 310 ; S. C. 93 Am. Dec. 517 ; 2 Trans. App. 332 (a certificate of deposit * ; Basket v. Hsissell, 107 U. S. 602 ; S. C. 27 Alb. L. Jr. 3(57 ; 108 U. S. 267 ; 48 Am. Rep. 506 ; affirming 8 Biss. 303 and 6Repr. 769 (a certificate of deposit) ; Hop- kins V. Mancliester, 16 R. I. 663 ; Moore v. Moore, L. R. 18 Eq. 474 ; S. C. 43 E. J. Ch. 617 ; 22 W. R. 729; 30 L. J. (N. S.) 352; 10 Moak. 788 ; Beardslee v. Reeves, 76 Mich. 661 ; Annis v. Witt, 33 Beavan, 619 (a banker's deposit note) ; Harris v. Clark, 2 Barb. 94 ; S. C. 3 Comst. 93 ; Cornell v. Cornell, 12 Hun, 312. => Hewitt V. Kaye, L. R. 6 Eq. Cas. 198 ; S. C. 37 L. J. Ch. 470 ; 15 W. R. 835 ; Gason r. Rich, 19 L. R. Irish, 391. ^Druker. Heiken, 61 Cal. 346; KifF r. Weaver, 94 K C. 274; Borneman r. Sidlinger, 15 Me. 429 ; S. C. 21 Me. 185 ; see Hackney r. Vrooman, 62 Barb. ()5() ; Brown v. Brown, 18 Conn. 410 ; Hassell v. Tynte, Ambl. 318 ; DufEeld v. Hicks, 1 Dow N. S. 1 ; 1 Bligh. N. S. 497. * Wilson I'. Carpenter, 17 Wis. 512; McHugh v. O'Connor, 91 Ala. 243. ^Meridetli v. Watson, 17 Jur. 1063. It should be observed that this was a for- giveness of the debt, and not an actual gift of the mortgage. If the transactinn falls short of a gift, the taking of a new mortgage in place of the old, to correct an error in the latter, i-s not sufficient to turn the transaction into a gift : Oldenberg V. Miller, 82 Mich. 650. 244 Gifts. although such donor dies before it falls due, even though it be not indorsed by the donor/ So a draft drawn by the donor in favor of the donee is valid, if presented and accepted before the death of the donor ; but it is not a good gift i f not presented and accepted before the donor's death.^ But if presented and the drawee declined to ac- cept it until after he has ascertained whether the signa- ture was genuine, he being in actual doubt on that ques- tion, the gift is still good, and if the estate receive the fund upon which it is drawn, it may be enforced against such estate.^ 276. Gift of Part of Note, — There is no doubt that the owner of a note may make a gift of a part of the note, the chief trouble lying in the question of delivery. If words of gift were used, and an actual delivery made, then the gift of the part given would be valid ; so we apprehend that if the note was actually delivered by hand and then received back by the donor to hold for the benefit of the donee and for himself, the gift would be a good one. So, too, if the donor by an instru- ment in writing, signed by himself, declare a gift of a part of the note to be given to the donee, and deliver this written statement to such donee, he would, no doubt, con- stitute himself a trustee, and the gift of such part would be valid.^ But if he were merely to declare to the donee that he gave him a part of the note, and did not deliver it, the gift would not be valid, we are inclined to think ; although, as we have seen elsewhere, if a husband take a note payable to himself and wife, that is a valid gift to 1 Austin V. Mead, L. R. 15 Ch. Div. 651 ; S. C. 50 L. J. Ch. 30: 43 L. T. 117 ; 28 W. R. 891 ; Rankin v. Weguelin, 27 Beav. 309 ; S. C. 29 L. J. Ch. 323, note. - Harris v. Clark, 3 N. Y. 93 ; afBrming 2 Barb. 94. 3 Bromley v. Brunton, L. R. 6 Eq. 275; S. C. 37 L. J. Ch. 902 : 16 W. R. 1006 ; 18 L. T. N. S. 628. * Green f. Langdon, 23 Mich. 221. Notes and Choses in Action. 245 the wife, if she survive him, although no actual delivery was ever made to the wife, the circumstances dispensing with a delivery.^ An English case somewhat bears on these conditions. There a testator, who held a banker's deposit for £2,700, in his last illness, two days before his death, expressed a wish to give £500, part of the amount, to his wife. At his request, a friend filled up a seven days' notice to the bank to withdraw the deposit, and the testator signed it. This friend then took the notice to the bank. Afterward the testator signed a form of cheque, which was on the back of the note, " Pay self or bearer £500." The note was then delivered to the wife ; and before the expiration of the seven days' notice the testator died. The practice of the bank was, when a customer withdrew part of a sum which he had placed on deposit, to give him a fresh note for the remainder. The court adjudged that there was not a good donatio mortis causa of the £500, for the reason that the cheque was not payable until after his death. The court construed the effect of the notice to be to set free £2,700, and upon that fund the testator drew his cheque, and then died before the fund was set free. " Looking at the whole of the circum- stances of the case, and at the practice of the bank, which was to give a fresh deposit note for the balance when a part of the money was withdrawn, it does not appear to me that the delivery of the note was made with the inten- tion of giving either it or the money to the wife. The intention was to deliver the cheque, and according to the authorities, that is not a good donatio mortis causal ' If it cannot be determined with reasonable certainty the proportion given, the gift will be void.^ So a gift of a 1 See Section 299. See Carpenter r. Soule, 88 ^^ Y. 251. 2 Austin V. Mead, L. E. 15 Ch. Div. 651 ; S. C. 50 L. J. Ch. 30 ; 43 L. T. 117 ; 28 W. R. 891. 3 Young V. Young, 80 N. Y. 422. 246 Gifts. note with a reservation of the interest accruing thereon for the life of the donor is void ; because it is such a reser- vation of the control over the thing given as is incom- patible with the validity of the gift.^ 277. Memorandum. — So money already in the donee's hands may be given to him by the owner by the use of a memorandum evidencing its amount and identity, accom- panied by an explicit declaration of the donor's intention.^ But where a mother on her death-bed handed to her daughter a written but unsigned memorandum, express- ing her wishes concerning the disposition of certain bonds and other personalty to M., saying, ''That is my will — that is what I want done ;" and, again, pointing to a drawer, " There are the papers — I want you to take charge of them ;" and this daughter, afterward, but in her mother's lifetime, did possess herself of a box in this drawer con- taining the bonds referred to in the memorandum ; and this memorandum declared that the interest on these bonds was to be held for M. " to do as she pleases, but not the principal — that is to be held intact," it was adjudged that neither the property mentioned in the memorandum nor the bonds in the box could be sustained as a gift to M., for two reasons: First, because the memorandum could not be considered a will, it not beino; siofned bv the alle2:ed donor ; second, because the words of the alleged donor showed that she did not intend to deliver them in jorcesenti, but intended that the dausrhter should take charo;e of them at her death." Where the donee had already possession of the fund given, and the donor gave him a receipt in full therefor, this was held to make it a valid ^ Wirt's Estate, 5 Dera. (X. Y.) 179. The soundness of this case may M'ell be doubted. See Section 202. ^Champney v. Blanchard, 39 N. Y. Ill ; Moore v. Darton, 7 E. L. & Eq. 134. ^ Trenholm v. Morgan, 28 S. C. 268. Notes and Choses in Action. 247 gift.^ But a memorandum of gift indorsed upon an un- delivered note is not sufficient.^ 278. Nox-TKANSFERABLE Insteument. — An instru- ment evidencing a debt, which cannot be transferred by indorsement so as to give the assignee an action thereon, cannot be made the subject of a gift.^ 279. Book Account. — A receipt or other written evi- dence, delivered to the donee, may be sufficient to show a gift. And even weaker evidence than this has upheld a gift. Thus, where husband transferred to his wife upon his books, a book account, it was held that there was a good gift of the book account.^ But in this case the gift was from a husband to his wife, to replace money he had received from her by reason of his marital rights ; and this had much to do with the decision.^ 280. Gift of Receipt for the Instrument Given. — The question has arisen whether the delivery of a receipt for a note is a sufficient gift of the note. And it may be remarked that little or no difference exists in the validity of a gift, by a delivery of a receipt for it, whether the subject of the gift is a note or tangible personal property, as a chattel. In Virginia the case was met and decided in 1833. There the donor liekl his attorney's receipt for a bond. He told the donee he could have the bond, and delivered to him the receipt. At the time of such delivery the bond was not with the donor nor near him. This was held to be a valid gift, the same as the delivery of a key 1 Cliampnev r. Blancliard, 39 N. Y. 111. 2 Tiffany i;/ciarke, 6 Gr. Ch. (Can.) 474. 5 Ex parte Gerow, 10 N. B. 512. * Kerr v. Read, 23 Gr. Ch. 525. See Champney v. Blancliard, 39 N. Y. 111. 5 See George i-. Howard, 7 Price, 646. Neufville v. Thomson, 3 Edw. Ch. 92. See Section 156. 248 Gifts, to a trunk had been held a valid gift of the contents of the trunk. " Sj^eaking from my own exj)erience," said Carr, J., *' I should say an attorney requires no- better order for the payment of money he has collected on a bond than the receipt he has given for the bond ; when he takes this in, with a receipt upon it for the money, he feels himself safe." In this case the receipt was not as- signed to the donee, nor was there any order written upon it or accompanying it directing the receiptor to deliver the bond or pay its contents to the donee.^ 281. Policy of Insurance. — A policy of life insur- ance, payable to his estate at his death, may be made the subject of a gift intei' vivos or mortis causa? Thus, where an insured person made a voluntary deed of an assignment of a policy of insurance upon his own life to trustees upon trust for the benefit of his sister ; and the deed was de- livered to the trustees, but the donor kept the j^olicy, no notice of the assignment being given to the insurance company ; and he afterward, for a valuable consideration, surrendered the policy to the comj^any, it was held that the trustees could compel the donor to give to them se- curity to the amount of the value of the policy to secure the payment of an amount equal thereto at his death.^ A ^ Elam V. Keen, 4 Leigh, 333. Wliere the donor indorsed a receipt for bonds on deposit requesting the cashier to "let" the donee "have the amount of the within bill," it was held to be a good gift of the proceeds of the bond: Crook v. First JS^at. Bank, 52 N. W. Kep. 113L 2 Amis V. Wilt, 33 Beav. 619 ; S. C. 1 B. & S. 109 ; 7 Jur. (N. S.) 499; 30 L. J. Q. B. 31S ; 9 W. R. 691 ; 4 L. T. N. S. 283 ; Hayes v. Alliance, etc., Ins. Co., L. R. 8 Ir. 149 (1881). ^ Forsesque v. Baniett, 3 Myl. & K. 36 ; Catholic Knights of America v. Mor- rison, 16 K. L 468. See Johnson v. Ball, 5 De G. & Sm. 85; S. C. 21 L. J. N. S. Ch. 210 ; 16 Jur. 538 ; Searle v. Law, 15 Sim. 95 ; S. C. 15 L. J. Ch. N. S. 189 ; 10 Jur. 191. A gift of a policy of insurance, unassigned, was upheld in a case at law, on the ground that the gift of the policy itself was good, regardless of who might be entitled to the money due upon it : Rummens v. Hare, 1 Ex. Div. 169 ; S. C. 46 L. J. Ex. 30 ; 34 L. T. 407 ; 24 W. R. 3S5. But where the policy was Notes and Glioses in Action. 249 father effected a policy of insurance on his own life in his daughter's name, and paid the premiums himself, but did not deliver the policy to her ; yet this was held to be a valid gift.^ 282. Gift of Bond or Note Merged ix a Judgmeistt — Gift of Judgmeis^t, — A note, bond, or other evidence of debt, upon which a judgment has been rendered, cannot be made the subject of a gift. The gift of the instrument does not ojoerate as an equitable assignment of the judg- ment. So the gift of a judgment cannot be made with- out an actual assignment of it, or by the execution and delivery of a deed of assignment thereof. There is no other way in which a judgment can be given. ^ 283. Statutory Regulations Effecting Transfers. — Occasionally a gift, in all other respects perfect, must fail because some positive statute touching the transfer of the thing given has not been complied with. Phases of this question have been referred to under the head of gift of stock, and these eases are strictly analogous to those now given, and the j^riuciple governing the gift of such stock is applicable here. We can illustrate this part of the discussion by a case of turnj^ike bonds. One Law made a voluntary assignment of turnpike bonds, and de- livered them, but no transfer of them was made upon the books of the turnpike company. By statute, in order to make a transfer of such bonds effectual, the assignment must have been indorsed or Avritten under or annexed to the unassigned, and afterward devised by will, it was held that the donee took under the will, and not as a donee of a gift inter vivos : Howes v. Prudential Assurance Co., 49 L. T. N. S. 133. In this case the wife paid the premiums out of her own separate estate, from the date of the delivery of the policy. 1 Weston I'. Richardson, 47 L. T. N. S. 514 ; Crittenden v. Phoenix, etc., Ins. Co., 41 Mich. 442. * Patterson v. Williams, LI. & G. 95 (Irish). 250 Gifts. bonds, and signed in the presence of, and attested by one or more credible witnesses ; and the transfer was to be produced and notified to the clerk or treasurer ^ of the trustees or commissioners of the road, within two calendar months next after the date thereof, who were to enter the same in a book to be kept for that purpose, and such transfer was then to entitle the assignee to the full benefit of the securities. In this particular instance this transfer was not made, and the gift was held to be incom23lete. The court said that if the donor had declared in writing that he would hold the securities in trust for the donee, that declaration would have been binding upon him and his personal representatives ; but instead of doing this, he attempted to assign them, and there was a complete failure in this respect." 284. Note Given to Equalize Distribution of an Estate — Legacy Duty. — It is a device resorted to occa- sionally that a testator will give his note to a child, in order to give it an equal distribution of his estate. Such a note, however good the intentions of the donor were, cannot be enforced against his estate.^ Such a note given for the purpose of avoiding the legacy duty is equally insufficient.'^ 285. Check Operates as an Equitable Assignment OF A Special Deposit. — The actual delivery of a certifi- cate of special deposit may be dispensed with if a check ^ Such is tbe language of the report, and evidently of the statute. 2 Searle v. Law, 15 Sim. 95 ; S. C. 15 L. J. Ch. K. S. 189 ; 10 Jur. 191. For a declaration of trust see Collinson v. Patrick, 2 Keen, 123 ; S. C. 7 L. J. Ch. N. S. 83; Howes v. Prudential Assurance Co., 49 L. T. N.S. 133. ^ Parish v. Stone, 14 Pick. 198 ; S. C. 25 Am. Dec. 378 (contra, Bowers v. Hurd, 10 Mass. 427); West v. Gavins, 74 Ind. 265 (criticising Mallett v. Page, 8 Ind. 364). * Holliday v. Atkinson, 5 Barn. & C. 501 ; S. C. 8 Dowl. &. Ryl. 163. Notes and Choses in Action. 251 be given upon the bank for the exact amount (or perhaps a part of it) described in the certificate, and specifying that it is for the amount therein described. Thus a donor had in bank a special deposit, and two hours before his death signed a check directed to the bank, properly dated, drawn as follows : " Pay to the order of R. K. the amount of deposit, and charge to my account." No amount was designated, and the donor had no sum of money in the bank except that on special deposit. He delivered the check to the donee with proper words of gift. At the time of the gift the certificate of dejjosit w^as in the store of the donee, where the donor had been a clerk, in a drawer. The gift was deemed valid, upon the ground that the check operated as an equitable assignment of the certificate, and consequently an assignment of the fund.^ 286. Personal Representative Collecting Pro- ceeds OF Note Given. — If the personal representative of the donor collects the proceeds of a note that has been the subject of a valid gift, the donee may maintain a cause of action against the estate for the amount collected.^ 287. To Whom Payment Made. — If the gift or an obligation is valid, the obligor must pay the money due thereon to the donee ; and if he jitay it to the donor he will be liable to the donee for the amount paid.^ 288. Donor's Liability on His Indorsement. — Sup- pose a note is payable to the donor or order, and he, desiring to make a gift of it to the donee, indorse it to him. This is a valid gift. But suppose, farther, that the maker of the note fails to pay it ; can it be collected from the do- 1 Kurtz V. Smither, 1 Dem. (N. Y.) 399. 2 Westerle v. De Witt, 36 N. Y. 340 ; S. C. 2 Trans. App. 332 ; 93 Am. De& 517. 3 Roberts v. Lloyd, 2 Beav. 376. 252 Gifts. iior ? We are inclined to the opinion that it cannot be. Thus to a declaration on a bill of exchange, by an in- dorsee against the indorser, the defendant pleaded that he indorsed the bill to the plaintiff without having received any value or consideration whatsoever for or in respect for the indorsement, and that he had not at any time had or received any value or consideration whatsoever for or in respect of such indorsement ; and this plea was adjudged sufficient after verdict/ So in Maine it was decided that the donor's estate was not liable on his indorsement, even under a claim to equalize the distribution of his estate.^ But could a second indorsee for value recover from the first indorsee and from his indorser ? Undoubtedly he could from his immediate indorser, or the first indorsee ; and could also from the first indorser or donor, if he had no notice of a want of consideration for the first indorse- ment at the time he took it, before due, for value. If the do- nor be compelled to pay the last indorsee, he could recover from the donee the amount he pays. 289. Gift of Expectancy. — It has been held that a gift of an expectancy in money held by trustees was void. This was in an instance where a testator bequeathed a sum of money to trustees in trust for his daughter for life, and, in case she died without leaving issue, for her next of kin, exclusive of her husband. During the lifetime of the daughter, her mother, as presumptive next of kin, by a voluntary deed assigned her expectant interest in reversion to the husband. It was decided that on the death of the daughter, without leaving issue, the assign- lEaston v. Pratchett, 2 Cr. M. & R. 542 ; S. C. 5 Tyrwh. 1129. In Tviwhiit's repoit, however, it is said by Denraan, C. J., thai " tliere is no doubt that the plea would have been bad on special demurrer, but after the verdict it must be taken that there is no consideration binding in law." The same case reported at length before it was affirmed as above reported in 1 Cr. M. & R. 798. 2 Weston V. Ilight, 17 Me. 237. Notes and Choses in Action. 253 ment operated only as an agreement to assign, and, conse- quently, being voluntary, a court of equity would not enforce it.^ 290. CoXSIDEEATTOJf FOR THE NoTE GiVEX INADE- QUACY OF Consideration. — Whenever there is a con- sideration for the note given by the alleged donor to the donee, the transaction ceases to be one of gift, but one of contract. The inadequacy of the consideration is imma- terial. Thus, where an old man executed his note in the sum of $10,000 in consideration that the payee would name his newly-born son after the maker, and the father gave the child the maker's name, in pursuance of which he gave him the note, as promised, this was held to raise a sufficient consideration to sustain the note. Speaking of the adequacy of the consideration, the court said : "No person in the world other than the promisor can estimate the value of an act which arouses his gratitude, gratifies his ambition, or pleases his fancy. If there be any consideration at all, it must be allotted the value the parties have placed upon it, or a conjectural estimate, made arbitrarily and without the semblance of a guide, must be substituted by the courts." ^ " Mere inadequacy in value of the thing bought or paid for," said another court, " is never intended by the legal expression want or failure of consideration. This only covers either total worthlessness to all parties or subsequent destruction, partial or complete." ^ iMeekr. Kettlewell, 1 Ph. 342; S. C. 1 Hare, 464; 13 L. J. N. S. Cli. 28; 11 L. J. N. S. Ch. 293, 464 ; 7 Jur. 1120 ; 6 Jur. 550. It may be here noted that a voluntary assignment by deed of an equitable reversionary interest in personal property is valid : Voyle v. Hughes, 2 Sra. & G. 18 ; S. C. 18 Jur. 341 ; 23 L. .1. Ch. 238. The deed must be delivered : Re Way, 10 Jur. N. S. 836 ; 34 L. J. Ch. 49; 13 W. R. 149. = Wolford V. Powers, 85 Ind. 294. 'Cowee V. Cornell, 75 N. Y. 91 ; S. C. 31 Am. Rep. 428. Other cases are cited 254 Gifts. 291. Desire or Intention to Make a Gift Not Sufficient. — A mere desire or intention to make a gift of a chose in action can never be taken for the act itself. Thus, where an alleged donor told the person who had the possession of his notes that he desired |500 of the notes, or $500 of the money when collected upon them, to be jDaid over to the claimant, who had been for many years a member of his family, but neither the proceeds nor the notes were either assigned or delivered to her until after his death, the transaction was adjudged not to be a gift.^ Bonds payable to bearer were purchased by an alleged donor and were kept by him up to the time of his death. He cut ofi" and collected the coupons attached to them as they fell due, except those falling due during six months prior to his death. At the time he purchased the bonds, he said that he wanted them for the donee, and afterward he directed his banker, who negotiated the purchase, to have them registered in the donee's name. The banker took the bonds to the office of the company issuing them, and the name of the donee was indorsed upon each bond with the date of the indorsement and the name of the transfer agent. It was not shown that the donee had any knowledge of the transaction, nor was the effect of the registration shown. It was held that there was no gift because there was no delivery of the bonds.^ Even a refusal to receive the money due on a debt owed by the donee to the donor, accompanied by declarations of the donor that he never intended to collect it, is not such a transaction as will amount to a gift.^ in Wolford v. Powers, supra, making an excellent collection on this point. See Lindell v. Rokes, GO Mo. 249; S. C. 21 Am. Rep. 395; Parks v. Francis, 50 Vt. 626 ; 28 Araer. Rep. 517 ; Worth v. Case, 42 N. Y. 362 ; affirming 2 Lan.^. 264. 1 Appeal of Fross, 105 Pa. St. 258; Gason v. Rich, 19 L. R. Irish, 391. 2 Estate of Crawford, 113 N. Y. 560; Hooper v. Goodwin, 1 Swan, 485; S. C. 1 Wils. 212. ^McGuire v. Adams, 8 Pa. St. 286; Campbell's Estate, 7 Pa. St. 100. Notes and Choses in Action. 255 292. Delivery Essential to Validity of Gift. — In all cases of a gift of a written chose in action, delivery is as essential to the validity of the gift as the delivery of a chattel. The same rules applicable to a delivery of a chattel are applicable to a delivery of such chose in action.^ This is very well illustrated by a case in New York. There a wife owned two notes, the larger one of which was, at the time of her death, held by H., with her consent, as collateral security for money loaned to her husband ; the smaller one being in a bureau in the dwell- ing-house. A day or two before her death several persons heard her say to her husband, " You may have the money" or " all the money." Although these notes were not " money," yet the court decided that, as it did not appear that she had any money or proj^erty except the notes, she must have intended to convey them by the use of that term, and that the gift of the larger note was in- valid, no delivery being shown and the note being in the hands of a third person as her property ; but the gift of the smaller note was valid, for it was in a bureau in the donor's house and presumptively accessible to him.^ The delivery may be to a third person for the donee.^ 293. Redelivery of Note. — The effect of a redelivery to the donor of the note given, is the same as a redelivery of a chattel given ; and, perhaps, no stronger presumption against the validity of the claim that there was a gift is raised in the one case than in the other. If the gift is a do7iatio mortis causa, a resumption of possession by the donor is a revocation of the gift ; and perhaps this is true, even though the donor take back the thing given at the » Hatton V. Jones, 78 Ind. 466. 2 Stevens v. Stevens, 2 llun, 470. ^ Jones V. Deyer, 16 Ala. 221; Gammon Theological Seminary v. Robbins, 128 Ind. 85. 256 Gifts. request of tlie donee, for a particular purj^ose, and agrees to act as his agent, but in the case of a gift inter vivos, a repossession by the donor does not annul the gift.^ So where a note given as a gift inter vivos was redelivered to the donor by the donee under an arrangement that the former might collect thereon such an amount as he might need for his support in case he became poor, the gift was upheld.^ 294. Gift by Deed. — A gift of a chose in action may be made by a deed, duly signed, sealed, and delivered, and in such an instance a delivery of the instrument given is not necessary to the validity of the gift. In this way a debt may be forgiven, though the donor and creditor re- tain j)ossession of the instrument evidencing the debt.^ In one instance the Court of Chancery, in the administration of assets, enforced against the estate voluntary assignments, made by the testator, of annuities, mortgage debts, and policies of a.ssurance, of which assignments no notice had been given in his lifetime to the mortgagors or grantors, such assignments containing covenants for further assur- ance by the testator, his executors and administrators.* But it has been held that neither a voluntary assignment by deed of a mortgage debt, accompanied by a grant, not specifying the particular estate, but of all estates held in mortgage, and by a covenant for further assurance, and without delivery of the mortgage deed or notice to the mortgagor, nor the voluntary assignment of a policy of assurance retained in the hands of the assignor, and with- out notice given to the grantor, though accompanied by a ^ Grover v. Grover, 24 Pick. 261 ; Curtiss r. Earrns, 3S Hun, 165. 2 Marston v. Marston, 64 N. H. 146. ^ Blakely v. Brady, 2 Dr. & Wal. 311 ; Gannon v. White, 2 Ir. Eq. R. 207 ; For- tesque v. Barnett, 3 Myl. & K. 86 ; 2 L. J. Ch. N. S. 106. *Cox V. Barnard, 8 Hare, 310. Notes and Choses in Action. 257 covenant for further assurance, can be considered as a complete and effectual assignment to be acted upon and enforced by the assignee without any further or other act to be done by the assignor.^ The owner of certain funds, standing in his name on the books of a bank, by letter directed the bank to carry a part of the funds to the ac- count of certain persons as trustees for his wife, and after her decease, for his son, and other parts thereof to the account of certain persons as trustees for his son, and such sums were accordingly carried over by the bankers to the account of such persons in their books, and the dividends were, from time to time, carried to the same accounts ; but the testator never communicated the facts to the trustees, and there was some evidence that the testator had directed the transfer under an impression that he should be able, by that means, to evade the legacy duty, and that he had shown an intention to exercise some acts of ownership over the funds ; the court declared the gifts void, and that the testator might at any time have revoked them.^ But where A by a voluntary deed assigned to B all her personal estate, and appointed him her attorney to recover, receive, and give receipts for it, it was held that after her death that two promissory notes, one payable to A and the other to A or her order, passed to the donee.^ 295. Production of Note, Effect Upon Presump- tion OF Ownership. — Where the code required an action to be brought in the name of the real party in interest, it was held that the possession of an unindorsed negotiable note payable to bearer raised a presumption that the person 1 Wardr. Andland, 8 Beav. 201 ; S. C. 14 L. J. N. S. Ch. 145; 9 Jur. 384. ■■' Gaskell T. Gaskell, 2 Y. & J. 502. ' Richardson v. Richardson, 3 L. R. Eq. 680 ; 36 L. J. Ch. 653. In Mississippi in 1866 a gift of a book account could only be made, after it was due, except bv a release under seal : Young v. Power, 41 Miss. 197. So in 1847 in Pennsylvania: Campbell's Estate, 7 Pa. St. 100. 17 258 Gifts. producing it at tlie trial was the real and rightful owner.^ So the possession of a promissory note, indorsed in blank by the payee, is prima facie proof of ownershij^ in the holder, even though the validity of the gift of the note is in controversy.^ But where the action was brought by the administrator against the donee because of the alleged conversion of United States bonds belonging to the dece- dent; and the donee, as defendant, in her answer ad- mitted the allegations with reference to the ownership of the bonds in the lifetime of the alleged donor, but averred that prior to his decease and shortly before his death that he gave them to her as a donatio mortis causa, and that she then "took possession thereof and kept the same con- tinuously in her possession until and after the death of the said intestate, and that they have ever since remained in her possession and are now her property, and have never formed any j^art of the estate whereof the said in- testate died possessed," it was held that the burden rested upon her to prove the validity of the gift, although title to the bonds passed by mere delivery. " This state of the pleadings," said the court, " devolved upon the defendant the burden of establishing the alleged gift. Such gifts are not presumed. '■Nemo donare facile presumitur^ is a maxim of the law applicable to the case, and where a gift causa mortis is alleged, the presumption being against it, clear proof on the part of the claimant is required. . . . The plaintiff was entitled to stand upon the admission of the answer that the intestate was the owner of the bonds in his lifetime. That gave him a prima facie case, be- cause the defendant herself admitted such ownership, and only asserted a right by virtue of the alleged gift. We 1 Kiff V. Weaver, 94 N. C. 274. 2 Bedell v. Carll, 33 N. Y. 581; Slieppard v. Earle, 25 Hun, 317 ; Dean v. Cor- bett, 51 N. Y. Supr. Ct., p. 107. Notes and C hoses in Action. 259 think it was lier duty to have proved the gift, otherwise the plaintiff would be entitled to recover." ^ So in Georgia the delivery of a non-negotiable note, without more, is not sufficient to prove a gift.^ If the donee maintained a close relationship to the donor, as wife to a husband, or admin- istrator or executor to a decedent's estate,^ or a household servant to a master, the presumption of a gift is not raised by a mere production of the note or instrument alleged to have been given.'* This is particularly true if the person claiming to be donee had access to the alleged donor's papers.^ 296. Forgiving Debt. — There is nothing to prevent a donor giving to the donee a debt the latter owes him ; or, in other words to forgive him his debt. This has been accomplished by delivery of a receipt for the part given where the whole debt was not given. Thus a father held a bond secured by mortgage executed by his son. With the intention of giving him a portion of the mort- gage debt, the father executed and delivered to him a receipt therefor, containing a provision that the sum stated should be indorsed on the mortgage. It was contended that this was not a valid gift, in view of the fact that the indorsement was not made, but the court decided that it was, and operated to extinguish so much of the debt as was specified in the receipt, and that the agreement to in- dorse did not make it a mere executory promise, and that its performance was not essential to the gift. In this ease there could be no delivery of the bond and mortgage ; ^Conklin v. Conklin, 20 Hun, 27S ; Drischler v. Van den Henden, 49 N. Y. Supr. Ct. 50S ; The Matter of O'Gara, 15 N. Y. St. Repr. 737. ^ Hill V. Sheibley, 64 Geo. 529. 'Cowee V. Cornell, 75 N. Y. 91 ; S. C. 31 Am. Rep. 428. * Estate of O'Gara, 15 N. Y. St. Rep. 737; Conklin v. Conklin, 20 Ilun, 278. ^Grey v. Grey, 47 N. Y. 552, reversing 2 Lans. 173; Love v. Dilley, 64 Md. 2.38 ; S. C. 1 East. Rep. 697 ; 6 Atl. Rep. 168. 260 Gifts. because the entire amount therein named was not for- given ; for " the character of the gift," said the court, " dictates the manner of its delivery." ^ If the payee de- liver to the maker his note as a forgiveness of the debt, the gift is a good one and binding.^ A common method of making a gift is to cancel the evidence of it and de- liver such evidence of the debt to the obligor ; or, with- out cancellation, deliver to him such evidence, accom- panied by a declaration that the gift is forgiven. There is no reason why such a gift is not as valid as a gift of a note of another by the donor to the donee. Thus it was said that a delivery up of mortgage deeds did not cancel the debt ; but the delivery up of such deeds and of a bond, given at the time of the mortgage, for the purpose of re- leasing and acquitting the debt, in case the donor should not recover from his present illness, was an effectual do- natio mortis causa; but the exact question was not de- cided.^ Where a wife borrowed money of her husband for the benefit of her separate estate, it was held that the husband could discharge the debt thus created, by destroy- ing the evidence of the debt and declaring that he for- gave it, intending thereby to give it to her.^ So where the holder of a due-bill, drawing interest, delivered it, when dangerously ill, to her servant, with an expression to the effect that she wished the debt to be cancelled ; and ten days thereafter she died from such illness, it was held that there was a good donatio mortis causa, or a forgive- 1 Carpenter r. Soule, 88 N. Y. 251 ; Lee v. Eoak, 11 Gratt. 182. ''Stewart v. Hidden, 13 Minn. 43. For a case of gift of the debt to tlie debtor's wife see Hackney v. Vrooman, 62 Barb. 650. (But see Ward v. Turner, 2 Ves. Sr. 4&\, arguendo contra) ; Richards v. Syms, 2 Atk. 319; S. C. 3 Barn. 90 ; 2 Eq. Cas. Abr. 617 ; Young v. Power, 41 Miss. 197. 3 Hurst r. Beach, 5 Madd. 351 ; Campbell's E-^(ate, 7 Pa. St. TOO. * Gardner v. Gardner, 22 'Wend, 526, reversing 7 Paige, 112, but not on this point ; Darland v. Taylor, 52 la. 503 ; Blake v. Kearney, Manning (La.) 320. Notes and Choses Iti Action. 261 ness of the debt.^ So where a mortgagee delivered up the bond and mortgage securing its payment to the mortgagor^ with the intention exj^ressed of cancelling the debt, it was held to be a good gift.^ But where a young woman, who had lived with her mother five years, and had never paid anything for her board, a little while before her death gave her mother a bond for £500, and a note for £100, which were debts owing to her from other persons,- it was decreed that the bond and note was not a satisfaction of the board debt ; for one debt cannot be a satisfaction of another debt," If the holder cancel a note and deliver it up, the transaction amounts to a forgiveness of the debt.* A mortgagee wrote letters to the mortgagor, and persons interested under him, containing the expressions " I now give this gift, to become due at my death, unconnected with my will ;" " I hereby request my executors to cancel the mortgage deed," etc. ; " I again direct and promise that my executors shall comply with my former request, that is, to cancel all deeds and papers I may have charge- able on the K. estate." It was claimed that this consti- tuted a gift or operated as a declaration of trust ; but the court held that it did not.^ The taking back of a note or obligation, for payment of money by the alleged donor to the alleged donee raises a ^;r?j?m/a(?ie presump- tion of a loan, even as between a father and son ; but that presumption may be rebutted by showing that the trans- action was in fact a gift of the money passing between them ; and even though the original transaction was a 1 Moore v. Darton, 4 De G. & Sra. 517 ; S. C. 20 L. J. Ch. (N. S.) 626 ; 7 E. L. «&Eq. 134. 2 Richards v. Syms, 2 Atk. 319 ; S. C. Barns. Cli. 90 (1740). =* Clavering v. Yorke, 2 Colly. 363. * Larkin v. Hardenbrook, 90 N. Y. 333 ; S. C. 43 Am. Rep. 176. ^Scales V. Maude, 6 De G., M. & G. 43 ; S. C. 1 Jiir. N. S. 1147 ; 25 L. J. Ch. 433. 262 Gifts. loan, yet the conduct of the loaner may be such toward the donee as to show a forgiveness of the debt ; in which event a court of chancery has full power to com- pel a cancellation of the obligation given. Transactions of this kind are not uncommon w^here the father desires to control the actions and conduct of his son.^ Where a donor on his death-bed delivered a memorandum in the na- ture of a note, to A to deliver to the donee, the gift was up- held as a good donatio causa mortis} But mere voluntary declarations indicating the intention of the creditor to for- give or release a debt, do not constitute a release in equity any more than they do at law.^ An indorsement, however, upon a security held by the donor of a forgiveness of a part of the debt is a good gift of that part without a de- livery of the security to the donee, if he is informed of the gift and accepts it.* 297. Receipt for Debt. — If the debt consists of an account, the holder of it may effectually give it to the debtor by delivering to him any evidence of the debt existing ; and if there be none, then by a delivery of a receipt in full, or for the part given. So if the holder of the account write upon a copy of it that it is cancelled by a gift thereof to the debtor, and sign and deliver the same 1 Flower v. Marten, 2 Myle & Cr. 459 ; Wekett v. Kahy, 3 Bro. P. C. IG ; Pad- more V. Gunning, 7 Sim. 644. 2 Moore v Darton, 4 De G. & Smnle, 517. 3 Cross V. Spring. 6 Hare, 552 ; S. C 18 L. J. Ch. N. S. 204. See Aston v. Pye, 5 Ves. 350, note ; Byrn v. Godfrey, 4 Ves. 6 ; Reeves v. Brymer, 6 Ves. 516. But see Eden v. Smyth, 5 Ves. 341, and Reeves v. Brymer, 6 Ves. 516, two doubtful cases. See, also. Cross v. Cross, 1 Ir. L. R. Ch. Div. 389 ; Nelson v. Cartmel, 6 Dana, 8 ; Young ?•. Power, 41 Miss. 197 ; Demmon v. McMahin, 37 Ind. 241. * Green v. Langdon, 28 Mich. 221. Conti-a, Gray v. Nelson, 77 la. 63. Although there was an indorsement on the bond of a forgiveness of a part of it : Tufnell v. Constable, 8 Sim. 69. Care should be observed in clearly distinguishing between a gift of a ]3art of a note, and the acceptance of less than the amount due in pay- ment. These transactions are not interchangeable: McKenzie v. Harrison, 120 N. Y. 260. Notes and Glioses in Action. 263 to the defendant with intent to make a gift thereof to him, and the latter accept it as a gift from him, the debt will be extinguished. Such is all the delivery the subject is capable of. But such a gift cannot be made by merely balancing the books of the debtor " by gift," making no delivery of anything to the debtor ; because nothing would be delivered, and the books continuing in the possession of the creditor, the gift would not be executed. The giv- ing of a receipt and the delivery operate as an assignment of the account and the right of action thereon, or so much thereof as the receipt covers, to the debtor.^ So a stipula- tion and acknowledgment of the receipt of part payment of an existing debt, recited in an agreement under seal and delivered to the debtor, is proper evidence of an exe- cuted gift of the debt ipro tanto? So an indorsement made in consideration of kindness, by the direction and in the presence of the mortgagee, of part payments upon a mortgage against the donee, with the deliberate and ex- press intention to make a gift or donation of his projDerty to him, will be sustained as an extinguishment or forgive- ness of the mortgage debt to that extent ; and an actual delivery of the mortgage and note secured in such an in- stance is not necessary, although it would be if the whole debt were forgiven.^ The owner of certain land executed a contract for its sale and conveyance on the j^ayment of $1,100, to all which the purchaser agreed and accepted the contract. But it was never intended that the pur- chaser should pay anything, and subsequently the vendor indorsed upon the contract a receipt in full of the j^urchase- ^ Gray v. Barton, 55 N. Y. 68 ; S. C. 14 Am. Rep. 181 ; Ferry v. Stephens, 5 Flun, 109 ; Green v. Langdon, 28 Mich. 221 ; Young v. Power, 41 Miss. 197 ; Carpenter I'. Soule, 13 Wk. Dig. 55, affirmed 88 N. Y 251. ^ Lamprey r. Lamprey, 29 Minn. 151; Travis v. Travis, 8 Ontario, 516; S. C. 12 Ont. A pp. 438. 3 Green v. Langdon, 28 Mich. 221. 264 Gifts. jDrice, no money in fact being paid. Afterward the vendee brought an action to comj^el a specific performance of the written contract, and was successful. It w^as ruled that whatever may have been the intent, the agreement to con- vey -vvas not voluntary, because it was for a valuable con- sideration ; that the contract did not operate as a gift of the land, and conclusively rebutted an intent to make a present gift ; that the facts showed that the vendor, to accomplish his purpose of giving the lands, gave the debt which rej^resented his interest therein ; and that the re- ceipt operated as a valid and complete gift of the debt, leaving the right of the vendee to a conveyance in force, the same as if the debt had been paid.^ 298. Note Made Payable to Third Peeson. — A com- mon form of gift is to take a note payable to a third per- son. In such an instance the maker of the note accepts as payee a stranger at the request of the person who is enti- tled to the proceeds ; and the latter waives his right to insist upon the receij^t of such proceeds. This amounts to a gift from the person who is entitled to such proceeds, to the payee ; and the maker of the note, having once agreed to it, cannot insist upon the invalidity of the transaction." Thus where a father conveyed land to his son, and took back a note payable to his remaining sons four years after his, the father's, death, but the interest thereon payable to himself during his life, this was adjudged a valid gift of the principal, and the gift was not void because of no actual delivery to the donees, which is usually essential,^ for the circumstances rendered it essential that the ftither should retain the note during his lifetime. The father be- 1 Ferry v. Stephens, 66 N. Y. 321 ; S. C. below, 5 Hun, 109. 2 Carver v. Carver, 53 Ind. 241 ; Einker v. Einker, 20 Ind. 185 ; Towle v. Towle, 114 Mass. 167. 3 Jones V. Deyer, 16 Ala. 221. Notes and C hoses in Action. 2G5 came a trustee for the donees in the custody of the instru- ment.^ But if there can be a delivery, there must be one ; or the gift will be invalid ; and the mere fact that they are payable to the donee will not constitute the donor a trustee of them for the beneficiary.^ If once delivered, the repos- session of the note by the donor will not render the gift in- valid. Thus where a mother sold her laud and caused two of the notes, given for the purchase-money, to be made payable to her son, then three years old, and then deliv- ered them to his father for safe keeping for the son ; and the father afterward died, making the mother his execu- trix, and she, as such executrix, then obtained the custody of his papers, including the notes ; and, in her individual name, purchased a tract of land of the maker of the notes, and in part payment therefor cancelled the notes and de- livered them to him, it was held that the facts showed an executed gift of the notes, and that her conversion thereof to her own use was wrongful, and entitled the son, by his guardian, to recover from her the amount of the notes. And it was further held that if the mother committed a breach of trust in making the gift, she was estopped to question the title of her donee by setting up a breach of the trust in bar of his action for the amount of the note."^ So if a husband take a note payable to his wife instead of to himself, and deliver it to her, he cannot afterward claim, the proceeds by the reason of the fact that it comes into his possession. Such a note is her separate property, and she is not a trustee for him.* So a policy of insurance taken by a husband on his own life, payable to his wife, is a gift to her.^ ^ Love V. Francis, 63 Mich. 181. 2 Fanning r. Russell, 94 111. 386. » Rinker v. Rinker, 20 Ind. 185. * Carver v. Carver, 53 Ind. 241. In Massachusetts all gifts made to a wife are void: Towle v. Towle, 114 Mass. 167. *Fowlerly v. Butterly, 78 N. Y. 68 ; S. C. 34 Am. Rep. 507. 266 Gifts. 299. Note Payable to Husband and Wife or to Two OR More Persons — Delivery — Survivorship. — If a husband take a note payable to himself and wife, it is a gift as to her ; and if she survive him before its collec- tion, she is entitled to the full amount of it ; but she has no interest in it until his death. During his life he may control it. A delivery to her is not essential. In such an event it may be shown that the husband gave her a legacy in lieu of the note.^ She has no interest therein until his death ; and if she die before him, he takes the whole by right of survivorship. He may even defeat her interest by his will." In all* such instances the sufficiency of the assets to pay the debts of the estate must be con- sidered ; and if there are not enough, her claim fails.^ A deposit made by the husband in the name of his wife and his own, and a certificate given therefor stands upon the same basis as a note so taken.'* Such a transaction amounts, prima facie, to a gift ; but the presumption thus raised may be rebutted.^ So a transfer of money by a husband into the joint names of himself and wife, with intent to make it a gift, will so constitute it.*' But in determining whether the wife has an interest in the gift before her death, it is well to bear in mind the common-law rule with respect to a wife's personal estate and the right of 1 Sanford v. Sanford, 45 N. Y. 723; Sanford v. Sanford, 2 T. & C. 641 ; affirmed 58 N. Y. 69 ; S. C. 17 Am. Rep. 206, but not upon the point here stated. Doubted upon tlie question of delivery : Matter of Ward, 2 Redf. 251 ; vS. C. 51 How. Pr. 316. 2 I'ile I'. Pile, 6 Lea, 508 ; S. C. 40 Am. Rep. 50; Scott v. Sinies, 10 Bosw. 314. 3 Christ's Hospital v. Budgin, 2 Vern. 6S3 ; S. C. Eq. Cas. Abr. 70, pi. 13 ; Duriimer r. Pitcher, 5 Sim. 35 ; S. C. 2 Myl. & Keen. 262 (Stock.) * Roman Catholic Orphan Asylum v. Strain, 2 Bradf. 34 ; Scott v. Siines, 10 Bosw. 314 (a delivery to the wife held not necessary) ; Prindle v. Caruthers, 15 N. Y. 425. 5 Pile V. Pile, 6 Lea, 508 ; S. C. 40 Am. Rep. 50; Johnson r. Lusk, 1 Tenn. Ch. 3; Johnson v. Lusk, 6 Coldw. 113; Draper v. Jackson, 16 Mass. 480. * Low V. Carter, 1 Beav. 426 ; Vance v. Vance, 1 Beav. 605. Notes and Choses in Action. 267 her husband thereto when he has reduced it to his pos- session. This rule lias left its mark upon the cases hold- ing survivorship in her necessary to the right of enjoy- ment.^ Whether the usual married women's act has changed the rule has not been decided, it is believed ; but it is the opinion of the writer that it has, and the trans- action would be the same as if the wife was a stranger.^ 300. Note of Donor Payable to Doxee. — At an early date it was declared that the note of the donor exe- cuted to the donee as a gift was not a valid gift ; it was only a mere promise to pay a certain sum of money, and being without consideration, it could not be enforced. Such a note cannot be regarded as an appointment or dis- position in the nature of a gift ; and is not capable of any greater effect in equity than at law.^ "But we think," said the Supreme Court of Massachusetts, " that the donor's own promissory note payable to the donee, could not be the subject of such a donation. It was not an existing available promissory note to any one ; it was not a chose in action. We have already seen that it was not a bind- ing contract by the promisor to the promisee ; and if it were, it would be open to another objection as a donatio mortis causa, namely, that it would not be revocable by the donor. It was simply a promise to pay money, and as such and as a gift of a sum of money, it wants the es- 1 Johnson T'. Liisk, 6 Coldw. 113; 8. C. 1 Tenn. Ch. 3 below ; Searing i-. Sear- ing, 9 Paige, 283; Thompson v. Ellsworth, 1 Barb. Ch. C24. ^ For other Engli-
  • bertson v. March, 3 vScam. (111.) 198 ; Pryor v. Cain, 25 111. 263 ; Thompson V. .Mercer Co , 40 111. 379 ; McClure v. Wilson, 43 111. 356 (substitute for a draft) ; Miller I'. Ballard, 46 111.377; Kentucky Baptist Education Society r. Carter, 72 HI. 247; Whitsilt »;. Pre-emption Presbyterian Church, 110 111. 125 (specific per- formance); Ryer.ss V Presbyterian Congregation, 33 Pa. St. 114; Reimensnyder r. Gans, 110 Pa. St. 17 ; Stevens ?•. Corhitt, 33 Mich. 458. 3 Robertson v. March, 3 Scam. (111.) 198. * Stevens?'. Corbitt, 33 Mich. 458 ; Michisran, etc.. R. R. Co. v. Bacon, 33 Mich. 466 ; Tower v. Detroit, etc., R. R. Co., 34 Mich. 329. Notes and Choses in Action. 279 benefit of the corporation, after the rest, in reliance upon the agreement, have contributed their proj)ortion.' Many of the cases cited in this section are made to turn upon the fact that debts had been incurred, or tilings done, by the donee, who was at the time relying upon the promise of the donor or donors ; but in several of the States from which cases are herein cited, the rule is in force which holds the donor liable upon the ground discussed in the j^re- ceding section. It may be remarked, however, that the fact of the subscription alone does not raise a binding promise on the j^art of the donee to do anything, nor does it con- stitute a request to do anything, nor can such a request be implied. The understanding among the subscribers does not change the rule. But a subscription invalid at the time for want of a consideration may be made valid and binding by a consideration arising subsequently between the subscribers and the donee.^ 306. Acceptance — Revocation — Death of Sub- scriber. — There must be an acceptance on the part of the person or company to be benefited by the proposed donation ; but this acceptance will be inferred from the mere act of briuging an action thereon, unless the sub- scription was conditional ; ^ but in those States where the doctrine of (quasi) estoppel is invoked to uphold these gifts or donations " an acceptance can only be shown by some act on the part of the promisee whereby some legal liability is incurred or money is expended on the faitli of the promise."* "If the promisor dies," says the Supreme 1 Conrad v. La Bue. 52 Mich. 83. 'Presbyterian Cluirch of Albany v. Cooper, 112 N. Y. 517. See Barnes ?;. Ferine, 12 N. Y. 18; Roberts v. Cobb, 103 N. Y. 600; S. C. 21 N. Y. St. Rep. 503. Subscription to a Grand Army encampment lieid valid: Kinsley v. Inter- national, etc , Co., 41 111. A pp. 259. 'Northern Central Michigan R. R. Cn. v. Eslow, 40 ^Mich. 222. * Grand Lodge of Good Templars v. Farnhani, 70 Cal. 158. 280 Gifts. Court of California, " before his offer is accepted it is thereby revoked, and cannot afterward, by any act show- ing acceptance, be made good as against his estate.^ The rule is otherwise," continues the court, " where subscribers agree together to make up a specified sum, and where the withdrawal of one increases the amount to be paid by the others. In such a case, as between the subscribers, there is a mutual liability, and the co-subscribers may maintain an action against one who refuses to pay." ^ The death of the subscriber is a cancellation of his subscription, and it cannot be enforced against his estate.^ 307. Who May Sue Upox Subscription. — It is im- material that no promisee or donee is named, if some one is mutually designated to collect the money subscribed. Such a designation places the subscription on the same ground as if his name had been inserted in it as the payee. Thus where a subscription was taken to give a free dinner to " returned soldiers," and a certain person was duly selected by those starting the subscription to secure subscribers, collect the money, and make all neces- sary disbursements, it was held that such person was the proper plaintiff to sue and collect any of the unpaid sub- scriptions.^ So the trustees of an unincorporated society organized for a lawful purpose may receive promises on its behalf; and a mutual subscription on its behalf may be supported, even though no payee be named, if the ob- 1 Pratt V. Trustees, etc., 93 111. 475 ; Beach v. First M. E. Church, 96 111. 177 ; Phipps V. Jones, 20 Pa. St. 260 ; Helfenstein's Estate, 77 Pa. St. 328 ; Cottage Street Church v. Kendall, 121 Mass. 528. "^ Citing George v. Harris, 4 N. H. 533 ; Currv v. Ptogers, 21 N. H. 247. 'Grand Lodge of Good Templars v. Farnham, 70 Cal. 158 ; Reimensnyder v. Gans, 110 Pa. St. 17. *Comstock V. Howd, 15 Mich. 237. This is especially true if he has went for- ward and advanced money to complete the proposed work : Van Rensselaer v. Aiken, 44 Barb. 547. Notes and Choses in Action. 281 ject is made definite and certain/ So an agreement to pay A, "treasurer" of an unincorporated corporation, which is to be incorporated, may be enforced in the name of A alone, the word " treasurer " being rejected as surplusage.^ So it has been held that a subscription to be paid to a per- son to be elected by a proposed corporation may be en- forced in the name of the corporation after it is organ- ized.^ 308. Sunday Subscriptions. — A subscription upon Sunday to build a church is valid, and so is one to a charity.^ But the contrary has been held, and a note exe- cuted on Sunday held void, upon the ground that its execu- tion was an act of common labor forbidden by the statute.^ 309. Conditional Promise — Consideration. — It is elementary that a promise to make a gift upon a certain contingency, that contingency must happen, or no claim can be made that an obligation rests upon the donor to make the gift. And if the condition is that the donee will do or refrain from doing something, and he comjDlies with the conditions, the donor is bound to stand by his propo- sition. But here we pass beyond the gift into a contract. Thus, where a proposition was made to a county that, if it would raise $2,000 and pay it to a corporation for the purpose of erecting a monument, the j^erson proj^osing would pay such corporation $1,000, and the county raised the money and paid it over to the corporation, it was 1 Allen 7'. Diiffie, 43 Mich. 1. = McDonald r. Gray, 11 la. 508. ^ Wayne and Ontario Collegiate Institnte v. Greenwood, 40 Earb. 72 ; Farming- ton Acaderav v. Allen, 14 Mass. 172 ; Limerick Academy v. Davis, 11 Mass. 113. * Allen V. Duffie, 43 Mich. 1 ; S. C. 38 Am. Rep. 159 ; Dale v. Knapp, 98 Pa. St. 389 ; S. C. 42 Amer. Rep. 624 ; 38 Amer. 165 ; Bryan v. Watson, 127 Ind. 42. »Catlett V. M. E. Chnrch, 62 Ind. 365 ; S. C. 30 Amer. Rep. 197. This case is overruled in Bryan v. Watson, supra. 282 Gifts, adjudged that the person so proposing was legally bound to pay over the $1,000. The proposition had been ac- cepted and become a contract that could not be revoked.^ So, where the defendant subscribed $5,000 toward a fund of $45,000 to be raised to pay the principal of a mortgage on a church, upon the exjiress condition that the full sum of $45,000 should be subscribed or paid in for that purpose, and that, if, within one year from the date of tlie subscription, the full sum should not be subscribed or paid for such purpiose, then the agreement was to be null and of no effect; and among the subscriptions was one for $5,000 by the "Ladies' Association" of the church, signed by the lady president, which consisted of such ladies of the church as contributed to its benevolent work, who, at a meeting at which some twenty-five or thirty were present, passed a resolution pledging them- selves to raise that sum ; one for $500 by " Sunday- school," made by the superintendent, and approved and ratified at a meeting of the ofiicers and teachers ; and the young men of the church, at a regularly organized meet- ing, also passed a resolution j)ledging themselves to pay $1,500, and requested tlie chairman of the meeting to sign the subscription j^apers, which he did — it was held that the defendant was not liable for the reason that the subscrip- tions above set forth were all invalid, while valid sub- scriptions for an actual payment of the full amount were a condition precedent to the testator's liability. Nor did the court consider the fact that the donor had paid a part of his subscription, with full knowledge of these invalid subscriptions, amount to a waiver of the condition prece- dent, or estop him.^ ^ La Fayette County v. Magoon, 73 Wis. 627. ''Presbyterian Churcli of Albany v. Cooper. 4o Hun, 453; S. C 10 N. Y. St. Eep. 142. This case was afBrmed, but upon different grounds from that stated Notes and Choses in Action. 283 310. Liability of a Single Donor or Subscriber — Mutual Subscription not Sufficient to Bind Donors. — If there be but one subscriber, then it is evident that the rule that the promises of other subscribers is a suffi- cient consideration to uphold his promise cannot apply ; and if the donee has not promised something in considera- tion of the promise of the donor, or has not assumed some liability, or changed his position, the validity of the donor's promise must rest upon the sole ground that there is an implied promise on the part of the donee to apply the gift to the object to which it was given and in the manner, when that is the case, therein designated. A few cases, as we have seen, uphold simple promises of this kind. Perhaps two or more separate promises, made by the donors with knowledge of one or more of them would be construed as resting upon the same consideration as if they were all made jointly by the signing of the same in- strument. But a note of the donor, where no other note or notes are given, rests upon a different ground, so far as mutual promises are concerned, from the promises of two or more. This distinction was draAvn at quite an early date by Chancellor Walworth. " As a subscription of a single individual, agreeing to make a donation to another indi- vidual or to a corporation for the benefit of the donee merely, I should have great difficulty in finding a valid consideration to sustain a promise to give without any equivalent therefor, and without any binding agreement on his part which would be a loss or injury to him. And it can hardly be said to be a consideration to support a promise of a donor to give at a future time, that the donee agreed to receive and invest the fund when paid and to above. It was affirmed upon the distinct ground that, as the clinrcli had not agreed to do anything if the subscription was made, nor had assumed any liability nor done anything because of the promise, the contract was invalid : 112 N. Y. 517 ; S. C. 21 N. Y. St. Rep. 503. 284 Gifts. apply it to the payment of his debts generally, or any par- ticular class of his debts ; or to apply it to the payment of such sums as he may thereafter agree to give to his serv- ants for their services. . . . Neither is there any difficulty in my mind in finding a good and sufficient consideration to support a subscription of this kind made by several in- dividuals. Every member of society has an interest in supporting the institutions of religion and of learning in the community where he resides. And where he consents to become a subscriber with others to raise a fund for that purpose, the real consideration for his promise is the promise which others have already made or which he ex- pects them to make, to contribute to the same object. In other words, the mutual promises of the several subscrib- ers to contribute toward the fund to be raised for the specified object in which all feel an interest, is the real consideration of the promise of each. For this purj)Ose also, the various subscriptions to the same paper and for the same object, although in fact made at different times, may in legal contemplation be considered as having been made simultaneously. The consideration of the promise, therefore, is not any consideration of benefit received by each subscriber from the religious or literary corporation to which the amount of his subscription is made payable, nor is his promise founded upon any consideration or in- jury which the payee has sustained or is to sustain or be put to for his benefit. But the consideration of the promise of each subscriber is the corresponding prom- ise which is made by other subscribers." ^ But upon appeal the Court of Appeals totally disagreed with the Chancellor in so far as he held that if several sub- scribe to a common cause the subscription was valid ; and held that the endowment of a literary institution was not 'Stewart v. Hamilton College, 2 Denio, 403. Notes and Choses in Action. 285 a sufficient consideration to upliold a subscription to a fund designed for that object. The case has met with decided disfavor, and may be considered of little weight as an au- thority.^ So, in Massachusetts, a like doctrine has been followed ; indeed, it may be said that the Supreme Court in that State has gone to a considerable length in holding the kind of contracts under discussion void. In that case, at a meeting, several persons announced that they would each give a named sum for the purpose of repairing a church, and the secretary of the meeting wrote down their names and the amounts. The meeting was called for the purpose of securing money to repair the church. The defendant subscribed, and afterward orally ratified his subscription. Being treasurer of the church, he collected part of the subscriptions. Trouble arising, he withdrew from the office of treasurer, upon request made, and there- afterward ceased all j^articipation in the affairs of the church society, except that he remained one of the trus- tees. The church repairs were made, and then an action was brought to recover from the defendant the amount of his subscription. There was conflicting evidence as to whether anything was done, or any liability incurred or obligation assumed, by the plaintiff in reliance upon this particular subscription. Upon these facts the court de- cided that the defendant was not liable. The court, in explanation of its decision, said : " In every case in which this court has sustained an action upon a promise of this description, the promisee's acceptance of the de- fendant's promise was shown, either by express note or contract, assuming a liability or obligation, legal or equita- ble, or else by some unequivocal act, such as advancing or expending money, or erecting a building, in accordance ' Hamilton College v. Stewart, 1 N. Y. 581. Doctrine affirmed in Presbyterian Church of Albany v. Cooper, 112 N. Y. 517. 286 Gifts. with the terms of the contract, and upon the faith of the defendant's promise." The court seemed willing to admit that, as between the donors or subscribers, the contract of subscription might be valid, but not as between the donee and the donors. " The facts in the present case," said the court, " show no benefit to the defendant, and no note or contract by the plaintiff, and, although it appears that the chapel was afterward built by the plaintiff, it is expressly stated in the bill of exceptions that the learned judge who jDresided at the trial did not pass upon the question of fact whether the j^laintiif had, in reliance upon the promise sued on, done anything or incurred or assumed any lia- bility or obligation. It does not therefore appear that there was any legal consideration for the promise upon which this action is brought." ^ But where a donor j^ro- posed that if a certain person would raise a named sura and pay it to a corporation for the purpose of erecting a monument, he would also pay a certain sum, the raising of the sum named by the person to whom the proposition was made, and the payment to the corporation, was held to constitute a valid contract, which could be enforced.^ 1 Cottage Street M. E. Church v. Kendall, 121 Mass. 528 ; Low v. Foss, 121 Mass. 531. ^ La Fayette County v. Magoon, 73 Wis. 627. Fee Gammon Theological Semi- nary v. Robbins, 128 Ind. 85 ; Simpson Centenary College v. Tuttle, 71 la. 596. See, also, Garrigues v. Home, etc., Society, 3 Ind. App. 91. CHAPTER XII. BANK CHECKS AND DEPOSITS. 311. Division of Subject. Checks. 312. Definition of Check. 313. Checks Xot Bills of Exchange. 314. Check of Donor as a Gift Inter Vivos. 315. Check of Donor Accepted or Caslied. 316. Payment Prevented by Donee Until After the Donor's Death. 317. Check of Third Person. 318. Eights of Bona Fide Holders of Check Given Inter Vivos But Not Cashed Before Donor's Death. 319. Donor's Check Not Valid as a Do- natio Mortis Causa. 320. Check of Stranger the Subject of a Gift Mortis Causa. 321. No Intention to Give Proceeds of Check. 322. Donor's Check Exchanged for a Stranger's Bank Deposit. 323. Certificate of Deposit. 324. Money Deposited in Name of Donee. 3^5. Same Continued — Revocation — Es- toppel. 326. Acceptance of Deposit — Donee Hav- ing no Knowledge of it — Donor Retaining Control Over Deposit. 327. Gift of Bank-Stock Does Not Pass the Deposit. 328. Wife Retaining After Marriage Money She Had on Deposit — Husband as Trustee. Sayings Bank Deposits. 329. Deposit in Savings Bank in Do- nee's Name — Gift Inter Vivos — Presumption of Acceptance. 330. Gift of Deposit Book of a Sav- ings Bank is a Gift of the Fund. Deposit Book of a Savings Bank Must he Delivered — Acquies- cence. Gift of Deposit Book is Not a Gift of the Fund — English Rule. Donor Reserving Interest on De- posit. 334. Redelivery of Deposit Book to Donor. Deposit in Two Names — Gift to Survivor. Gift of a Special Deposit. Overthrowing Presumption of Gift Arising from Fact of Deposit in Alleged Donee's Name. Trust Raised by a Deposit of Money. Trust Raised by Donor Deposit- ing Money in Bank — Notice of Trust — Revocation. Same Subject — Retaining Con- trol of I'und. 340. Same Continued — Evidence — Re- vocation. 341. Same Continued — Some Massa- chusetts Cases. 331. 332. 333. 335. 336. 337. 338. 339. 311. Division of Subject. — The subject of gifts of bank accounts or bank deposits may be divided into the 287 288 Gifts. subject of (1) checks, (2) gifts of bank-books or certifi- cates of deposits, and (3) savings bank deposits. Checks. 312. Definition of a Check. — A check has been de- fined by an author of established rej^utation for accuracy, to be " an inLand bill of exchange drawn upon a banker, payable to bearer on demand." ^ Another authority has defined it to be "a bill of exchange payable on demand."^ " A check is a bill of exchange drawn by a customer on his banker payable on demand." ^ It has been defined by the Supreme Court of Massachusetts to be " an order to pay the holder a sura of money at the bank, on pre- sentment of the check and demand of the money ;" and it is added that " no previous notice is necessary, no ac- ceptance is required or expected, it has no days of grace. It is payable on presentment and not before." '* In New Jersey a better definition of a check has been given in some respects than any we have quoted; for it is said that "a check or draft is a request to pay money to the drawer, or his order, as a right, if he have funds, but in some measure as a matter of favor, if he have not. If there be funds belonging to the drawer, it is a demand of them; if not, it is a request of credit to that amount." ^ In an Indiana case it is said that " a check is defined to be a written order or request, addressed to a bank, or to j^er- sons carrying on the business of bankers, by a party hav- ing money in their hands, requesting them to pay on presentment, to another person, or to him or bearer, or to him or order, a certain sum of money specified in the in- strument." ^ The distinguishing feature of all these defi- 1 Byles on Bills, 13. 2 Edwards on Bills, 396. ' Benjamin Chalmer's Bills and Notes, art. 254. * Billiard v. Randall, 1 Gray, p. 606. ^ State V. Rickey, 4 Halst., p. 312. ^GriflSn v. Kemp, 46 Ind, 172. This is the definition of Burrill. Harrison v. Bank Checks and Deposits. 289 nitions is that tliey, especially those of the courts, regard a check nothing more than a direction, request, or order upon a bank or banker to j)ay out, on account of the drawer, a certain named sum of money. Indeed, in an Ohio case, it is said that " a check is but an order to pay the holder so much money out of a fund in the drawee's bonds, deposited for the express purpose of being recalled by draft, at the option of the customer." ^ 313. Checks not Bills of Exchaxge. — Several of the definitions quoted above put checks upon a level with inland bills of exchange (for no one will contend that they are like foreign bills of exchange, unless drawn upon a bank in a foreign country) ; but they are not in all re- spects alike. Perhaps a better idea of a check can be ob- tained by comparing it with an inland bill of exchange, and seeing wherein they are alike and wherein they differ ; and for this purpose we make the following quota- tion from an opinion of the Supreme Court of the United States : " Bank checks," says the court, " are not inland bills of exchange, but have many of the properties of such commercial paper ; and many of the rules of the law mer- chant are alike applicable to both. Each is for a specific sum payable in money. In both cases there is a drawer, a drawee, and a j^ayee. Without acceptance, no action can be maintained by the holder upon either against the drawer. The chief points of difference are that a check is alw^ays drawn on a bank or banker. Xo days of grace are allowed. The drawer is not discharged by the laches of the holder in presentment for payment, unless he can show that he has sustained some injury by the defiiult. It is not due until payment is demanded, and the statute of Wright, ]00 Tnd. 515; S. C. 50 Am. Rep. 805; Bowen v. Newell, 5 Sandf., p. 328. ^ McGregor r. Loomis, 1 Dis. (Ohio), p. 256. 19 290 Gifts. limitations runs only from that time. It is by its face tlie appropriation of so much money of the drawer in the hands of the drawee to the payment of an admitted lia- bility of the drawer. It is not necessary that the drawer of a bill should have funds in the hands of the drawee. A check in such a case would be a fraud. All the author- ities, both English and American, hold that a check may be accepted, though acceptance is not usual. By the law merchant of this country, the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set aj^art for its satis- faction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is good then and shall continue good, and this agreement is as binding on the bank as its notes of circu- lation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume. The ob- ject of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Thus it continues to perform its important functions until in the course of business it goes back to the bank for redemption and is extinguished by payment." ^ Speaking upon this subject, the Supreme Court of Indiana said : " The circumstances in which tliey [checks] principally differ from bills of exchange, or at least from bills of exchange in ordinary use and circulation, are: 1st. They are always draw^n on a bank, or on bankers, and are payable on presentment without any days of grace. 2d. They require no accept- ance as distinct from prompt payment. 3d. They are 1 Merchants' National Bank v. State Bank, 10 Wall. 604, 647. Bank Checks and Deposits. 291 always supposed to be drawn uj)on a previous deposit of funds. A check so far differs from a bill of exchange or note, that its payment may be countermanded by the drawer before it is accepted or paid by the bank ; and so the death or insolvency of the drawer is in the nature of a countermand of the payment, and the bank ought not to pay ; but if the bank pays without notice of the death, it is said to be a good payment." ^ " A cheque," - said Baron Parke, " does not require acceptance ; in the ordinary course it is never accepted ; it is intended for circulation, it is given for immediate payment ; it is not entitled to days of grace ; and though it is, strictly speaking, an order upon a debtor by a creditor to pay to a third person the whole or part of a debt, yet, in the ordinary understand- ing of persons, it is not so considered. It is more like an appropriation of what is treated as ready money in the hands of the banker, and in giving the order to appro- priate to a creditor, the person giving the cheque must be considered as the person primarily liable to pay, who orders his debt to be paid at a particular place, and as being much in the same position as the maker of a promis- sory note, or the acceptor of a bill of exchange, payable at a particular jolace and not elsewhere, who has no right to insist on immediate presentment at that place." ^ A striking characteristic of checks is that they are payable upon demand made at the bank upon which they are drawn. If an instrument in the form of a check is made payable at a future day, it is usually regarded as an inland ' Griffin r. Kemp, 4G Ind. 172. See Harrison v. Wright, 100 Ind. 515 ; S. C. 50 Amer. Rep. 805. " '■ Oheqiie" U the English spelling, in imitation of exchequer, witli which it is remotely connected: Century Diet, check, No. 1. ^Mullick V. Radakissen, 9 Moore P. C. 46, G9. Sec Lynn v. Bell, 10 It. Rep. C. L. 487 ; Keene v. Beard, 8 C. B. N. S., p. 3S0 ; Ilopkinson v. Forster, L. R. 19 Eq. 74. 292 Gifts. bill of exchange ; ^ but in somes States it is treated as a eheck.^ 314. Check of Donor as a Gift Inter Vivos. — One of the earliest, if not the earliest, cases on this subject was decided in 1793. Suit was brought by the holder of a check for £200 against the administrators of the estate of the drawer to recover from the estate the amount of the check. The gift was not made in view of death, and therefore a gift inter vivos. The gift of the check was made several days before the testator died, when he was not apprehensive of death ; and upon these points there was no dispute. But the court held that the holder of the check, the donee, could not recover because she had not tendered it to the banker upon whom drawn before the death of the donor and drawer, the court saying that " the authority to pay clearly expired with the death of the testator." But the court added that, if the check had been " received at the banker's before notice of the death of the party, or immediately after, it might have availed ; but for want of activity in the holder of it, it is become of no effect." ^ About two weeks before her death, ^ Glenn t'. Noble, 1 Blackf. 104; Minturn v. Fisher, 4 Cal. 35; Bowen v. Newell, 13 N. Y. 290; Morrison v. Bailey, 5 Ohio St. 13; but see Andrew v. Blachly, 11 Ohio St. 89, where the nature of the instrument was determined by the intention of the parties. - Champion v. Gordon, 70 Pa. St. 474 ; Law.son v. Richards, 6 Phila. 179 ; West- minister Bank v. Wheaton, 4 E- I. 30. 3 Tate V. Hilbert, 4 Brown, Ch. 286; S. C. 2 Ves. Jr. 111. From this dictum, that, if the check had been piid after the drawer's death, but before notice of it by the bank, the bank would have been protected, has arisen the statement, by all the text writers, that a payment under such circumstances is valid so far as the bank is concerned. In tlie instance of a check given for value, Mr. Daniels has denied the soundness of this doctrine, claiming that payment after notice of the drawer's death is a protection to the banker; but at the same time admitting that, if the check were a gift and the banker knew that fact at the time of payment, he would not be protected if he paid it: 3 Vir. L. Jr. 323 (1879); same article, 13 Irish L. T. 448, taken from the Bankers' Macjazine for 1879. Banh Cliecks and Deposits. 293 a mother gave her daughter a check on a bank, but the daughter did not present it for acceptance or payment until after the death of her mother. Payment was de- clined and a suit instituted by the daughter against the bank, but a recovery was denied. " It seems clear to us," said the court, " that until the check was either j)aid or accepted the gift was incomplete, and that in the absence of such payment or acceptance the death of the drawer operated as a revocation of the check. It is well settled that, in order to constitute a valid gift, there must be a complete delivery of the subject of the gift, either actual or constructive. The check in the present instance was a mere order or authority to the payee to draw the money ; and, being without consideration, it was subject to be countermanded or revoked while it remained un- acted on in the hands of the payee." ^ 315. Check of Donor Accepted or Cashed. — Where a check, however, has been cashed by the drawee before the death of the drawer, the money received by virtue of the check is a valid gift, and is not revoked by the death of the donor. Thus the Civil Code of Louis- iana provided that a "manual gift — that is, the giving of corporeal movable effects by a real delivery, is not subject to any formality." A donor gave his check, j^ayable to his donee, who, on the same day drew the money named therein on presentation to the drawee ; it was held that the gift was perfect, and was not revoked by the death of the donor a day or two thereafter." "An actual, real de- livery of a corporeal movable effect (money) was made," said the court, "and no other formality was necessary. ^ Simmons v. Cincinnati Savings Soc, 31 Ohio St. 457 ; S. C, affirming (5 Amer. L. Rec. 441. The gift in this case was treated as one inter vivos, although it might have been deemed one mortis cavisa. 294 Gifts. The check was the means or vehicle of delivery."^ So, too, if the check has been accepted by the drawee before the death of the drawer it would seem to be a valid gift of the money named therein ; for then the check becomes a contract between the donee and drawee, and the accept- ance operates as an assignment of enough of the donor's funds in the hands of the drawee to satisfy it.'^ This would be more so the fact if the drawee should have done anything transferring the amount of the check from the drawer's account to the draw^ee's credit before the donor's and drawer's death. But if a donor should draw a check in favor of the donee upon a bank where he had no funds, and the bank accept but not pay it before his death, we do not think the donee could enforce its pay- ment, for the reason that the check and its acceptance is based upon no consideration, and there was no delivery of the thin": oiven before the death of the donor. No money, after the donor's death, could be placed in the bank that would be subject to the check, for such money could not be the money of the donor who, at the time of its receipt by the bank, was dead. The law does not rec- ognize a dead man as the owner of projDcrty.^ 316. Payment Prevented by Drawee Until After THE Donor's Death. — But a check not paid before the donor's death may be enforced thereafter, if the payment has been delayed until after such death by an act or the 'Succession of De Pouilly, 2"2 La. Ann. 97. ^Simmons v. Cincinnati Savings Society, supra. Only a dictum to this effect occurs in the above case, and we know of no case directly in point. But the rule laid down in the text, it seems to us, is undoubtedly correct in the main. ' See Bromley v. Brunton, 6 L. R. Eq. 275 ; S. C. 37 L. J. Ch. 902 ; 18 L. T. N. S. 62S ; 16 W. R. 1006, where it was said : " The gift in this case being made in the form of a check drawn on the bankers of the donor, if there had been no funds in the hands of the bankers, then, of course, there would have been an incom- pleteness in the gift on the part of the donor." Bank Checks and Dejyosits. 295 fault of the drawee, and without the neglect or laches of the donee. Thus a donor gave a check for £200 on the 14th, and the donee presented it to the drawee bank the next day, but payment was refused for the reason that the signature differed from the usual signature of the donor, and the same refusal was made on the IGth, and on the 17th the donor died, the check not having been paid ; it was held that the donee could enforce a claim for the amount of the check against the executors of the donor, who had drawn the funds from the bank against which the check was drawn, and which were sufficient to satisfy the check at the time of its second presentation. " The reason," said Vice-Chancellor Stuart, " why they did not pay it was one proceeding from their minds — they doubted the authenticity of the donor's signature, and the result is that the funds which the donor had dedicated to the purpose of this gift, through no act of the donor, and throuoh no fault of the donee, came into the hands of the executors of the donor. I conceive that, under these cir- cumstances, no further act was necessary on the part of the donor to make the gift complete. The failure, so far as the gift has failed through non-payment to this time, occurred through the deftiult of third parties, whose duty it w^as to pay it. The effect of the check was to appropriate so much of the donor's money, and my ojiinion is that the funds, the subject of the gift, are in the hands of the ex- ecutors just as much liable to the payment of the check as they were in the hands of the banker." ^ 1 Bromley v. Bmnton, 6 L. R. Eq. 275 ; S. C. 37 L. J. Cli. 902 ; IS L. T- 62S ; 16 W. R. 1006. Where the donor delivered a check to the donee, part of which wns to be paid by the donee to B, and the clieck was cashed before the donors death, it was held that B could hold the donee as trustee for the part due him, although he knew nothing of the gift until after the donor's death : Tate v. Leithead, Kay, 658 ; S. C. 23 L. J. Ch. 736. So where a donor executed a letter of attorney to transfer a savings bank loan and handed it, with the certificate of the loan, to C, with instructions to sell the loan, pay ceitain charitable legacies with the pro- 296 Gifts. 317. Check of Third Person. — A check j^ayable to the donor or bearer is ca^^able of being made a gift inter vivos or mortis causa. In such a case the mere delivery, accompanied by words of gift is sufficient ; and if either a gift inter vivos or mortis causa it need not be presented for ^^ayment until after the death of the donor.^ In a Louisiana case it was said : " But the check in question was not of Hampton Elliott's [the donor] drawing. It was a check drawn to his order. The moment he in- dorsed it and handed it over to Mrs. Risley [the donee], his projDerty in it ceased. It was not his money which the bank paid when it paid the check. It was Bretton & Kountz's [the drawers'] money. The bank paid under instructions from them and not under any mandate from Elliott. A check is not an obligation. It is an uncon- ditional order to pay. It, in fact, represents money, and to all practical intents is money. When, therefore, El- liott gave the check in question, indorsed by him, to Mrs. Bisley, it was money which he gave her, and which she reduced to her possession when she took it." ^ But in all such instances there must be a comj^lete delivery of the check. Thus where a father took a check he had re- ceived in payment of a mortgage and said to his wife " I give this to baby ; it is for himself, and I am going to put it away for him, and will give him a great deal more along with it;" and he then put the check into the baby's hand (who was only nine months old), and then took it back for the purpose of locking it in his safe, and did so ; and on the succeeding day he told his solicitor he in- ceeds, and have the remainder set-off to B as a gift; and C sold the loan, receiving in payment a check drawn to B's order, which he retained until the donor's death ; it was held that there was a com[)leted gift during the lifetime of the donor : McGlade's Appeal, 99 Pa. St. 338. 1 Riiodes V. Childs, 64 Pa. St. 18 ; Gourley v. Linsenbigler, 51 Pa. St. 345. * Burke v. Bishop, 27 La. Ann. 465; S. C. 21 Araer. Rep. 567. Bank Checks and Deposits. 297 tended to add £100 to it, and invest it for tlie infant ; and within a week said to the same solicitor that he was coming to his office to alter his will, that he might take care of his child, but did not do so, dying within a few days ; it was held that there was no gift, nor was there a declaration of trust binding upon him and his estate.^ But where ^^roperty was the subject of the gift, and was sold by the person into whose hands it was delivered with instructions to sell it and pay a part over to the donee ; and such person did sell it, and received a check in pay- ment, payable to the donor's order, which was not cashed until after such donor's death, it was held that there was a valid gift entitling the donee to the proceeds of the check.^ 318. Rights of Boxa Fide Holdees of Check Given Inter Vivos Indorsed But Not Cashed Before Donor's Death. — Suppose a check is given and the donee indorses it for value, before the death of the donor, and it, in the usual course of business, does not reach the drawee until after the death of the donor ; or suppose the indorsee has been guilty of delay (laches, if you please) , in presenting it for payment ; or that it is an old check when indorsed ; or that the indorsee knew at the time of indorsement to him by the donee that it was a gift ; or, lastly, that he knew it was a gift but an intermediate indorsee did not have such knowledge and took it for value in the usual course of business, what is the holder's rights ? It is easier to ask these questions than to answer them. They have, however, been in part I Jones r. Lock, 1 L. R. Ch. Div. 25 ; S. C. 35 L. J. Ch. 117; llJur. N.S.913; Reddel v. Dobree, 10 Sim 244. ^ McGlade's Appeal, 99 Pa. St. 338. In England a check payable to the donor may be the subject of a gift, although the donor fail to assign it to donee : Clem- ent V. Chesseman, 27 Ch. Div. 631 ; S. C. 54 L. J. Ch. 158; 33 AV. R. 40. 298 Gifts. answered by the courts. An English testator left Eng- land in October, 1871, and went to San Remo, Italy. On the oth of December following, after he had been in- formed that he could live only a few hours, he drew a check on his London bankers, payable to his wife or order, for £100, and i^resented it to her as a gift. He re- covered from the immediate attack ; but on February 2d, 1872, was again in a very weak and sinking condition. On the morning of that day, at his direction, a friend drew a check for £250, and the testator signed and gave it to his wife as a gift. These were gifts mortis causa. His wife, during the donor's lifetime, indorsed the checks to bankers at San Remo, or to their order, and they were at once paid into their bank. The testator died five days after he drew the last check. The indorsees of the donee subsequently indorsed the checks to other persons, and negotiated them in the ordinary course of business. After the death of the donor, the donee drew out the amount of her credit at the bankers, given by reason of the deposit of the checks. In six and eight days, respectively, the two checks were presented by London bankers, who had re- ceived them in due course of business without any knowl- edge of the drawer's death, to the drawee bank for payment, which was refused on account of the death of the donor. Thereupon the donee was compelled to take ujD the checks ; and, after this j3ayinent, she filed a claim against the executors of the estate of the donor to recover the amount named therein. It was held that she could recover. " The result of the authorities," said the court, " appears to be that a gift of a bill of exchange, which is by its very nature payable at a future day, may be a good donatio mortis causa, but the gift of a cheque is not valid unless it is presented for payment or paid before the death of the donor. I am satisfied that the object of Bank Checks and Dtyosits. 299 this testator was to give these cheques to his wife. There- fore, I think I ought to do all I can to make the gift good. Now I can really see no reason why if a bill drawn on a goldsmith would be a good donatis 7nortis causa a cheque should not be so too?^ A distinction has, however, been drawn between the case of a bill of exchange and that of a cheque payable to bearer, and if these cheques had been payable to bearer and had not been pre- sented for payment at the bank on which they were drawn before the donor's death, I should probably have considered that I was bound to hold that there was not a good gift. But these are cheques payable to order ; and it is clear that the testator knew that they could not be presented for payment either on the day they were drawn or the subsequent day. I must at- tribute to him the knowledge that the cheques would not be paid for some time, and on that ground I come to the conclusion that this case differs from the other cases of cheques. But I have also the decision of Lord Lough- borough.^ He says : ' If she had paid this away either for valuable consideration or in discharging a debt of her own, it would have been good ; or even if she had received it immediately after the death of the testator, before the banker was ap[)rised of it, I am inclined to think no court would have taken it from her.' In this case I have the very distinction thus pointed out by Lord Loiujh- borough. Mrs. Pearce [the donee] did pay away the pro- ceeds of the cheque, and it would seem, amongst the hus- band's creditors. And I think that when a man gives his wife a cheque it is in substance as complete a gift as if he had handed her the cash." The court then points out the discrepancy in the two reports of the case quoted 'Evidently referring to Lawson v. Lawson, 1 P. Wnis. 441. 2 In Tate v. Gilbert, 2 Yes. Ill ; S. C. 4 Brown Ch. 286. 300 Gifts. from, and says : " If there is any real discrepancy, I think that the report in Vesey is probably the more accurate, and that it was intended to be held that an actual deal- ing for value with a note would complete the gift as a valid donatio mortis causa J' ^ If the indorsees had seen fit to proceed against the executors of the donor, there is no doubt that the result would have been the same — they would have recovered. But this was a case of unusual circumstances. Emphasis is laid upon the fact that the testator knew it would be some time before the checks could reach the bank upon which they were drawn ; but still it cannot be well seen how this could have any effect in determining whether the gift was or was not a com- pleted one. For in every case of donatio mortis causa where it is incomplete only because of a lack of sufficient delivery, the intention of the donor is clearly made out, yet that cannot be used to bridge over the absence of a delivery. The turning point in the case is that the checks had been negotiated for value before the death of the donor, and the indorsees, without notice of the cir- cumstances under which they were given, had a right to insist upon the validity of the checks and their right to recover of the testator's estate the face of such checks. They undoubtedly stood upon the same plane as bills of exchange drawn by the donor in favor of the donee, and indorsed by her for value before his death. Under such circumstances, in the case of bills of exchange, the holder, for value, even if the payee, may enforce the bills against the drawee accepting them after the known or unknown death of the drawee;^ and there is one distinction, in principle, between a case of a check and one of a bill of ' Rolls V. Pearce, 5 Ch. Div. 730 ; S. C. 46 L. J. Ch. 791 ; 36 L. T. 438 ; 25 W. R. 899 ; 22 Moak. 432. 'Cutts V. Perkins, 12 Mass. 206; Billing v. Devaux, 3 Man. & Gr. 565; Ham- monds V. Barclay, 2 East. 227, 235, 236. Bank Checks and Deposits. 301 exchange, altlioiigh the courts, where the j^ayee of the check is the hokler have dogmatically followed the dic- tum of Chancellor Loughborough in Tate v. Gilbert, to the effect that the demise of the drawer of a check re- vokes the authority of the drawee to j)ay it after notice of his death. ^ 319. Donoe's Check Not Valid as a Donatio Mortis Causa. — In Georgia a donor, when knowingly near his death, executed a check payable to the claimant and had it 2^1aced with his will. It was clearly his intention that the claimant should have the sum named in the check. After his death the claimant, the payee, made a demand upon the executors for the check and on refusal brought an action to recover it. A right to recover was denied because there had been no delivery of the thing given,^ A like result was reached where the check was delivered to the payee but not presented until after the death of the drawer. The check was drawn at night, as a donatio mortis causa, and the donor died before the next day dawned. There was no time to present it at the bank for acceptance or payment. The donor had instructed her solicitor to draw up a deed of settlement, but, i^erceiving that she could not live until the deed was prepared, she drew the check for the amount to be named in the deed, and directed an application to be made of the proceeds in accordance with the intended provision of the deed. The court held that there was not a gift mortis causa. ^ See an article of John W. Daniels on "The Effect of the Death of the Drawer of a Check:" 3 Yir. L. Jr. 323; S. C. 13 Ir. L. T. 44S, Bankers' Magazine for 1879, who reaches the conclusion that a holder of a check given for value (hnt not a donee) may be paid by the drawee after the notice of the drawee's death. See Parsons on N. & B., 287, note b. Mr. Morse reaches a like conclusion: Morse on Banks, sect. 550. ^McKenzie ?•. Downing, 25 Geo. 6f)9. Xothing is said about the right to re- cover the amount named in the check if it had been delivered. 302 Gifts. "A check," said Romilly, M. R., " is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is at a banker's or any- where else. It is an order to deliver the money ; and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing. The testatrix gave the check at night, and she died in the course of the same night before it could be presented. Suppose she had said, * I have got £600 in my desk ; bring it to me, and I will give you the money,' and had died before it was brought to her, that would have been no gift : and the gift of a check is the same thing ; it is worth nothing until acted upon, and the authority to act upon it is with- drawn by the donor's death." ^ There are a number of cases to the same effect." Nor does the fact that the donor delivers his banker's pass-book with the check render the gift valid.^ So, where the donor had taken out a certificate of deposit, " payable to the order of him- self on the return of " the " certificate properly indorsed," and he gave a check to the donee running, " Pay to the order of R. K. Smither [the donee] the amount of my deposit, and charge to my account," it was held that there was not a valid gift mortis causa, the check not having been presented during the lifetime of the donor."^ Nor can it be claimed that the giv- ing of a check works an assignment of the fund before it is accepted by the bank or drawee, so as to render the latter liable.^ If a check payable on presen- ' Hewitt r. Kare, 6 L. R. Eq. 198 ; S. C. 37 L. J. Ch. 633 ; 16 W. R. 835. If presented before the donor's death and accepted or paid it wouhl have been good. ■- Harris v. Clark, 3 N. Y. 93; S. C. 51 Am. Dec. 352; Drewe-Mercer v. Drewe- Mercer, 6 T. L. E. 95. 3 Beak v. Beak, 13 L. E. Eq. 489 ; S. C. 4 L. J. Ch. 470 ; 26 L. T. 281. * Smither v. Smither, 30 Hun, 632. ^Second Nat. Bank D.Williams, 13 Mich. 282. Bank Checks and Deposits. 303 tation is not a good donatio tnortis causa, miicli less so is one payable in the future where the donor dies before it is payable;^ nor is a check delivered to a third person as trustee of the donee, payable, by its express terms, a cer- tain length of time after the death of the donor.^ A donor held a banker's deposit note for £2,700. In his last sick- ness, two days before his death, he expressed a desire to give his wife £500 of the £2,700 ; and at his request a friend filled up a seven days' notice to the bank to with- draw the deposit, and the donor signed it. Afterward the donor signed a form of check, which was on the back of the note, " Pay self or bearer £500," and gave the note to his wife. Before the expiration of the seven days the donor died. When a customer withdrew part of a sum which he had placed on deposit, the practice of the bank was to give him a fresh note for the balance. In an action against the executors of the donor brought by the wife to recover the £500, it was decided that there was no valid gift mortis causa ; while it was admitted that a banker's deposit note was the subject of such a gift, yet the giving of the check, which was 2')ayable only at the end of the seven days' notice, taken in connection with the custom of the bank, did not make the note or any part of it the sub- ject of a gift, for such was not the intention of the donor. The delivery of the note was not made with the intention of giving either it or the money to the wife. " The inten- tion was to deliver the cheque, and, according to the authorities, that is not a good donatio mortis causal ^ So where the donor gave his check to an agent with direc- tions to deliver it to the donee after the donor's death from > Cnrrv v. Powers, 70 X. Y. 212 ; S. C. 2G Am. Eep. 577. 2 Wavnesbnrg Colle Brooks V. Brooks, 12 S. C. 422. Bank Checks and Deposits. 307 took place several months later ; it was held that the gift was incomplete for want of a delivery to the donee, or to some one for his use. The person to whose hands it was intrusted was only the agent of the donor, and he had no instructions to deliver it to the donee. The gift was also incomplete for want of an acceptance by the donee dur- ing the life of the donor. Therefore, in an action against the estate for the amount assigned the defendant had the judgment.^ But where the donor delivered to the donee, three hours before his death, a deposit note, and the do- nee took and kept it, it was held to be a valid gift mortis causa.^ If, however, the certificate of deposit is so in- dorsed as to limit and restrain the authority of the donee in the collection of the money, so as to forbid its payment until the donor's death, it is not valid as a donatio mortis ' Scott V. Laumnn, 104 Pa. St. 593. ^Aniis V. Witt, 33 Beav. G19 ; but notliing is said in the opinion concern- ing the note, aUusion being made only to a policy of insurance given at the same time, and held to be a valid gift: 101 E. C. L. (1 B. & S.) 109. If the donee draw at once the money on the deposit note he will have to return it if the do- nor recovers: Moore v. Moore, IS L. R. Eq. 474; S, C. 43 L. J. Ch. 617 ; 22 W. E. 729 ; 30 L. T. N. S. 752. See Dunne v. Boyd, 8 Ir. Eq. Rep. 609, where it was assumed that a deposit note could be the subject of a valid gift mortis caum : Con- ner V. Root, 11 Colo. 183 (note unindorsed, but a valid gift) ; McCabe's Cnse, 6 Pa. C. C. 42 ; Vl^esterlo v. De Witt, 36 N. Y. 341 ; S. C. 93 Am. Dec 517 ; Harris v. Clark, 3 N. Y. 93; S. C. 51 Am. Dec. 352. Coiitra, McCabe v. Robertson, IS C. P. U. C. 471 ; Lee v. Bank, 30 C P. U. C. 255 ; Fx parte Gerow, 10 N. B. 512 ; Moore V. Ulster Bank, 11 Ir. C. L. 512 (1877) ; Hunter r. Wallace, 14 U. C. Q. B. 205; S. C. 13 U. C. Q. B. 385. 3 Basket v. Hassell, 107 U. S. 602; S. C. affirming 6 Repr. 609; 8 Biss. 303. Same case on second appeal, 108 U. S. 267 ; M'Xicol v. M'Dougal, 17 C. of S. Cas. 25; Morrison v. Forbes, 17 C. of S. Cas. 958. A deposit receipt, in the ordinary form, may be the subject of a donatio mortis causa, although the receipt is expres-ed not to be transferable : Cassidy v. Belfast Banking Company, 22 L. R. Ir. 68. A, in his last sickness, showed a deposit note to his daughter, and told her that it belonged to her if he died. She took it. and, by his directions, placed it for safe custody in a cash-box which was kept in his bed-room, but of which she had the key, and to which slie resorted for household purposes. It was i>eld that tins was a good donatio mortis causa: Taylor i'. Taylor, 56 L. J. Ch. 597. See larman 308 Gifts, 324. Money Deposited ix Name of Donee. — Many cases have arisen where the owner of money has deposited money in bank to the credit of a third person. Such a deposit may or may not be a gift, according to the cir- cumstances of each particular case. Thus where the donor, in the presence of the donee, his daughter, de- posited money in a bank for the latter's personal and sj)ecific use, in her name, and afterward made like de- posits in a trust company in her name, though not in her presence ; and then several dej^osits in such company were entered in a jDass-book supplied by the company, which he delivered to her ; and she drew out the amount deposited in the bank and placed it to her credit in the trust company, thus forming part of the whole amount to her credit therein, it was held that there was not only a j)erfect gift of the funds in the bank, but also of those in the trust company. " There was nothing more," said the court, " that could have been done in order to clothe the donee with the absolute and full title and control of the moneys thus deposited, and nothing more was neces- sary to complete a valid and irrevocable gift." ^ 325. Same Continued — Revocation — Estoppel. — A donor made a deposit in the name of the donee, a minor, naming her mother as guardian. At the same time she informed the guardian that she had put the money in the bank for the donee. A bank-book Avas de- livered to the donor by the bank with the deposit so en- tered upon it, but she retained j^ossession of it, and after- ward had the money transferred back to her by the guardian. This was held to be a valid gift, and irrevo- V. Smitl), 57 L. J. Ch. 637; S. C. 58 L. T. 12; Duffin v. DufRn, 44 Ch. Div. 76; S. C. 59 L. J. Ch. 420; 62 L. T. 614 ; 38 W. K. 369 ; 6 T. L. R. 204 (check given along with deposit note, lield not to vitiate gift). ' Crawford, Matter of, 113 N. Y. 560 ; Beaver v. Beaver, 32 N. E. Rep. 998. Bank Checks and Deposits. 309 cable.^ So in the same State A deposited in a savings bank $250 in her own name as trustee for W, who was a boy only thirteen years of age. His parents were near neighbors and friends of A, and he was accustomed to do errands for her, being ahnost daily at her house for that purpose. She often gave him presents in return for his services. Shortly after making the deposit she told the boy's parents she had deposited that amount in the book, for W, and again alluding to it said he would need it for his education. She kept the book, and two years after drew out a part of the money, and a year later the re- mainder with accrued interest, signing receipts in her own name, and appropriating the money to her own use. Six years after the deposit she died, leaving a will in wdiich no allusion was made to the deposit, nor to W. In a contest over this sum it was decided that a valid gift had been made, a trust created at the time of the de- posit, not revocable ; and that the title to the money vested in W at his majority, if not sooner (when he needed it for his education) ; and it was intimated that the title vested in him when A drew it out of the bank.^ During his lifetime a father deposited money in a savings institution to the credit and in the name of his son. He had been accustomed to stop with B ; and about two weeks before his death, then being seventy-three years of age, as he was leaving B's house he complained of his health and said he could not live long. He further said, on leaving with B the box containing the bank-book, that he intended that for his son and that B must let no other person have it, "except there was five dollars for S." To another witness he said that he had money in bank for his son, and the reason why he had done so was because ^ Kerrigan v. Rautigan, 43 Conn. 17. ' Minor V. Rogers, 40 Conn. 512. 310 Gifts. he had given a farm to M, and W did not like the donee ; that he had done this for the rest of his chiklren, and never had done anything for the donee. The key to the trunk which contained the bank-book was found in the pocket-book of the donor after his death. In an action by the son to recover tlie funds drawn from the savings institution by the administrator of the father, it was held that the gift was a valid gift mortis causa} A husband deposited his own money in a bank to the credit of his wife, saying to the cashier that the money was his, and that he would let the amount rest in that way for a short time. The wife was sick and the deposit was made to please and appease her. She drew checks upon this acccount, which were paid. The wife dying, the cashier agreed that the husband should draw out the remainder. He did so, but it was held that the cashier could make no such an agreement that would estop a receiver of the bank from insisting that the money belonged to his wife's administrators. It was decided that there was a valid gift.^ 326. Acceptance of Deposit — Donee Having No Knowledge of it — Donor Retaining Control Over Deposit. — In the foreo-oins: cases the donee had knowl- edge of and had expressly or tacitly accepted the deposit as a gift. Acceptance of the benefit of the deposit is essential to make a gift complete. Thus where a husband deposited money in his wife's name in a bank, and it was so charged upon the books of the bank and upon a pass- book given to him, Init there was no evidence that she had any knowledge of the deposit until after her husband had drawn it out, it was decided that she could not recover the ^Vandermark v. Vandermark, 55 How. Pr. 408. 2 The People v. State Bank, 36 Hun, 607. Bank Checks and Deposits. 311 amount of the deposit from the bank. '' A mere deposit," said the court, "of the property by the depositor, in the name of another, with a third person, will not of itself be sufficient to pass the title. The act is one entirely be- tween the depositor and the bailee, to which the j^erson in whose name the deposit is made is in no way a party. It would, of itself , no more pass title than would the execu- tion of a deed by a person, and the 2^1acing it on record by him, without the knowledge or consent, express or im- plied, of the person named as grantee." ^ It will be ob- served that in this case the depositor never lost dominion over the fund, but the court does not seem to place special emj^hasis upon this fact. In New York, however, this was regarded as a turning point in the case. There a father caused the bank to open an account with his young children, and transferred various amounts to it. After the transfer had been made, the father continued to ex- ercise control over the several accounts, and the bank recognized him in that connection. It did not appear that the father was indebted to the children, or that he had ever received any consideration for the transfer of the credits, or that the children had notice thereof. In an action by the father against the bank for the amount of these several accounts, especial emphasis was laid upon the fact that he had never parted with his dominion and control over the funds, which was essential to a per- fect gift, which control the bank could not dispute after so long recognizing it. Nothing of moment was said about the children having accepted the gift ; for, possibly, the law would presume an acceptance by them, if that were the only thing lacking to complete the gift.' But 1 Brnnch r. Dawson, ?>(S Minn. 193. See. also, Gaskell v. Gaskell, 2 Y. & J. 501, and Tayl r v. Henry 48 Mrl 550 ; S. C. oO Am. Rep. 486. * Geary v. Page, 9 Bosw. 290. 312 Gifts, where a donor deposited money in a savings bank (and this bank deposit seems to have been nothing more than a deposit in an ordinary bank of deposit) in trust in the name of the donee, taking out a pass-book in the donee's name, and after the death of both the donor and donee it not a23pearing that either the donor made any claim to the fund or that the donee ever knew of it, in an action between the executors of the donor and that of the donee, the fund was awarded to the latter, upon the theory that there was a valid gift.^ 327. Gift of Bank-Book Does Not Pass the De- posit. — A bank-book, in which is noted the various amounts deposited by the holder of it, is nothing more than evidence of the fact and amount due from the bank to the depositor. It does not contain and is not the con- tract between the bank and the depositor. It is in no wa}'' a deposit note. Therefore the gift of his deposit- book by the donor, even of a savings bank, where it is simi- lar to the pass-book of an ordinary depositing book, does not make a valid gift of the money deposited in the bank and of which the pass-book may serve as evidence of the debt due to the depositor." 328. Wife Betainixg Aftee Marriage Money She Had ox Deposit — Husband as Trustee. — One White- head married a Miss Milner, Avho owned real estate and had £1,400 in bank. Previous to the marriage Mr. Whitehead regarded the possession of Miss Milner a suffi- cient fortune for this world, and very generously agreed ^ Millspaiigh V. Piitnan, 16 Abb. Pr. 380. It does not appear from the report how long before the death of either the donor or donee the gift had been made. 2 M'Gonnell v. Murray, 3 Ir. Eq. Rep. 460 ; Ashbrook v. Ryon, 2 Bush. 228 ; Thomas v. Lewis, 15 S. E. Rep. 389. Bank Checks and Deposits. 313 with her, before the bonds of matrimony had mohied them into one legal individual, in accordance with the pro- visions of the common law which we have always been ab- surdly taught by the old legal luminaries to admire as the pinnacle of legal wisdom, that she should hold after the marriage, her real estate and money then possessed by her as her separate estate. The real estate was so settled ; but nothing was done with the £1,400, except to leave it in the bank where she as a maiden had deposited it. The bank took no notice of Iicr marriage ; and so far as it was concerned, she was still a maiden, for they let her take out £50, and with the knowledge and consent of her hus- band she drew the interest due upon the deposit for two years. But the course of matrimony did not run smoothly with Mr. and Mrs. Whitehead, and they "agreed to dis- agree," sealed a verdict to that effect and separated. Then it was that Mr. AVhitehead thought of the £1,350 in bank, and called upon his solicitor to know " his rights." That legal luminary was so hard-hearted as to at once inform him that when a man and woman marries, all her per- sonal pro^^erty, in accordance with the much revered com- mon law, became his ; and seizing his cane and hat, he quickly reached the bank and served notice upon them not to let Mrs. Whitehead have the £1,350. But Mrs. AVhitehead had apparently not consulted an attorney, and had gone, in accordance with her feminine ])romptings and instincts of justice, and drew out the £1,350 before the legal luminary reached the bank ; and so the latter was informed, much to his chagrin, that such was the ease when he served the aforesaid notice. Apparently Mr. Whitehead could not get along without the rent of his wife's estate and the interest of her money ; for in twenty months he made an assignment of his property to pay his creditors, and his hard-headed trustee sought to recover 314 Gifts. the £1,350. In vain was it urged before stern Justice Cave that the husband had agreed that this money should be hers and not his ; but the statute of frauds served the husband, and the trustee for the moment got the money. But when all things else fail, an appeal to a higher court was left ; and so appealed Mrs. Whitehead. And here she won ; for the court said the statute of frauds had noth- ing to do with the case, and that it was very clear after the marriage Mr. Whitehead had given the £1,400 to his wife for her separate use, and that he had made himself a trustee of it for her. Thus it was that Mr. Whitehead had made a gift to his wife but didn't believe it.^ But in Penn- sylvania a poor woman in a somewhat similar case lost her earnings, although deposited in a savings bank in her own name.^ Savings Bank Deposits. 329. Deposit in Savings Bank in Donee's Name — Gift Inter Vivos — Presumption of Acceptance. — The subject of gifts of deposits in savings banks has been one calling for many decisions. More cases have arisen with respect to such gifts than with respect to deposits in ordi- nary banks of deposits. As will hereafter be seen, some of these cases rest upon the same ground that cases with respect to ordinary deposits do, while others turn upon the statute law peculiarly applicable to savings banks, or upon by-laws adopted by the particular bank in ques- tion. Illustrations of these will be given in the following pages. A strong case of this kind occurred in Vermont. There A deposited $220 of her own money in a savings bank, in the name of B, and took out a deposit-book, 1 Ejc parte Whitehead, 14 L. E. Q. B. Div. 419 ; S. C. 54 L. J. Q. B. Div. 240 ; 52 L. T. (N. S.) 597 ; 33 W. E. 471 ; 49 J. P. 405 ; reversing 54 L. J. Q B. Div. 8S ; S. C. 52 L. T. (N. S.) 265 ; 33 W. E. 230. ^ McDermott's Appeal, 106 Pa. St. 358. Bank Checks and Deposits. 315 in which was entered, by the treasurer of the bank, the following memorandum : " 1864, Xo. 530, B deposited $220." At the time of the deposit, the treasurer entered in the bank-books this memorandum in the identical lan- guage used in the deposit-book, pursuant to the by-laws of the institution. A retained the bank-book until her death, which occurred several months after B's. It did not appear that B ever knew of the deposit. A by-law of the bank provided that deposits should be entered in the treasurer's books and duplicates given to each depos- itor ; and by the act of depositing the depositor was to be taken and deemed as assentins; to the bindino- effect of all by-laws and regulations of the bank. Another by-law provided that " any depositor may designate, at the time of making his deposit, the period for which the same shall remain in the institution and the person for whose benefit the same is made ; and such depositor, and his or her legal representative, shall be bound by such condition by him or her voluntarily annexed to such deposit, and in case of the dissolution of the corporation the same shall be paid to such person as may be legally entitled thereto." But the court deemed that these provisions had nothing to do with the case for the reason that both the depositor and the bank treated the money as belonging to B. It also held that the money deposited belonged to B, that the bank had a right to so regard it, and that the trans- action amounted to an agreement between the bank and B, b}^ force of which it became accountable to B and to no other person ; that B thereby became bound by the by-laws, and A had no power to withdraw the deposit. The article quoted was deemed to apply only to a person depositing money in his own name for the benefit of some third person ; in which event the depositor would be bound by the condition annexed to the dejiosit. Another 316 Gifts. article of tlie by-laws required that, when any jDerson should receive either the principal or interest, he should jDroduce his original deposit-book and have entered therein the fact of the payment, except in case of sickness or ab- sence, when it could be paid upon his written order accom- panied by the book. Still another article recited that, " as the officers of this bank may be unable to identify every depositor transacting business at the office, the in- stitution will not be responsible for loss sustained when a dejDOsitor has not given notice of his book being lost or stolen, if such book be paid in whole or in part on pres- entation." It was insisted that the retention of the book, which was evidence of the, deposit, by A, showed that the gift was never perfected ; for B could not draw the money, not being able to produce the dej^osit-book. But the court did not think so, for, it said, the entry in the bank-books, which was a du2)licate of that in the deposit-book, was also evidence of the deposit of as high order as that of the treasurer's books ; but if the argument were sound, then no depositor could draw out his deposit if he had lost his deposit-book, which would work a manifest injury to de- positors so situated. But, said the court, the mere jdos- session of the deposit-book by A did not give her the right to draw the money, and that very book showed an ownership in B. The article with respect to the deposit- book gave no right to the depositor in addition to those given by the article requiring the production of the book or a written order of the depositor ; and A could not draw the money without such an order from B. The article respecting the loss of the book was for the protection of the bank and not a measure in favor of the depositor. It was still farther claimed that there was no evidence that B ever knew of the gift, but to this claim the court said that the presumption was that she did have knowl- Bank Checks and Deposits. 317 edge of it; and the fact that the donor lived several months after the donee's death, and there was no evidence to show that the former ever asserted any claim to the money after the latter's death, tended, said the court, to prove that the donor, after the donee's death, regarded the deposit as a part of the estate of the donee.^ 330. Gift of Deposit-Book of a Savings Bank is A Gift of the Fund. — We have already seen that a gift of an ordinary pass or deposit-book of a deposit bank does not pass the title to the fund in the bank ; for the book is only evidence of the depositor's title to the fund and not the fund itself. How is it with a savings bank deposit-book ? This question has been variously answered. Thus where a depositor in a savings bank delivered her deposit-book, representing deposits in the bank, to a donee, accompanied by proper words of gift, it was held that there was a valid gift, although the book was not as- signed in writing, and, by the rules of the bank, the moneys could only be drawn or transferred by the depositor or his administrator, or by some person presenting the book with an order signed by the depositor in the presence of attesting witnesses." The donee acquired an equitable title to the fund." Such a gift may be valid as a mortis causa} Thus where the donor, four days before her death, took a key from her bureau drawer, unlocked her trunk and took out her savings bank-book, and said to the donee : " Now keep this and if anything hajDpens to me, bury me 1 Howard v. Windham Co. Savings Bank, 40 Vt. 597. 2 Hill V. Stevenson, 63 Me. 364; S. C. 18 Am. Kep. 231; Augusta Savings Bank v. Fogg, 82 Me. 538; Bourne v. Stevenson, 58 Me. 499 ; Ridden v. Thrall, 125 N. Y. 572. 3 Camp's Appeal, 36 Conn. 88 ; S. C. 4 Amer. Rep. 39. * Tillinghast I'. Wheaton, 8 R. I. 536; S. C 5 Am. Rep. 621 ; Curtis r. Portland Savings Bank, 77 Me. 151 ; S. C. 52 Am. Rep. 750; Alsop v. Southold Savings Bank, 21 N. Y. Supp. 300. 318 Gifts. decently and put a headstone over me, and anything that is left is yours." This was held to be a valid donatio mortis causa of the funds.^ So where A, on going away, with no expectation of returning, gave B a trunk and what was in it ; and he went away but returned in a few days and occupied the room he had before his departure, in which the trunk had been when given and from which it had never been removed ; and he soon died in that room, the trunk never having been removed ; and in the trunk was a deposit-book of a savings bank in favor of the donor, it was held that this was a valid gift of the bank-book and deposit as a gift inter vivosr' Speaking of the legal effect of the j^ossession of a pass or deposit- book, the Sujireme Court of Massachusetts said : " The book is the instrument by which alone the money can be obtained, and its possession is thus some evidence of title in the person presenting it at the bank. It is in the nature of a security for the payment of money, it dis- closes the existence and amount of the fund to the person receiving it, and affords him the means of obtaining pos- session of the same. We can have no doubt that a pur- chaser, to whom such a book is delivered without assign- ment, obtains an equitable title to the fund it represents ; and a title by gift, when the claims of creditors do not affect its validity, stands on the same footing as a title by sale." Consequently it was held that the bare delivery of a deposit-book of a savings bank, with the intention of making a gift of the deposit fund represented by it, even without an assignment, was a good gift; and the donee could sue in the name of the donor's administrator without his consent, to recover the fund.^ This is espe- ^ Curtis v. Portland Savings Bank, supra. ^Penfield r. Thayer, 2E. D. Smith, 305. ' Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425. Bank Checks and De2)osits. 319 cially true where a writeii order accompanies the delivery of the j)ass-book for the payment of the fund ; and in such a case it was held that the declarations of the donor, made at the time of the delivery, tending to show that no gift was intended, were not admissible to overthrow the gift or to contradict the effect of the written order and acts of delivery,^ And where the person receiving the assign- ment, orally agreed that he would draw for the donor what money she wanted during her lifetime, and pay whatever was left to her son at her death, it was decided to be a valid gift.^ So where A, in contemplation of death, gave to B a sealed j)ackage, informing him that it contained money and savings bank-books, instructing him Avhat to do with the property at his death ; and after A's death B opened the package and found a sum of money in it and certain savings bank-books, with a writing signed by A, stating where he wished to be buried, and whatever was left, besides paying all bills and expenses, was to be di- vided among certain persons named, it was held that there was a valid gift mortis causa to B, in trust for the persons named in the 2:)aper.^ But where A gave written directions to B, who had charge of the funds standing in A's name in a savings bank, to draw from the bank a certain sum and give it to C ; and B, after the paper was presented to him, declined to draw the money, although afterward verbally requested by A to do so ; and B, on becoming A's executor, again, on C's request, declined to draw the money, it was held that there was no gift and B could not maintain an action for the sum intended for him. There was only an intent to make a gift, not a gift 1 Kimball v. Leland, 110 Mass. 325 ; Foss v. Lowell, etc., Bank, 111 Mass. 285; Sheedy v. Roach, 124 Mass. 472 ; .S. C. 26 Am. Rep. 680. 2 Davis V. Ney, 125 Mass. 590 ' Pierce v. Boston Five Cents Savings Bank, 129 Mass 425. 320 Gifts. perfected.^ So In Pennsylvania where a rule of tlie savings fund society, known to depositors, provided that no transfer or assignment of the deposit-book or the money of a depositor Avonld be acknowledged, but the treasurer might, in his discretion, allow money to be paid on a depositor's check ; and a depositor, in expectation of death, handed her deposit-book to a friend, saying : " The money there is for my sister in Ireland, but if I don't die I want it back," and died the next day, it was held that there was no valid gift of the money, the book being treated as the pass-book of an ordinary bank of dejDosit."'^ 331. Deposit-Book of a Savings Bank Must Be Delivered — Acquiescence. — To constitute a valid gift the deposit-book of a savings bank must be delivered to the donee, or to some one for him. And so a verbal agreement between husband and wife that moneys de- posited in a savings bank in their joint names, and belonging to them jointly, should become, at the death of either, wholly the property of the other, and there was no delivery of the dej^osit-book, it was held to be neither an executed contract nor a gift mortis causa.^ There could be no question that it was not a gift inter vivos, for neither contemplated its taking effect until the other's death.* ^ Gerry v. Howe, 130 Mass. 350. 2 Appeal of Walsh, 122 Pa. St. 177; S. C. 9 Araer St. Rep. 83. See other cases in Schollmier v. Schollmier, 78 la. 426; RMden v. Thrall, 55 Hun, 185; S. C. 24 Abb. N. C. 52; affirmed 125 N. Y. 572; Walsh r. Bowery Savings Bank, 15 Daly, 403; S. C. 2 City Ct. (N. Y.) 276; Develin v. Farmer, 16 Daly, 98 ; Miller v. Clark, 40 Fed. Rep. 15. The holder of a savings bank-book may constitute himself a trustee of the fund: Beaver v. Beaver, 117 N. Y. 421 ; Atkinson, In re, 16 R. I. 413; Buckingham's Appeal, 60 Conn. 143. 3 Drew V. Hagerty, 81 Me. 231 ; S. C. 10. Am. St. Rep. 255 ; Augusta Savings Bank v. Fogg, 82 Me. 538 ; in case of infant donee see Beaver v. Beaver, 62 Hun, 194. * Other cases are Pope v. Burlington Savings Bank, 56 Vt. 284; S. C. 48 Am. Rep. 781 ; Beaver v. Beaver, 117 N. Y. 421, reversing 53 Hun, 258 ; Hoar v. Hoar, Bank Checks and Deposits. 321 But where the dej^osit is in the name of the donee, and it is not subject to the control of the donor, or is accompanied by words constituting it a trust, then a delivery of a deposit or pass-book is not necessary ; ^ yet where a niece sent to her uncle at different times money amounting to $100, and he put it into a savings bank for her, but retained possession of the bank-book. She came to his house, and there was taken sick and died. After she despaired of recovering she said she gave the money to her uncle, and desired that he have it. It did not appear that she delivered the bank- book or anvthinsr else to him. It was held that there was no valid gift, and although her father had signed and de- livered to her uncle, after her deatli, a writing to the effect that he was perfectly satisfied with the uncle claiming the money, and that he would make no claim to it, it was held that this was not a valid accord and satisfaction, and he was entitled to claim the money as administrator of his daughter.^ But where the donor was sick and at the time gave the donee a written order on the savings bank for the payment to him of a sum of money on deposit in her name, with a memorandum attached that " the book must be sent with this order," and also gave a written order on G, who had the deposit-book, to deliver it to the donee, and the latter presented the order for payment to the bank and was told that it was all right, but no pa3nnent could be made to him until he presented the deposit-book, which he did not do until after the donor's death, it was held 5 Redf. 637; Case v. Dennison, 9 R. I. SS ; Taylor v. Henry, 48 Md. 550; S. C 30 Am. Rep. 486. 1 Smith V. Ossipee Valley Savings Bank, 64 N. H. 228; S. C. 10 Am. St. Rep. 400 ; Howard v. Windham Co. Savings Bank, 40 Vt. 597. See, also, Beaver v. Beaver, 62 Hun, 194 ; S. C. 16 N. Y. Supt. 476. !* French v. Raymond, 39 Vt. 623 ; Beaver i-. Beaver, 117 N. Y. 421 ; reversing 53 Hun, 258. 21 322 Gifts. that the gift was incomplete, it not, as one reason, how- ever, appearing that the donor died of the disease he had when he gave the order for payment to the donee.^ So where a depositor in a savings bank ordered, in 1874, an entry to be made in her account in her deposit-book as follows : " Frank B. Smith, hatter, Danbury, Conn., son of Joseph Smith and Cornelia ; to be drawn by Rachel [the donor] ; after death, by Frank ;" and in a deposit- book in another savings bank held by her, four years previously there had been entered : " This account is in trust for Frank B. Smith," to which she signed her name ; but it appeared that she kept the pass-books in her own possession, and drew the dividends, until she became in- sane, in 1878. It was held that Frank B. Smith, although he knew of these entries during the sanity of the donor, and understood that the funds were deposited in trust for him, was not entitled to be protected against the donor or her guardian drawing the funds from the bank. The court declared that there was no perfected gift.^ With intent to make a gift to his two sons, R. and J., C. de- livered to each of them a check upon a savings bank, pay- able four days after his death. He said he desired to re- tain the control of the money as long as he lived, in order to receive the interest. At the same time he delivered to R. his pass-books, saying they would want them to get the money, he not considering them safe there, and direct- ing R. to take care of them, which he did by depositing them in the bank, where they remained until C.'s death. C. had more money in the bank than was called for by the respective checks. It was considered that there was no valid gift, the delivery of the checks and jDass-books ^ Conser v. Snowden, 54 Md. 175 ; S. C. 39 Am. Rep. 368 ; Dougherty v. Moore, 71 Md. 248. 2 Smith V. Speer, 34 N. J. Eq. 336. Bank Checks and Deposits. 323 not transferring the funds deposited, for the reason that C. had not absolutely parted with his control over them, nor was there a valid declaration of a trust.^ 332. Gift of Deposit-Book is Not a Gift of the FuxD — English Rule. — The English, Irish, and Cana- dian rule with respect to the gift of the deposit-book of a savings bank differs from the usually accepted rule fol- lowed in this country. Thus a decedent as a gift mortis causa gave the claimant her bank-book of a savings bank, intending thereby to make her a present of the deposit. A rule of the bank provided that the bank would be open five days in the year, '' on which the book of each depos- itor shall be produced at the office of this savings bank for the purpose of being inspected, examined, and verified with the books of the institution by the auditor or audi- tors." Another rule provided that payment would be made only to the depositor himself, or on his power of attorney during life ; and after his death if the deposit exceeded £50, it could only be paid on production of letters of admin- istration. The attempted gift, however, was held invalid, being deemed nothing more than the pass-book of an ordinary bank of deposit ; being only a mere voucher for the debt, not embodvins; the contract between the de- positor and the bank.^ 333. Donor Reserving Interest on Deposit. — Another phase of deposits in savings banks, is where the donor retains the right to draw and use the accruing in- terest thereof. Such a reservation is not inconsistent with the validity of a gift. Thus a father deposited 1 Curry v. Powers, 70 N. Y. 212; S. C 26 Am. Rep. 577. 2 M'Gonnell v. Murray, 3 Ir. Eq. 460 (1S69) ; McCabe i'. Robertson, IS C P. U. C. 471 (deposit receipt) ; Lee v. Bank of British N. A., 30 C. P. U. C. 255 (deposit receipt) ; Ex parte Gerow, 10 N. B. 512 (deposit receipt) ; Moore v. Ulster Bank, 11 Ir. C. L. 512 (1877). 824 Gifts. money in a savings bank in the name of liis daughter, in- tending it as a present to her, subject, however, to the right in himself and wife to take the income during their lives. The daughter was informed of the arrangement and assented to it, but the deposit-book was never deliv- ered to her. This was held to be a good gift of the de- posit, subject to the life interest specified.^ A deposited all the money allowed in such a bank in his own name and on his own account, making three other de2:>osits as trustee, one of which was in trust for his only son by name, and the others in trust for his two grandchildren by name. For these deposits he took separate bank- books containing entries of the same, which he retained until his death. During his lifetime he collected, re- ceipted for, and used, as his own, all the dividends declared upon these deposits. A by-law j^rovided that " no person shall receive any part of the principal or interest, with- out producing the original books, in order that such pay- ments may be entered therein;" and also that "any depositor, at the time of making his deposit, may designate the person for whose benefit the same is made, which shall be binding on his legal rej^resentative." In a con- test over these three deposits, it was held competent to show, in addition to the above facts, that A had said " that he put this money in the bank for them [the son and two grandchildren] ; that he wanted to draw the interest during his lifetime ; and that after he was gone they were to have the money ;" and that upon all the facts, as stated, and this evidence, a jury would be justified in find- ing that A had fully constituted himself a trustee for the donees.^ But where the donor assigned the certificate of 1 Smith V. Ossipee Valley Savings Bank, 64 N. H. 228 ; S. C. 10 Am. St. Kep. 400 ; Boone v. Citizens' Savings Bank, 21 Hiin, 2o5. ^Gerrish v. New Bedford, etc , Bank, 128 Mass. 159 ; S. C. 35 Am. Kep. 365. Bank Checks and Deposits. 325 deposit of a savings institution in trust for his son, reserv- ing the right to use the money during his life, and di- rected the residue to be paid at his death to his son, the gift was liekl invalid for -want of actual delivery, though the assignee surrendered the certificate and took out a new one during the life of the assignor,^ A, being sick, gave his daughter certificates of deposit. Twice afterward, when the interest matured, she took the certificates to the bank and got them renewed, and gave them back to him and he handed them back to her, telling her to take them home, which she did. The interest was added to the certificates at each renewal. This was held to be a valid 334. Redelivery of Deposit-Book to Doxor. — A deposited a sum of money in a savings bank in the name of B, " subject to the order of A." A few days thereafter A asked B to come to his house, showed him the deposit- book, said he was going to give it to him, and delivered it temporarily into his possession. He then said he would keep the book for B, as he had a safe, and took and put the book into it. On the same day. A, at B's request, signed and delivered to him a paper certifying that the money was for him. A never drew the interest upon the deposit, but allowed it to accumulate during his life, in no way asserting a personal ownershij) of the fund. After A's death, although B notified the bank that the money was his, the bank paid the amount of the deposit to the ad- ministrator of A ; whereupon B sued the bank for the amount thereof It w^as decided that the jury was author- ized to find a completed gift of the money by A to B, and that the bank was liable to B for it.^ So where A de- 1 Withers v. Weaver, 10 Pa. St. 391. 2 McCabe's Estate, G Pa. C. C. 42. ^Eastman v, Woronoco Savinj^s Bank, 136 Mass. 208. 326 Gifts. posited funds in such a bank in his own name as trustee for B, gave the bank-book to him, received it back and it so remained until his death, it was hekl to be a completed gift, enforceable in equity, A holding the book as a trus- tee.' 335. Deposit in Two Names — Gift to the Survivor. — It is no uncommon thing to meet with cases where money has been deposited in bank by a depositor to the credit of himself and another ; and the question arises, if the transaction amounts to a gift. Each case will have to be examined by itself, and stands upon its own jieculiar facts. In New York a husband deposited his money in a savings bank in his own name and that of his wife, as follows : " Richard or Kate Ward," and had the entry thereof so made in his j^ass-book. He drew from the ac- count on several occasions, but she never did until after she came into the possession of the pass-book after his death. It was decided that this did not constitute a gift by the husband to the wife, especially in view of the fact of his retaining the fund in his own name, and thereby evidencing an intention not to lose control over it.^ A husband ])\\i his money in a savings bank, saying that he wanted it so that either he or liis wife could draw it out ; and both he and his wife entered their names on the signature-book, op^DOsite which the clerk of the bank wrote the words " to be drawn by either." A pass-book was given to the husband, as a voucher for the deposit. It was held that there was no valid gift ; nor was she entitled to it as survivor.^ An account was opened in a savings 1 Ray V. Simmons, 11 R. I. 266 ; S. C. 23 Am. Rep. 447 ; 15 Amer. L. Reg. 701. 2 Matter of Ward, 51 How. Pr. 316. The court declined to follow Sandford v. Sand ford, 45 N. Y. 723, where it was held that taking a note in his own and wife's name constituted such note a valid gift without a delivery of it to her. 3 Brown v. Brown, 23 Barb. 565 ; Drew v. Hagerty, 81 Me. 231 ; S. C. 10 Am. St. Rep. 255. Ba7ik Checks and Deposits. 327 bank to the credit of "James Cannon, subject to bis order, or to the order of Mary E. Cannon," his daughter. From time to time money was there deposited. When James died Mary chiimed that he, in, his lifetime, gave her the deposit-book with the money to be credited therein, to be held by her in trust for herself and her brother and sisters. The only way in which money could be changed from one j^erson's account to another's in the bank was " by a payment of the one account and a new deposit in another account." James had given the book to Mary. But notwithstanding these facts, the validity of the gift was denied. " The money in question was deposited in the savings bank," said the court, " to the credit of James Cannon, and so continued up to the time of his death. He retained dominion and control over it by the very terms of the account w^ith the bank, and could at any time have drawn it out, or revoked the power given to Mary E. Cannon to obtain it upon her own order. If she had drawn out any portion of the money, she would have drawn it out as the money of James Cannon, acting in the matter as his agent, and by virtue of a then existing authority derived from him. This agency was revoked by his death, and the bank properly refused to recognize it after that period." Touch- ing the effect of the delivery of the deposit-book, it was said that the delivery could not complete the gift, for the only way to transfer money in the bank from one to another was " by a payment of the one account, and a new deposit in another account ;" and of this rule James Cannon was well aware.^ But in a New York case the donor first deposited the money in his own name. After- ward he came with the donee to the bank and had his account chano'ed so as to read " Mechanics' and Farmers' ^ Murray v. Cannon, 41 Md. 466. 328 Gifts. Savings Bank, in account with Valentine Baker [the donor], and Mrs. Mary Mack [the donee], order of either of them," the donee at that time signing the signature- book of the bank. Still later the donor said, S23eaking to the donee of this account and showing her the book, " This is yours ;" and the day before his death he sent the book to her with the message, " Tell my mother [the donee] to keep it for me." While it was deemed that the delivery of the book to her, accompanied by the message, was not enough to establish the gift had the money stood in his name, yet, as she then had the right to draw the money, the possession of the book gave her complete power on that day to draw out the money for her- self, and that she was entitled to it as a gift.^ So, where the deposit was in the name of "A and B," B being the wife of A ; and a certificate of deposit was thus issued ; it was held to be a prima facie gift to her in case she survived him ; and he not having disturbed it in his lifetime, although the money was his solely before the de- posit, it becomes absolutely hers at his death ,^ A depos- itor being in feeble health and contemplating a departure from home for the benefit of his health, made a deposit in a savings bank to himself and mother, and it was so credited in his pass-book and the books of the bank. Sometime afterward he went to the bank with his sister 1 Mack V. Mechanics' and Farmers' Savings Bank, 50 Hnn, 477. In New Plampshire it was decided that an agreement between two depositors, tliat the survivor should have the other's deposit, each retaining tlie absolute title and control of his deposit during life, was a testamentary disposition of property not made according to the statute of wills, and was invalid: Towle v. WooJ, GO N. H. 434. Donor had an account in bank as follows: " H for her daugliter Kate," and then changed it to " H or sister J," so J could draw on it. H died and in a week J also died, and the bank-book was found with the effects of S, another sister of J, with whom she lived, and who died one week after J. It was held that there was a valid delivery to J: ITannon v. Sheehan, 19 N. Y. Supp. 698. ^Eoman Catholic Oi'phan Asylum v. Strain, 2 Bradf. 34. Bank CJcecks and Deposits. 329 and had the name of his mother erased and his sister's substituted, the account then running " J. H., M. J. and the survivor of them subject to the order of either." After this change in the entry the depositor drew out a small part of the fund, and died nearly three months later. M. J, obtained possession, after his death, of the deposit-books and drew the money ; but it was held that she was not entitled to it, for the donor had only consti- tuted her his agent to draw the fund during his lifetime, and his death was a revocation of the authority, a gift not being created by the written entry. Xor could it be said that a trust had been created.^ 336. Gift of a Special Deposit. — A valid gift may be made of a special deposit by a mere transfer of the certifi- cate of dej^osit. In a case of special dejDOsit the particuLar thing deposited, whether it be a bond, coin, or bills, is to be returned — the identical thing deposited — and not an- other, even tliouH;h exactlv like it. Where a certificate 1 Taylor r. Henry, 48 M<1. 550 ; S. C. 30 Amer. Rep. 5SG. See Hayden v. Ilayden, 142 Mass. 448. A deposit made in name of depositor " or daughter B" was held not a valid gift, even though the donee was in pos- session of the book after the donor's diatli, tiiey two living together, the donor being an invalid and the daughter transacting all her business : Bolin's Est., 32 N. E. Rep. 626 ; S. C. 20 N. Y. Supp. 16 ; Cody's Est., 20 N. Y. Supp. 16. A donor had several thousand dollars standing to her credit in a savings bank, and she requested the teller of the bank to transfer $1,500 to each of her three nieces, one of whom was with her. The teller did so, charging the donor's account with $4,500, and opening an account with each of the nieces for $1,500, and pre- pared a bank-book for each. The donor requested that the bank-books be so made that the money could not be drawn out during lier life, and the feller in- dorsed on each of them "Only C has power to draw." The donor (C) and the niece who was present wrote their names in a signature-book kept by ihe bank, the teller adding to the donor's name the word " Trustee." The names of the other two nieces were afterward written on slips by them and sent to the bank, the teller writing the donor's name with the word trustee added. The donor be- fore the transfer had declared her intention to make the gift She took the three new books and kept them during her life. It was held there was a valid gift inter vivos, and that donor had constituted herself a trustee for the donees: Buckingham's Appeal, 60 Conn. 143. 330 Gifts. of deposit is given, especially if payable to order, the bank has a right to insist upon the return of the certificate when a return of the deposit is desired or demanded. It has therefore been held that a transfer of the certificate of deposit is a transfer of the thing deposited. This trans- fer of the certificate is usually effected by indorsement.^ But where the special deposit was a box of gold, no cer- tificate having been given, and the person with whom it was dejDosited was instructed by the depositor to deliver the box to no one excej^t himself or wife, and in case of his death, to his wife ; and during his lifetime the husband told her the deposit was made for her, and gave her the key, saying she need not send for any of it, but she must go herself and get it, which she did after his death, the gift was held to be incomplete, it appearing that the hus- band had, after the delivery of the key, probably taken out more than half the gold, at least there being less than one-half the amount in the box at his death he said there was in it at the time he delivered the key.'^ 337. OvERTHRow^iNG Peesumption of Gift Arising FROM Fact of Deposit ix Alleged Doxee's Name. — In a New York case is a dictum or intimation that the fiict of making a deposit of money in the name of another, or in the dejDOsitor's name for the benefit of another, does not conclusively establish or show a trust, " so as to pre- clude evidence of contemporaneous facts and circumstances constituting res gestcE, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership of the fund." ^ The intimation here thrown out was after- 1 Phillips V. Franciscus, 52 Mo. 370 ; Yo;nig v. Young, 80 N. Y. 422 ; S. C. 36 Am. Rep. 634; Welsch v. Belleville Savings Bank, 'j4 111. 191. ^Sheegog f. Perkins, 4 Baxt. 273. 3 Mabie v. Bailey, 95 N. Y. 206. Bank Checks and Deposits. 331 ward followed. A father put money in a bank, in his name, " in trust for " his son, in order to obtain the high- est rate of interest which the bank allowed, not intending to part with the ownership or right of receiving back the money from the bank, nor to make a gift or transfer of it, or in any way part with it to the son ; and upon an agree- ment with the bank that no part of the money should be drawn from the bank without the j^roduction of the bank- book, which he retained in his own possession. After- ward he drew a part of the sum deposited. It was held that the circumstances under which the deposit was made were admissible to vary or explain its character as a trust ; that the father had no intention of creating a trust, and that none was created.^ Trust Raised by a Deposit of Money. 338. Trust Kaised by Donor Depositing Money in Bank — Notice of Trust — Revocation. — By depositing money in a savings bank, or in fact in any other bank, a depositor may raise a trust in favor of a third person, even though the latter remain in ignorance of it until after the death of the donor. Thus B deposited in a savings bank $500, declaring at the time that she wanted the account to be in trust for C. The account was so entered, and a pass-book delivered to B, which contained tliese entries : " The Citizens' Savings Bank in account with B, in trust for C. 1866, March 23. $500." A like deposit, at the same time, was made by B for D. B retained possession of the pass-books until her death, eleven years after the deposits were made. C and D were ignorant of the de- posits until after B's death. The money remained in the bank, with its accumulated interest, until B's death, ex- 1 Weber v. Weber, 9 Daly, 211. 332 Gifts. cept one year's interest which she drew out. An action was brought against the estate of B, and a recovery allowed ; uj^on the theory that B had constituted herself a trustee for C and D, the retention of the pass-book being nothing more than vouchers for the pro2:)erty, which she retained as trustee, such retention not being inconsist- ent with the completeness of the gift, notice to the cestuis que trust being held not necessary. " Upon these facts [narrated above]," said the court, " what other intent can be imputed to the intestate than such as her acts and declarations imported, and did they not import a trust ? There was no contingency or uncertainty in the circum- stances, and I am unable to see wherein it was incomj)lete. The money was deposited unqualifiedly and absolutely in trust, and the intestate was the trustee. It would scarcely have been stronger if she had written in the pass-book, * I hereby declare that I have deposited this money for the benefit of the plaintiff and I hold the same as trustee for her.' . . . The retention of the pass-book was not necessarily inconsistent with this construction. She must be deemed to have retained it as trustee. The book was not the projDerty, but only the voucher for the property, which after the deposit consisted of the debt against the bank." Referrins; to the lack of notice to the donees that they were to be benefited by the trust raised, the court said that there were facts from which the inference mioht be drawn that the donor re2;arded the sjifts as fixed and completed. " The circumstance that she did not in- tend that the objects of her bounty should know of her gift until after her death is not inconsistent with it, and the most that can be said is that she may have believed that the deposit might be withdrawn during her life, and the money converted to her own use. It is not clear that she entertained such a belief, but if she did it would Bank Chechs and Deposits. 333 not change the legal effect of her acts." * Other cases almost identical in facts have been decided the same way.^ So where money was deposited with the defendant and a note taken jDayable to the dej^ositor for another person, it was held that the depositor had constituted himself a trustee.^ A mother deposited funds in a savings bank in the name of her son, who was thriftless, and subsequently drew out the funds and deposited them in her own name. After making this change in the funds she gave them to a friend (who had been a friend to her son), and asked her to be a mother to him, and finally made the friend her executrix. The son was entirely ignorant of the transaction ; but it was held that the trust created by the first deposit was an irrevocable gift which could be en- forced against the executrix. " Her control of the money," said the court, " and her withdrawal of it from the bank, are consistent with the theory of a trust, and her subse- quent possession must, upon authority, be held to be in the capacity of trustee, rather than of the owner of the property." ^ Even dealing with the fund as his own by the depositor does not change the nature of the transac- tion, such as drawing out the money and replacing it, or a part or even more, or any other act.^ 339. Same Subject — Retaining Control of the Fund. — The cases upon the subject under discussion are •Martin?;. Funk, 75 N. Y. 134;S. C. 31 Amer. Rep. 446. (Distinguishing Brabrook v. Savings Bank, 104 Mass. 228 ; S. C. 6 Amer. Rep. 222, and Clark v. Clark, 108 Mass. 522.) 2 Mabie v. Bailey, 95 N. Y. 20G ; Ray v. Simmons, 11 R. I. 266 ; S. C. 23 Amer. Rep. 447 ; 15 Amer. L. Reg. 701. 3 Smith V. Lee, 2 T. & C. (N. Y.) 591. * Matter of George, 23 Abb. N. C. 43. MVillisi'. Smyth, 91 N. Y. 297; Barker r. Harbeck, 17 N. Y. St. Rep. 678 ; Scott V. Harbeck, 49 Hun, 292 ; K'errigan v. Rautigan, 43 Conn. 17. (In this last case the whole fund was drawn out by the donor and not replaced by him ; and yet the gift was held valid.) See Minor v. Rogers, 40 Conn. 512. 334 Gifts. very close, and perhaps not distinguishable, and it is hard to say that they are harmonious. Take a New Hampshire case as an illustration. Thus in that State three books of deposit of a savings bank were found among a decedent's effects, one each in the names of Mary, John, and Florence. Mary stated that the deceased, her father, deposited the money in the bank in her name, and that he gave her the book containing the deposit standing in her name, and that she accepted it as a gift. As to her this was decided to be a valid gift. But there was no evi- dence tending to show that John or Florence ever had in their possession the books in their names, or even knew of their existence, until after their father's death. A by-law of the bank provided that " Depositors are alone responsible for the safe keeping of their books and the proper withdrawal of their money ; " and that " Xo with- drawals will be allowed without the book, and the book is the order for the withdrawal." He caused an entry to be made on the bank ledger, showing that the money was payable to his own order. The court decided as to John and Florence there was no gift. " Retaining the title, and having the right to dispose of the money as he saw fit," said the court, " he did not make a gift of these two books. Nor did he on this evidence create a binding trust in favor of his children. If a trust at all, it was executory, and without consideration. No beneficial interest vested in the cestuis que trust. They had no knowledge of the arrangement, and were not parties to it. It was a voluntary disj)Osition of his own projierty. If notice to the cestuis que trust, or donees, was not an essen- tial element of the supposed trust or gift, and if the re- tention of the pass-books by the donor is not inconsistent with the completeness of the act, still there must be some evidence of the donor's intention to create a trust or to Bank Checks and Deposits. 335 make a gift, before either can be said to exist. But tlie fact that he attempted to make a gift, and failed, raises no presumption that he intended to establish a trust. The latter cannot be inferred from a radical imperfection in the former. The question is, whether the depositor's inten- tion to establish a trust in favor of his children is proved by competent evidence. As there is no express declaration of a trust, as the by-law of the bank, which became a part of his contract of deposit, is one not inconsistent with the idea that he was placing his money there for himself, and as he retained the bank-book without notice to the de- fendants or to any one for them, and caused an entry to be made on the bank ledger showing that the money was payable to his own order, his intention to create a trust cannot be found," ^ Now take another New Hampshire case, not overruled by the one cited above, and we gain a clearer view of the question under discussion. There P de- posited in a savings bank of that State money in the name of L, of Maine, but for her own use, assented in writing to the by-laws of the bank, and took and retained a dupli- cate book of the deposits until her (P's) death. A by-law of the bank provided that deposits should only be with- drawn by the depositors or person authorized by them. During her last sickness P, for the first time, told L of the gift ; but she had previously, however, told two per- sons that she had made a deposit in the bank which she intended for L, and she showed to one of them the pass or deposit-book. The court decided that a valid trust had been created ; and it was considered that the by-law was a potent factor in establishing the trust. " Although one condition of the by-law is," said the court, " that the iMarcy v. Amazeen, 61 N. H. 131 ; S. C. 60 Am. Rep. 320; Bartlett v. Rem- ington, 59 N. H. 364. In this last case the money was deposited " in trust for Sarah," and it was decided that parol evidence was admissible to show who was the beneficiary. oot Gifts. deposit sliall only be withdrawn upon presenting the original deposit-book, still, another is, that it shall only be withdrawn by the depositor, or some person authorized by the depositor. Considering, then, that the donor adopted the whole by-law as part of her act in making the deposit, there would seem to have been a clear and absolute renunciation of title by her in the fund, and un- equivocal transfer of the possession upon the terms and conditions set forth in the by-law. She, in fact, chose this mode of making a complete and definite ajipropria- tion of the money. A stronger declaration of trust could hardly be formed than that created by the manner of making the deposits — that is, in the name of her niece, without qualification or condition, supple- mented by the by-law of the bank, which she adopted." -^ B deposited in a savings bank $800 in the name of C, but 23ayable to himself. He took out a deposit- book and kept and controlled it. He drew out a little over one-half of this $800, and a few months before his death directed the treasurer of the bank to add to the first entry " Payable to S. Barlow," so as to make it read, " Payable to S. Barlow during his life, and, after his death, to Marion Gushing," the original C. B, before he had made the dej^osit, executed his will, confirming all gifts that he had made or should thereafter make to any of his children. C was only a grandchild. There was no evidence that B did or said anything else in relation to the deposit, or did or said anything that indicated an intention to hold the deposit-book in trust for C. A by- law inserted in the book provided that no deposit could be withdrawn without the book was produced. The bank understood that B was the depositor, so treated him, and had no communication with C ; nor had the latter any 1 Blasdel v. Locke, 52 N. H. 238. Bank Checks and Deposits. 337 knowledge of the transaction during B's lifetime. In an action by the executor of B against the bank, to which C was made a i)arty, it was held that there was no delivery nor acceptance of the deposit as a gift ; nor was B a trustee of C, B not having declared himself a trustee nor done anything equivalent thereto.^ A left at his death two savings bank-books, one of which stood in his own name and the other in the name of " B or order of A." B was a son of A. On the last page of the first book was the following: "May 12th, 1878. Treasurer of B Savings Bank : Pay B what may be due on my deposit-book, No. — , A." On the last page of the second book was also the following: "August 12th, 1871. Treasurer of B Savings Bank : At my decease pay B what may be due on my deposit-book, No. — , A." After making further deposits on both books, A drew out a part of the funds deposited after the dates of the orders, the books being kept by the treasurer of the savings bank and A having access to them whenever he pleased as long as he lived. He died in 1879. B never had possession of the books nor any knowledge of them during the life of his fjitlier. It was held that there was no gift of the money repre- sented by the bank-books. There was no declaration of A that he intended a gift, and this, coupled with the fact that he had never delivered the books, was sufficient to defeat the alleo-ed sift.^ But where a merchant in China directed his London correspondent to transfer £1,000 from his tea account, and employ it in exchange trans- actions for the benefit of his children ; and in subsequent letters wrote to the same correspondent "that he liad declined giving any opinion as to the reinvestment of the fund, as he considered he had no further control over it, 1 Pope r. Burlington Savings Bank, 56 Vt. 28-1; S. C. 48 Am. Eep. 781. ' Burton v. Bridgeport Savings Bank, 52 Conn. 398 ; S. C. 52 Am. Rep. 602. 22 338 Gifts. as it belonged to liis children," " that he had appropriated it to them, and his correspondents were to consider it as theirs ;" and the correspondents accordingly oj^ened an account, headed with the merchant's name, " Exchange account on account of children," previously informing him of their intention to do so — it was held that the first letter created a valid trust in their favor, although the fund was still so far in the donor's control as to be liable to his drawing, and although the donor in one of his let- ters had desired his correspondents to consider it as '^ subject to the order of his executors " in the event of his death. ^ 340. Same Continued — Evidence — Revocation. — Illustrations are probably better than anything that we can say. The practitioner, however, will not fail to notice the manifest discrepancy between the cases ; especially between those of New York and Massachusetts. Thus in the latter State A deposited a sum of money in a sav- ings bank in B's name. The pass-book was issued in the hitter's name, with the following condition annexed : " In- terest to be paid on order of A. Principal to be drawn by B after decease of A." The latter retained the pass- book until his death ; and never had any communication with B in regard to the matter, B not knowing of the transaction until after the former's death. It was pro- vided by a by-law of the bank that money deposited in it should only be drawn out by the depositor or some per- son by him legally authorized, nor should any payment be made to any person except on the production of the pass-book. But any depositor might designate, at the time of making the deposit, the period during which he desired the same should remain, and the person for whose » Vandenberg v. Palmer, 4 K. & J. 204. Bank Checks and Deposits. 339 benefit it was made ; and he should be bound by such condition annexed to tiie deposit. After A's death B sought to recover the deposit ; but he was not allowed to do so, on the ground that there was no gift perfected nor any trust raised. The court said : "A declaration of trust by the owner, or a deposit of the fund in his name as trustee, or a deposit in the name of another, will not of itself be sufficient to prove a gift or voluntary trust ; there must be some further act or circumstance showing a per- fected gift of the legal or equitable interest." " The only contract made was between the dejDOsitor and the bank. The form of the deposit and the condition annexed were parts of that contract, and in some respects modified it ; but, as regards the claimant, they are nothing more than declarations of the depositor; competent only upon the ques- tion of his intention." " If, by the delivery of the book, or a sufficient declaration of trust, or other act between the depositor and the claimant, the latter should acquire a right, the form of deposit would estop the depositor, as against the bank, from denying that right. The delivery of the book, or the other act, is the voluntary and effi- cient act which perfects the gift ; until that is done, even if the intention is manifested, there can be no gift which will give legal or equitable rights. But no inference can be drawn, from the form or circumstances of the deposit, that the depositor intended to give to the claimant any right or interest in the fund to take effect during his own life, and deprive him of the dominion and control of the property, and prevent him from revoking the gift." ^ In a subsequent case in this same State it was decided that to make a gift valid, in case of a deposit in a savings bank in the donee's name, without the donee's knowledge, 1 Sherman v. New Eedford, etc., Bank, 138 Mass. 581 ; Stone v. Bishop, 4 Clif. 593 ; S. C. 6 Repr. 706. 340 Gifts. the depositor retaining possession of the deposit-book, the money must be deposited by the donor with the intention of making a gift of it to the person in whose name it is put, and it must be accepted by him. To show the intention of the donor in retaining possession of the de- posit-book, in an action by the donee against the bank, it was held competent to prove the taking of an order on the bank signed by the donee for the payment of a cer- tain sum to the depositor, and, after the latter's death, his declarations and letters respecting it, preceding and accompanying it. In this case the donee received in a letter an order on the bank for the payment of a certain sum to the de]30sitor, to be signed by the donee. The letter was not in the handwriting of the depositor, but was signed in his name by another person, whose agency was not shown. The donee signed this order and re- turned it to the depositor. The court excluded this letter, but this was decided to be error. So it was held admis- sible for the donee to show a letter from the treasurer of the bank to the depositor, who had deposited money therein in his own name, notifying him that a certain sum was standing to his credit in the bank on which he was not entitled to interest, because in excess of the amount upon which interest could be drawn. The donee was allowed to show the declarations of the donor relating to the deposit ; but those opposing the gift were not allowed to show the declarations of the depositor, made some time after the money was deposited, with reference to her in- tention not to make a gift, which were made when she came to make her Avill. The theory upon which these were excluded was that the gift, if perfected, was a com- pleted one when the deposits were made and the orders signed ; and any act of the donor thereafter could not re- Bank Checks mid Deposits. 341 voke it.^ Evidence that money was deposited " in trust " for the claimant by the dejDOsitor who kept the deposit- book, and who shortly before his death said " I put in for yon," in the savings bank, " that money is yours," will justify a finding that there was a perfected gift to that person." A somewhat stronger case occurred in Maine. There a grandmother told the treasurer of a savings bank she desired to make a deposit for each of four grandchildren, naming B as one of them, to which she proposed to make additions from time to time, and ex- pressed the hope that with the accumulated interest the deposits might amount to enough to be of advantage to them when they attained a suitable age to be entrusted with such sums of money. She said she desired " to do something for the children." She took out pass-books in the name of each child, in each of which, and in the bank-books, was entered " subject to the order of F [the grandmother] during her lifetime." She afterward told B what she had done and that the money was for him and the other three children. She made other deposits, but only drew one dividend. Before her death she took the books to the bank and told the treasurer " that the time had come when she desired to make such a change in the terms of the deposits made for her grandchihh'en ... as would give them full control over them, and the amounts on each book become the absolute property of the parties named therein, and her right to control tliem should cease. Her expressed wish was that her claim over the amount of the deposits should be withdrawn as to each case and the books so changed that they would stand in the names of the grandchildren witliout any ^ Scott r. Berkshire, etc., Bank, 140 Mass. 157; Alger t-. North End Savings Bank, 146 Mass. 418. ^ Alger V. North End Savings Bank, 146 Mass. 418. 342 Gifts. restriction whatever." At her request the treasurer then and there erased from the pass-books and bank-books the original entry, " subject to the order of F." She notified B by letter of this change and that the pass-books would be delivered the first time they met. B answered, request- ing that the books be sent to him. Shortly before her death she delivered them to C, with a written order to enable him to draw the amount of each deposit, which he did. B sued C for the amount of his deposit, and recov- ered it \x])on the ground that the deposit when first made created a valid trust and F controlled the same in trust for B ; that her subsequent acts and declarations, at the time of the change of the entries in the books, showed a completed and executed gift, divesting her of any interest therein as trustee or otherwise, she thereafter holding the pass-books in trust for B ; and that C took the pass-books without any consideration and with full knowledge of the gift.^ But where the deposit was made " in trust " merely, without any declaration whatever of a trust, and the donor retained the pass-books until his death, it was held that there was no gift.^ Yet where A handed over a sum of money to B for the use of C and took from B a certificate in writing, expressing that it Avas the sum given to C in A's will, and obliging B to annually pay the interest to C, the gift was held to be a completed one and irrevocable.^ In New Jersey a husband deposited money in a savings bank, the entry being as follows : " Bank for Savings, in account with A. G. and wife E., or either." At the time of the deposit he had as much deposited in his own 1 Barker v. Frye, 75 Me. 29. 2 Robinson v. Ring, 72 Me. 140 ; S. C. "9 Amer. Rep. 308 ; Nortlirop v. Hale, 73 Me. 66, 71. Contra, Witzel v. Chapin, 3 Bradf. 386; Boone v. Citizens' Savings Bank, 21 Hun, 235 (donor drew out one year's interest, still gift held valid ). 3 Parker v. Ricks, 8 Jones L. (N. C.) 447. Bank Checks and Deposits. 343 name as the bank would receive. He himself drew the interest on the joint deposit. No delivery of the pass- books was shown, and the only evidence of a gift was a declaration to his wife, when she was scolding him about drawing the other money from the bank, that he would have no more to do with it. It was held that no gift was established by the proof.^ 341. Same Continued — Some Massachusetts Cases. — We have considered it best to treat some of the Massa- chusetts cases in a separate section, chiefly for the reason that they are not in strict harmony with cases from other States, nor, probably, are they entirely consistent with themselves. The earliest case of a trust (not a gift) is where A was president of a society and was charged with depositing its funds in a savings institution. He took the money and deposited in the savings institute, the entry of deposit being, both in the deposit-book and in the books of the institute, "A in trust for the" society, it being named. Thereafter other sums were deposited by other individuals, which belonged to the society and in whose hands they had been placed for that purpose, and were entered in the same deposit-book and in the books of the bank in the same way as previously de- scribed. It appeared that the treasurer of the institution believed and supposed that the deposits were made with the understanding that they Avere wholly under A's con- trol and subject only to his order ; and the institution had invariably held itself answerable to the individual depositing the money ; yet the court decided that the institution was chargeable as a trustee of the society of which A was president, and that the fund could be reached by the creditors of the society.^ In a very much 1 Schick V. Grote, 42 N. J. Eq. 352. "Raynes v. Lowell, etc., Society, 4 Cush. 343. See Wall v. rroviJent Institu- tion for Savings, 3 Allen, 96. 344 Gifts. earlier case in that State, before her marriage, a wife held stock in an incorjDorated bank and received the profits thereof, even after she Avas married, until the charter ex- j)ired; at which time the stockholders were entitled to subscribe a portion of the amount of their shares in a new bank. Her husband subscribed the authorized amount in the name of his wife, and refused to receive the remainder due her in money, saying it was not his (which it would have otherwise been by the common law), but liis wife's. In a contest between her and his admin- istrator, who had received such remainder and the divi- dends of the 2^rofits on the shares, it was decided that she was entitled to recover all the sums so received by them.^ Where a husband deposited money in a savings bank, in the name and to the credit of his wife, he declaring that the money was hers and that he desired it put in her name, and delivered the deposit-book to her, it was held that the money inured to her sole benefit after his decease, as aofainst his heirs and administrators. This was deemed O especially true when he kept a separate account in his own name in the same bank and at the same time.^ A deposited a sum of money in his own name in a sav- ings bank, and at the same time deposited another sum in the name of "A, trustee for C," who was his daughter. He always retained in his possession the pass-books. After his death C sought to recover the money dej)Osited by A as trustee ; but it was held that parol evidence was admissible to show that both sums of money deposited were his and that one was made in her name because the amount of both exceeded the sum which the law allowed the bank to hold for a single depositor, notwithstanding a by-law of the bank, assented to by A, providing that any ^Stanwood v. Stanwood, 17 Mass. 57, citing Nash r. Nash, 2 Mad. 133. See, also, Phelps v. Phelps, 20 Pick. 556, and Ames v. Chew, 5 Met. 320. 2 Fisk V. Cushman, 6 Cush. 20 ; S. C. 52 Am. Dec. 7C1. Bank Checks and Deposits. 345 depositor might designate at the time of deposit for whose benefit the same was made, and should be bound by such condition.^ Where a widow had received money of her husband, and during his lifetime deposited it in a savings bank in her own name, she was not permitted to recover it after his death on proof that the money was his, was so deposited at his request and for his benefit, the presump- tion of a gift being rebutted.^ So one depositing his own money in a bank in the name of another person to avoid attachment may maintain an action for it against the bank in his own name, if he did not intend to make a gift or transfer to that person of the money, and if he has tendered to the bank his pass-book, without even giving a bond of indemnity.^ So, also, where a husband depos- ited money in a savings bank in his wife's name, and had the bank-book therefor made out in her name and deliv- ered to her, he was not allowed to recover of the bank the amount deposited, for the money was hers by virtue of the transaction. It was deemed that the bank had a con- tract with her to account to her for the money, and not to him.^ A deposited money in a savings bank in her name as " trustee for B," but retained possession of the deposit- book until her death, when it came into the possession of her administrator. At times she drew out portions of this money, as well as other money she had there on deposit in her own name. This was decided not to con- stitute a valid gift, and that the administrator must retain the amount of the deposit as part of A's estate.^ 1 Brabrook v. Boston, etc., Bank, 104 Ma.«s. 228 ; S. C. G Am. Rep. 222, fol- lowed ; Clark V. Clark, 108 Mas-;. 522. See Brown v. Bishop, 5 Hawaiian, 54, It would have been otherwise if it had been her money : Farrclly v. Ladd, 10 Allen, 127 ; Hunnewell v. Lane. 11 Met. 163. ^ McCluskey I'. Provident Institution, 103 Mass. 300. ^Broderick f.W^iltham Savings Bank, 109 Mass. 149. * Sweeney v. Boston, etc., Bank, 116 Mass. 384. ^ Jewett V. Shattuck, 124 Mass. 590. CHAPTER XIII. GIFT OF STOCK. 342. Stock May be the Subject of a Gift. 350. Keserving Power of Revocation. 343. Failure to Transfer Stock on Books 351. Donee Controlling and Receiving of Corporation — American Cases Profits, but Not the Certiticate — Acceptance. of Stock — Opera Box. 344. Transfer Upon Books of Corpora- 352. Donor Reserving and Exercising tion Essential to Validity of Gift Control Over Stock. — Trust — American Cases. 353. Recovery of Donor from Sick- 345. Transfer Upon Books of Corpora- ness. tion Essential to Validity of Gift 354. Purchase with Notice of Assign- — English Cases. ment. 346. Subscribing for Stock in Another's 355. Apportioning Dividends. Name. 356. Stock Secretly Given to a Sub- 347. Gift by Survivorship of Stock in scriber in Order to Influence Two or More Names. Others to Subscribe. 348. Gift by Power of Attorney or Deed 357. Directors May Not Give Away — Release. the Stock of their Corporation. 349. Transfer on Books but Failure to 358. Corporators May Receive Its Deliver Certificate. Stock as a Gift. 342. Stock May be the Subject of a Gift. — Stock or shares of stock of a corjioration or joint-stock company is the subject of a gift, just as much so as tangible per- sonal property. The numerous cases cited hereafter amply sustain this assertion. The chief difficulty has been, however, to sustain transactions as gifts because of their lack of completeness. It must be borne in mind that a certificate of stock is not the stock itself, it is only the evidence of the ownership of it. Neither is the entry upon the books of the corporation the stock ; it is only evidence of the ownership of the stock, usually of a higher degree than the certificate. Stock is, in fact, " incorporeal, j^ersonal property," and yet still the subject of a gift.^ ' In re Morgan, 104 N. Y. 74 ; sufficiency of mental capacity to make a gift of 346 Gift of Stock 347 343. Failure to Transfer Stock on Books of Cor- poration — American Cases — Acceptance. — A number of cases have arisen with reference to the sufficiency of a gift of stock which has not been transferred upon the books of the company, and with reference to the right of the donee to compel sucli a transfer. In other words whether a gift of stock not transferred upon the books is valid. Speaking broadly, it may be said that such a transfer is essential in England to make the gift a perfected or valid one, but it is not essential in this country. The charters of the corporations or their by-laws are often made the turning j^oints in decisions of this character. And first we will refer to the American cases which we now pro- ceed to discuss. A lady was the owner of six shares of bank stock, standing on the books of the bank in her own name. Three weeks before her death, while in good health, she and the donee were together in a room, when she said to the donee : " Hand me the cloth pocket that you will -find in that drawer," pointing to a drawer in a bureau in the room. On receiving it she opened it and from a pocket-book therein took two United States treasury notes for $50 each, handed them to the donee, saying : " Give this to Jane Carman ; the houses in Ohio street are all yours." Jane was the donor's niece. She then closed the pocket-book, put it back in the pocket, and said to the donee : " Here, I give you this ; I make you a present of it ; I have another, and want you to wear them, they are so very handy." The donee took the cloth pocket containing the pocket-book, and without opening the pocket, kept it in her possession until the donor died. The donee was ignorant of the contents of the pocket- stock : Van Deusen v. Rowlev, 8 N. Y. 358. That a husband may make a gift of stock to lus wife, see Deming i;. Williams, 26 Conn. 226 ; S. C. 63 Am. Dec. 3S6. Coupon government bonds : Walsh v. Sexton, 55 Barb. 251. 348 Gifts. book until after tlie donor's death, when she opened it and found therein a certificate for tlie six shares of stock, un- indorsed and untransferred. Upon these facts the court entered a decree compelling the bank to transfer the stock to the donee. The court considered that the occasion of making the gift was evidently one in which the donor felt disposed to make gifts, from the fact of the gift of the treasury notes ; that she intended something more than a mere gift of the cloth pocket, because of the fact that she deliberately replaced the pocket-book therein before giving it to her ; that it must be presumed she knew the stock was in the pocket-book, especially from the fact that it was the depository of other valuable articles ; and that no reason appeared for her giving the pocket-book with the pocket without the contents of the former. The delivery of the certificate, with intent to make it a gift, was a sufficient delivery of the stock to make the gift a valid one.^ Another case of this kind arose in Connecticut. A widower uncle of seventy, without children, promised his niece to compensate her amply, if she would live with him until his death. After five years he spoke to her of intending to make his will and give her a bequest, and after explaining it, asked her if she would be satisfied with it, and she said she would. Afterward he told her be had made his will, which he, in fact, had done, and which remained unrevoked at his death, six years later. A part of the bequest to her was ten shares of stock in a life insurance company, which was all the donor owned. At the time he spoke to her about the bequest, he told her he would do still more for her from time to time. A year later he handed her the certificate of these ten shares of stock, saying, " I give this to you," which 1 Allerton r. Lang, 10 Bosw. 362; Cornell v. Cornell, V2 Hun, 312 (a gift causa mortis); Grymes v. Hune, 49 N. Y. 17 ; S. C. 10 Am. Rep. 313. Gift of Stock 349 she took and retained. A few months later the company issued to him, as the owner of these ten shares, forty shares of new stock created out of its surpkis, and he delivered the certificate to her, saying, "Tliis insurance stock of yours is good stock ; they give forty shares for ten ; it is only a change of form, that is all ; I paid nothing for it." This certificate she also took and put with the other. Under these facts the court reached the conclusion that the certificates were delivered with intent to make the stock represented by them a gift, that they were so ac- cepted, and the gift a valid one in equity, the equitable title so vesting in the donee that she was entitled to a de- cree compelling the executors of the donor to make a formal transfer of the stock. The court considered that the transaction was not to be regarded as a testamentary gift, and so need not be in writing, the donor's promise "to do more for her from time to time," showing that whatever more he intended to do was to be done in his lifetime. Nor was the transaction void under the statute of frauds, because not in writing ; the delivery of the certificates being a symbolical delivery of the stock, whereby the contract became executed, the court not allowing, in accordance with the rules and maxims of equity, the donee to be wronged by the interposition of the statute against the donee. The fact that the cliarter and by-laws of the insurance company provided that transfers of stock should only be made at its oflfice, by the shareholder or his attorney, on surrender of the cer- tificate, was deemed not to defeat the gift ; for that pro- vision related only to the legal title to the stock, and the donor retaining the legal title became a trustee for the donee. Nor did the fact that the will gave the original ten shares, with other property, which was to be accepted by her in lieu of all claims on the testator, and the fact 350 Gifts. that she had accepted the legacy, affect the case ; for the stock was given her before his death, and therefore con- stituted no part of the assets of his estate, and her right to the forty shares constituted therefore no claim on the estate. She simply took what was already her own.^ These cases rest upon the same ground upon which the validity of a gift of a chose of action, which has not been transferred in writing, is upheld.^ 344. Transfer Upon Books of Corporation Essen- tial TO Validity of Gift — Trust — American Cases. — There are a few American cases in which it is held that unless the stock is transferred upon the books of the company the gift is not valid. This is particularly true in Maryland. Thus where a father gave to his child, indorsing his name thereon, a certificate of bank stock, which contained a clause that the shares were " trans- ferable at the said bank only, personally, or by attor- ney," intending thereby to make him a present of the shares, the transaction w^as held not to amount to a gift. The indorsement was not deemed to be the equiva- lent of a powder of attorney.^ Of this case it may be said that it was decided at an early day (1830) when the rule was quite firmly established that a chose in action was not the subject of a gift. This case was followed in one quite recently decided in the same State, and the rule clinched, iReed v. Copeland, 50 Conn. 472; S. C. 47 Am. Rep. 663. "Walsh V. Pexton, 55 Barb. 251 ; Commonwealth r. Crompton, 137 Pa. St. 138. Where an alleged donor subscribed in tlie name of the alleged donee for stock in a proposed corporation, had the same entered in the books of the corporation in the donee's name, and paid the assessments thereon ; it was hel 1 on a conveyance of the real estate, owned by the corporation, to tlie stockholders, that the donee took such a part of the b.nd as his stock bore to the whole of the stock : McDon- ald V. Donaldson, 47 Fed. Rep. 765. That the evidence of a gift of stock must be clear, see Morse v. Meston, 152 Mass. 5. 3 Pennington v. Gittines, 2 Gill & J. 208 (1S30). The ca=e follows Tate v. Hil- bert 2 Ves. Jr. Ill ; and this is the only case cited in the opinion. Gift of Stock. 351 that an actual transfer of the stock on the books of the company was essential to the validity of the gift, unless the donor declared, after the indorsement and delivery of the certificate, that he held the shares in trust for the donee, in which event equity would perhaps seize upon and enforce the trust for the benefit of the donee.^ 345. Transfer Upon Books of Corporation Essen- tial TO Validity of Gift — English Cases. — Tiie earliest case on the subject of a gift of stock in England was an attempt to give South Sea Annuities by a mere delivery of a receipt for them, issued by the company. The gift was held invalid. This was in 1752." The court, however, regarded it as very strong evidence of a gift. Where the gift was by deed, but no transfer was made on the company's books, the court was inclined to think there was no gift, but declined to take any steps holding the donor's estate liable, until the donee had pro- ceeded at law against the company and compelled it to make a transfer of the stock.^ If the gift is imjDcrfect for want of transfer, the executor of the donor cannot make it valid by transferring or by procuring a transfer of the stock.* The rule requiring a transfer upon the books of the company to make a gift perfect applies to a gift of railway stock,^ and to bank stock.^ The courts have even 1 Baltimore Retort, etc., Co. v. Mali, 65 Md. 93; S. C. 57 Amer. Rep. 304. 2 Ward V. Turner, 2 Ves. Sr. 43L See Antrobiis v. Smiih, 12 Ves. Jr. 39, where tlie receipt had never been delivered ; and the decision rested on this fact. MVestv. "West, 9 Ir. L. Rep. 121 (1SS2). For a construction of "The Com- panies Clauses Consolidation Act," of 1845, concerning the transfer of stock given away, see Copeland v. Northeastern R. W. Co, 6 El. & Bl. 277, and Queen V. Tlie General Cemetery, 6 El. & Bl. 415. * Dillon V. Coppin, 4 Myl. & Craig, 647 ; S. C. 9 L. J. Ch. (N. S.) 87 ; 4 Jiir. 427. s Moore v. Moore, 18 L. R. Eq. 474 ; S. C 43 L. J. Ch. 617 ; 22 W. R. 729 ; 30 L. T. (N. S.) 752; Pethybridge v. Burrow, 53 L. T. Rep. (N. S.) 5; Gason v. Rich, 19 L. R. Ir. 391. « Lambert v. Overton, 13 W. R. 227; S. C. 11 L. T. (N. S.) 503; Weale v. 352 Gifts. gone so far as to hold that railway stock cannot be made the subject of donatio mortis causa} But voluntary assign- ment by deed of the assignor's interest in stock standing in the name of trustees, upon trust for him, is a complete transfer of such interest as between the donee and donor, although no notice of the deed was given to the trustees in the donor's lifetime ; because no further act on the part of the donor was necessary to complete the gift.^ The courts, however, drew a distinction, though very thin, between an assignment and declaration of a trust.^ Thus if the legal owner of stock merely assigns it, and makes no transfer, the gift is bad ; but if he execute a declaration of trust, equity will compel its execution.* 346. SuBscRiBiis'G FOR Stock tn Another's Name. — A very common form of a gift of stock is where the donor purchases stock and directs it to be issued in the name of the donee. In all such instances, if there is a complete delivery, the presumption of a gift arises. Thus, a hus- band subscribed in his own name for six shares of bank stock, and when, some time after subscribing, he paid the first installment thereon, he directed the cashier to make out a receipt to his wife, saying that the shares were hers, and that if he spent all his property she would have something to live upon if the bank should prosper. The receipt was made out in accordance with the directions, and the cashier requested him to take another share, but Oliver, 17 Beav. 252 ; Beech i'. Keep, 18 Beav. 285; S. C. 18 Jur. 971 ; 23 L. J. Cli. 539, consols assigned. ' Moore v. Moore, supra. 2 Beech v. Keep, 18 Beav. 285 ; S. C. 18 Jur 971 ; 23 L. J. Ch. 539. '■^ Donaldson v. Donaldson, Kay. 711 ; S. C. 23 L. J. Ch. 788. * Bridget;. Bridge, 16 Beav. 315; S. C. 16 Jur. 1031; Beeden or Beecher v. Major, 11 Jur. (N. S.) 537 ; S. C. 13 W. R. 853 ; 12 L. T. (N. S.) 562 ; affirmed, 18 L. T. (N. S.) 554. Gift of Stock. 353 he declined, saying that he might, however, conclude to take some for himself; and if he did he should want more than one ; but his wife did not want any more. Two and a half months afterward, he went with his wife to the bank and paid the last installment ; and, by his direction, the cashier made out to the wife a certificate of six shares, in the usual form, delivered it to her, and took her receipt therefor. The payments of the installments were entered by the cashier on the stock journal as made by the wife. During his life the payments of the dividends were made to the husband, but he receipted therefor in his wife's name for the first one and in his own name for the subse- quent ones. Ten months after the first purchase, he pur- chased in his own name ten shares of stock, Avhich he pledged at various times to the bank as collateral security for money lent him ; but he never so pledged his wife's six shares. He universally requested the cashier to give him the dividends on the two sets of shares in distinct and separate sums, and sometimes, when so receiving them, asked that the dividends on the six shares be paid in new bills or gold pieces, saying it would please his wife to have them. Under these facts the court decided that the gift was a perfected one and the donee entitled to the six shares.^ The court relied upon an earlier case in the same State. In that case the wife, before her marriage, held certain shares of bank stock. After the marriage her hus- band received the dividends accruing on the stock until the bank charter expired. At the expiration of the char- ter the stockholders were entitled to subscribe a portion of the amount of their shares in a new bank. The hus- band subscribed the authorized amount in her name and refused to receive the remainder in money, saying tliat it was not his but hers. At his death his executor drew out ^ Adams v. Brackett, 5 Met. 280. 23 ,354 Gifts. this remainder and the dividends of profits on the new shares, and also a sum payable on account of the reduc- tion of the capital of the bank ; but it was held that she was entitled to recover from the executor all the sums so received, with interest. It must be observed that the <3ommon law gave to him, by virtue of the marriage, all the personal estate owned by the wife at the marriage.^ •One S. purchased and paid for thirty shares of stock, at the time giving the treasurer directions to set it aside in tlie name of Y., and saying that he would let him know whether to deliver it to Y., and what to do with it at some future time. The receij^t issued by the treasurer con- tained a statement that he had received the purchase- price from Y. The receipt came into Y.'s possession, but it did not appear how he received it. Y. had married S.'s niece, lived in his family, and had adopted a child in whom S. took a special interest. Some time afterward S. told Y. that he could only make the shares twenty -seven, and as the receipt was made out to him he would want an order for three shares, and Y. at once gave him an order on the company, directing a transfer of these three shares BB S. mio;ht direct. No certificate of the stock was ever issued. S. told Y. to go to the office for the dividends, when they had been declared, that he had them made out in his (Y.'s) name, that they would help support the child, and that they would be paid to him by his (S.'s) direction until his (Y.'s) death. After the stock had been placed in Y.'s name, his wife died. He married again, but his wife did not care for the child. The court ad- mitted that there had been a sufficient delivery of the stock, if S. had ever had any intention to make it a gift ; but that intention, as drawn from the above recited facts, was entirely absent. The court drew the conclusion from ^ Stanwood i'. Stanwood, 17 Mass. 57. Gift of Stock. 355 the facts that he did not intend to vest the title in Y. for liimself, but did intend to create a trust for the child ; that he did not intend that Y. should control the shares, but that the treasurer should retain them, subject to his (S.'s) control. Y. drew the dividends simply for the sup- port of the child. " It may be true, in a legal sense," said the court, " that it was not necessary for Youmans to have the certificate of stock in order to constitute him a stockholder, but among business men the certificate of stock is regarded as rej)resenting the stock and the title thereto. Such is the common understanding, and Sharp undoubtedly supposed when he retained the certificate that the stock remained subject to his control. The fact that Youmans did not, during his life, nearly seven years, call for the certificate of stock shows quite clearly that he did not regard himself as the owner of the stock ; and that Sharp claimed to have the control and disposition thereof appears from the fact that he assumed to dispose of three shares thereof, after the certificate for the thirty shares had been executed. It is true he applied to Youmans for an order to transfer these three shares, but that was merely a matter of form, because Youmans held the receipt and the shares appeared upon the books of the company in his name. That was a matter of book-kee])- ing. Therefore I conclude that there was no delivery of the stock, within the meaning of the law, to Youmans, with intent to vest the title in him and give him the con- trol thereof." ' 347. Gift by Survivorship of Stock in Two or More Names. — If stock is purchased in the joint names • Jackson v. Twenty third Street R. W. Co.. SS N. Y. 520 ; reversing 1') J. & S. 85. Two out of six judges dissented. Upon the facts given in the report of the decision in the lower court, the case was rightly decided ; but it wouM seem fiom the report of the case as decided in the appellate court that all the facts were not given in the report of the decision below. 356 Gifts. of the donor and donee, the latter will take it on the death of the donor, if thereby the donor intended to make gift of it. Thus a husband transferred certain four and five per cent, stocks, which was the whole of his funded j)rop- erty, into the joint names of himself and wife. Then by his will he bequeathed all his funded property to trustees, in trust for his wife for her life, and, after her decease, in trust to pay certain specified legacies of four per cent, stock, amounting, within £50, to the stock of that descrip- tion which he had so transferred. The remainder of his estate he gave to other persons. Afterward he purchased farther sums of five per cent, stock in the joint names of himself and wife. He died in her lifetime, having no stock except that mentioned above, without which his property was not sufficient to pay his legacies. It was held that she was entitled to the four and five per cents,, and that the bequest of the testator's funded property was not sufficiently specific to make her elect between the stock and the benefits which she took under the will, in certain parts of the testator's projierty.^ The relation, in such a case, of husband and wife raises the presumption of a gift ; ^ and the same presumption, in fact, is raised where no relationship whatever exists.^ Where a widow in her eighty -sixth year caused a sum of £6,000 consols to be transferred into the joint names of herself and god- son, in whose welfare she took great interest ; and two years after remarried, the court declined to compel a re- transfer to her upon her application therefor of the con- sols, the original transfer not being for the purpose of creating a trust.* But where an alleged donor directed 1 Dummer v. Pitcher, 5 Sims. 35 ; affirmed, 2 Mylne & Keen, 262. ^Ib. ; Rider v. Kidder, 10 Ves. 360; Lorimer v. Lorimer, 10 Ves. 367, no^e; Deacon v. Colquhoun, 2 Drew. 21. 'George v. Howard, 7 Price, 661. ^Standing v. Bowring, 27 L. E. Ch. Div. 341 ; S. C. 54 L. J. Ch. Div. 10; 51 Gift of Stock. 2>ol his agents to invest part of his balance in their hands, in the purchase of stock in the names of himself and wife, in trust for his infant son ; and they made the purchase as directed, except without having the trust declared or expressed, of which they informed him and their reason for not doing so — because the bank objected to trust- accounts appearing on their books — and he allowed the stock to remain without any trust being declared, and re- ceived the dividends of it down to his death ; it was held that neither his son nor his wife (who survived him) Avas entitled to the stock, there being no valid gift.^ But where a testator, having first made a will in favor of a person with whom he was cohabiting, afterward trans- ferred stock into the joint names of himself and of that person, and subsequently to this transfer revoked his first Avill and made another in favor of a third person, a daughter of the original legatee, to whom by the first will nothing was given ; it was held that there was no resulting trust for the testator in the stock, and the joint transferee was entitled to it by survivorship.^ 348. Gift by Power of Attorney or Deed — Re- lease. — A gift of stock may be made by deed or a power of attorney, if the charter or by-laws of the corporation does not expressly prohibit it. But in all such instances a delivery of the deed or power of attorney is essential. Thus where a father executed a deed poll conveying to his daughter certain shares in the East India and Globe Insurance companies, to hold for her separate use, and in case her husband survived her, then with power for him L. T. (N. S.) 591 ; 33 W. R. 79 ; Garrick v. Tayler, 7 Jur. (N. S.) 1174; S. C. 10 AV. R. 49 ; 4 L. T. (N. S.) 404; 31 L. J. Ch. 6S ; affirming 7 Jur. (N. S.) 116 ; 30 L. J. Ch. 211 ; 9 W. R. 181 ; 3 L. T. (N. S.) 400 ; 29 Beav. 79 ; 48 G., F. & J. 169. * Smith V. Warde, 15 Sim. 56. 'Turnbridge v. Care, 19 W. R. 1047 ; S. C. 25 L. T. (N. S.) 150. 358 Gifts. to receive the dividends during his life, and after the death of the survivor of them, then for the benefit of tlieir children equally, which deed was found at his death, two months after its execution, among the donor's papers, in an envelope marked " to be given to " the donee " at my death, and immediately;" it was decided that there was no valid gift of the shares of stock. The deed professed to grant, sell, and assign the stock to the donee. It was shown that a mere assignment would not enable the as- signee to receive or recover either the stock or the divi- dends. It was also decided that the donor had not made himself a trustee. " So far," said the court, " from mak- ing himself a trustee of the stock, he states, upon the in- strument, his intention of perfecting the gift by transfer of the stock, and endeavors to provide the means by which the grantee may obtain the legal title." This the court considered that he had not done.^ But where the donor in her last sickness wrote from Ireland to her sister in New York, making a disposition of fifty shares of insur- ance stock to certain persons named, and also executed to her a power of attorney authorizing her to take all need- ful measures to effect a transfer of the stock to the donees ; and the power having been executed, part before the donor's death and part after, by the surrender of the scrip to the company, and the issue of the shares to the donee mentioned in the letter, the gifts were upheld.^ So where no certificates had ever been issued, a delivery of a power of attorney to a third person, with oral directions to have the stock placed in certain shares in the names of the donees, it was deemed a good gift, even though the power of attorney was returned to the room of the donor 1 Dillon V. Coppin, 4 Mylne & Craig, C47 ; S. C. 9 L. J. (N. S.) Ch. 87 ; 4 Jur. 427. - Duigau V. McCorraack, 53 How. Pr. 411. Gift of Stock. . 359 for safe-keeping.^ And where a donor, then in extremis, executed the ordinary bank power of attorney, and de- livered it to her sister B, whereby the latter was em- powered to transfer into her own name government stock standing in the name of the donor ; and the transfer was not made until after the donor's death, the gift was de- cided valid and effectual in B's favor." So where the in- come from stock was released, bv a letter addressed to the trustee in whose name the stock stood, the release was held valid after the donor's deatli.^ But even though the donee may receive a power of attorney empowering him to make a transfer of the stock, it is not conclusive that a gift was intended. Thus the owner of insurance stock appointed A his " attorney to receive and assign any scrip or dividends, or belonghig to " him, in the in- surance company, " and to receive the interest thereon." A, by virtue of this instrument, drew the subsequent dividend, deducting therefrom the amount of interest owed by the alleged donor to the company. Two months after the execution of the power, he died. Nearly a month later A, upon the transfer books of the company, assigned this stock from himself, as executor, to himself indi- vidually. Afterward, for years, he drew the dividends, and then assis-ned the stock to B. During his last ill- ness, either before or after the execution of the power, he said to a witness, after looking over his papers and taking out his scrip, that he was going to give that to A, A not then being present. At another time he said to the same witness, after A, who was his son, had come home, that he had given A that scrip. A was his father's executor, • Caiimont v. Eosert, 3G Hun, 3S2. 2 Kiddill V. Farnell, 3 Jur. (N. S.) 786 ; S. C. 26 L. J. Cb. 818. Contra, where not acted upon until after the death of the donor: Peckham v. Taylor, 31 Beav. 250. •''Hooper v. Goodwin, 1 Swanst. 486. 360 Gifts. and testified that after his father's death, he had posses- sion of the stock ; but was not permitted to testify that his father had transferred it to him, nor to state that at the time of the transfer, he gave it to him, because of his incompetency as a witness. This was all the evidence. The court decided that a gift of the stock was not shown, the burden of showing such being ujDon A or his assignee. The declarations of the alleged donor was deemed in- sufficient to show a gift, because they were only a con- clusion from facts necessary to make a gift complete, and not the facts themselves ; nor could a delivery be proved by the subseqent declarations of the donor. This, coupled with the fact that the witness thought she saw the scrip in the alleged donor's possession after the execution of the power, was held not to show a delivery as a gift. It was also held that the possession of the stock, held by A, as explained by the power of attorney, was the possession of an attorney for his principal, its terms importing a pur- pose to empower A to do acts relative thereto for the con- venience of his father. In the generality of its power it did not intend to empower A to assign to himself or to receive for himself the proceeds of an assignment to another ; and the presumption arising from this form of the power was that A's acts under it were the acts of the princijDal, his father, as still the owner of the stock. Pay- ing interest out of the dividends on his father's mortgage was deemed to imply that his father still controlled the proceeds of the stock ; and his assignment to himself as executor, was also deemed an admission that his father up to his death was the actual owner, although the com- pany requested him to make it in that form.^ 349. Transfer on Books but Failure to Deliver THE Certificate. — If a transfer has been made by the » Smith V. Barnet, 8 Stew. (N. J.) Eq. 314 ; affirming 7 lb. 219. Gift of Stock. 361 donor to the donee, on the books of the corporation, accompanied with the other requisites of a gift, but the certificate thereof, in his own name, be retained by the do- nor, the gift is still valid.^ Causing such a transfer to be made and certificate issued in the name of but not deliv- ered to the donee is a valid gift, even though the donee have no knowledge of such transfer until after the death of the donor. **' Transferring the shares to her [the do- nee]," said the court, " upon the books of the company is putting her in complete possession of the thing assigned, and clothing her wdtli the complete legal title. It stands in the place of a delivery. Such an act performs pre- cisely the office which an actual delivery would jierform if it were a chattel. It is as comj)lete a delivery as the nature of the thing will admit of. There can be no clearer evidence of a design to part with the right of property in favor of another than an absolute transfer of the legal title to her for her own use. Retaining in his possession the certificates which are in her name, and which he could not use without her consent, cannot undo or qualify the decisive ownership with which he had in- vested her by the actual transfer to her on the books of the company. The best evidence of her ownership is the transfer on the books of the company. The certificates were but secondary evidence of her ownership, and only useful for purposes of transfer. They were noth- ing more than the official declaration by the company of what already appeared on their books. There was here no locus posnitentice. He could not have used the certificates, nor could any one have used them except the donee." ^ ' Francis v. New York, etc., Elevated R. R. Co., 17 Abb. N. C. 1. ^ Roberts' Appeal, 85 Pa. St. 84. See a transfer somewhat similar : Delamater's Estate, 1 Whart. 362. 362 Gifis. 350. Keservixg Power of Revocation. — A donor of stock may reserve a right to revoke the gift or to modify it. Thus the owner of stock in a railroad deliv- ered the certificate, indorsed in blank, upon trust to j^ay the income to himself for life, and at his death to transfer such stock to certain charitable objects, reserving the right to modify the uses or revoke the trust. The trustee alone signed a memorandum to that effect. The reservation was held to be valid, and it was said that the gift would also have been valid if it had not been revoked.^ 351. Donee Controlling and Receiving Profits, BUT Not the Certificate of Stock — Opera Box. — It is altogether possible for the donee to control the stock, receive all the benefits of ownership, believe that he is the owner, and yet not in fact be such owner. Thus a hus- band subscribed, paid for them, and took a certificate in his own name for four shares of stock in an opera house. The subscription entitled him to four seats in an opera box in the house. AVhen the box was allotted a ticket was given to the owner, the possession of which entitled the holder to occupy the box and seats, under the regula- tions of the corporation. When he purchased the box (or shares of stock) he said that it was for his wife, and he so told her. She asked him what evidence she had to show that it was hers, and he delivered the ticket to her and said to her that it was not necessary that she should have any evidence of ownership ; that it was hers in fact. She, with other members of the family, occuj)ied it ; and at one time she rented it, and received the rent herself, with the knowledge and approbation of her husband. The certificates of stock were never transferred to her, but were retained by her husband. Under the regula- » Stone V. Hackett, 12 Gray, 227. Gift of Stock. 363 tions of the cori^oration, in order to transfer the shares of stock, it was necessary to surrender the certificates, and take new ones, in the name of the transferee. After his death she occupied it. Upon these facts, the court reached the conckision that there was no valid gift, saying that the evidence showed that " the title to the box consisted of four certificates taken, and remainins: in the name of Mr. Stevens [the husband], and that the tickets were the only evidence of the right to occupy, which were delivered to Mrs. Stevens. The expression of an intention to give the box to Mrs. Stevens did not consummate the gift, but it was necessary either to deliver the subject of the gift, or some evidence of title. It is quite evident that if Mrs. Stevens, on the faith of the four tickets and the allegation of ownership, had trans- ferred the box in question to a third party, Mr. Stevens might have taken proceedings to eject the purchaser and to resume his authority over it. It seems to me equally clear that Mr. Stevens in stating that the box was his wife's, in view of his retention of the evidence of the title, did not show any intention to be divested of his title to, or control over it." ^ 352. DoxoR Reseeving axd Exercisixg Coxtrol Over Stock. — A donor may so reserve or exercise con- trol over the stock and dividends as to defeat the gift. Thus, a father transferred bank shares to himself as trus- tee for his two daugliters, but retained control over them, appropriated the dividends to himself, and neither daugli- ter ever knew that the transfers had been made until after his death. This was held not to make a gift, tlie court saying, " There was no act on his part delivering the ' Stevens v. Stevens, 2 Redf. 265. The wife was charged by the court with the rent and use of the box after her husband's death. 364 Gifts. property out of his possession, indicating an intent and ]3urpose to pass the title to his daughters ; and he did not so, deal with it as to deprive himself of the ownership or to change his right in this respect." ^ 353. Kecovery of Donor from Sickness. — If a donor in extreme sickness makes a gift of stock, by making the proper transfer, and then recovers, the donee will be held as a trustee for the donor, for the recovery revokes the gift ; especially is this true if the donee took it with the distinct understanding that the gift was conditioned on the donor not recovering from his present sickness.^ 354. Purchase with Notice of Assignment. — A exe- cuted an assignment and power of attorney, indorsed upon a certificate of shares of stock, and made a gift of the stock to B by delivery of the certificate. A afterward, for a valuable consideration, executed an assignment of the same stock to C, and caused the same to be transferred to C upon the company's books. By the terms of the certificate, the stock was transferable only upon the books of the company upon surrender of the certificate. C knew of the assignment to B, being a witness thereto as well as an ofi[icer of the company. After the transfer to C, B pre- sented his certificate and demanded a transfer of the stock to himself, and, on refusal of the company to do so, brought an action to compel a transfer, which he success- fully maintained, the court holding that the first transfer was not a valid excuse for the refusal, for it was the com- pany's duty to resist any transfer without the production and surrender of the certificate ; and the fact that the first assignment was without consideration was immaterial, as the delivery of the certificate with the assignment, as be- ^Curarnings v. Bramhall, 120 Mass. 552. ^Stauiland v. Willott, 3 MacN. & G. 664. Gift of Stock 365 tween A and B, passed tlie entire legal and equitable title to the stock.^ 355. AppoRTiomNG Dividends. — The dividends of certain bank stock were given for life to the donee, for his maintenance, " to be paid half-yearly, as they shall be received from the bank." The donee died a few days be- fore a semi-annual dividend was declared, and it was de- creed that the dividends should be apportioned, and the amount which had accrued at the donee's death should be paid to his executor.^ 356. Stock Secretly Given to a Subscriber in Order to Influence Others to Subscribe. — It is an ordinary device of the promoters of an enterprise to offer inducements to a person whose name will carry influence with and induce others to subscribe for shares of stock in the enterprise to make a secret donation to him of certain shares of stock, or sell it to him at a reduced price if he will subscribe for stock in the concern. Often it is under- stood that he will not be required to ]}^j for any of the stock subscribed for, it being a pure gift. Such a trans- action is a fraud upon the other subscribers, and such pre- ferred subscriber cannot enforce the agreement if the com- pany declines to do so. And where there are two or more such schemes proposed, but only one carried out, they may be so connected as to render the one actually executed void, although no new papers are executed in the last one.^ 1 Cushman v. Thayer Manuf. Co., 76 N. Y. 365 ; S. C. 32 Am. Rep. 315 ; affirming 7 Daly, 330. 'jEj; parte Rutledge, Harper Eq. (S. C.) 65. 'Nickerson v. English, 142 Mass. 267; White Mountains R. R. Co. v. Eastman, 34 N. H. 124; Melvin v. Lamar Ins. Co., 80 111. 446; S. C. 22 Am. Rep. 19i»; Miller v. Hanover, etc., R. R. Co., 87 Pa. St. 95 ; S. C. 30 Am. Rep. 349 ; Henry t'. Vermillion, etc., R. R. Co., 17 Ohio, 1S7; Robinson v. Pittsburgh, etc., R. R. Co., 32 Pa. St. 334 ; S. C. 72 Am. Dec. 792 ; Harvey v. Hunt, 119 Mass. 279 ; Stanhope's Case, 1 L. R. Ch. 161. 366 Gifts. 357. DiRECTOES May Not Give Away the Stock OF Their Corporation. — The directors of a corporation or company may not give away the stock of their corpo- ration or company. The capital stock of a moneyed cor- jDoration, at least, is a fund for the payment of its debts. " It is a trust fund, of which the directors are trustees. It is a trust to be managed for the benefit of its shareholders during; its life, and for the benefit of its creditors in the event of its dissolution." It is tlierefore held in this country that the directors cannot give away the stock, nor release a subscriber from his obligation to pay in full for the stock.^ 358. Corporation May Receive Its Stock as a Gift. — It is competent to make a bequest of its stock to a corporation " and there is no reason why a gift mortis causa or intei' vivos of such stock may not also be made." In case of a gift, the rules announced in this chapter "with reference to a gift of stock between individuals apply. But ^^robably the delivery of the certificate to the cor- poration, with intent to make a gift of the stock, would in all instances amount to a gift, unless the charter or by- laws required the holder in person to make the transfer on the books of the comj^any in order to make a transfer valid, and even then, in some States, the delivery of the certificate would be a good transfer in equity. • Usually when the holder of a certificate has done all within his power to secure a transfer from himself, a transfer is com- pleted ; and the lack of diligence, or failure to act, of the corporation, will not be permitted to defeat his intentions. ^ Upton V. Tribilcock, 91 U. S. 45 ; Van Cott v. Van Brnnt, 2 Abb. N. C. 2S3 ; S. C. 82 X. Y. 535 ; Foreman v. Bigelow, 4 Cliff. 508 ; Guff n Flesher, 33 Ohio St. 107 ; Union Mutual Life Ins. Co. v. Frean Stone Mf. Co., 97 111. 537 ; S. C. 37 Am. Rep. 129 ; Sawyer v. Hoag, 17 Wall. 610 ; Zirkel v. Joliet Opera House Co., 79 111. 334 ; Osgood v- King, 42 la. 478. See Central Trust Co. v. New York City, etc., R. R. Co., 18 Abb. N. C 381. 2 Rivanna Navigation Co. r. Dawsons, 3 Gratt. 19 ; S. C. 4(5 Am. Dec. 183. ' Lake Superior Iron Co. v. Drexel, 90 N. Y. 87, assumed as valid. CHAPTER XIV. GIFT OF REAL ESTATE. 359. Introduction. 378. Gift by Deed. 360. Purcliase by Donor and Convey- ance to Donee by Vendor — 379. Specific Performance — Pur- chase-Money Mortgage. 380. 361. Husband to Wife— Wife to Hus- band. 362. Courts will Not Enforce a Volun- 381. tary Deed — Delivery of Deed. 353. Reforming a Voluntary Deed — 382. Restoring Lost Deed. 364. Gift in Writing Enforced Between Blood Relations. 365. Donee May Maintain an Action for 383, Possession Under the Deed. 366. Recitations in Deed of a Considera- 384. tion. 385, 367. A Void Deed Cannot be Construed as a Gift. 386. 368. Parol Trust. 369. Gift of Easement— Timber. 387. 370. Gift Mortis Causa— Mutual Mis- take — Revocation of Deed on 388. Recovery. Parol, Gift. 371. A Parol Gift of Real Estate is 389. Void. 390. 372. Gift Followed by Improvements. 391. 373. Expenditure of Labor. 392. 374. Donor Stipulating for Expenditure on the Land Given. 393. 375. A Promise to Give is Not Sufficient 394. — Donor Retaining Control of 395. the Property. 376. Gift or Contract. 396. 377. Donor Inducing Donee to Change His Condition— Will — Contract. Gift Not Inducing Donee to Change His Condition nor E.k- pend Money or Labor Thereon. Slight or Trivial Improvements — Rents a Full Compensation. Expenditure Must be Made in Consequence of and Relying Upon the Gift. Gift After Improvements Made or Labor Expended. Possession Without Improve- ments Made or Labor Ex- pended May be Sufficient — Free of Incumbrance. Adverse Possession After Gift Made. Confirming Gift by Will. Title Acquired by Donor After Gift Made. Possession by Donee Must be Clear. Gift Incomplete without Posses- sion taken — Intention to Give. Gift to W'ife, but Possession taken by Husband — Adverse Possession. Donor Regaining Possession. Donee Abandoning Gift. Donor Incumbering Land. Donor Reserving Rent — Taxes Paid by Donor. Payment of Taxes. Relationship of Donor and Donee. Gift by a Married Woman — In- fant. Donee Must Show a Definite Promise — Must Show Land Given. 367 368 Gifts. 397. Land Given — Boundaries. 402. When Donee takes Land Without 398. Sufficiency of Evidence to Es- the Insurance Tliereon. tablish the Gift. 403. When Donee Acquires a Title to 399. Donee Must Show that He Made the Land Given — Judgment Improvements or Expended La- Lien. bor Thereon. 404. Eight of Donee's Creditors. 400. Declarations of the Donor to Prove 405. Kind of Action — Ejectment — or Disprove Gift. Trespasser — Trial by Jury. 401. Acts and Conduct of Donor and 406. Compensation in Damages. Donee. 407. Donee Entitled to Kecover for Improvements. 359. Inteoduction-. — The subject of a gift of real estate may be divided into two branches : Gift by Deed ; and Gift by Parol. Incidentally connected with the sub- ject are those of Specific Performance and Trusts, which have, however, been fully treated elsewhere. Gift by Deed. 360. puechase by doxoe and conveyance to Donee by Vendoe — Specific Peefoemance — Pue- CHASE-MoNEY MoETGAGE. — A commou form of a gift of real estate is where the donor purchases real estate and pays the purchase price, directing the vendor to make a conveyance directly to the donee. Where it is the inten- tion of the donor to make a gift, such a transaction is valid.^ Such a gift is completed when the deed, or con- tract for a deed, is delivered. It is irrevocable ; and the donee may maintain an action against the vendor, in the case of a contract for a deed, for a specific ^performance of such a contract ; ^ and, no doubt, where the deed has been delivered, an action of ejectment for possession ; for as 1 Oliver v. Moore, 23 Ohio St. 473; Whitten r. Wliitten, 3 Cush. 191. A deed of "all the estate which he [the donor] owns at the date of the deed, or should own at his death," does not pass money of which he died possessed: Butler v. Scofield, 4 J. J. Mar. 139. 2 Eaymond v. Pritchard, 24 Ind. 318. Gift of Real Estate. 369 between the vendor and the donee the relation is one of contract. But where the husband purchased land subject to a mortgage-debt, causing the land to be conveyed to his wife as a gift, subject to the mortgage, and at the same time jDromised the vendor to pay the mortgage-debt upon maturity ; it was held that his promise to pay the debt did not inure to her as a gift either of an interest in the land or of the money promised to be paid until payment in fact was made. The husband becoming insolvent before payment of the mortgage was made, payment thereafter was deemed fraudulent.^ 361. HusBAXD TO Wife — Wife to Husband. — A hus- band may make a gift of real estate by deed directly to his wife ; and a nominal consideration and the use of the words grant, bargain, sell, convey, and warrant does not change the character or object of the conveyance.^ Thus where a husband expressed his intention to execute the deed, of which expression the wife was aware, but she never knew it had been executed until after his death, when she found it among his papers, and that a record of it had been made in the recorder's office, it was held that there was a valid gift, her possession of the deed raising a presumjDtion of assent to the gift.'"^ But a wife cannot make a gift of her real estate directly to her husband ; for she cannot execute a deed unless he joins therein ; and in ^Oliver v. Moore, 23 Ohio St. 473. If a liusband has an equitable title in real estate and direct the person lidding the legal title to convey it to his wife, such conveyance operates as a gift of the land : Crittenden v. Canfield, 87 Mich. 152. * Barker v. Koneraan, 13 Cal. 9; Shepard v. Sliepard, 7 Johns. Ch. 57; S. C. 11 Am. Dec. 396; Jones v. Obenchain, 10 Graft. 259; Hunt c. Jolinson, 44 N. Y. 27 ; S. C. 4 Am. Rep. 631 ; Blalock r. Milard, 87 Geo. 573 (subsequent declarations of donor cannot defeat the gift) ; Dale v. Lincoln, 62 111. 22 ; Capek v. Kropik, 129 111. .309 ; Sims v. Rickets, 35 Ind. 181 ; S. C. 9 Am. Rep. 679 ; Huber v. Ruber, 10 Ohio, 371; Hartwell v. Jackson, 7 Tex. 576 ; Wilder v. Brooks, 10 Minn. 50 ; Beatie v. Calhoun, 73 Geo. 269. »Dale V. Lincoln, 62 111. 22. See Blalock v. Milard, 87 Geo. 573. 24 370 Gifts. the instance supposed, lie cannot be both grantor and grantee.^ 362. Courts Will Not Enforce a Voluntary Deed — Delivery of Deed. — If a deed is purely volun- tary, the donee cannot invoke the aid of a court of equity to enforce its provisions. Delivery of the deed is an essential part of the gift, although a delivery for rec- ord is sufficient.^ Thus where the deed was found among the donor's papers at his death, the court declined to en- force its provisions.^ This is especially true if the donor distinctly declared that the deed was not to take effect during his lifetime,* or was not to be delivered until a lease for life was executed and delivered to the custodian of the deed.^ 363. Reforming a Voluntary Deed — Restoring Lost Deed. — A voluntary deed cannot be reformed. A court of equity never lends its assistance to enforce the specific performance of a voluntary contract, where no consideration emanates from the party asking perform- ance, as in a gift.*' " What I consider," said Lord Rom- illy, " to be settled by the case is this, that if a voluntary deed is incomplete, this court will not compel the » White V. Wager, 25 N. Y. 328 ; Winans i-. Peebles, 32 N. Y. 423. 2 Oliver v. Moore, 23 Ohio St. 473; Groves r. Groves, 3 Young & J. 163 ; Colman v. Sarrel, 1 Ves. Jr. 50 ; S. C. 3 Bro. C. C. 12 ; Fletcher r. Fletcher, 4 Hare, 67 ; Price v. Price, 14 Beav. 598 ; affirmed 1 De G., M. & G. 308 ; S. C. 21 L. J. Ch. (N. S ) 53; Lamprey v. Lamprey, 29 Minn. 151 ; McEwen v. Troost, 1 Sneed. 186 ; Corley v. Corley, 2 Coldw. 520. ^ Martin v. Ramsey, 5 Humph. 349 ; Warriner v. Rogers, 16 L. R. Eq. 340 ; S. C. 42 L. J. Ch. 581 '; 28 L. T. 863 ; 21 W. R. 766 ; Richards v. Delbridge. 43 L. J. Ch. 459 ; S. C. 22 W. R. 584 ; Bottle v. Knocker, 25 W. R. 209 ; S. C. 35 L. T. N. S. 545; 46 L. J. Ch. 159. * Taylor v. Taylor, 2 Humph. 597 ; Dillon v. Coppin, 4 Myl. & Cr. 647 ; Jef- ferys v. Jefferys, 1 Cr. & Ph. 138. s Hoig V. Adrian College, 83 III. 267. « Mulock V. Mulock, 31 N. J. Eq. 594 ; Groves v. Groves, 3 Y. & Jr. 163. Gift of Real Estate. 371 completion of an imperfect instrument ; the court will never interfere to enforce a contract for the due ex- ecution of a voluntary deed." ^ If contrary to the inten- tion of the parties, and perhaps if to the donor's intention alone, the whole will be set aside.^ But a court of equity will establish or restore a lost voluntary deed where the gift has been consummated.^ 364. Gift in Wkiting Enforced Between Blood Relations. — A father bought a farm and had it conveyed to himself. Shortly thereafter he ^wt his daughters in possession of it, and they continued so in j)ossession for twenty-eight years, when they brought an action against him to compel him to make them a convey- ance of the land. Ten years before this action was brought, the father executed and delivered to them a paper, as follows : " I sine all my interest and claim unto Mary Marling and Elizabeth IMarling, the farm they now live on, caled the Harsty farm, as witness my hand and sel. Elijah Marling." This was unsealed ; yet it was held that a court of equity would effectuate the gift, by compelling a conveyance to the children.^ This case, and others, rest upon the relationship of the donor and donee, the proximity of blood being deemed a sufficient consid- eration. This principle does not, however, extend to collateral relations.^ 365. Donee May Maintain an Action for Posses- sion Under the Deed. — If a deed of gift has been made 1 Lister V. Hodgson, L. R. 4 Eq. Cas. 30; S. C. 15 W. R. 547. 2 Turner v. Collins, L. R. 7 Ch. App. Cas. 329; S. C. 25 L. T. N. S. 374 ; Phillipson ?•. Kerry, 32 Beav. 628 ; Broun v. Kennedy, 33 Beav 133; S. C. 9 Jur. N. S. 1163. 3 Hodges V. Spicer, 79 N. C. 22.3. « Marling v. Marling, 9 W. Va. 79 ; S. C. 27 Amer. Rep. 535 ; Mclntire V. Hughes, 4 Bibb. 186 (father to son) ; Mahan v. Mahan, 7 B. Mon. 579 (father to son) : Bright v. Bright, 8 B. Mon. 194 (father to son) ; Jones v. Obenchain, 10 Gratt. 259 (husband to wife). 5 Buford V. McKee, 1 Dana, 107. 872 Gifts. and delivered — fully executed — the donee may maintain an action against the donor, and those holding under him, for possession of the land given. Thus a father executed a deed to his son for a small tract of land, delivering it to him. This was in 1837, and he resided thereon until his death, in 1859. While residing upon the land he repeat- edly declared that the land belonged to his son, that he had given him a deed for it, declined to sell it when so- licited, for that reason, and said he was to live thereon during his life. He paid the taxes, and even rented a part of it to the donee. At his death the son brought an action of ejectment against the heirs of his father, claim- ing ownership by virtue of the deed ; and the court held that he could maintain the action.^ 366. Kecitatiox ix Deed of a Consideration. — If the deed of gift contains a recital that it is made upon a good and valuable consideration, no j^resumption arises that the land was intended as a gift, even though from one relative to another standing in the relation of parent to child.^ But it may be shown that there was in fact a sale and not a gift.^ 367. A Void Deed Caxxot be Construed as a Gift. — A deed that is void cannot be construed as a gift. Thus where a statute required a gift of shares of stock to be made by deed, attested and sealed by the clerk of the court, mak- ing the affixing of the seal requisite to its validity, it was attempted to uphold the deed as a gift. It was decided that 1 Corley v. Corley, 2 Col(1\v. 520. ^Deloach v. Turner, 7 Rich. L. 143. ^Meyers v. Farquharson, 46 Cal. 190. This may not be done under the Ohio statute of descent where the phrase "deed of gift from ancestor" is used: Pat- terson V. Lamson, 45 Ohio St. 77. But this in no way affects the statement above, ■which is so potent at this day that a further citation of authorities is deemed unnecessary. Gift of Real Estate. 373 the action could not be maintained, and that the deed could not be introduced in evidence for that purpose.^ Nor will a deed given for an illegal or immoral purpose be construed as a gift, nor enforced.^ 368. Paeol Trust. — A gift by a deed absolute on its face will defeat a parol trust or reservation in the donor's favor. It has the effect of an unconditioned gift, the trust being void.^ 369. Gift of Easement — Timber. — A gift of a right of way is not a gift of the earth and other materials which may exist within the boundary lines, the right of which is given. Therefore, timber growing in such right of way belon2:s to the donor.* 'O^ 370. Gift Causa Mortis — Mutual Mistake — Revo- cation OF Deed on Recovery. — The law does not i:>er- mit the gifts of lands mortis causa. Such a gift cannot be made. "A gift of real estate cannot be sustained as a donatio mortis causa, for that only extends to the person- alty." Consequently, where A, being desperately sick, in prospect of death, executed to his wife a deed for all his real estate, and a separate deed for his personal property, both of which were recorded, it was held that the latter deed was good as a donatio moi^tis causa, but the deed for the real estate was invalid, both as a gift and as a testa- mentary disposition of the land.^ In this case the donor died from the sickness within a month after executing the deed. But where a donor, under like circumstances, exe- ' Blagg V. Hunter, 15 Ark. 246. ^ Reade v. Adams, 5 Ir. C. L. Rep. 426. 3 Palmer v. Sterling. 41 Mich. 218. * Smith V. City of Rome, 19 Geo. 89 ; Lade v. Shepard, 2 Str. 1004; Goodtitle v. Acker, 1 Burr, 133. ^Meach V. Meacli, 24 Yt. 591. 374 Gifts. cuted a deed of land, and then recovered, it was held that he could maintain an action to cancel the deed and set it aside, on the ground of mutual mistake of a material fact — the mistake of his early j^rospective death from that sickness.^ Parol Gift. 371. A Parol Gift of Real Estate is Void. — A parol gift of lands, speaking generally, is void. There may be attendant circumstances which render it inequita- ble to allow a donor to assume the possession of land given to the donee by parol, which courts of equity will prevent ; but, aside from these, the statute of frauds renders every parol gift of lands not only voidable, but void.'-^ 372. Gift Followed by Impeovemexts. — The statute of frauds renders almost every agreement not in writing concerning lands void, the chief excej^tion being leases for three years ; but all parol agreements for the conveyance of the fee simple of real estate is not only voidable but void, and neither party can avail himself of its terms. Courts of equity, however, were not slow to notice that the enforcement of the exact terms of the statute often worked great hardships. Thus, a sale of land by parol, followed by j)ayment of the purchase-money, possession and erection of improvements thereon by the vendee, manifestly places the vendee in a very unjust position if he is compelled to yield up the possession to the vendor. So the same is true if the purchase-money has not been paid. So, too, it is manifestly inequitable to allow a donor to refuse to complete his gift when he has by his acts and words in- duced the donee to enter into j^ossession of the real estate, and such donee has expended large sums of money in im- ' Houghton r. Houghton, 34 Hiin, 212. ^ Duckett V. Duckett, 71 Md. 357. Gift of Real Estate. 375 provements and the like. Therefore, courts have adopted the rule that, if the owner of land give it away, and the donee enter into possession, and make lasting and valuable improvements, the donor will not be allowed to shield himself under the statute of frauds and reclaim the land. This is the doctrine of the Federal courts^ and of a num- ber of State courts.^ " There is no important distinction," says the New Hampshire court, " in this respect between a promise to give and a promise to sell. The expenditure of money or labor in the improvement of the land, induced by the donor's promise to give the land to the party mak- ing the expenditure, constitutes, in equity, a consideration for the promise, and the promise will be enforced," ^ Thus, a father, in the last case cited, gave his son by parol a piece of land in 1860, and the son lived thereon for twenty years, erecting improvements valued at $3,000. At his father's death the son filed a bill for specific per- formance, and it was held that he was entitled to it. So, wdiere a father jourchased the land for his son, with the distinct understanding that the latter should at once take possession, hold and use it as his own, the former repeat- edly saying that he had so purchased it for him, given it to him, and placed him in possession thereof; conducting himself toward the son, as if the latter owned it, for seven years ; the son paying the taxes, which were assessed to him ; the father introducing the son to insurance agents as the owner of the land and the buildings thereon, which were insured in the name of the latter ; the father saying he would convey the property to the son as soon as the preliminary arrangements for a deed had been perfected ; and the son, under the faith of the promise, making im- ^Neale v. Neale, 9 AVall. 1. ^ Dawson v. McFaddin, 22 Neb. 131 ; Guynn v. McCauley, 32 Ark. 97 ; Truman V. Truman, 79 la. 506 ; Jones v. Tyler, 6 Mich. 364. ^Seavey v. Drake, 62 N. H. 393. 376 Gifts. provements to the dwelling-house to the amount of $3,000 — the farm originally costing near $12,000 — the gift was held to be perfected, and specific performance was decreed.^ 1 Hardesty v. Richardson, 44 Md. 617 ; S. C. 22 Am. Rep. 57. Cases in Mary- land supporting this case are Haines v. Haines, 6 Md. 435 ; Shepherd v. Bevin, 9 Gill, 32 ; affirming 4 Md. Ch. 133. Freeman v. Freeman, 43 N. Y. 34 ; S. C. 3 Am. Rep. 657 (a good defense in an action of ejectment), affirming 5 Barb. 306; Kutz v. Hibner, 55 111. 514; S. C. 8 Am. Rep. 665 ; Syler v. Eckhart, 1 Bin. 378. Such a gift is more in the nature of a contract. In fact, it has been said that the donee " is a purchaser for a valuable consideration;" and that "it is inaccurate language to call such a contract a gift, and confusion of terms is very apt to breed confusion of ideas:" Moore v. Small, 19 Pa. St. 461, 469; Langston v. Bates, 84 111. 524; S. C. 25 Am. Rep. 466; Van Arsdale v. Perry, 21 N. Y. Wk. Dig. 116; Manly V. Howlett, 55 Cal. 94 (in an action of ejectment, such a defense must usually be especially plead) ; Moore r. Pierson, 6 la. 279; S. C. 71 Am. Dec. 409; Pat- terson V. Copeland, 52 How. Pr. 460; Dozier v. Matson, 94 Mo. 328 (father after- ward became insolvent); Rumbolds r. Parr, 51 Mo. 592 (father afterward be- came insolvent) ; Murphy v. Stell, 43 Tex. 123 (overruling Boze v. Davis, 14 Tex. 331 ; Hendricks v. Snediker, 30 Tex. 296 ; Curlin v. Hendricks, So Tex. 225) ; Crosbie v. M'Doual, 13 Yes. 148 (often cited) ; Burton v. Duffield, 2 Del. Cli. 130 ; Porter v. Allen, 54 Geo. 623 (put upon the ground of a purchaser for value). Where a father put his son in possession under a promise to give the land; the son improved it, and then the father died ; it was held that the son was entitled to have that land setoff to him as his share of the estate, if it did not ex- ceed that amount; and perhaps he was entitled to it any way: Biehn v. Biehn, 18 Gr. Ch. 497. Sucli transactions are more contracts than gifts, if coupled with a condition to support the donor: Townend r. Toker, 1 Ch. App. 416 ; 12 Jur. N. S. 477; 35 L. J. Ch. 60S; 14 W. R. 806; 14 L. T. N. S. 531; Lafollett v. Kyle, 51 Ind. 446 ; Campbell v. Mayes, 38 la. 9; Faxton v. Faxon, 28 Mich. 159 (a promise not to enforce a mortgage against land if A would live thereon and support a family; held a valid gift of the mortgage) ; Hill v. Chambers, 30 Mich. 422 (for support); Sower v. Weaver, 84 Pa. St. 262 (long possession in donee is always a potent factor) ; Lester v. Lester, 2S Gratt. 737 (for support) ; Stanton v. Miller, 58 N. Y. 192, reversing 1 T. & C. 23 ; McCray v. McCray, 30 Barb. 633; Hart V. Hart, 3 Des. Eq. 592 ; Greenfield's Estate, 14 Pa. St. 489 ; Willis v. Mat- thews, 46 Tex. 478; Shobe v. Carr, 3 Munf. 10; Stokes v. Oliver, 76 Va. 72; Halsey v. Peters, 79 Va. 60; Griggsby v. Osborn, 82 Va 371 ; Beall v. Clark, 71 Geo. 818; Jones v. Clark, 59 Geo. 136; Irwin v. Dyke, 114 111. 302; Warren v. Warren, 105 111. 568 (for services rendered donor) ; Packwood v. Dorsey, 6 Rob. (La.) 329 (see for requisite formalities under code) ; Deschappelles v. Labarre, 3 La. Ann. 522 (confirmation by heirs under Louisiana code). There are a few cases in which it is held that there cannot be a parol gift of lands. Occasionally a case is cited as holding that view, which upon close examination is found to have gone off on some question essential to the enforcement of a parol gift, leaving untouched Gift of Real Estate. 377 So where a son was to go on an eighty-acre tract, improve it, paying a certain share of the crops during the father's life, at whose death the son was to have it, a decree for specific performance was entered against the heirs.^ So where a cemetery lot was purchased by a husband, to be used as a place of burial for himself, his wife, and family ; and both he and she expended money thereon, greatly improv- ing it ; and her son and parents and his brother were buried therein ; it was held that a court of equity would enjoin a sale thereof by the husband upon her petition, chiefly upon the principle that it had been devoted to the 23ur|)Ose of a family burial-place and his action had in- duced her to expend a large sum of money thereon.^ So where J. W. B., a widower, a locatee of the Crown, agreed with J. B., his son, to assign his interest in the land on condition of the son making certain payments and per- forming certain services, which were all duly made and jDcrformed ; and afterward the patent was issued in the name of J. B., by which name the father was known to the officers of the land-granting department ; but before issuing the patent the father married, and the son, in addition to making the payments and j^erforming the serv- ices, erected valuable improvements, it was decided that the second wife was not entitled to dower in such land, the the general question. Thus in Alabama equity will not enforce the specific exe- cution of a parol gift of land : Conn v. Prewitt, 48 Ala. 636 ; Pinckard i'. Pinckard, 23 Ala. 649; Evans v. Battle, 19 Ala. 398; Forward v. Arrastead, 12 Ala. 124; Collins V. Johnson. 57 Ala. 304 ; Hubbard v. Allen, 59 Ala. 283 ; Ridley v. McNairy, 2 Humph. 174 ; Rucker v. Abell, 8 B. Mon. 566. For other cases touching parol gifts of real estate, see Harrison v. Harrison, 15 S. E. Rep. 87 ; Crittenden v. Canfield, 87 Mich. 152; Blalock r. Miiand, 87 Geo. 573; Wootters v. Hale, 19 S. W. Rep. 134 (gift to infant) ; Sourwine i'. Claypool, 138 Pa. St. 126. 1 Smith V. Yocum, 110 111. 142; Bohanan v. Bohanan, 96 111. 591 ; McDowell V. Lucas, 97 111. 489 ; Langston v. Bates, 84 111. 524. Such instances are more a contract than a gift, and they are so treated : Knapp v. Hungerford, 7 Hun, 5SS. '^ Schroder v. Wanzor, 36 Hun, 423. 378 Gifts, father being a trustee for the son.^ So where a father put his son in j)ossession of a j^lantation and slaves, and per- mitted him for three years to appropriate the crops for his own use, it was hekl that the cro]) of the fourth year, as well as the 23receding three, were to be considered as gifts from the father to the son, and liable to the claims of the latter's creditors.^ A father desired to give his daugh- ter, on her marriage, a sum of money, but she preferred the gift to be in land. He then gave her husband a sum of money, and he told his wife of its receipt, and, Avith her consent, used it in his business. A year after- ward the father and husband purchased a farm together, l^art cash and part on time, and a bond for a deed was executed to the father, the deed to be made to him alone. The daughter and husband took possession of the farm with the father's consent, and so remained until suit brought. The husband became insolvent, and the father by deed gave the land to a son, in trust for the daughter during her life, and remainder to her child. The daughter sought to set the deed aside, and procure a conveyance in her favor ; but the court held that at the best she was entitled to such an interest as her money bore to the entire pur- chase-money ; and as to the remainder there never was a gift.^ So where a father verbally gave his married daugh- ter land and put her and her husband into possession of it, and shortly after the land was sold by the daughter and her husband, the father ratifying the sale by the execu- tion of a deed therefor to the purchaser, and the husband received the purchase-money and delivered it to the daughter, his wife, this was held to be a good gift of the proceeds.* 1 Barns v. Burns, 21 Gr. Ch. (U. C.) 7. ^Skinner v. Skinner, 4 Ired. L. 175. 3 Crawford v. Manson, 82 Geo. 118. *Chacliere v. Dumartrait, 2 La. 40. A verbal agreement between a brother and Gift of Real Estate. 379 373. Expenditure of Laboe. — An expenditure of labor upon the land is sufficient, if of a suitable kind. If the condition is to put up certain kind of improvements, then it is immaterial how they are put up — whether by the expenditure of money or labor, unless there is a sj^ecific stipulation to that effect. And even where no stipulation whatever is made with regard to the expendi- ture of money or labor, it is immaterial what kind of labor is performed, so long as it is of that character or kind which the donee would not have expended if the property had not been given to him, and which an owner himself would be likely to have done. Labor expended to clear up a farm in the forest, or to drain swampy land, or to break and bring into subjugation wild prairie land, is as potent in rendering the gift irrevocable as the build- ing of fences, houses, or barns.^ 374. Donor Stipulating for Expenditure on the Land Given. — Where the donor stipulates for the ex- penditure of money or labor upon the premises given, especially where specifically designated in amount, the gift is held peculiarily binding upon the donor. " And equity protects a parol gift of land, equally with a parol gift to sell it, if accompanied by possession, and the donee, a sister that the latter will give her land to tlie former in consideration of 8100 per vear and her living with him on the land, wliicii she does for m::n\- years, during which time she makes declarations tliat she intends her brother to have her land at her death, is neither a gift nor a valid contract : Glass v. Gaines, 17 S. W. Rep. 161 ; S. C. 15 S. W. Rep. 877. A father desiring his married daughter to have a house, told her to look at one, which she did, and he tlien said to her: '' It is for you I am buying it." He bought it, and took title in his own name. She made some improvements, not exceeding the rents, lived in the house for three or four years, during which time the father paid the taxes, except for one year. It was held tliat there was no gift: Schoonmaker v. Plummer, 20 N. E. Rep. 1114. 1 Neale v. Neale, 9 Wall. 1 ; Dawson t'. McFaddin, 22 Neb. 1.31; Stewart v. Stewart, 3 Watts, 253 ; Hardesty v. Richardson, 44 Md. 617 ; S. C 22 Am. Rep. 57. 380 Gifts. induced by the promise to give it, lias made valuable im- j^rovements on the property. And this is particularly true where the donor stipulates that the expenditure shall be made, and by so doing this makes it the consideration or condition of the gift." ^ Thus where a father agreed with a son, that if he would go onto a twenty -five acre woodland, clear up a i^art of it and live thereon, he would give him a deed for it as soon as he had done a certain portion of the work ; and the son took possession, cleared it up, paid the taxes, and erected valuable buildings thereon, the father was not permitted to resume possession thereof.^ Indeed, it is said that in such an instance the donee is a purchaser for a valuable consideration,"^ and so in fact he is ; and the later and better authorities treat the entire transaction as a contract and not as a gift. 375. A Promise to Give is Not Sufficient — Donor Retaining Control of the Property. — It is well, in this connection, to distinguish between a mere promise to give in the future and the act of gift itself. " A mere in- tention, though expressed, as to a future disposition of a man's property, creates no legal obligation upon him to carry out that intention ; and until the intended gift is made, he may change his mind respecting it." This was said in a case where a father promised a son to give him a tract of land for past services ; and when the son de- sired and did take j)ossession, refused to give him a deed for the tract, because he was dissatisfied with his marriage. But the son took possession, and improved the land. The ^Neale v. Neale, 9 Wall. 1; Dawson v. McFaddin, 22 Neb. 131; King i-. Thompson, 9 Pet. 204; Bright v. Bright, 41 111. 97 ; France v. France, 4 lialst. Eq. (N. J.) 650 ; Lobdell v. Lobdell, 36 N. Y. 327 ; S. C. 33 How. Pr. 347 ; 4 Abb. Pr. (N. S.) 56 ; Freeman v. Freeman, 8 Amer. L. Reg. (N. S.) 29. ^ France v. France, 4 Ilalst. Eq. (N. J.) 650 ; Lobdell v. Lobdell, m'pra. 3 Moore v. Small, 19 Pa. St. 461. Gift of Real Estate. 381 court declined to grant liim relief.^ So where a testator placed his two sons in possession of certain portions of his land, intending to convey or devise the same to them, but retained full control of the proj^erty, notwithstanding which they made valuable improvements upon their re- spective portions, it was decided that they neither took the land, nor were they entitled, to pay for the imi^rovements.^ Thus a mother urged her son, about leaving home, to re- main, work on the farm, assist her in bringing uj) the family, and she would give him the south half of the farm, and the other half to a younger brother, on condi- tion that the former would supjDOrt her during life. In consequence of this promise he remained with the family and built a brick dwelling on the south half of the farm, of which house he agreed and did give to his mother a certain part for her use and the use of a granddaughter living with her. The brothers and sisters were all aware that this brother claimed under the alleged agreement or promise ; and the south half of the farm was always des- ignated as his. The son fulfilled his part of the agree- ment, until his mother died, seven years afterward. But this was held not to entitle him to a specific performance of the agreement, the mother having died without execu- ting a deed therefor ; because the agreement to convey was only a promise or expectation held out to the son to induce him to remain with her, and as such, was not capable of being specifically enforced.^ While represen- tations made by one party and acts done by another u])on the faith of such representation may constitute a contract which will be siDCcifically executed ; yet where the i-epre- 1 McKay v. McKay, 15 Gr. Ch. (U. C.) 371. * Foster V. Emerson, 5 Gr. Ch. (U. C.) 135. Upon another point, tliis cnse is probal)ly no longer an authority. See Keffer v. Keffer, 27 C P. U. C 257. ^Orr V. Orr, 21 Gr. Ch. (U. C.) 397. See the other phase of this case in Orr v. Orr, 31 Q. B. U. C. 13. 382 Gifts. sentations are merely of a future intention, as to which the 2^arty refuses to bind himself by contract, the engage- ment must be regarded rather as of an honorary charac- ter, and not enforceable as such in a court of equity.^ " Such a promise or gift in the case of a parent, in its very nature leaves to the donor a locus penitentice, a right to change and revoke or modify the gift, a right which the exigencies of his fortune or his family may make it projDer for him to exercise." ^ 376. Gift or Contract. — It is very often difficult to determine whether a transaction shall be viewed as a gift or a contract ; in fact, many of them are partly gifts and partly contracts. Thus S, intending to give F certain lands, executed an instrument for the sale and conveyance of the lands to her on payment of $1,100, which she agreed to pay. It was never intended that she should pay anything, and S subsequently indorsed ujjon the in- strument a receipt in full of the 23urchase price ; no money was in fact paid. It was decided that this was not a voluntary agreement to convey, that it was for a valuable consideration, and did not operate as a gift of the land, and conclusively rebutted an intent to make a present of the land ; but was a present of the debt, the receipt operating as a valid gift of the debt, leaving the right of F to a conveyance in force, as if the debt had been 1 Cox V. Cox, 26 Grntt. 305. 2 Taylor v. Staples, 8 R. I. 170; S. C. 5 Ara. Rep. 556; Rucker v. Abell, 8 B. Men. 560 ; PInchard v. Pinchard, 23 Ala. 649 ; Adarason v. Lamb, 3 Blaekf. 446 ; Pope i;. Dodson, 58 111. 360. Courts will not enforce an unexecuted gift, nor an executory decree in its nature a family settlement ; if the decree provides witliin itself no means for its execution, seems to be an imperfect creation of a trust or gift, it will not be enforced, even if such had been intended ; and when voluntary, it is subject to revocation : Wadhams r. Gay, 73 111. 415. It is especially true that the gift is not binding when the use of the property is ample compensation to the promisee for his improvements and taxes paid: Walton r Walton, 70 111. 142; Hickman v. Grimes, 1 Marsh. (Ky.) 80 ; McMahill v. McMahUl, 69 la. 115. Gift of Real Estate. 383 paid.^ A concession of land by the public to an individual if he will fence and build upon it, is a gift ; although he is required to pay the government the cost of surveying and patenting it."^ 377. DoxoR Inducing Donee to Change His Con- dition — Will — Contract. — If a donor, by promises, in- duces the donee to change his position, to his detriment, after the change is made the donor can be compelled to make his promises good. The relation between them then becomes one of contract. Thus it has been said : "A representation may be so made as to constitute the ground of a contract. But is it so here ? Where a person makes a representation of what he says he has done, or of some independent fact, and makes that representation under circumstances which he must know will be laid before other persons who are to act on the faith of his represen- tation being true, and who do act on it, equity will bind him by such representation, treating it as a contract. Suppose that this gentleman had on the eve of the mar- riage said to the appellant : ' You may safely enter into this marriage, for I have executed a deed by which I eno-ao-e to leave you such and such estates.' If on the faith of that representation the nephew had married, the uncle would then have made a representation on which he knew that his nephew would act, and it would be a fraud on the nephew, or on those who deal with him, and come after him, to set up as an answer that that was a mere in- tention which he had entertained at the time. The uncle would, in fact, have made a contract, and he would be compelled to make it good, for he would have made a 1 Ferry v. Stephens, 66 N. Y. 321 ; reversing 5 Hun, 109. See Gray r. Barton, 55 N. X. 68. ^Noe V. Card, 14 Cal. 576; Scott v. Ward, 13 Cal. 458; Chew v. Calvert, 1 Walk. (Miss.) 54. Contra, Yates v. Houston, 3 Texas, 433. 384 Gifts. representation with a view to induce others to act upon it, and on the fiiith of it they had, at the moment, acted. That would be a representation which, under the circumstances I have stated, would be in fact a contract. There is no middle term, no tertium quid, between a rep- resentation so made, to be effective for such a purjiose and being effective for it, and a contract ; they are identical. That which leads to the representation being made and acted on determines its nature, gives it the character of a contract, or leaves it a mere representation." ^ Relying upon these rules it was decided in Canada that where the owner of real estate wrote to his son that he had devised certain portions of the property to him, and expressed a desire that he would leave his then place of residence and settle on the devised property, by the devisor, and that if he did so the will should in that respect remain un- changed ; and the son, acting ujDon the desire of the father, left his residence and went to live beside his father, it was held that the will was no longer revocable.^ So a promise was made to give B a certain tract of land in case he married C, and after the marriage a bond was exe- cuted to that effect, containing a recital that the obligor desired the land to go to the male issue of B and C. It was held that the only female issue of B and C, on its father's death, its mother joining therein, could enforce a specific ^performance of the contract, and that the clause with relation to the descent of the property to the male issue was not obligatory upon the donees.^ As a rule, 1 Mannsell v. White, 4 H. L. Cas. 1039 ; S. C. IJ. & L. 539 ; 7 Tr. Eq. E. 413 ; Dillwyn V. Llewelvn, 8 Jiir. N. S. 1068; S. C. 10 W. R. 742; 6 L. T. N. S. 878; 4 De G., F. & J. 517 ; Jordan v. Money, 5 FT. L. Cas. 185 ; S. C. 23 L. J. Cli. 8G5 ; Money v. Jordan, 2 DeG., M. & G. 318 ; S. C. 21 L. J. Ch. 893 ; Hammersley v. De Biel, 12 CI. & F. 45 ; affirming 3 Beav. 469 ; Coles v. Pilkington, 44 L. J. Ch. 381 ; S. C 19 L. R. Eq. 174. 2 Fitzgerald v. Fitzgerald, 20 Gr. Ch. (U. C.) 410. 3 Boyd V. Shouldice, 22 Gr. Ch. (U. C.) 1. Gift of Real Estate. 385 however, mere entry into j)ossession, unless, possibly, under some very unusual and exceptional circumstances, will not warrant a decree of specific j^erformance.^ Thus where the owner of land said to the claimant, who was in possession of the house and lot : " I give this to you ; you may do as you please with it," in substance, giving her the keys, and within a year the house burned down, and the plaintiff moving away for shelter to another house, the owner's widow entered on the lot and built a new house on the site of the old one, and the claimant, when the new house was completed, moved into it surreptitiously by the back door late in the evening, it was held that there was no completed gift, even though the gift was coupled with a condition that the claimant was to take care of her own child. This condition was regarded as not adding anything to the force of the gift, for the claimant was in duty bound to do so any way, and the promise raised no consideration for the gift.^ 378. Gift Not Inducing Donee to Change His Condition nor to Expend Money or Labor Thereon. — Since the gift is held good in equity upon the ground that it has induced the donee to change his situation or condition, or to expend money or labor upon the land given, so that it would be inequitable to allow the donor to rescind it, it necessarily follows that if it has not induced the donee to change his position, nor to ex- pend labor or make valuable improvements thereon, the gift is void, and cannot be enforced neither against the do- nor or against his creditors.^ 379. Slight or Trivial Improvements — Rents a Full Compensation. — If the improvements are slight or 'Ogsbury v. Ogsbury, 115 N. Y. 290, 295. ^Anson v. Townsend, 73 Cal. 415. * Stokes V. Oliver, 76 Va. 72; Griggsby r. Osborn, 82 Va. 371. 25 386 Gifts. trivial, when there is no agreement touching them, or the labor nothing beyond the cultivation of the soil, or insig- nificant in comparison with the value of the land, there is no equity raised in favor of the donee. The rule even goes farther. For if the rents and profits derived by the donee from the land by virtue of his possession are a suf- ficient return for the money or labor expended in perma- nent improvements, equity will not decree a S23ecific performance. But it is clear that only profits in such an event can be taken into consideration, using the word rents in that sense ; for if the profits were not equal to the labor expended or exjoense incurred in securing them, or if they were no more, then the donee would reap noth- ing for his labor or money expended in permanent im- provements ; and it would be a manifest injustice to not compel the donor to perfect his gift.^ But it will not do to allow the profits to bear too much weight ; for, as it has been held, compensation for the improvements or labor is not a bar to an action for a specific j)erformance."^ Indeed, it was held in one case that the improvements must add to the permanent value of the land ; ^ and where the benefits to the donee by the possession of the land exceed his expenditure upon it, a specific performance will ^ No particular case can be cited for all the distinctions drawn in the above section, but the sum total of the bulk of these cases are as we have stated the rules therein: Dawson v. McFaddin, 22 Neb. 131; Hardesty v. Eicliardson, 44 Md. 617; S. C. 22 Am. Rep. 57 ("'improvements of considerable extent") ; Eckert v. Eckert, 3 P. & W., p. 332 ; Young v. Glendenning, 6 Watts, 509 ('slight and tem- porary erections for the tenant's own convenience doubtless give no equity"); Atkinson v. Jackson, 8 Ind. 31; Burns r. Sutherland, 7 Barr, 103; Moore v. Small, 19 Pa. St. 461, 470; Moore v. Pierson, 6 Iowa, 279; S. C. 71 Am. Dec. 409; Porter v. Allen 54 Geo. 623; Ackerman v. Ackerman, 24 N. J. Eq. 315; affirmed, lb. 585; Ogsbury v. Ogsbury, 115 N. Y. 290. ^ Young V. Glendenning, 6 Watts, 509 ; S. C. 31 Am. Dec. 492, citing Forster r. Hale, 3 Ves. 696. ^If the improvements were destroyed after erected by the donee, that could in no wise affect the case afterward brought, for the donee is still a greater loser by not having the gift enforced. Gift of Real Estate. 387 not be decreed.^ When the donor and donee are related by blood, slight improvements, if valuable and permanent in character, will be sufficient.' The improvements, how- ever, must not only be substantial, permanent, and valu- able, but such as an owner would ordinarily make upon the estate under like circumstances ; yet, whether slight or extensive, they will not serve the purpose unless of real value, nor unless they were made by or for the donee pending his possession, and upon the faith of the jiarol gift sought to be set up and enforced.^ 380. Expenditures Must be Made in Consequence OF AND Relying Upon the Gift. — Since the courts en- force the gift by decreeing a specific performance, because of the fact that the words and the acts of the donor have induced the donee to sj^end labor and money that he would not have otherwise done, it must be clearly shown that the expenditure was made in consequence of the gift ; or, perhaps, in part in consequence of it."^ Thus a promise to give a farm by will, followed by expenditure in im- provements, not, however, in execution of the contract or at the promisor's request, cannot be enforced.^ 381. Gift After Improvements Made or Labor Expended. — The improvements must have been made or MVack V. Sorber, 2 Whart. 387; S. C. 30 Am. Dec. 269; Glass v. Gaines, 17 S. W. Rep. 161 ; S. C. 15 S. "\V. Rep. 877. ^ Hughes V. Hughes, 72 Geo. 173. ^ Porter v. Allen, 54 Geo. 623. ■* Dawson v. McFncklin, 22 Neb. 131 ; Guynn v. McCauley, 32 Ark. 97 ; Griggsby r. 0. Orr, 31 Q. B. U. C. 13. 'Jackson v. Rogers, 2 Cai. Cas. 314; Eoykin r. Smith, 65 Ala. 294. * Collins V. Johnson, 57 Ala. 304; Moore v. Webb, 2 B. Mon. 282. 392 Gifts. however long continued, does not become adverse, until asserted so openly and notoriously so as to raise the pre- sumption of notice to the donor ; and if, after his father's death, he as administrator joins with his co-administrator in obtaining an order for the sale of the lands, this is a distinct recognition of his father's title, and his subsequent possession is held in subordination to it as purchaser.^ But where it was shown that a single woman took j^os- session of the land under an alleged verbal gift from an uncle, and occupied them for twenty years, but never did anything without consulting him, during that period ; that she told her friends she owned the land, and actually let a portion, with his approval, and collected the rents ; that, as she testified, " as regards the tenants, to them I always acted as owner ;" that the members of her father's family, who lived with her part of the time, paid her no rent ; that she did " papering or whitewashing, or some- ^ Boykin v. Smith, 65 Ala. 294. It is well to observe that in Alabama no ac- tion can be maintained to specifically enforce a parol gift of lands : Conn v. Prewitt, 48 Ala. 636 ; Bakersfield, etc., v. Chester, 55 Cal. 98 (in a claim of ownersliip asserted and maintained). Under the Georgia code, in case of a claim of a gift by a son from his father, the former must show tliat he had an exclusive pos- session, without the pavment of rent, continuously for seven years during the lifetime of the father ; and if the father die before the seven years are completed the conclusive presumption of ownership provided for therein does not exist : McKee v. McKee, 48 Geo. 332 ; Beall v. Clark, 71 Geo., p. 818. But this with relation to the length of time, applies to an instance where no valuable improve- ments are made; for if valuable improvements are made the seven years' limi- tation does not apply : Hughes v. Hughes, 72 Geo. 173. The presumption is not confined to a gift by writing ; it arises in a parol gift. The assertion of dominion by the father relates to that over the ]>roperty itself, and not merely over the paper title : Johnson v. Griffin, 80 Geo. 551, modifying Jones v. Clark, 59 Geo. 136. In Walsh v. Mclntire, 68 Md. 402, it was held '"'that a party cannot acquire a title, which is maintainable at law, by parol gift fullowed by actual possession, no matter how long and exclusively continued." Contra, Davis v. Bowmar, 55 Miss. 671. That a party going in possession under a parol gift may obtain possession by adverse possession, see Thompson v. Thompson, 20 S. W. Rep. 373; Spradlin v. Spradlin, 18 S. W. Rep. 14 ; Davis v. Davis, 68 Miss. 478. Gift of Real Estate. 393 thing like that " to the premises ; that her uncle paid the family expenses before and during the twenty years, she claiming she was the owner of the land till he died ; that he paid for insurance, water-rates, repairs, and taxes, which were assessed to him, and afterward to his heirs ; and that sisters and uncles, who acknowledged his owner- ship), occupied part of the premises rent free before and after she took possession, one of whom, as alleged donor's agent, collected rents of certain tenants, contracted for re- pairs, and paid therefor with money furnished by him ; it was decided not to authorize a finding that the tenant acquired a title by adverse possession/ Yet where there was evidence of a parol gift, and exclusive possession by the donee for twenty years, under a claim of ownership, the donor making no claim for rent or otherwise, the donee moving and repairing the buildings, putting a lightning-rod on the house, rebuilding fences, setting out fruit trees, employing men for nearly two years in cut- ting off bushes, always j^aying the taxes, frequently work- ing for the donor, and always receiving pay therefor, no part being retained, or attempted to be retained, for rent of the premises, and the donor paying for the pasturage of his cow on the premises ; it was held that there was evidence from which a jury was justified in finding that the donee had title by adverse possession.^ 384. Confirming Gift by Will. — It is no uncommon thing for a donor to confirm a gift, by the subsequent ex- ecution of his will, expressly devising the land given to the donee. In such an event, the donor does what the law would have compelled him while alive to do, or woukl compel his heirs to do. He does not, by the will, give the 1 Duff V. Leary, 146 Mass. 533. ^ Wheeler v. Laird, 147 Mass. 421. 394 Gifts. land to the donee ; that he has already done ; but he gives him the legal title, as distinguished from the land itself. He gives him no better control over the physical thing than he gave before ; but he simj^ly clothes him with the legal title and nothing more.^ 385. Title Acquieed by Donor After Gift Made. — A donor had possession of land, but no title thereto. His right to the land was an inchoate one, for it was government land ; but he had reasonable and well- grounded hopes, founded on the laws of Congress, that his title would be made j^erfect, and be completed, either by a donation from the government, or by a right of pre- emption. While thus in j^ossession, he gave it to the donee, put him in possession, and afterward received from the government a certificate of confirmation, sjDecifying the location of the claims. Under these circumstances it was held that the donor could be compelled to transfer all his rights to the laud to the donee, even before a patent was granted.'"^ 386. Possession by the Donee Must be Clear. — In order to entitle him to relief, the donee must have clear possession of the land he claims. Indeed, it is said that it " must be very clear and definite, such as would characterize the action of an owner and be inconsistent with the hypothesis of a mere license ; for in this class of cases equity dispenses with a writing only when definite and unequivocal facts exist which point with certainty to a prior parol agreement of gift or sale and serve to indi- cate its existence, and so may be taken as a substitute for the usual written evidence." Consequently a mere ^ Daniel v. Frost, 62 Geo. 697. See Dunnage v. White, "Wils. Ch. 67. 2 Rhodes v. Rhodes, 10 La. 85 ; Burns v. Burns, 21 Gr. Ch. (U. C.) 7. Gift of Real Estate. 395 license to cut wood and boil sugar-water was held not to be such a possession as the law required.^ But where a father promised his daughter that if she would live with and care for his family he would give her his farm which they lived uj^on, and he frequently declared that the farm was hers ; and she lived thus with him thirty-eight years, he apparently managing and running the farm in his own interest entirely, it was held that she had such a posses- sion as entitled her to it at his death ; and to require her to turn him out and take an exclusive j)OSsession of it would be to require her to do an unnatural and unfilial thing, which the law does not exact in order to preserve her rights.^ 387. Gift Incomplete Without Possession Taken — Intention to Give. — As in the case of a chattel, the donee must assume the possession of the land given, in order to render the gift valid. Indeed, there must be a present intention on the part of the donor to give, a com- plete renunciation of his right and dominion over the land, without power of revocation, and a full delivery of the possession.^ 388. Gift to Wife but Possession Taken by Hus- band — Adverse Possession. — A wife cannot obtain title by adverse possession where possession is claimed by her husband. Thus, the owner of land gave it by parol to a married woman. She was married at the time, and she and her husband at once went and lived on the farm to- gether. The husband farmed it as his own, and the wife merely resided with him as his wife. It was claimed that she had title by adverse possession, but the court decided lOgsbury v. Ogsbury, 115 N. Y. 290; Griggsby f. Osborn, 82 V:i. 371. '^Warren v. Warren, 105 111. 568. 'Mims V. Eoss, 42 Geo. 121 ; Beall v. Clark, 71 Geo. 818. 396 Gifts. that if title was obtained by such a possession, the hus- band and not she obtained it.^ 389. Donor Regaining Possession. — If the donor re- gains the possession of the land given, it may or may not operate as a revocation of the gift. A temporary repos- session, however, with the consent of the donee, express or implied will not defeat the gift.^ But if the donee has taken possession, erected buildings, built im- jDrovements, or expended labor thereon, so that a court of equity could decree a specific performance of the agreement between them at the time the donor resumed jDOssession, then a forcible resumjDtion of the possession by the donor will not defeat the right of the donee to insist ujDon the validity of the gift ; yet if the donee voluntarily relinquish the possession or by some act evidencing it acquiesce therein, the donee will lose his right to insist upon the validity of the gift. He Avould, however, in the latter event, be entitled to recover the value of the improvements,^ unless he abandoned them. But if, at the time the donor forcibly resumes the pos- session, a court of equity would not grant the donee a specific performance of the agreement, then the donee is without relief; for the donor, by such an act, has revoked the gift, which he may do at any time before the court would grant the donee a specific performance of the agreement. A forcible repossession by the donee, under such circumstances, would not re-invest him with the corpus of the gift. By no act of his can that be done. ' Vincent v. Murray, 15 N. B. 375. This was upon the theory that he as her husband was entitled to the possession of her real estate; but if her disabilities were removed, would not their jointly living on the property be lier possession ? Is she bound to live apart from him, and on tlie land given, in order to acquire title? 2 Daniel r. Frost, 62 Geo. 607. 3 See Duckett v. Duckett, 71 Md. 357. Gift of Real Estate. 397 If the donee has made improvements, and the donor re- gains the possession, he will be required to reimburse the donee for his outlay.^ Where the gift was to the wife, and the husband put up improvements, the latter was allowed to recover an amount equal to the value the improvements added to the land, but was not allowed to recover for the value of the improvements.^ 390. Donee Abandoning Gift. — It is altogether possi- ble for the donee to abandon the gift after accepting it. This is peculiarly so where the gift is coupled with a con- dition, which the donee declines to perform after yielding an acceptance. Thus a father, owner of one hundred acres of land, with the view of retaining his son upon the prop- erty and settling him in life, agreed to convey to him one- half of this land, for one-third of its value, j^ayable in six years with interest, and executed a bond for that purpose. After obtaining the bond, the son w^ent to work about the country, resided several years at a distant part thereof, sometimes returning when out of work and residing in his father's family, and during such residence w^as in the habit of assisting in doing the usual work of the farm, which consisted of the one hundred acres. He paid no part of the purchase-money, but claimed that he was entitled to a credit thereon because of services thus rendered. Ten years afterward he sought to enforce the contract, but the court decided that he w^as not entitled to its enforcement ; first, because of his laches ; second, because he had aban- doned the gift." So where a son relinquished his own farm and w^ent to take care of liis Either, at his request, during his life, upon the condition of having the farm given to him ; and after remaining a few days, left tera- ^ Hamilton v. Hamilton, 5 Litt. 28 ; Kucker v. Abell, 8 B. Mon. 566. ' James v. McKinsey, 4 J. J. Mar. 625. 3 Evans v. Evans, 2 E. & A. U. C 156. 398 Gifts. porarily, and during his absence liis son and wife moved away, OAving to some disagreement between them and the donor, and the donee died before he returned, it was held that the gift, although in fact a contract, was inoperative ; nor had there been such a part performance as entitled the heirs of the donee to have it enforced/ So where the donee was to support the donor, but went into the army and died, after having supported him for twelve years; and the donee's wife, unable to agree with the donor, moved away and left the land, it was held that she, on the donor's death five years after the donee's, and the donor failing to make a will as he had agreed to, could not enforce the asrreement.'^ o 391. DoxoR Incumbering Land. — While the donee in possession will be protected from all acts of the donor im- pairing or incumbering his title, even as against subse- quent grantees or execution creditors; yet the donee will not be protected as against a subsequent mortgage given by the donor, it was held, of which such donee had full knowl- edge, as also of its foreclosure and the sale of the land thereunder, and entered into negotiations for its redemption therefrom, and made no claim to the mortgagees of the in- validity of their security as against his occupancy or title.'"^ 392. Donor Reserving Rent — Taxes Paid by Donor. — If the donor expressly reserves a yearly rent, for a term or during his life, this will not necessarily de- feat the gift. Neither does the payment of taxes by the donor defeat it. " The fact that AVilliam Lucas," said the Supreme Court of Illinois, " paid his father one-third of 1 Black V. Black, 2 E. & A. U. C. 419, reversing 9 Or. Ch. 403; McDonald r. Rose, 17 Gr. Ch. 657. 2 Cox V. Cox, 26 Gratt. 305. ' Potter V. Smith, 68 Mich. 212. Gift of Real Estate. 399 the crojDS each year raised on the land, and the latter paid the taxes, does not militate against his right to a decree. Had the payment of rent been unexplained, a different question would have arisen, but it appears, from the testi- mony, to have been a part of the contract, that one-third of the crops should go to the father during his life, and he was to pay the taxes, and at his death, the absolute title should vest in the son. The payment of rent, therefore, in this case, does not establish the relation of landlord and tenant between the parties and tend to prove that William Lucas was not occupying as a purchaser, but, on the other hand, the payment of rent was consistent with the contract under which William Lucas entered into possession of the land." ^ 393. Payment of Taxes. — The payment of taxes as- sessed against the land given is always a significant factor, of more or less weight according to the circumstances of each case. Thus where the taxes were assessed against the land in the name of the donor, the fact of the assess- ment in this way was deemed insignificant ; ^ but the fact that the donee paid these taxes many years was considered to be " a fact of much significance bearing upon the char- acter of his possession. The inference to be drawn from the fact is a strong one that all parties understood that the owners of the land should pay the taxes and bear the burdens charged upon it." ^ 394. Relationship of Doxor and Donee. — Ties of blood existing between the donor and donee are not neces- 1 McDowell V. Lucas, 97 III. 489; Smith v. Yocum, 110 111. 142; Wcrtz v. Mer- ritt, 74 la. 683 ; Wamsley v. Lincicura, GS la. 550 ; Love v. Francis, G3 Midi. 182. ^ In fact in some States taxes in such an instance of a parol gift would always be so assessed until a deed to the donee, or some one else, was put on record. ^ Fairfield v. Barbour, 51 Mich. 57 ; Davis v. Bowmar, 55 Miss. 671. 400 Gifts. sary to support tlie gift, altliougli these are often potent factors in proving it.^ 395. Gift by a Married AVoma:n" — Infant. — A mar- ried woman cannot make a parol gift of her land even if her husband join therein. There is only one way in which she can divest herself of her land, and that is by deed in which her husband joins ;^ but after the sale of her lands she may make a gift, even to her hus- band, of the jmrchase-money.^ So a gift by a minor of his lands cannot be enforced, and his declarations to that effect are not admissible in evidence against him.* 396. Donee Must Show a Definite Promise — Must Sho\v Land Given. — The donee, or those claiming under him, has the burden of showing not only a promise to convey, but a promise that is clear and certain in its terms.^ In another case from the same State it is said that " the contract should be established, by competent ]U'oof, to be clear, definite, and unequivocal in all its terms. If the terms are uncertain or ambiguous, or not made out by satisfactory j^roofs, a specific performance will not be decreed." ^ The terms and conditions of the contract " must be clear and free from all ambiguity and doubt." '^ "The gift must be definite in its terms and clearly proved. There must be no uncertainty or equivo- cation about it." ^ 1 Porter v. Allen, 54 Geo. 623 ; Ackerman v. Fisher, 57 Pa. St. 457. 2 Huffman v. Huffman, 118 Pa. St. 58. ' McGinnis v. Curry, 13 W. Va. 29. * Harvey v. Carroll, 72 Tex. 63. ^Langston v. Bates, 84 111. 524; S. C. 25 Am. Rep. 466. 6 Worth u Worth, 84 111. 442; Stanton r. Miller, 58 N. Y. 192. 'Murphy V. Stell, 43 Tex. 123. ^Griggsby v. Osbom, 82 Va. 371 ; Halsey v. Peters, 79 Va. 60. Gift of Real Estate. 401 397. Land Givek- — Boundakies. — Where the gift is by deed, there is usually no difficulty in showing the ex- act land given ; but where it is by parol, there sometimes is, especially where it is a part of a tract owned by the donor. The rule is that the donee must show the subject of the gift, with reasonable certainty. It is not, however, necessary that lines of separation should be actually run upon the ground, if from the transaction, and the distinct subsequent possession of the donee, it is possible to ascer- tain the boundaries and quantity of the land given ; or, in other words, the j^i'oof must be such as to enable the jury or court to fix the locality and boundaries so as to direct where a surveyor may divide it off from the rest of the donor's land. If the tract given has well defined boundaries, even though adjoining the donor's own land, and is known by a certain name, then the gift of the tract by name, followed by possession, is sufficient. If it is a certain quantity out of a larger tract, then the possession of a tract equal in quantity to the amount given will de- termine the boundaries,^ A failure to show the boundaries or limits of the lot will defeat the gift." Even uncertainty in this respect will defeat it ; ^ but they need not be fixed at the time of the gift, if, by act or word, the donor de- fines them afterward, such as erecting fences and the like. In the case of a gift to the public, however, courts will do their utmost to render the gift valid, going further than in the case of an individual.* 398. Sufficiency of Evidence to Establish the GriFT. — The lanfiruao-e of the courts is not the same in de- finins: or declaring: what will be sufficient evidence to 1 Burns v. Sutherland, 7 Barr, 103 ; Moore r. Small, 19 Pa. St. 461. 'Short V. M. E. Church, 11 La. Ann. 174. 3 M:irtin v. McCord, 5 Watts, 493. *McLain r. White Township, 51 Pa. St 196. 26 402 Gifts. establish the gift of land by parol. Says the Maryland Supreme Court : "The proof must be clear, definite, and conclusive as to the fact of the gift, and those acts done on the faith of it which render inequitable any attempt by the donor to avoid the gift. But where the j^roof is thus clear, and all other conditions are shown to exist to entitle the party to the assistance of a court of equity, that court will not hesitate to lend its aid, simply because the proof may rest entirely in parol." ^ "A contract," says the Supreme Court of Illinois, " to convey should be clear and certain in its terms, and established by testimony of an undoubted character, which is clear, definite, and un- equivocal." ^ " The party setting up such promise must be able to establish it by full, clear, and satisfactory evi- dence." ^ In a Pennsylvania case it was said that " the rule is settled, that as between father and child the evidence of a gift or sale must be direct, positive, express, and un- ambiguous ; that its terms must be clearly defined, and that all the acts necessary to its validity must have special reference to it, and nothing else."* AVhere the contest is between father and son, or between the son and the heirs of the father, stronger evidence is required of the father's intention to part with the ownershij) of the property than is required in cases of parol contracts between strangers in blood.^ " There are obvious reasons for this distinc- tion. The circumstances of families are subject to con- stant changes. The pecuniary relations between a father and his several children may shift not only from year to ^Hardesty v. Richardson, 44 Md. 617; S.C. 22 Am. Eep. 57; Dawson r. Mc- Faddin, 22 Neb. 131. 2 Langston i;. Bates, 84 111.524; P. C. 25 Am. Kep. 466; Worth r. Worth, 84 111. 442; Woodbury v. Gardner, 08 Me. 167. =* Murphy V. Stell, 43 Tex. 123. ^Shellhammer v. Ashbaugh, 83 Pa. St. 24 ; S. C. 34 Leg. Int. 67. '" Ackerman i'. Fisher, 57 Pa. St. 457. Gift of Real Estate. 403 year, but from month to month. The jDromise to give an estate to a child may have been founded on reasons in- volving anticij)ations never realized or j^lans never exe- cuted. Financial embarrassment, or increase in the num- ber of the members of the family, the intervention of new duties, or the misconduct of the child may justify a change in the father's purpose." ^ " Nothing is more com- mon," it is said in another case, " than that a father speaks of a farm on which he has placed his son to live, as the son's house. It is an every day's occurrence that a father speaks of having given a lot of ground to a son, when it was plain there was no intention to transfer the ownership. And such language is not confined to parol gifts. When a father says, I sold such a piece of real estate to my son, he generally means no more than that he agreed the son might have it for a consideration." ^ Probably such a strict rule does not always obtain a foot- hold. Thus it has been said that was only necessary to make out the transaction with " reasonable certainty." ^ This was said, however, of a transaction partaking both of the nature of a contract and a gift ; and a case of a contract purely was cited to support it.^ In New York it is said that the proof" should be very definite and cer- tain to serve as a basis for that equitable relief or j^rotec- tion which dispenses with a writing and disregards the statute of frauds." ^ In Georgia the following rule was announced, as the result of an examination of the cases : ^Shellliammer v. Aslibaugh, supra; Printup v. Mitchell, 17 Geo. -558. 2 Ackerman r. Fisher, supra; Ackerman v. Ackerman, 24 N. J. Eq. 315; af- firmed lb. 585. ^j^ealev. Neale, 9 AVall. 1. * Lester v. Foxcroft, 1 Colle's P. C. lOS ; S. C. 2 Vern. nom. Foxcraft r. Lister, Gilb. Rep. 4; Prec. Ch. 516, 526, nom. Leicester v. Foxcraft, 1 L. C. Eq. 768; Mondy v. Jolliffe, 5 Mjl. & Cr. 167, 177. ^Ogsbury r. Ogsburj, 115 X. Y. 290 ; Griggsby i'. Osborn, 82 Va. 371 ; Halsey V. Peters, 79 Va. 60. 404 Gifts. . " While it is not indispensable that the agreement should be established wholly by direct and positive evidence of its existence, and while it may be inferred from acts and conduct clearly referable to it, yet such acts must be of an unequivocal and unambiguous character, and must be established by testimony clear, definite, and unambiguous in its terms." ^ And the court, quoting from a previous case,^ says that the agreement " should be made out so clearly, strongly, and satisfactorily as to leave no reason- able doubt as to the agreement." ^ 399. DoxEE Must Show That He Made Impkove- MENTS OK Expended Labor Thereon. — The burden is upon the donee to show that he either made improvements upon the land given or performed labor thereon, to such an extent that it would be inequitable to not permit him to claim the land as his own.'^ Not only must he shoAV that he made improvements, but, where there is an agree- ment for a certain kind, he must show that he jDut such kind upon the land.^ 5 400. Declaration of the Donor to Prove or Dis- prove Gift. — The subject of declarations of the donor to prove or disprove a parol gift of land, or even a gift by deed or other instrument, has been treated at length else- where ; but it is proper that something be said of this sub- ^ Beall V. Clark, 71 Geo., p. 818 ; PouUain v. Poullain, 79 Geo., p. 11. "^ Printup V. Mitchell, 17 Geo. 558. 3 See Miller v. Gotten, 5 Geo. 341 ; Russell v. Switzer, 63 Geo. 711. See Tru- man V. Truman, 79 la. 506. Gift of a mining claim, what is: see Richardson v. McNulty, 24 Cal. 339. * Stewart v. Stewart, 3 Watts, 253 ; Bright v. Bright, 41 111. 07 ; Griggsby v. Os- born, 82 Va. 371 ; McDowell r. Lucas, 97 111. 489. ^ Ackerraan v. Ackerman, 24 N. J. 315 ; affirmed lb. 585; Frame v. Frame, 32 W. Va. 463. Gift of Real Estate. 405 ject in this connection. The declarations of the donor of an intention to give the land at some future time, his dec- larations at the alleged time of the gift, and his subsequent declaration in favor of it, are all admissible to prove the gift. What was said at the time of the gift, which con- stitutes the res gestw, is admissible whether establishing or disproving the gift. But the declarations of the donor made after the time of the alleged gift are not admissible to disprove it. He cannot thus build up title in himself/ Nor can it be shown that the donor, after the gift, in- cluded the land in a list of his property as his own.^ But declarations of ownership in the jDresence of the donee are admissible.^ 401. Acts and Conduct of Donor and Donee. — The acts and conduct of the donor and donee are, with reference to the thing given, always the subjects of inves- tigation, with the limitation that an act of the donor per- formed subsequent to the time of making the gift, in dis- paragement of the donee's title, not performed in the pres- ence of the donee, may not be shown to defeat the gift. In fact, a parol gift of land may be inferred from acts of an unambiguous and unequivocal character.* There are many cases supporting the general rule of this section.^ The character of the possession of the donee is always the subject of investigation, and the acts of the parties with reference to such possession necessarily after the gift is 1 Porter v. Allen, 54 Geo. 623; Hughes v. ITiiRhes. 72 Geo. 173; Davis v. Bow- mar, 55 Miss. 671 ; Warren v. Warren, 105 111. 568, 572. ^Duff !). Lenry, 146 Mass. 533. ^Hugus V. Walker, 12 Pa. St. 173 Evidence of an old French custom of the early settlers of Detroit to give their farms to their eldest son is not admissible to establish such a gift in a particular case, where no direci evidence of a gift has been given : Oilman v. Rinpelle, 18 Mich. 145. *Poullain v. PouUain. 76 Geo. 420; Ferry v. Stephens, 66 N. Y. 321. ^ Warren i-. Warren, 105 Til. 568 ; Davis v. Bowmar, 55 Miss. 671 ; Jones v. Clark, 59 Geo. 136 ; Hughes v. Hughes, 72 Geo. 173. 406 Gifts. made are always admissible, with the limitation above stated. But the treatment at any time by the donor and donee, jointly, of the estate is always admissible; for it is in the nature of an admission by the donee or donor, as the case may be. 402. When Donee Takes Land Without the In- cumbrance Thereon. — A donee of land incumbered takes it without the incumbrance thereon ; and if he pays the incumbrance he can recover the amount paid from the donor or his estate. Thus where a father promised his daughter to give her an estate upon her marriage, and afterward he did so, giving her an incumbered estate, which incumbrance she was compelled to jDay off, it w\^.s held that she was entitled to file a claim against her father's estate for the amount paid with interest.^ But, of course, the donor may, by express words or the like, give the land subject to the incumbrance ; or make it a condition of the gift that the donee procure its dis- charge. ■&' 403. When Donee Acquires a Title to the Land Given — Judgment Lien. — It is a question of some im- portance to ascertain just when the donee acquires a title to the land given, or when the title becomes vested in him. Until a gift is completed the title remains in the donor ; and a judgment against him is a lien on the land. The gift is completed, however, the earliest moment at which the donee can compel the donor to give him a deed for the property. Thus where the gift w^as made (by parol) in 1865, a judgment taken against the donor in 1867, and the land levied ujDon, under this judgment, and sold ^Ungley v. Ungley, 4 Cli. Div. 73; S. C. 46 L. J. Ch. 189; 25 W. R. 30; 35 L. T. N. S. 619 ; 19 Moak. 678 ; affirmed 5 Ch. Div. 887 ; S. C 46 L. J. Ch. 854 ; 25 W. R. 733 ; 37 L. T. N. S. 52. Gift of Real Estate, 407 in 1873, the sale was held valiJ.^ But if the title has 23assed, a judgment taken thereafter is not a lien on the land ; nor has the administrator of the deceased donor, or his widow for her support, any interest in the land.^ So a judgment against the donee is no lien on the land until he has acquired title to it.^ 404. Rights of Creditors of Donee. — No one is authorized to give a donee credit upon the mere fact of the latter being in possession of the land claimed to have been the subject of the gift. He must act at his peril. But if he go to the alleged donor before advancing any- thing of value upon the faith of the donee's possession and is informed, upon inquiry, by the donor that the property is that of the donee, then he may rely upon such statement and fully credit the donee ; for the donor, as against such j^erson and those claiming under him, will be estopped to deny the donee's title.* 405. Kind of Action — Ejectment — Trespasses — Trial by Jury. — Many of the cases touching the validity of a parol gift of land have been cases brought to enforce a specific performance of the contract of gift by the donee against the donor or his heirs. This, of course, is in a court of equity. In many other instances the donor brought an action of ejectment, and under the codes the donee was allowed to defend the same as if he had the legal title ; while in others there was an application for a stay of proceedings until a court of equity could be ap- pealed to for relief; and still in others a bill for a specific performance was allowed, under the code, as an answer or ' Jones V. Clark, 59 Geo. 136 ; Hughes v. Berrien, 70 Geo. 273 ; Johuson v. Griffin, 80 Geo. 551. 2 Ilnj^hes V. Hughes, 72 Geo. 173. ' Harvey v. West, 87 Geo. 553. * Hugus i;. Walker, 12 Pa. St. 173. 408 Gifts, cross-bill to the declaration or complaint.^ The practi- tioner will have no trouble in determining the relief to seek in his own particular State. A donee in possession, however, even in a State where he can acquire no title as against the donor, may maintain ejectment against a stranger or an action for damages against any one (except- ing the donor where he acquires no title as against him) who commits waste or damages the land given.^ The jury, on such trial, are to determine whether the facts, proved sufficiently, establish a gift.^ 406. Compensation in Damages. — Where the position of the donee is such that he can be adequately compen- sated in damages, the donor may reclaim possession of the land, and a bill for specific performance will not lie in behalf of the donee.* But upon this point there is such a wide discussion in the reports that we cannot afford to enter upon the question, esi^ecially as it lies beyond the plan of this work. We cannot refrain, however, from making a quotation from a Georgia case, viz. : "All the courts require is proof of the agreement, and that it has been so far partly executed as to let the purchaser into the possession under it, and that he has made valuable improvements on the land, and a performance will be decreed. To allow parties, in avoidance of this rule, to go farther and inquire whether injury has in fact resulted, or whether the corresponding benefits already received have not fully compensated for the change of possession and improvements, in order to bring the case back within the operation of the statute, would be to inaugurate an ' Howell V. EUsberry, 79 Geo. 475. ^Trammell v. Simmons, 17 Ala. 411; Badger v. Lyon, 7 Ala. 564; Conn v. Prewitt, 48 Ala. 636. 3 Burns v. Sutherland, 7 Barr, 103; Moore v. Small, 19 Pa. St. 461. * Moore v. Small, 19 Pa. St. 461. Gift of Real Estate. 409 entirely new rule on this subject and add greatly to the complication of this already embarrassing question, and would be wholly changing the rights of the parties under the agreement. Such an inquiry would always arise in those cases where a bare possession is relied upon to take the case out of the statute ; and that has always been held to be sufficient for that purpose, yet the inquiry never has been gone into, or if so, has universally been disallowed by the courts. The question of compensation in lieu of specific perform- ance has been considered, and while the court of equity has regretted, when it was practicable, that it had not been adopted, rather than that of specific performance,^ yet the rule was too well settled to admit of it, except only in those cases where payments of the purchase- money was relied on as part performance ; and I take it, that the reason of that is that when the thing done is the payment of money, that can always be measured, and its exact equivalent returned, and when the possession is changed or improvements made, the value of these things must always be matters of opinion merely, and cannot be measured or exactly ascertained so as to certainly put the party making them in the same condition he was." " There is another reason that occurs to me as entitled to much consideration, in opposition to the principle insisted upon here, though I have not seen it in the books — tliat is, when a party has placed himself in a position to ask specific performance, either by possession or improvement, the thing — that is, the land — is his, or at least he is en- titled to a conveyance, to a specific performance, at that time, and the rents, profits, issues or benefits accruing to him from its use and occupation from that time are his, and not that of the vendor or donor ; and when he is ' Citing Forster v. Hale, 3 Vesej, 696. 410 Gifts. asked or required to appropriate these things or benefits in compensation for his labor, improvements, or expenses, he is asked or required to compensate himself with that which is his own, and for which he is su2:)posed to have entered into the agreement." ^ 407. Doj^EE Entitled to Recover for Improve- ments. — Where the donee cannot acquire title under a parol gift, he is entitled to recover the value of the im- provements he puts upon the land. The rule has been stated thus, referring to a j^articular instance : " But as the son had taken possession of the land under the verbal gift, and made valuable improvements thereon, under the expectation created by the act of the father, that the gift would be consummated, he is in equity entitled to pay for those improvements, and has a lien u23on the land to secure the payment of their value. This lien would exist against the donor, and is valid against creditors. But its amount must be determined by deducting from the value of the improvements a reasonable compensation for the use of the land." ^ So if the gift for some reason was incomplete, but the donee, relying upon the assurance of the donor and thereby having been misled, puts on valu- able improvements, he will be entitled to recover their value and have the amount thereof declared a lien upon the land, with the exceptions above noted. ^Mims V. Lockett, 33 Geo. 9 ; Warren v. AVarrcn, 105 111. 508; Waterman on Sp. Perf., sects. 14, 15. 2 Rucker v. Abell, 8 B. Hon. 566 ; Duckett v. Duckett, 71 Md. 357 ; Ridley ?-. McNairy, 2 Humph. 174 ; Humphreys v. Holtsinger, 3 Sneed, 228 ; Ewing v. Handley, 4 Litt., p. 346. CHAPTEK XY. VOLUNTARY TRUSTS. 408. Introduction. 409. Gift Failing for Lack of Convey- ance is Invalid as a Declaration of Trust. 410. Imperfect Gift Cannot be Construed a Trust. 41L Not to be Confounded with Convey- ance for a Valuable Considera- tion. 412. Trust must be Completed by Donor. 413. Donor Constituting Himself a Trus- tee for the Donee. 414. Sufficiency of Language to Create a Trust. 415. Donor Must Part Absolutely with His Interest in the Property. 416. Donor Must Part with Plis Domin- ion Over Gift — Assistance of a Court of Equity. 417. Mere Intent to Create a Trust is Not Sufficient. 413. Trust IMust be Certain, and Not Rest in Intention or Promise — Mere Intent. 419. Donor Must Have Intended to Create a Trust. 420. Difference Between an Assignment and a Declaration of Trust. 421. When Trust is Completed. 422. Parol Declaration Accompanied by Acts. 423. Donor Retaining Deed and Failing to Deliver It — Failure to Com- municate with Trustee and Donee. 424. Donor Unlawfully Obtaining Pos- session of Deed of Trust. 425. Delivery of Subject-Malter of Gift. 426. Notice to Donee or Trustee of Trust. 427. Donor Divesting Himself of the Legal Title. 428. Donee Divesting Himself of the Equitable Title. 429. Failure to Name Beneficiary. 430. Deed of Gift as a Testamentary Instrument. 431. Necessity for Instrument of Gift to be Under Seal. 432. Donee Induced to Change His Situation by Promise of Donor to Give. 433. Orders Addressed by a Creditor to His Debtor or to a Depositary of a Fund. 434. Covenant to Give Upon a Contin- gency. 435. Donor Reserving Control Over Trust Fund as Trustee. 436. Revocation. 437. Preventing the Making of a Gift by Will. 438. Good or Meritorious Considera- tion. 439. Marriasre Settlement. 408. Introduction. — The subject of voluntary trusts is one not unfree of difficulties, OAving to the many con- Upon the general princij^les applicable to 411 flictmg cases 412 Gifts. this kind of trusts, there is but little conflict ; but it is upon their apjDlication to particular facts or transactions where the conflict arises. The subject, ho^Yeyer, naturally divides itself into two branches : First. Where a donor has conveyed, or attempted to convey or give property to a trustee for the benefit of a designated donee ; Second. Where the donor has, by some act or instrument in writ- ing, constituted himself a trustee for the beneficiary or donee.^ 409. Gift Failing for Lack of Conveyance is Invalid as a Declaration of Trust. — One rule is of universal application, however, to questions of this kind ; and that is that if the transaction is insufficient to create a trust in a designated person as trustee for the donee, it cannot be upheld as a true gift (by regarding the transac- tion as sufficient to hold the donor as a trustee) . Thus if A undertakes to create a trust by delivering the property to B as trustee for C, and the transaction fail for lack of a sufficient delivery, the transaction cannot be upheld as a trust by regarding A as having constituted himself as a trustee for C. To do so would be to uphold a gift where there was no sufficient delivery, and thus to override one of the cardinal rules of gifts. Said Lord Justice Turner : " The cases, I think, go further, to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effect- ual by being converted into a perfect trust." ^ ^Richards r. Delbridge, 18 L. R. Eq. 11 ; S. C. 43 L. J. Ch. 459; 22 W. R. 584. ^Milroy v. Lord, 4 D. F. & J. 264, 274; S. C. 7 L. T. N. S. 178; Richards v. Voluntary Trusts. 413 410. Impeefect Gift Cannot be Constetjed a Teust. — If a transaction shows that the donor intended to make a gift, but by reason of some essential step it fails, the transaction cannot then be construed as creating a trust. A court of equity cannot convert an imjDerfect gift into a declaration of trust, merely on account of the imperfection.^ " The making a man trustee involves an intention to become a trustee, whereas words of gift show an intention to give over property to another, and not to retain it in the donor's hands for any purpose, fidu- ciary or otherwise." ^ 411. Not to be Confounded with Conveyances foe A Valuable Consideeation. — A conveyance, as a gift, to a trustee for a designated third person should not be confounded with a conveyance to a trustee for a valuable consideration ; nor with another class of cases in which words of transfer for a valuable consideration are held to be evidence of a contract which the courts will enforce.^ 412. Teust Must be Completed by Donoe. — If A transfers proj)erty to B in trust for C, the latter may en- force the trust against both of them. No consideration is necessary. But in order to enable the beneficiary to enforce the trust, it must be completely executed. A conveyance by written instrument, however, is not neces- sary, for the trust may be j^roved by parol or even by acts of the donor. " The one thing necessary," said Vice- Delbridge, 18 L. E. Eq. 11 ; S. C. 43 L. J. Ch. 459; 22 W. E. 584; Marcy v. Amazeen, 61 N. H. 131, 134. ^ Heartley v. Nicholson, 44 L. J. Ch. App. 277. "^ Eichards v. Delbridge, 18 L. E. Eq. 11 ; S. C. 43 L. J. Ch. 459 ; 22 W. E. 584 ; Young V. Yonng, 80 N. Y. 422. If the trust is created by a writing, parol evidence of the donor's declarations is not admissible to contradict it: Lee v. Luther, 3 Wood & M. 519 ; Barnura v. Eeed, 136 111. 388. 3 Eichards v. Delbridge, 18 L. E. Eq. 11 ; S. C. 43 L. J. Ch. 459; 22 W. E. 584. 414 Gifts. Chancellor Bacon, " to give validity to a declaration of trust — the indis^^ensable thing — I take to be, that the donor, or grantor, or whatever he may be called, should have absolutely j^arted with that interest which had been his up to the time of the declaration, should have effect- ually changed his right in that respect, and put the prop- erty out of his power in the way of interest." ^ Lord Eldon at an early day laid down one of the cardinal rules of voluntary trusts touching their validity and enforce- ments in courts of equity. " I take the distinction to be," said he, " that if you want the assistance of the court to constitute you cestui que trust, and the instrument is volun- tary, you shall not have that assistance, for the purpose of constituting you cestui que trust. As upon a covenant to transfer stock, if it rest in covenant and is purely volun- tary, this court will not execute that voluntary covenant ; but if the i^arty has completely transferred stock, though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this court. "^ Many cases contain statements in which language similar to this is used. Thus Chief Justice Bigelow has well said : " The key to the solution of the question raised in this case is to be found in the equitable principle now w^ell estab- lished and uniformly acted on by courts of chancery, that a voluntary gift or conveyance of property in trust, when fully completed and executed, will be regarded as valid, and its provisions enforced against all persons except cred- itors and bona fide purchasers without notice. It is cer- tainly true that a court of equity will lend no assistance toward perfecting a voluntary contract or agreement for the creation of a trust, nor regard it as binding so long as 1 Warriner v. Kogers, L. R. IG Eq. 340 ; S. C. 42 L. J. Ch. 581 ; 21 W. R. 76G ; 28 L. T. N. S. 863. - Ellison V. Ellison, 6 Ves. Jr. 656; Bridge v. Bridge, 16 Beav. 315; S. C. 16 Jur. 1031. Voluntary Trusts. 415 it remains executory. But it is equally true tliat if such agreement or contract be executed by a conveyance in trust, so that nothing remains to be done by the grantor or donor to complete the transfer of the title, the relation of trustee and cestui que trust is deemed to be established, and the equitable rights and interests arising out of the conveyance, though made without consideration, will be enforced in chancery." ^ 413. DoxoE, Constituting Himself a Trustee for THE Donee. — The owner of property may by a deed or other instrument in writing, or even by a parol declara- tion or by acts and conduct, raise a trust in favor of a donee, and constitute himself a trustee for him, without any actual delivery to the donee of the thing given. In all such instances the declaration of trust must be clear and explicit, and must be fully executed, not merely rest- ing in promise, but completed. Usually questions con- cerning such trusts have arisen where the donor has con- stituted or attempted to constitute himself a trustee by a deed or other written instrument ; but the same rule is applicable where the declaration of trust has been by parol, or by acts of the donor, or by both combined. Whenever such a trust has been raised, Avhether the prop- erty is capable or incapable of delivery or transfer, tlie donee may enforce the trust against the donor, who from thenceforward is a mere trustee. " The legal owner of the property may," said Jessel, Master of the Rolls, ''by one or other of the modes recognized as amounting to a ^ Stone V. Hackett, 12 Gray, 227 ; Ex parte Pye, 18 Yes. 140 ; Pulrertoft v. Tiil- vertoft, 18 Ves. 84; Colman v. Sarrel, 1 Ves. 50; S. C. 3 Bro. C, C. 12; Graliam V. Graham, 1 Yes. 272 ; Knye v. Moore, 1 Sim. & Stu. 61 ; Cotteen r. Missing, 1 Madd. 176 ; Thorpe v. O'sven, 5 Reav. 224 ; Wilcocks v. IIannyn,£rton, o Jr. Ch. 38 ; Martin v. Funk, 75 N. Y. 134; Robsm r. Robson, 3 Del. Ch. 51, a very e.Tcellent discussion of many points ; Fhmders v. Blandy, 45 Ohio St. 108 ; Minor v. Rogers, 40 Conn. 512. 416 Gifts. valid declaration of trust, constitute himself a trustee, and, without an actual transfer of the legal title, may so deal with the property as to dejDrive himself of its bene- ficial ownership, and declare that he will hold it from that time forward on trust for the other person. It is true he need not use the words, ' I declare myself a trustee,' but he must do something which is equivalent to it, and use exi^ressions which have that meaning ; for, however anxious the court may be to carry out a man's intention, it is not at liberty to construe words otherwise than ac- cording to their proper meaning." ^ Lord Justice Turner, speaking in another case on the same subject, said : "I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the proj)erty and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the j)ersons for whom he intends to provide, and the pro- vision will be effectual ; and it will be equally effectual if he transfers the property to a trustee for the purposes of a settlement, or declares that he himself holds it in trust for those purposes ; and if the property be personal the trust may, I apprehend, be declared either in writing or by parol ; but in order to render the settlement bind- ing one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in tliis court to perfect an imperfect gift." ^ 1 Richards v. Delbridge, 18 L. R. Eq. 11 ; S. C. 43 L. J. Ch. 459 ; 22 W. R. 584. 2 Milroy v. Lord, 4 D., F. & J. 264, 274 ; S. C. 7 L. T. N. S. 178 ; 8 Jur. N. S. 806 ; 31 L. J. Ch. 798. " Nothing can be more clear and distinct," said V. C. Bacon, referring to the quotation just made above, ''than the exposition of the law contained in the sentences I have read, and to my judgment nothing more satisfactory, if I were at liberty (which I am not) to pronounce a critical opinion J Voluntary Trusts. 411 Thus a testatrix gave her personal estate to B for the benefit of B's daughter. B invested the proceeds of the estate, together with £1,000 of his own money, in his own of it:" Warriner v. Rogers, 16 L. R. Eq. 340; S. C. 42 L. J. Ch. 581 ; 28 L. T. 863; 21 W. R. 766. In the case of Richards v. Delbridge, 18 L. R. Eq. 11; S. C. 43 L. J. Ch. 459 ; 22 W. R, 684, Jessel, M. R., says that the cases of Rich- ardson I'. Richardson, 3 L. R. Eq. 686 ; S. C. 36 L. J. Ch. 653, and Morgan v. Malleson, 10 L. R. Eq. 475 ; S. C. 39 L. J. Ch. 680 ; 23 L. T. N. S. 336 ; 18 W. R. 1125, are overruled by ]Milroy v. Lord, supra. Kekewick v. Maiming, 1 De G., M. & G. 176; S. C. 21 L. J. Ch. N. 8. Ch. 577 ; 16 Jur. 625, is a leading case on tliis subject. There a person, beneficially entitled to stock standing in his name, deliberately and advisedly executed a deed, declaring himself a trustee for certain purposes to take effect at once, and communicated and delivered the deed to the cestui que trust. The court enforced the trust against its author: In re Bennett, 17 L. T. N. S. 438. The lessee of a large farm, who had considerably increased its value by the expenditure of money, failed and assigned the lease to trustees, who in turn assigned it to the landlord. His wife's brother then applied to the landlord to become tenant of tiie remainder of the lea«e upon the same terms, stating in his written application tiiat it was "with the view to benefit his sister and her unfortunnte family." With that view the landlord granted the lease; and the brother, contrary to the landlord's usual habit, was allowed to have a co-lessee, who was the actual occupier, and also to sub-let a part, by whicii means he, the brother, derived a clear £100 a year above the rent, which was paid by the co-lessee. It was held that, by means of these letters and the circumstances, the court would enforce a trust as to the £100 a year for the wife of the original tenint and her children as joint tenants : Morton v. Tewart, 2 Y. & Coll. N. C. 67. A and B. partners, were indebted to C and D. By letter A proposed to assign a claim which he and B had upon the estate of P, then tlie subject of a suit in chancery. Certain properties of this estate were sold and A purchased them for C and D, as he declared by letters. It was held that there was a clear trust estab- lished, even as against .\'s subsequent assignee in bankruptcy: Johnson v. Perrin, Hayes, 322. A memorandum of a gift was in this form : " I hereby give and make over to M. an Indian bond, value £1,000." It was signed and given by the donor to one M., without handing over the bond. The donor died, but as against his residuary legatee the gift was u|iheld as a good declaration of trust in favor of M. : Morgans Malleson, 10 L. R. Eq. 475; S. C. 39 L. J. Ch. 680; 23 L. T. N. S. 336 ; 18 W. R. 1125 ; Boyd's Case, 1 De G. & J. 223 ; 3 Jur. N. S. 897 ; 26 L. J. Ch. 737. In Scales v. Maude, 6 De G., M. Sc G. 43; S. C. 1 Jur. N. S. 1147; 25 L. J. Ch. 433; 3 W. R. 527 ; 1 Jur. N. S. 533, it was held that a mere decla- ration of tru^t was not enforceable unless there had been a cliange of legal owner- ship and so a trust constituted ; but in Jones v. Lock, 1 L. R. Ch. 25; S. C. .35 L. J. Ch. 117 ; 13 L. T. N. S 514 ; 11 .lur. N. S. 913 ; 14 W. R. 149, this decla- ration, a mere dictum. w.as overruled. Certain lands were vested in trustees for B, a married woman, during her coverture, with directions to pay the rents as she should by writing direct; and after termination of coverture she was to have the 27 418 Gifts. name, and afterward treated and admitted the aggregate fund as held in trust for his daughter. On the death of B the fund was found mixed with his own funds. The court decided that under the circumstances tliere was a trust of £1,000 in favor of the daughter.^ A father gave his daughter $400 toward the purchase of a tract of land, made by her husband, intending that the loan should go into the land for her benefit. Afterward, hearing that her husband had taken the title in his own name, he took from him a note for the amount given. By articles of agreement the husband sold the land, and the father, still holding the note, took judgment on it, and levied ujDon and purchased the land. By ejectment against the equitable vendee he obtained possession, and collected from him the unpaid purchase-money, amounting to, less expenses, $600. It was held that the father, when legal estate in the lands. During her coverture she wrote to C : " You hold a bond [giving the date and araonnt], signed by my husband and myself. I hold my- self accountable for the payment of this bond, with interest at six per cent., again;^t the lands of D [which were held in trust for her] ; and should he die, or should I die, my son Jolin, whom I have made my heir, shall hold himself accountable for the amount of this bond, and cause you to be paid, retaining you, or, in the event of your death, your son James, as agent for the lands of D, until said bond is discharged." This was duly signed. The bond alluded to in the letter, though signed by her, was in the body of it only the bond of her husband. It was held that this was binding on the lands as a trust, though not on her personally: Wilcocks r. Harnnyngton, 5 Ir. Ch. 38. Generally, Ownes v. Ownes, 23 N. J. Eq. 60; Crawford's Appeal, 61 Pa. St. 52. "To constitute himself the trustee of property remaining in his possession and not transferred at law, it must appear from his acts or declarations that he intended to part with his former ownership of the thing, and to retain only the legal title and control which belongs to a trustee, precisely such as would pass to a third person taking as a trustee in the first instance:" Robson v. Robson, 3 Del. Ch. 51, 78. If property passes into the hands of a donee, charged with a trust, and lie promises the beneficiary to per- form the trust, performance of ^uch promise may be compelled by an actii^n at law; and, if no such promise was made, by a suit in equity: Trorlicht v. Weizen- ecker, 1 Mo. App 4S2 ; Minor v. Rogers, 40 Conn. 512 ; Love v. Francis, 63 Mich. 181 ; Southerland v. Southerland, 5 Busli. 591 ; Lamprey v. Lamprey, 29 Minn. 151 ; Gannon v. White, 2 Tr. Eq. 207. 1 Thorpe r. Owen. 5 Beav. 224. Voluntary Trusts. 419 he purchased the land at sheriff's sale, became a trustee for her.^ 414. Sufficiency of Language to Create a Trust. — It is not necessary that the donor should in express words declare that he creates a trust, as " I declare myself a trustee," ^ nor to use the words " confidence," " trust," or " trustee." ^ But language showing a gift absolute cannot be turned into a sufficient declaration of trust,* nor can language showing only a mere intention to create a trust.^ 415. Donor Must Part Absolutely with His In- terest IN the Property. — The declaration of trust and the acts of the donor must be sufficient to absolutely divest him of all title in and to the property given or which is the subject of the trust. His acts and declarations must effectually put all his interest beyond his control.*^ If any further act remains to be performed to render the gift or iSourwine v. Claypool, 133 Pa. St. 126. 2 Richards i-. Delbridge, 18 L. R. Eq. 11; S. C. 43 L. J. Ch. 459; 22 W. R. 684. 'Kekewick v. Manning, 1 De G., M. & J. 176 ; S. C. 21 L. J. Ch. N. S. 577 ; 16 Jur. 625 ; Ex parte Pye, 18 Yes. 140 ; Ellis v. Secor, 31 Mich. 185. * Young V. Young, 80 N. Y. 422. ^ In re Glover, 2 John. & Hem. 186. The following unsigned entry in a ledger was held not to constitute a gift : " N. B.— As I gave R. J. Adams only, say, about £2,000 when he commenced business in partnership with E. J. Eristowe (£3,000 being his own money as received for sale of fa''m, etc.), I am dne to him, to make him equal to what I gave James Adams, the sum of £3,000. Therefore I credit R. J. Adams' interest on this, at five per cent, annually, £150." But see Smith's Estate. 8 Pa. C. C. 539; Adams v. Lopdell, 25 L. R. Ir. 311. "To constitute a trust there must be either an explicit declaration of trust, or circumstancfs which show beyond reasonable doubt that a trust was intended to be created : ' Beaver ;■. Beaver. 117 N. Y. 421. «Collinson v. Pattrick, 2 Keen, 123; S. C. 7 L. J. N. S. Ch. 83; Peckham r. Tavlor 6 L. T. N. S. 487; Bentlev v. Mackay, 15 Beav. 12; ^Slilroy ;•. Lord, 8 Jur. N S. 806 ; S. C. 31 L. J. Ch. 798 ; 7 L. T. N. S. 178 ; 4 De G., F. & J. 264 ; "Wilkinson v. Wilkinson, 4 Jur. N. S. 47 ; Walrond ?•. Walrond, 4 Jur. N. S. 1099 ; Scales v. Maude, 3 W. R. 527 ; S. C. 1 Jur. N. S. 533 ; 6 De G., M. c^; G. 43 ; 1 Jur. N. S. 1147 ; 25 L. J. Ch. 433. 420 Gifts. settlement complete tlie courts will not compel its comple- tion, however strong the intent, of the donor to make the gift complete may have been manifested and remain un- retracted.^ 416. Donor Must Paet with His Dominion Over GiFT^ — -Assistance of a Court of Equity. — The donor cannot retain any dominion over the gift as the owner and create a j)erfect trust. In this respect it is precisely as in the case of an ordinary gift exclusive of any question of trust. No part of the legal dominion can remain in him as an individual, though it may, as we have seen,^ as trus- tee.^ A court of equity will not compel him to complete the gift.^' Thus where a donor assigned a mortgage, and purported to convey copyholds ; and he also covenanted for quiet enjoyment and for further assurance ; but died without having surrendered the copyholds ; the court re- fused to render assistance to compel the completion of the voluntary settlement.^ But if the donor has divested him- self of all title to the article given, and of all control over it, courts of equity will enforce the trust thus voluntarily created.*^ iDening v. Ware, 22 Beav. 184; Warriner v. Rogers, 16 L. R. Eq. 340; S. C. 42 L. J. Ch. 581 ; 21 W. E. 766 ; 28 L. T. N. S. 863 ; Heartley v. Nicholson, 19 L. R. Eq. 233 ; 44 L. J. Ch. 277 ; 21 L. T. N. S. 822. 2 See Section 413. 3 Hughes V. Stubbs, 1 Hare, 476 ; 6 Jur. 831 ; Ex parte Pye, 18 Ves. 140 ; War- riner V. Rogers, 16 L. R. Eq. 340 ; 42 L. J. Ch. 681 ; 21 W. R. 766 ; 28 L. T. N. S. 863; AVilkinson v. Wilkinson, 4 Jur. N. S. 47; Searle v. Law, 15 Sim. 95. * Wittingham v. Lighthipe, 46 N. J. Eq. 429. s Deuing v. Ware, 22 Beav. 184. ^ Stone V. Hackett, 12 Gray, 227; Andrews v. Hobson, 23 Ala. 219; Bunn v. Winthrop, 1 Johns. Ch. 329 ; Tolar v. Tolar, 1 Dev. (N. C.) 456 ; Hardin t;. Baird, 6 Litt. 340; Fogg v. Middleton, Riley Ch. 193; Greenfield's Est., 2 llarr. (Pa.) 489; Kirkpatrick v. McDonald, 1 .Jour. 387; Graham v. Lambert, 5 Humph. 695; Henson v. Kinard, 3 Strobh. fS. C.) Eq. 371 ; Dupre v. Thompson, 4 B;irb. 279; Cox v. Sprigg, G Md. 274 ; Lane v. Ewing, 31 Mo. 75 ; Massey v. Hunting- ton, 118 111. 80; Howard v. Savings Bank, 40 Vt. 597 ; Tanner v. Skinner, 11 Voluntary Trusts. 421 417. Mere Intent to Create a Trust is Not Suffi- cient. — A mere intention on the part of the donor to create a trust in favor of the donee is not siifBcient ; so if liis declarations and acts show that he intended to do something farther to comjDlete the gift, there is no trust created. An ilkistration of this is where a mother ex- pressed her intention to make a settlement of a part of property she held under a will upon her daughter, re- questing her solicitor to prepare such a settlement ; and when he prepared and brought it to her she refused to sign it, saying she had changed her mind, the court re- fused to enforce the trust against her, for the reason that her declaration amounted only to the expression of an intent and was not considered by her as a finality in the transaction.^ 418. Trust Must be Certain and not Eest in In- tention OR Promise — Mere Intent. — In order to raise a trust the intention of the donor must be clearly ex- pressed in whatever manner he undertakes to create it. It must not rest in conjecture either as to the thing or amount given or the object of the gift or the time when it is tor be created. Thus a donor wrote to her executor : " As to the money to be allowed C. M., when you ascer- tain what the property is, whatever you and Mr. M. think right that I should give her, I shall abide by." It was considered that the gift was inchoate, " the quantum of property not having been ascertained." Later the same donor wrote : " With respect to C. M., as you and Mr. M. Bush, 120; Padfield v. Padfield, 68 111. 210; Lee r. Luther, 3 Wood. & M.olO; Robson V. Robson, 3 Del. Ch. 51. 1 Ravley v. Boulcott, 4 Russ. 345. Where the character of flic instrument of gift, upon inspection, is left doubtful, parol evidence is admissible to show tiie in- tention of the maker : Egertonr. Carr, 94 N. C. 048 ; Martin r. Funk, 75 N. Y, 134; .lackson v. Twenty-third St, Ry. Co., 88 N. Y. 520; Chappell v. Griffith, 53 L. T. 459 ; S. C. 50 J. P. 86 ; McMahon v McMahon, 55 L. T. 763. 422 Gifts. says she ought to be allowed £500, I will readily consent to it. I am willing to do anything that is right." " This letter," said the court, " amounted to a declaration of the propriety of giving her £500, and shows her apjDroval of a gift to that amount ; but does not give effect to the gift, and carry it into execution. Nothing is said as to who is to pay the money, or when it is to be paid. . . . Nothing is said as to what part of her property this money was to be raised out of; whether out of money in the funds, or out of the estate. Nothing is to be found in the letters but an intention to give ; and therefore this case widely differs from the cases alluded to, where acts were done, carrying the gift into execution. Here the gift was not ex- ecuted." ^ So wdiere a father took his own check for £900 and placed it in his baby-boy's hands, saying in the presence of his wife and the nurse, " I give this to baby ; it is for himself, and I am going to j^ut it away for him," and then took the check, saying again he was going to put it away for him ; and about the same time told his solicitor that he intended to add £100 to the £900, and invest it for the benefit of his son ; but died before doing so, it was held that there was no gift, the check not ojDcrating as a transfer of the funds it represented, and the declarations, in view of this fact, operating only as evidence of an in- tent to make the gift.^ ^ Cotteen v. Missing, 1 Madd. 176 ; King's Estate, 21 L. R. Ir. 273. - Jones V. Lock, 1 L. R. Ch. 25 ; S. C. 35 L. J. Ch. 117 ; 13 L. T. N. S. 514 ; 11 Jur. N. S. 913 ; 14 W. R. 149 ; Scales v. Maude, 6 De G. & M. 43 ; S. C. 1 Jur. 533, 1147 ; 25 L. J. Ch. 433 ; 3 W. R. 527 ; Wilkinson v. Wilkinson, 4 Jur. N. S. 47 ; Pownall v. Anderson, 4 W. R. 407. Tliat courts will not establish a trust on the voluntary agreement of the settler, made without consideration, when at the time the settler contemplated some further act for the purpose of making it com- plete, see Swan V. Frick, 34 Md. 139; Lloyd v. Brooks, 34 Md. 27; Bayley v. Boulcott, 4 Russ. 345; Dipple ?'. Codes, 11 Hare, 183; Caldwell r. Williams, 1 Bail. Eq. 175 ; Crompton v. Vasser, 19 Ala. 259 ; Reed v. Vannorsdale, 2 Leigh. 569 ; Hayes v. Kershow. 1 Sandf. Ch. 258 ; Evans v. Battle, 19 Ala. 398 ; Minturn V. Seymour, 4 Johns. Ch. 497 ; Acker v. Phcenix, 4 Paige, 305 ; Dawson v. Daw- Voluntary Trusts. 423 419. DoxoR Must Have Intended to Create a Trust. — The donor must have intended to create the trust and place it beyond his control as owner. If from the whole transaction it appears that he had no such in- tention, then his declarations of a gift in trust, however formal, will be unavailing to create a trust.^ 420. Difference Between an Assignment and a Declaration of Trltst. — The distinction between an assignment for a volunteer and a declaration of trust in his favor is very thin. Thus if the owner of a fund says " I hold this fund for A," the trust is complete ; but if he only assigns it, a different relation exists between the parties ; and it would be a destruction of the distinction to say that an assignment, because it may create a trust, is to be considered the same as a declaration of trust. Therefore, in England, where stock could only be trans- ferred by an entry on the books of the corporation, a mere assignment of it without an actual transfer was held not to create a trust in favor of the assignee.^ son, 1 Dev. (N. C.) Eq. 93; Yarborough v. West, 10 Geo. 471 ; Read v. Robinson, 6 W. & S. 329 ; Clarke v. Lott, 11 111. 105 ; Shaw v. Burney, 1 Ired. (N. C.) Eq. 148; Lanterman v. Abernathv, 47 111. 437; Gardner v. Merritt, 32 Md. 78; Lowry v. McGee, 3 Head. 269; P^orward v. Armstead, 12 Ala. 124; Ticrnan r. Poor, 1 Gill. & J. 216; Darlington v. McCoole, 1 Leigh, 36; Bibb v. Smith, 1 Dana, 580 ; Banks v. May, 3 A. K. Marsh, 435 ; Penfold v. Monld, 4 L. R. Eq. 562 ; Antrobus v. Smith, 12 Ves. 39 ; Colman v. Sarel, 3 Bro. Ch. 12. When the character of the instrument of gift, upon inspection, is left doubtful, parol evi- dence is admissible to sliow the intention of the maker : Egerton v. Carr, 94 N. C. 648 ; Martin v. Funk, 75 N. Y. 134 ; Robson v. Robson 3 Del. Ch. 50 ; Flanders v. Blandy, 45 Ohio St. 108. a gift of bonds. 1 Robson V. Robson, 3 Del. Ch. 51, 78 ; Hughes r. Stubbs, 11 Jur. N. S. 902; Ileart- ley i^ Nicholson, 19 L. R. Eq. 233 ; 44 L. J. Cii. 277 ; 22 L. T. N. S. 822 ; Chap- pell V. Griffith, 53 L. T. 459 ; S. C. 50 J. R 86. = Beech V. Keep, 18 Beav. 285 ; S. C. 18 Jur. 971 ; 23 L. J. Ch. 539 ; 2 W. R. 316; Bridge v. Bridge, 16 Beav. 315; Robson r. Robson, 3 Del. Ch. 51 ; Trough's Estate, 75 Pa. St. 115 ; Pethybridge v. Burrow, 53 L. T. 5 ; West v. West, 9 L. R. Irish, 121 ; Moore v. Moore, 18 L. R. Eq. 474 ; S. C. 43 L. J. Ch. 617 ; 22 W. R. 729 ; 30 L. T. 752 ; Ellis v. Secor, 31 Mich. 185. 424 Gifts. 421. When Trust is Completed. — A trust may be said to be completed when the donor has no farther act to perform to render it effectuah In the case of a deed creating a trust, the execution of the deed — or the sign- ing and delivery of the deed — is a comjDletion of the trust.^ It is a question of fact whether the trust has been perfected ; and in determining that question, the situation and relation of the parties, the kind of property, and the object the donor had in view in creating the trust must all be considered.^ 422. Parol Declaration Accompanied by Acts. — Nearly all the cases concede that the donor may consti- tute himself a trustee by a parol declaration to that effect. In such instances, however, the declaration must be very clear and explicit ; but if the declarations are accompanied or followed (and perhaps preceded) by acts in harmony with them, the courts will much more readily uphold the trust and decree its execution. Thus where "a testator bequeathed £2,000 on a certain trust, empowering his executor, who was also his residuary legatee, to retain the amount in his hands uninvested, he paying interest thereon ; and the executor being satisfied that the testator intended to bequeath £3,000 instead of £2,000, promised to make it £3,000 but made no investment, continuing, however, to pay interest on the £3,000 ; the court consid- ered that there was a completed gift, and enforced it.^ 1 Massey v. Huntington, 118 111. 80 ; Evans v. Grey, 9 L. R. Ir. 539. 2 Jones V. Lock, 1 L. R. Ch. 25; 35 L. J. Ch. 117 ; 13 L. T. N. S. 514 ; 11 Jur. N. S. 913 ; 14 W. R. 149 ; Brabook v. Boston Five Cents Savings Bank, 104 Mass. 228 ; Hackney v. Vrooraan, 62 Barb. 650 ; Martin v. Funk, 75 N, Y. 134 ; Taylor V. Henry, 48 Md. 550; S. C. 30 Am. Rep. 486 ; Blaisdell v. Lock, 52 N. H. 238 ; In re O'Brien, 11 R. I, 419; Stone v. Bishop, 4 Cliff. 593; Egerton v. Carr, 94 N. C. 648 ; Lee v. Luther, 3 Wood & M. 519 ; Walker v. Crews, 73 Ala. 412 ; Petliyhridge v. Burrow, 53 L. T. 5. 3 Gee V. Liddell, 35 Beav. 621 ; Morton v. Tewart, 2 Y. & Coll. N. C. 67 (a letter.) See Pethybridge v. Burrow, 53 L. T. 5. Voluntary Trusts. 425 423. Donor Retaining Deed and Failing to De- liver It — Failure to Communicate with Trustee and Donee. — When the instrument of gift is in writing and under seal, as a deed, its delivery is not essential to the creation of a trust,^ nor is it necessary that the donor com- municate his intent to the trustee or donee. In all such instances the trust will be upheld unless it is impeached on the ground of fraud, mistake, or surprise.^ The court considers his declaration in the deed sufficient evidence of his intent ; and although, in such an instance of non-de- livery, if there was a valuable consideration for the deed it would not be enforced, yet in the case of a purely volun- tary transaction the court will carry into effect the intent set forth in the deed ; but if there are circumstances which show that the donor never intended the deed to oj^erate, these will be considered ; and the non-delivery is quite a circumstance — may be quite a potent one — to show that no trust was perfectly created, or that it was revocable.^ A donor signed a memorandum contain- ing the words " I authorize my brother to claim as his own, after my death, £150 out of the money lying in the bank of Carlisle, for the service rendered me during my lifetime." He retained the possession of the document dur- ing his lifetime ; but the court held that there was a valid ' Ellis V. Secor, 31 Mich. 185 ; S. C. 18 Amer. Rep. 178. - Way's Trust, 2 De G., J. & S. 365 ; Martin i'. Funk, 75 N. Y. 134 ; Donaldson V. Donaldson, Kay, 711; Meek v. Kettlewell, 1 Hare, 4G4 ; Souverbye ?'. Arden. 1 Johns. Ch. 240; Jones i). Obenchain, 10 Gratt. 259; Hope v. Harman, 11 Jiir. 1097; Urann v. Coates, 109 Mass. 681; Sear v. Ashwell, 3 Swanst. 411; Bunn t'. Winthrop, 1 Johns. Ch. 329 ; Fletcher v. Fletcher, 4 Hare, 67 ; Garuons ;■. Knight, 5 B.&C. 671. ^Uniacke v. Giles, 2 Moll. 257; Naldred v. Gilham, 1 P. Wins. 577; Ward r. Lant, Prec. Ch. 182; Birch v. Blagrave, Arab. 264 ; Cecil v. Butcher, 2 J. & W. 565; AntrobuR v. Smith, 12 Ves. 39; Dillon v. Coppin, 4 M. & Cr. 647; Cotton t'. King. 2 P. Wms. 358; Alexander v. Brame, 7 De G., M. & G. 525; Otis r. Beckwith, 49 111. 121 ; Platamone v. Staple, Coop. 250 ; Evans v. Grey, 9 L. E. Jr. 539. 426 Gifts. declaration of trust, notwithstanding the fact of its remain- ing in his possession u^ to the time of his death.^ 424. DoiS^OE, Unlawfully Obtaining Possession of Deed of Trust. — If a donor execute a deed of trust and deliver it, he cannot thereafter revoke the trust by repos- sessing himself of the deed ; and if he do, the beneficiary may maintain a bill to compel him to redeliver the deed, without making the depositary a party, when no breach of trust is charged against him.^ 425. Delivery of Subject-Matter of Gift. — If all other acts essential to the validity of a trust are performed a delivery to the cestui qui trust, or even notice to him, is not essential to the validity of the gift.^ So if the donor execute his note and deliver it to a trustee to hold until the donor's death and to deliver it to the beneficiary, that is a sufficient delivery to enable the donee to enforce it, especially if it w^as a conditional gift, on the donee per- forming some act.'* 426. Notice to Donee or Trustee of Trust. — It is not necessary to the validity of a trust that either the donee or trustee shall have notice of the creation of the trust ; but the lack of notice is always a circumstance to be considered when the question arises whether the trust has been completely created. ° The transfer of property to a 1 Armstrong v. Timperon, 19 W. R. 558 ; 24 L. T. N. S. 275 ; Martin v. Funk, 75 N. Y. 134. "Knye v. Moore, 1 Sm. & Stu. 61 ; Paterson v. Murphy, 11 Hare, 88; S. C. 17 Jur. 298; 22 L.J. Cli. 882. 2 Martin v. Funk, 75 N. Y. 134. *Slienstoner. Brock, 36 Ch. Div. 541; S. C 56 L. J. Ch. 923; 57 L. T. 249; 36 W. R. 118. *Tate V. Leithhead, Kay, 658; Wadd v. Hazleton, G2 Hun, 602; Beatson i'. Beatson, 12 Sim. 281 ; Meek v. Kettlewell, 1 Hare, 464; Donaldson v. Donaldson, Kay, 711 ; Bridge v. Bridge, 16 Beav. 315 ; Roberts v. Lloyd, 2 Beav. 376 ; Sloper v. Cottrell, 6 El. & Bl. 497 ; Burn v. Carvalho, 4 M. & Cr. 690; Martin v. Funk, 75 N. Y. 134. A testator cannot by imposing a trust upon his devisee, the object of Voluntary Trusts. 427 person without his knowledge vests the property in him at once, subject to his right to repudiate it when informed of the transfer ; and the donor cannot reclaim the property on the ground that the donee has no knowledge of the gift.^ In an old case ^ it was said : " The same law of a gift of goods and chattels, if the deed be delivered to the use of the donee, the goods and chattels are in the donee presently, before notice or agreement ; but the donee may make refusal in pais, and by that the proj^erty and interest will be divested." ^ 427. DoxoR DivESTixG Himself of the Legal Title. — If the donor proposes to make a stranger the trustee of the property for the benefit of the donee, and the property is a legal estate capable of a legal transfer and delivery, the legal interest must be actually trans- ferred before the trust is complete.* Thus where an owner of turnpike bonds and shares made a voluntary assignment to a trustee, in trust for himself, and after his death, for his nephew, and delivered the bonds and shares to the trustee, but did not observe the formalities required by the turnpike-road act and the deeds by which the company was formed, to make the assignmejit effectual ; it was held that no interest, in either the bonds or the shares, passed by the assignment, and that the trust was void.'' which he does not communicate to liim, enable liimself to escape tlie English statute of wills bv declaring those objects in an unattested paper, found after his death. During his life he should tell the devisee, and the latter should accept in order to evade the statute : Boyes v. Carritt, 26 L. R. Ch. Div. 531 ; S. C. 53 L. J. Ch. 654 ; 50 L. T. 581 ; 32 "VV.R. 630. 1 Standing v. B .wring, 31 Ch. Div. 2S2; S. C. 55 L. J. Ch. 218; 51 L. T. 191 ; 34 AV. R. 204 ; affirming 27 Ch. Div. 341 ; ^Martin v. Funk, 75 N. Y. 134. == F^mtler and Baker's Case, 3 Rep. 26 b. (1590). 3 To same effect, Thompson v. Leach, 2 Vent. 208; reversing same case, 2 Vent. 198 (1690) ; Siggers v. Evans, 5 El. & B. 3G7 (1854). See. also, Neikoa v. Bliglit, 1 Johns. Cas. 205 ; Moses v. Murgatroyd, 1 Johns. Ch. 119. * Meek v. Kettlewell, 1 Hare, 464 ; Coningham v. Plunkett. 2 Y. & Coll. N. C. 245. ^Searle v. Law, 15 Sim. 95 ; Price v. Price, 14 Beav. 593; Bridge v. Bridge, 16 428 Gifts. Suppose, however, the subject of the trust is a legal interest which cannot be assigned nor transferred at law, what is the rule ? By the later authorities there is little doubt that a trust can be created in such an instance. " It is upon legal and equitable principles," said Justice Bruce, " we apprehend clear that a person sui juris, acting freely and fairly, and with sufficient knowledge, ought to have, and has it in his j^ower to make in a binding and effectual manner a voluntary gift of any part of his property, whether capable or incapable of manual delivery, whether in possession or reversionary, or howsoever circum- stanced." ^ This rule has been adopted in a number of cases.^ But where a part of the property was capable of delivery and transfer, and a part not, and the part that might have been assigned was neither delivered nor as- signed, it was held that no trust was created,^ Beav. 315; Beech v. Keep, 18 Beav. 285; Tatliam r. Vernon, 29 Bear. 604 ; Dilron v. Bone, 3 Giff. 538; Ellison v. Ellison, G Ves. 656 ; Duffell v. Noble, 14 Tex. 640; Lonsdale's Estate, 29 Pa. St. 407 ; Trimmer v. Danby, 4 W. E. 399; S. C. 25 L. J. Ch. 424 ; Milroy v. Lord, 4 De G., F. & J. 264 ; S. C. 8 Jur. N. S. 806 ; 31 L. J. Ch. 798; 7 L. T. N. S. 178 ; Parnell v. Kingston, 3 Sm. & G.337 ; Kiddill V. Farnell, 3 Sm. & G. 428 ; Doty v. Wilson, 5 Lans. 7 ; Cressman's Appeal, 42 Pa. St. 147 ; Gilchrist v. Stevenson, 9 Barb. 9 ; Lane i'. Ewing, 31 Mo. 75; Henderson v. Henderson, 21 Mo. 379; Jones v. Obenchain, 10 Gratt. 259. 1 Kekewich v. Manning, 1 De G., M. & G. 176 ; S. C. 21 L. J. Ch. 577 ; 16 Jur. 625. nVilcocksr. Hannyngton, 5 Ir. Ch. 38; Gilbert v. Overton, 4 N. R. 420; 2 Hem. & M. 110 ; 10 Jur. N. S. 721 ; 33 L. J. Ch. 683 ; 12 W. K 1141 ; 10 L. T. N. S. 900; Donaldson u. Donaldson, Kay, 711; Lambe v. Orton, 1 Dr & Sm. 125 ; Voyle v. Hughes, 2 Sm. & Gif. 18 ; S. C. 23 L. J. Ch. 238 ; 18 Jur. 341 ; 2 Eq. Rep. 42 ; 2 W. R. 143 ; ^Vay's Settlement, 10 Jur. (N. S.) 11G6 ; S, C. 34 L. J. Ch. 49; reversing 4 New. R. 453; Elliott's Appeal, 50 Pa. St. 75. Contra, Pearson v. Amicable Office, 27 Beav. 229 ; Sloan r. Cadogan, Sugd. V. & P. App. ; Fortesque v. Barnett, 3 My. & K. 36; Roberts v. Lloyd, 2 Beav. 376; Blakely r. Brady, 2 Dru. & Wal. 311 ; Airey v. Hall, 3 Sm. &. Gif. 315; Parnell V. Hingston, 3 Sm. &. Gif. 337. 3 Woodford v. Charnley, 28 Beav. 96. But see Richardson v. Richardson, 3 L. R. Eq. 686 ; S. C. 15 W. R. 690 ; 36 L. J. Ch. 653. It should be observed that this section has no application to instances where the donor has constituted himself a trustee. Voluntary Trusts. 429 428. DoxEE Divesting Himself of the EquiTxVble Title. — If the donor has only an equitable title to the subject-matter of the gift, he may still create a trust of the property by the execution of an assignment of all his interest to a trustee for the donee, and the original settler need not he called upon to do any act. Justice Bruce has very well illustrated this question by saying : *' Sup- pose stock or money to be legally vested in A as a trustee for B for life, and subject to B's life-interest for C abso- lutely, surely it must be competent for C, in the lifetime of B, with or without the consent of A, to make an effectual gift of his interest to D by way of pure bounty, leaving the legal interest and legal title untouched. If so, can C do this better or more effectually than by ex- ecuting an assignment to D " ? ^ So it has been held that the beneficiary can direct the trustee to hold his interest thereafter on new trusts;^ or he can assign his equitable interest to a stranger in trust for himself.^ 429. Failure to Name Beneficiary. — A trust does not necessarily fail where the donor has foiled to name the donee or beneficiary. Thus where a trust was created by deed, without containing the name of the beneficiary, the person actually intended to receive the benefit was » Kekewick v. Manning, 1 De G., M. & G. 176 ; S. C. 21 L. J. Ch. 577 ; 16 Jur. 625. Other cases, Sloan v. Cadogan, Sugd. V. & P. App. ; Vovle v. Iluglics. 2 Sra. & Gif. 18; S. C. 23 L. J. Cli. 238; 18 Jur. 341 ; 2 Eq. Rep. 42; 2 W. R. 143; Lambe v. Orton, 1 Dr. & Sm. 125; Gilbert v. Overton, 2 Hem. & M. 110; Ways' Settlement, 10 Jur. (N. S.) 1166 ; S. C 34 L. J. Ch. 49 ; 2 De G., J. & Sm. 365, reversing 4 New R. 453; "Woodford v. Chamley, 28 Beav. 96; Southerland V. Southerland, 5 Bush. 591. '^Rycr .ft V. Christy, 3 Beav. 238; McFadden v. Jenkyns, 1 Hare, 458; S. C. 1 Phil. 153. 'Sloan V. Cadogan, siLpra; Wilcocks ;•. Hannyngton, 5 Ir. Ch. 38 ; Godsal v. Webb, 2 Keen, 99 ; Cotteen v. Missing, 1 Madd. 176 ; Collinson v. Pattrick, 2 Keen, 123. Of course a mere expectancy is not the subject of a trust ; Meek v. Kettle- well, 1 Hare, 464; affirmed 1 Phil. 342. 430 • Gifts. allowed to enforce it against the trustee upon the latter's testifying at the trial that the plaintiff was the person in- tended as the object of the donor's bounty.^ A deed of gift to a trustee to hold the property in trust for such persons as the donor may thereafter name is valid, but not until the beneficiaries are named according to the mode designated in the deed.^ But if it is uncertain who the donee is the trust must fail.^ If the donor was to in- form the trustee for whom the trust was created, during his lifetime, merely leaving a paper among his writings, containing the names of the beneficiaries will not be sufii- cient.* 430. Deed of Gift as a Testamentry Instrument. — It is no unfrequent occurrence that a deed of gift, or other written instrument of gift, contains words of promise of an entirely future character, not in prcesenti, but ex- pressing a desire to give, even at the death of the donor. Efforts have been made to support these instruments as wills ; and this can usually be done when they are exe- cuted in accordance with the statute of wills.^ In the case just cited the donor, a mortgagee, wrote the mort- gagor, saying : " I now give you this gift, to become due at my death, unconnected with my will. I hereby re- quest my executors to cancel the mortgage deed, bond, indenture, and all papers I may have chargeable on E, [the mortgaged estate] at my death, and give [the same] ' Sleeper v. Lselin, 62 la. 583 ; Boardman v. Willard, 73 la. 20. But the con- trary has been held. See Holland v. Alcock, 108 N. Y. 312. ^Ireland v. Geraghtv, 11 Biss. 4H5. ^Roberts v. Roberts, 11 Jiir. N. S. 992; 14 W. R. 123; 13 L. T. N. S. 492; 12 Jur. N. S. 971. *Boyes v. Carrkt, 26 L. R. Ch. Div. 531 ; S. C. 53 L. J. Ch. 654; 50 L. T. 581 ; 32 W.R. 630; King's Estate, 21 L. R. Ir. 273. 5 Scales V. Maude, 6 De. G., M. & G. 43 ; 1 Jur. N. S. 533, 1147 ; 25 L. J. Ch. 433 ; 3 VV. R. 527 ; Dipple v. Corles, 11 Hare, 183. Voluntary Trusts. 431 to you or your daughter or daughters then living for their own use." It was hekl that this gift was void, because it was a promise entirely in the future, in the nature of a will. 431. Necessity for Is^steument of Gift to be Under Seal. — Elsewhere has been discussed whether a deed or written instrument of gift must be under seal to dispense with an actual delivery of the subject-matter of the gift ; and it was there seen that the cases are at vari- ance on the subject. But it may be deemed settled in England that a court of equity will not enforce a volun- tary contract or covenant, though it be under seal.^ In this country it has been intimated that a contract under seal could be enforced '^ and where the distinction between sealed and unsealed instruments had been abolished by statute, an unsealed voluntary contract was enforced.^ 432. Donee Induced to Change His Situation by Promise of Donor to Give. — The attempt has been made to uphold a promise to give, made by the donor to the donee, when that promise has been such as to induce the donee, to the knowledge or at the request of the donor, to so change his pecuniary situation or condition that a failure to keep the promise would entail upon the donee a definite pecuniary injury or loss. But such a promise, if it fall short of a contract, is not binding, and cannot be enforced, either as a gift outright or as amount- ing to the creation of a trust. Thus an intestate induced a woman to serve him as his housekeeper without wages 1 Hale V. Lamb, 2 Eden, 292 ; Evelyn v. Templar, 2 Bro. Ch. 148; Colnian v. Sarel, 3 Bro. Ch. 12 ; Kekewich v. Manning, 1 De G. & M. 176 ; Dening v. "Ware, 22 Beav. 184. ''Kennedy v. Ware, 1 Barr. 445; Mclntire r. Hnghes, 4 Bibb. 186; Dennison V. Goehring, 7 Barr. 175; Caldwell ?•. Williams, 1 Bailey (S. C. Eq.) 175. ^ Mahan v. Malian, 7 B. Mon. 579. But see Trough's Estate, 75 Pa. St. 115. 432 Gifts. for many years, and to give up other prospects of estab- lishment in life, by a verbal promise to make a will leav- ing her an estate for her life in his farm, and he after- ward made and signed a will, not duly attested, by which he left her the life estate. The court found that there was no contract, no promise to j^ay wages, that she could have left him, or he could have turned her away, at any time without incurring a liability ; that her acts did not constitute a part performance, such as is required by the statute of frauds ; and that she could not maintain an ac- tion for a declaration that she was entitled to a life estate in the land.^ So where a land-owner agreed with his brother that if he would forego his intention to move to the West, and marry and settle on a tract of land owned by the former he would convey the land to him in fee, whereby the brother was iuduced to give up his intention to go West, having incurred no exj^ense by abandoning his design, it was held that there was not such a consid- eration to supjDort the agreement as a court would decree its performance.^ 433. Orders Addressed by a Creditor to His Debtor or Depositary of a Fund. — A donor may create his debtor or person holding his funds on deposit a trustee for the donee, either by a parol direction to the creditor or depositee or by an instrument in writing di- rected to him. Thus a donor, when his claim fell due, orally communicated, through a third person, to the debtor a desire that he hold the fund in trust for a designated donor, which the debtor consented to do ; it was held that ^Maddison v. Alderson, 8 L. R. App. Cas. 467; 52 L. J. Q. B. 737; 49 L. T. 303 ; 31 W. R. 820 ; affirming 7 L. R. Q. B. Div. 174 ; 50 L. J. Q. B. 466; 45 L. T. 334 ; 29 W. R. 556 ; Loffus r. Maw, 3 Giff. 592 ; S. C. 32 L. J. Ch. 49 ; 8 Jur. N. S. 607; 6 L. T. N. S. 346 ; 10 W. R. 513, disapproved ; Peckham v. Taylor, 6 L. T. N. S. 487. " Keed V. Vannorsdale, 2 Leigh, 569. I Voluntary Trusts. 433 there was a valid gift which was binding on the donor's estate.^ So where a creditor directed his debtor to transfer the debt in his, the debtor's, books to the joint account of himself, the creditor, and his wife, stating that he desired her to have it after his death, and he cancelled the debtor's promissory note which he held for the amount of the debt, and took a new one in the joint names of himself and wife, it was considered, the wife surviving him, that he had created a trust in her favor, and that she was entitled, as survivor, to the note.^ Even an unsigned memorandum will be sufficient to create a trust when it is used as a di- rection by the donor to his debtor to transfer his debt to a trustee or to himself to hold as a trustee ; and the trust when thus created is irrevocable.^ But where a testator, who had lent £300 on note, payable on demand, directed the maker, after her death, to pay the interest to her sister for life, and afterward to divide the principal among her sister's children, which the maker agreed to do, and the payee died without having demanded payment of the note, which was found uncancelled among her papers at her death, it was held that she had not parted with her legal title to the money, and that the direction did not create a gift.* A testatrix by will gave to the defendant a legacy of £100, and afterward gave a check on her bankers in favor of A for £150, with verbal directions to apply so much of it as, with the legacy, would purchase a share of stock in a railway company, which she desired to give instead of the legacy, not, however, desiring to alter her ' M'Fadden v. Jenkyns, 1 Ph. 153 ; 12 L. J. N. S. Ch. 146 ; 7 Jur. 27 ; affirming 1 Hare, 458; 11 L. J. N. S. Ch. 281 ; 6 Jur. 501. * Gosling V. Gosling, 3 Drew, 335. ^Paterson r. Murphy, 17 Jur. 298; S. C. 22 L. J. Ch. 882. See, gener- ally, Parker v. Stones, 38 L. J. Ch. 46; S. C. 19 L. T. N. S. 259; Thorpe V. Owen, 5 Beav. 224 ; S. C. 11 L. J. Ch. N. S. 129 ; Crawford's Appeal, 61 Pa. St. 52. *Bulbeck v. Silvester, 45 L. J. Ch. 280. 28 434 Gifts. -will so as to make the addition to the legacy. After the amount of the check was credited to A, the account of the testatrix to that amount was overdrawn. It was held that there was no trust raised nor gift perfected. The court doubted whether the donor had relinquished all dominion over the gift, but did not hesitate to draw the conclusion, and to base its judgment uj)on it, that " the testatrix in- tended the arrangement to supply the place of an altera- tion in her will, and to stand upon the same footing as a will ; " ^ and for that reason the gift was void.^ 434. Covenant to Give Upon a Contingency. — A covenant or agreement to give upon a certain contingency, or when a certain event hapj)ens, is nothing more than a promise to give, and is not enforceable, although the con- tingency comes to pass or the event takes place. Such is a covenant to convey all property which the donor may thereafter acquire, although he may acquire jDroperty thereafter ; so a covenant to convey by a certain time certain described property, then in existence, if the cove- nanter by that time acquires the title, and the contingency arose, is nothing more than a promise to give.^ 435. Donor Reserving Control Over Trust Fund AS Trustee. — The gift is not defeated by the fact that the donor reserves control over the gift or fund given as trustee.* Thus a merchant in China wrote to his corre- iHughes V. Stubbs, 1 Hare, 476; S. C. 6 Jur. 831. ^Scales V. Maude. 3 W. R. 527; 1 Jur. N. S. 533, 1147 ; 6 De G., M. & G. 43; 25 L. J. Ch. 433. Where a father directed his creditor to give him a note in the name of his, the father's, daughter, and tlie daughter took it surreptitiously from her father's possession, it was held that the father could not appoint himself trustee for her and make a valid delivery of his own property as such trustee; nor did his promise to give her the note make him a trustee : Hatton v. Jones, 78 Ind. 466. ^Wilkinson v. V^'^ilkinson, 4 Jur. N. S. 47. * " That a person can so constitute himself a trustee of a fund, reserving to him- Voluntary Trusts. ' 435 spondents in London to transfer £1,000 from his tea ac- count, and em^Dloy it in exchange transactions for the benefit of his chiklren. In subsequent letters he wrote to the same correspondents " that lie declined giving any opinion as to the reinvestment of the fund, as he consid- ered he had no further control over it, as it belonged to his children," " that he had appropriated it to them, and his correspondents were to consider it as theirs." His correspondents accordingly opened a separate account, headed "A. V., exchange account on account of children," previously informing him of their intent so to do. The court decreed that a trust was well raised by the first let- ter in favor of the children, although the fund was still so far in the control of the donor as to be liable to his draAv- ing ; and that, too, notwithstanding the donor, in one of his letters, had desired his correspondents to consider it as "subject to the order of his executors" in the event of his death.^ So where a donor had £3,000 in the hands of her bankers upon their promissory note, and she sent the note to them, directing them to place £2,000 in the joint names of the donees and herself as trustee for them ; and they made an entry in their bank-books to her account as trustee for the donees, and gave her a signed receipt or note for it, reading as follows : "Fourteen days after siglit I promise to pay H. O. [the donor] trustee for A, C, and B, D, [the donees] or order, £2,000, with interest at 2h per cent. ;" it was held that this was a valid gift, although it is clear that he retained control over the fund by rea- son of the document which he received.- So where a tc^- tator wrote his agent in Paris to purchase an annuity for self at the same time the control of a trustee over the fund, is clear from many authorities, and amongst others from Wheatley v. Purr, 1 Keen, 551 :" Vandenberg V. Palmer, 4 Kay & J . 204. ^ Vandenberg v. Palmer, supra. ^ Wheatley v. Purr, supra. 436 Gifts. the benefit of Lady A, and the purchase being so made, but in the name of the donor, for the reason that the donee was then insane ; and afterward the testator sent a power of attorney to the agent empowering him to trans- fer the annuity to the donee, but the donor died before the transfer was made, thus working a revocation of the power of attorney, yet the court upheld the gift, upon the ground that he had committed to writing a sufficient declaration that he held that part of his estate in trust for the annuitant/ 436. Revocation. — AVhen a trust has been completely created, by no act of the donor can it be revoked without the consent of the donee, unless he has reserved the power to do so.^ This is true even though by some accident the estate has become revested in the donor.^ The donor is ^ Ex parte Pye, 18 Ves. 140. But if all the facts of the case show that the donor did not then intend to relinquisli his control over the fund, as the owner, but in- tended to control it as owner, and not as trustee, the gift is void: Smith v. Warde, 15 Sim. 56 ; Garrard v. Lord Lauderdale, 3 Sim. 1 ; S. C. 2 E. & M. 451 ; Hughes r. Stubbs, 1 Hare, 476; Gaskell v. Gaskell, 2 Y. & J. 502 (explained in Vanden- berg V. Palmer, 4 Kay & J. 204). See Forbes v. Forbes, 6 W. E. 92 ; S. C. 3 Jur. !N^. S. 1206, wliere the retention of control by the donor defeated the gift ; and Evans V. Jennings, 4 Jur. N. S. 551 ; S. C. 6 VV. E. 616, where the trust was up- held because the donor dealt with the fund given as trustee. -Sargent v. Baldwin, 60 Vt. 17 ; Light v. Scott, 88 III. 239; Tolar v. Tolar, 1 Pev. (N. C.) Eq. 4G0 (destroyed the deed) ; Dawson r. Dawson, 1 Dev. (N. C.) Eq. 93 ; Way's Trusts, 10 Jur. N. S. 836 ; S. C. 2 De G., J. & Sm. 365 ; Appeal of Eitter, 59 Pa. St. 9 ; Newton v. Acken, 11 Beav. 145 ; Garner v. Germania Life Ins. Co., 110 N. Y. 266 ; Nearpass v. Newman, 106 N. Y. 47 ; Meiggs v. Meiggs, 15 Hun, 453 ; McPhersonr. EolHns, 107 N. Y. 316; Gulick v. Gulick, 39 N. J. Eq. 401 ; Wil- liams V. Vreeland, 32 N. J. Eq. 135 ; Cobb v. Knight, 74 Me. 253 ; Sewall v. Eobert.s 115 Mass. 262 ; Viney v. Abbott, 109 Mass. 300 ; Dennison v. Goehring, 7 Birr, 175; Falk v. Turner, 101 Mass. 494; Stone v. Hackett, 12 Gray, 227; Hildreth v. Eliot, 8 Pick. 293. 3 Ellison V. Ellison, 6 Ves. 656 ; Smith v. Lyne, 2 Y & Coll. N. C. 345 ; Patersnn v. Murphy, 11 Hare, 88 ; Gilchrist ?•. Stevenson, 9 BMib. 9; Uzzle?'. Wood, 1 Jones (N. C.) Eq. 226 ; Browne ?'. Cavendish, 1 J. <^ L. 637. All parties interested must consent: Hellman v. McWilliams, 70 Cal. 449; and if one be an infant, there can be no revocation : Isham v. Delaware, etc., R. Co , 3 Stockt. (N. J.) 227. Voluntary Trusts. 437 bound, if tlie trust be completed, though some contingency was forgotten and unprovided for ; ^ and if the trust is created by deed a mental or oral revocation is void.^ But the donor may reserve the right to revoke the trust;" and the trust will remain until he exercise his authority under the power reserved.* If the donor provides that the trust estate shall be subject to such debts as he may contract during his life, the reservation is good ; and to the amount of the debts contracted it will be revoked, but no further.^ And it should be observed generally, that the failure on the part of the donor to reserve the power to revoke the trust is regarded by courts of equity as a circumstance of suspicion, and slight evidence of a mistake or misunder- standing on the j^art of the donor will enable them to set aside the trust.'^ 437. Preventing the Making of a Gift by Will. — In a few instances the attempt has been made to create a trust where the donor was prevented from executing a will to create the trust or make a gift, or was informed that it was not necessary to the validity of the proposed gift to include it in his will. Thus where a testator intended to give a note to the maker, and thus cancel the debt, but was advised by the scrivener that he might effectually de- clare his intention on the back of the note, and he wrote ' Keyer v. Carleton, 141 Mass. 45. 2 Wallace v. Berdell, 97 N. Y. 13. ^ Aubuchon v. Bender, 44 Mo. 560 ; Dean v. Adler, 30 Md. 147 ; Bealf. Warren, 2 Gray, 447 ; Hall v. Hall, 14 L. R. Eq. 365. See Pulvertoft v. Pnlvertoft, 18 Ves. 84 ; Worrall v. Jacob, 3 Meriv. 256. * Van Cott V. Prentice, 104 N. Y. 45. ^Markwell v. IMarkwell, 34 Beav. 12. «Garnsey r. Mundy, 24 N. J. Eq. 243 ; S. C. 13 Amer. L. Reg. 345 ; Eaton ;•. Tillinghast. 4 R. I. 276 ; Russell s Appeal. 75 Pa. St. 269; Everitt v. Everitt, 10 L. R. Eq. 405; Wallastonr. Tribe, 9 L. R. Eq. 44; Coutts v. Acworth, 8 L. R. Eq. 558 ; Prideaux v. Lonsdale, 1 De. G., J. & S. 433 ; Hall v. Hall, 14 L. R. Eq. 365; S. C. 8 Ch. App. 430; Evans v. Russell, 31 Leg. Int. 125; Nightingale v. Nightingale, 13 R. I. 113. 438 Gifts. on it accordingly; and lie frequently spoke to his wife, who was the residuary le2;atee, that he desired her to de- liver up at his death the note to the maker, and she led him to believe that she would do so, and after his death actually promised to do so ; it was held that equity would enjoin its collection, and not permit the wife to reaj) an ad- vantage by her deceitful actions.^ So if the donor make an absolute bequest of property to another, with a verbal agreement with the legatee that he will, at his death, dis- pose of the property equally between the donor's and the legatee's relatives, a trust is thereby created in favor of such relatives, which will be enforced by a court of equity'- if the legatee fail to perform the agreement. In such an instance it is fair to assume that the donor would have directed in his will the course of the property he desired it to take, if it had not been for the legatee's promise.^ But it will be observed in each one of these cases that the person violating his promise, or preventing the creation of the trust, reaped a benefit if the trust were overthrown, and it is upon that ground that the cases rest. If the j^erson making the promises receives no benefit under the will, then no trust is created. Thus where the defendant, at the time the testator made his will, promised him to give one of his children as much property as the testator would be able to give his other children, and thereby induced him to give such child a part of his estate, the promise is without consideration, and no trust is created in favor of the child that can be enforced against the person making the promise.^ So where a testatrix, the morning of her ^ Kichardson v. Adams, 10 Yerg. 273. ^McLellan v. McLean, 2 Head. 684; Podmore v. Gunning, 7 Sim. 644; Williams v. Fitcli, 18 N. Y. 546 ; Chamberlaine v. Ciiamberlnine, Freem. Ch. 34; Devenish v. Baines, Prec. Ch. 3; Oldham v. Litehtield, 2 Yern. 506; Barrow v. Greenougli, 3 Ves. 152; Hoge v. Hoge, 1 Watts, 163; Eeech v. Kennegal, 1 Ves. Sr. 123. ^ Kobinsoa r. Denson, 3 Head. 395. Voluntary Trusts. 439 death, called lier executor and asked liim if lie could not as executor cancel and give up a note she held against a third person, and he said he could and so promised; and the executor testified that if he had not made the promise the testatrix "would undouhtedly have added a codicil to her will, giving the note to the maker; the court held that there was no valid trust created.^ 438. Good or Meeitorious Coxsideratiox. — How far will a good or meritorious consideration support a trust, or authorize a court of equity to enforce a voluntary conveyance ? By a good or meritorious consideration is meant that which arises from blood or natural affection between near relatives, or, as Blackstone has it : " Such as that of blood, or of natural love and affection, when a man grants an estate to a near relation, being founded on motives of generosity, prudence, and natural duty." ^ In England it was decided that such a consideration was sufficient to support a deed and that it would be enforced against the donor in fiivor of a wife or cliild.^ This de- cision, however, was received with disfavor,** and was finally overruled.^ So that it may be considered settled in that country that such a consideration is not sufiicient for the enforcement of a voluntary trust.^ But there is a limitation to this statement. For if the donor execute a voluntary conveyance upon good consideration, and die before the trust is completed, a court will enforce it against ^ Sims V. Walker, 8 Humph. 503. ^ 2 Black. Com. 296, 297, 444. See Potter v. Gracie, 58 Ala. 303 ; Clark v. Troy, 20 Cal. 219 ; Corwin v. Corwin, 9 Barb. 219, 225. ^ iillis V. Nimmo, L. & G. (Tr.) 333. *Holloway ?•. Headington, 8 Sim. 324; Jefferys r. Jefferys, 1 Cr. & Ph. 138; Dillon V Coppin, 4 My. & Cr. 047. '" Moore V. Crafton, 3 Jon. & La. 442. ^ Antrobus v. Smith, 12 Ves. 39 ; Holloway v. Headington, 8 Sim. 324. 440 Gifts. other volunteers under a subsequent settlement ; ^ or against devisees or legatees;^ or against lieirs-at-law or the next of kin,^ though not, of course, against purchasers for value.* In America the tendency is to uphold and enforce such deeds or instruments, with the distinction, perhaps, that they must be under seal ; ^ and they must be made in favor of the wife or a child, and not in favor of a brother, sister, nephew, parent,'^ or illegitimate childJ 439. Maeeiage Settlements. — The subject of mar- riage settlements is foreign to the plan of this book, but it may be remarked that as marriage is a valuable considera- tion, ante-nuptial contracts will be enforced after the mar- riage is actually consummated.® ^ Bolton V. Bolton, 3 Swanst. 414. 2 lb. 3 Watts V. Bullas, 1 P. Wms. 60 ; Goring v. Nash, 3 Atk. 186 ; Eodgers v. Marshall, 17 Yes. 294. * Finch V. Winchelsea, 1 P. Wms. 277. A subsequent volunteer cannot defeat the trust by pleading a good consideration : Goring v. Nash, 3 Atk. 186 ; Kodgers V. Marshall, 17 Ves. 294. It may even be doubted if a good consideration will be sufficient to support an action for a specific performance in that country. See Price V. Price, 14 Beav. 598; Joyces. Hutton, 11 Ir. Ch. 123; Colman v. Sarrel, 1 Ves. Jr. 50. ^McTntire v. Hughes, 4 Bibb. 186 ; Mahan v. Mahan, 7 B. Mon. 579 ; Bright v. Bright, 8 B. Mon. 194 ; Hayes v. Kershow, 1 Sandf. 258 ; Blackerby v. Holton, 5 Dana, 520 ; Tolar v. Tolar, 1 Dev. (N. C.) Eq. 460 ; Caldwell v. Williams, 1 Baily (S. C), Eq. 175. ^ Buford's Heirs, 1 Dana, 107 ; Hayes v. Kershow, 1 Sandf. 258. ^Fursaker v. Robinson, Pr. Ch. 475. sCaton v.Caton, L. R. 1 Ch. 137; S. C. 34 L. J. Ch. 564; on appeal L, E. 2 H. L. 127 ; S. C. 36 L. J. Ch. 886 ; 14 L. T. 34 ; 14 W. E. 267 ; Kay v. Crook, 3 Sm, & G. 407 ; Goldicutt v. Townsend, 28 Beav. 445 ; Stone v. Stone, L. E. 5 Ch. 74 ; Crane v. Gough, 4 Md. 316 ; S. C. 3 Md. Ch. 119. CHAPTER XVI. FRAUD AXD UNDUE INFLUENCE. 440. Gift Procured by Fraud or Undue 453. Influence is Void. 454. 441. Amount of Influence Necessary to Avoid Gift. 455. 442. Unsoundness of Mind — Mental 456. Weakness. 457. 443. Temper and Disposition of Donor. 458. 444. Age of Donor — Disease. 459. 445. Improvident Gift to Stranger. 460. 446. Unequal Distribution of Property 461. Among Children. 462. 447. Value of Gift — Amount of Donor's 463. Remaining Property. 464. 448. Donee Preparing Deed. 465. 449. Gift Intended to Operate as a Will. 466. 450. Mistake. 451. Power of Revocation, Failure to 467. Reserve. 468. 452. Witnesses to Gift. Importuning Donor — Persuasion. Burden to Show Fraud or Undue Influence. Confidential Relations. Principal and Agent — Partners. Gift by Client to His Attorney. Gift to Clergyman. Physician and Patient. Ante-Nuptial Agreements. Father to Son. Son to Father. Brother and Sister. Gift to Mistress. Gift of Inebriate. Ward to Guardian — Son to Pa- rent. Wife to Husband. Who May Bring Suit to Set Aside Gift. 440. Gift Procured by Fraud or Undue Influ- ence IS Void. — A gift procured or brought about by fraud or undue influence is void. The fraud or illegal influence that will avoid a o-ift need not be sufficient to set O aside a will procured in the same way. ''A gift by will by a cestui que trust to his trustee, by a principal to his agent, by a client to his attorney, or by a ward to his guardian, is upheld on less evidence that there was no fraud or undue influence, than is a gift in piwsoiti. If, however, the facts disclose that the person taking the benefit be instrumental in procuring the bequest, then the rule would not be modified toward him." ^ In speaking ' Decker v. Waterman, 67 Barb. 460 ; Ilindson v. Weatherill 5 Dc Gex., M, & G. 301 : Parfitt v. Lawless, L. R. 2 P. & D. 462; S. C. 4 Moak, 087. 441 442 Gifts. of the difference between a gift inter vivos and by will, with respect to the presumption of undue influence, Lord Penzance said : " In the first place, in those cases of gifts or contracts inter vivos there is a transaction in which the person benefited at least takes part, whether he unduly urges his influence or not ; and in calling upon him to explain the part he took, and the circumstances that brought about the gift or obligation, the court is plainly requiring of him an explanation within his knowledge. But in the case of a legacy under a will, the legatee may have, and in point of fact generally has, no no part in or even knowledge of the act ; and to cast upon him, on the bare proof of the legacy and his relation to the testator, the burden of showing how the thing came about, and under what influence or with what motive the legacy was made, or what advice the testator had, jDrofes- sional or otherwise, would be to cast a duty on him which in many, if not most, cases he could not possibly dis- charge. A more material distinction is this : The influ- ence which is undue in the case of gifts inter vivos is very different from that which is required to set aside a will. In the case of gifts or other transactions inter vivos which such relations as those in question involve, executed by those who possess it to obtain a benefit for themselves, is undue influence. Gifts or contracts brought by it are, therefore, set aside unless the party benefited by it can show afiirmatively that the other party to the transaction w^as placed ' in such a position as would enable him to form an absolutely free and unfettered judgment.' "^ 441. Amount of Influence Necessary to Avoid Gift. — The influence that is necessary to render a gift 1 Parfitt V. Lawless, L E. 2 P. & D. 4G2 ; S. C. 41 L. J. P. OS ; 27 L. T. 215 ; 21 W. E. 200; 4 Moak, G87; Boyse v. Eossborougli, 6 H. L. Cas. 1, 49; Archer v. Hudson, 7 Beav. 551 ; Pressley v. Kemp, 16 S. C. 334 ; S. C. 42 Am. Rep. 635. Fraud and Undue Influence. 443 void must be especially directed in favor of the donee, and must be sufficient to destroy the freedom of the donor's will. He must so come under the influence of the person exercising control over him as to become his agent, and be subject to his will.^ " Undue influence consists in de- stroying the freedom of the donor's will, so as to make his act rather the will and act of the donee than his own. And such influence must be specially directed to accom- plish the thing done. If the mind of the donor was brought to a j^urpose preconceived by the donee for his own advantage, by an influence the donor could not es- cape, under the circumstances in which she was placed, and which was deliberately used to effect such pur2D0se,then that influence, or its exercise, was undue and im2:)roper." ^ 442. Ujs^soundness of Mind — Mental Weakness. — If the donor has sufficient mental capacity to comprehend the transaction his gift will be valid, although he has not the power to transact business generally. Thus where a father gave a son some stock, and at the time he had suf- ficient mental capacity to transact business with his family, although not to transact business generally, the gift was upheld, there being no suspicion of undue in- fluence or of fraud.^ Mere mental weakness will not au- thorize a court to set aside an executed gift, if such weak- ness does not amount to an inability to comj^rehend tlie transaction, and is unaccompanied by evidence of imposi- tion or undue influence.^ If it is shown that the donor and 1 Allmon V. Pigg, 82 III. 149 ; S. C 25 Anier. Rep. 303 ; Woodbury v. "Wood- bury, 141 Mass. 329. 2 Decker t". Waterman, 67 Barb. 400 ; Hnrailton v. Armstrong, 20 S. W. Rep. 1054; Soberanes v. Soberanes, 31 Pac. Rep. 910. ^ Van Deusen r. Rowley, 8 N. Y. 358; Kidder v. Stevens, GO Cal. 414. See Riggs ?'. American Tract Society, 84 N. Y. 330 ; Brault v Brault, 1 Leg. News, 495; :Moore v. Moore, 67 Mo. 192 ; Rowland v. Sullivan, 4 Des. Eq. 516. * Willemin x. Dunn, 93 111. 511. 444 Gifts. donee bore confidential relations to each otlier, tlien a weakness of mind, even though not to the extent of pro- ducing mental unsoundness, may operate to overturn the gift, especially if such a gift is a large one in value and consists of nearly all the donor's estate.^ 443. Temper and Disposition of Donor. — The tem- per and disposition of the donor are always facts for con- sideration. A man of easy temper and yielding disposi- tion is more liable to be imposed upon than one of a resolute disposition and firm temper. This is especially true if he is a person of weak mind. In such an instance the court will look with a jealous eye upon the transaction, and will very strictly examine the conduct and behavior of the donee. If it can discover that any acts or stratagems or undue means have been used to procure the gift; if it see the least sj)eck of imposition at the bottom of the transaction, or that the donor is in such a situation with respect to the donee as may naturally give the latter an undue influence over him ; if there be even the least scin- tilla of fraud, the court will inter230se and set aside the gift.^ 444. Age of Donor — Disease. — The age of the donor is always a matter for consideration. An old and feeble man is not always as able to resist the importunities of those near him, especially when his mind is weakened by disease, as a man in the full vigor of life. What might be a valid gift in the latter instance might very probably be void in the former.^ If a person, whose mind is en- feebled by disease or old age, and who is so placed as to be ^ Woodbury v. Woodbury, 141 Mass. 329. 2 Sears v. Shafer, 1 Barb. 408 ; affirmed 6 N. Y. 268. Tlie declarations of tlie donor made shortly after the gift, showing incapacity of mind, are admissible in evidence: Howell v. Howell, 59 Geo. 145; Lane v. Moore, 151 Mass. 87. ^ Hall V. Knappenberger, 97 Mo. 509. Fraud and Undue Influence. 44-3 subjected to the influence of another person, makes a gift of property to such person, the gift is presumptively void, and the burden rests upon the donee to show that the donor understood the nature of the act, and that the act was not done through the influence of the donee.^ 445. Improvident Gift to Straxger. — If a gift is free from the imputation of fraud, surprise, or undue in- fluence ; and the donor and donee do not sustain confi- dential or fiduciary relations to each other, and such gift is spontaneously executed, it will not be set aside by the courts, although it is highly improvident and a mere stranger is the recipient of the donor's bounty,^ But if the donor is weak of mind, the amount of the gift is quite a potent factor, especially if it is made to one bearing con- fidential or fiduciary relations to him.^ 446. Unequal Distribution of Property Among Children. — An heir of the donor cannot insist that a gift be set aside merely by showing that the donor made an unequal or unfair distribution of his 23roperty among those who had claims on his bounty. The fact of the unequal distribution may be shown, but that fact must be coupled with other facts of undue influence, fraud, or unsoundness of mind before the gift can be avoided.* 447. Value of Gift — Amount of Donor's Remain- ing Property. — Still another consideration is the value ^Haydock v. Hajdock, 34 N. J. Eq. 570; Owing's Case, 1 Bland Ch. 370; Beeman v. Knapp, 13 Gr. Cb. 398; Soberanes v. Soberanes, 31 Pac. Rep. 910. " Willemin v. Dunn, 93 111. 511 ; Yillers v. P>eanniont, 1 Vern. 100; Ilugiienin V. Baselev, 14 Ves. 273 ; Eskridge v. Farrar, 30 La. Ann. 718 ; S. C. 34 La. Ann. 709 ; Twist v. Babcock, 48 Mich. 513. 'Woodbury v. Woodbury, 141 Mass. 3'29. "I think it maybe inferred that amount merely may, in a voluntary transaction, be such evidence of improvidence as to shift the onus of proof to the recipient of the bounty:" Blake, V. C, in Kersten r. Tane, 22 Gr. Ch. 547. * Moore v. Moore, 67 Mo. 192; Carty v. Connolly, 91 Cal. 15. 446 Gifts. of the gift. A gift of a large amount of property calls for a greater affection, usually, of the donor for the donee than one of a small value, taking into consideration the amount of the donor's wealth. If the donor had but little affection for the donee, then the gift should be viewed more closely than if he had a great affection for him. Usually men do not act without a motive, unless impelled by some exterior and uncontrollable force, and where a donor has but little or no affection for a donee, we may well look about for some exterior and impelling force. So, too, the amount of the donor's property i-emaining after he has made a gift is for consideration, unless the gift is trifling in value. A donor will usually not strip himself of property for the benefit of a donee, and run the risk of poverty or Avant. The amount of the gift, other things being even, is often the turning point in its validity.^ 448. Donee Preparing Deed of Gift. — Where the donee j^repares the deed of gift, the transaction is viewed with suspicion. Indeed such a transaction is viewed very much on the same plane as a gift from client to attorney. " But where a deed is prepared by the person himself, who seeks the benefit of it, without the intervention of any other joerson, that circumstance alone is sufficient to raise a presumption of fraud ; and the instrument is to be viewed with the greatest jealousy, because the person with whom he deals is thus deprived of the opportunity of any disinterested assistance on the subject ; and for this reason instruments obtained by attorneys from their own clients are always viewed with extraordinary jealousy." ^ ^ Hall V. Knappenberger, 97 Mo. 509 ; Sears v. Shafer, 1 Barb. 408 ; aflSrrued 6 N. Y. 268. - Watt V. Grove, 2 Sch. & Lef. 492, 503. The solicitor of the donee preparing the deed does not change the presumption : Plunter v. Atkins, 3 My. & K. 113; Fraud and Undue Influence. 447 449. Gift Ixtexded to Operate as a Will. — Where there was confidential relations existins: between the donor and the donee, and the former was old and feeble, and made a gift of property to such donee ; and it was obvious that the donor intended the gift to operate as a will, it was held that the latter fact presented an additional reason for imposing upon the donee the burden of showing con- vincingly the validity of the act.^ 450. Mistake. — A gift, though untainted by fraud, will always be set aside if it does not conform to tlie in- tention of the donor, or if executed under a total misap- prehension as to its effect. In the case of a deed of gift, the question is not, did the donor execute the deed volun- tarily, but with full knowledge of the nature, effect, and consequences which the law gives it. To be upheld it must be the pure, voluntary, and well understood act of the donor's mind. The courts will not recognize any deed of gift when it appears that there was any defect in the understanding of the nature of the gift on the part of the donor ; if the deed be tainted with the Avant of com- plete understanding of its nature by its author, the court must treat it as invalid, and consider that the property did not i^ass. In such an instance a court of equity will not enforce the deed, nor enforce what the grantor actu- ally intended to do.^ St. Leger's Appeal, 34 Conn. 434 ; Sears v. Shafer, 1 Barb. 408 ; affirmed 6 N. Y. 268. If a doubt exists as to whether the donor knew all the provisions of the deed, it is void : Greenfield's Estate, 14 Pa. St. 489 ; Lansing v. Russell, 13 Barb. 510. »Haydock v. Haydock, 34 X. J. Eq. 570; Wlieeler i'. Glasgow, 11 So. Rep. 758. ^Mulockv. Mulock, 31 X.J. Eq. 594; S. C. 32 X. J. Eq. 348; Garnsey r. Mundy, 24 X. J. Eq. 243; Anderson r. Elswortli. 7 Jur. X. S. 1047; S. C. 3 Giff. 154; Hoghton v. Hoghton, 15 Beav. 278 ; Toker r. Toker, 31 Bear. 644 ; Phillipson i'. Kerry, 32 Beav. 628; Lister v. Hodgson, L. R. 4 Eq. Cas. 30 ; Coutts V. Acworth, I.. R. 8 Eq. Cas. 558 ; Wollaston v. Tribe, L. R. 9 Eq. Cas. 44. 448 Gifts. 451. Power of Eevocatigx, Failure to Eeserve. — Where the gift is in the nature of a settlement, which usually consists of laud and articles of great value, the failure to insert in the deed of settlement a power of rev- ocation has the effect to cast upon the transaction a suspicion, and to cast upon the beneficiary the burden of showing that there was a distinct intention of making the gift irrevocable. Such a gift may be set aside.-^ 452. Witnesses to Gift. — If the gift is made at a time when the donor is ill and feeble, especially if the donor and donee sustained confidential relations to each other, and it is unusual and rests under circumstances of suspi- cion, even though slight, the donor must call all witnesses to the transaction and cannot rely upon his own testimony alone.^ 453. iMPORTumNG Donor — Persuasion. — A donee does not lose his right to retain a gift merely because he importuned the donor to make it, nor because any one else importuned such donor to make it. Mere entreaties or persuasions, even though such entreaties or jDcrsuasions bring about the gift, do not avoid it. Any one has a legal right to entreat another for a gift without losing his right to it after it is made. To render a gift made under such circumstances void, the entreaties or persuasions must advance so far as to become the exercise of an undue influence — such as renders the donor a mere agent in ^ Miskev's Appeal, 107 Pa. St. 611; Russell's Appeal, 25 P. F. Smitli, 289; Wollaston v. Tribe, L. R. 9 Eq. 44 ; Coutts v. Ackworth, L. R. 8 Eq. 558 ; Hall v. Hall, L. R. 14 Eq. 365; Huguenin v. Baseley, 14 Ves. 273; Phillipson v. Kerry, 32 Beav. 628 ; Garnsey v. Mnndy, 13 Araer. L. Reg. 345. See Section 118. ' ^Chalker v. Chalker, 5 Redf. 480; Griffiths v. Robins, 3 Madd. 191 ; Goddard V. Carlisle, 9 Price, 169 ; Nesbit v. Lockman, 34 N. Y. 167 ; Sears v. Shafer, 6 N. Y. 268. Fraud and Undue Influence. 449 the hands of the donee to do his will and biddins-.^ A gift inter vivos obtained in this manner is, however, presumptively void ; and the donee, in order to retain it, where he has obtained the gift by natural influence he i^ossessed over the donor, must affirmatively show that the donor could have formed a free and unfettered judg- ment in the matter.^ 454. Burden to Show Fraud or Undue Influence. — The burden to show that the gift was procured by fraud or undue influence rests upon the person who attacks its validity. Proof of facts from wdiich fraud or such influ- ence results as an unavoidable inference is sufficient. In some cases undue influence will be inferred from the nature of the transaction alone ; in others from the nature of the transaction, and the exercise of occasional or habit- ual influence. Evidence of direct influence used at the time the gift is made is not required. It is very often difficult to show by direct proof the undue influence, and direct evidence of the actual exercise of such influence is not expected. Oftentimes the means of keeping the in- fluence out of sight are many and easy of application, and yet the result may be clearly seen. The fact of the influence exerted is very often gathered from all the cir- cumstances attending the donor — his health, age, and mental condition, how far he was dependent upon and subject to the control of the person benefited, the oppor- tunity which the donee had to exercise his influence, and ' Beith V. Beith, 76 la. 601 ; O'Neall r. Farr, 1 Pvich. 80 ; Soberanes r. Soberanes, 31 Pac. Rep. 910; Harrison's Will, 1 B. Mon. 351 ; Walker r. Hunter, 17 Geo. 364 ; Newhouse v. Godwin, 17 Barb. 236 ; Chandler v. Ferris, 1 Harr. 454 ; Calvert V. Davis, 5 Gill & J. 269. ^Parfitt r. Lawless, L. R. 2 P. & D. 462; S. C. 41 L. J. P. 68; 27 L. T. 215; 21 W. R. 200 ; 4 Moak. 687. The fact that the donor did not have independent advice is not alone sufficient to overthrow the gift: Soberanes r. Soberanes, 31 Pac. Rep. 910. 29 450 Gifts. the disposition of the donor to be subjected to it. But the undue influence must be exercised in relation to the gift made, and not as to other transactions, in order to in- validate the gift. Yet if it is shown that at or about the time when the gift was made the donor was in other im- jDortant particulars so under the influence of the donee, that, as to them, he was not a free agent, but was acting under undue influence, the circumstances may be such as fairly to warrant the conclusion, in the absence of any evi- dence bearing directly upon the acts done when the alleged gift was actually made, that, in relation to that also, the same influence was exerted. If fiduciary or confidential relations are established between the donor and donee, then the burden is upon the latter to show that the gift was fair and that no undue advantage was taken of the former.^ 455. Confidential Relations. — Certain relations be- tween the donor and donee are deemed to raise a presump- tion of such an undue influence on the part of the donee as to avoid the gift, and the burden rests upon the donee to show that there was no such influence or no undue advantage was taken of the donor. " For I take the rule to be this," said Lord Brougham ; " there are certain relations known to the law, as attorney, guardian, trustee ; if a person standing in these relations to client, ward, or cestui que trust, takes a gift or makes a bargain, the proof lies upon him, that he has dealt with the other party, the client, Avard, etc., exactly as a stranger would have done, taking 1 Woodbury v. Woodbury, 141 Ma^s. 829 ; Chalker v. Chalker, 5 Eedf. 480 ; Boyd V. Boyd, 66 Pa. St. 28.3 ; Tenbrook v. Brown, 17 Ind. 410 ; Drake's Appeal, 45 Conn. 9; Delafield v. Parish. 25 N. Y. 96; Se:irs r. Shafer, 6 K Y. 268; Tyler V. Gardiner, 35 N. Y. 559 ; Howe v. Howe, 99 Mass. 88 ; Boyse v. Eossborough, G H. L. Cas. 2; Ehodes v. Bate, L. E. 1 Ch. 252; Mitchell v. Homfray, 8 Q. B. Div. 588 ; In re Welsh, 1 Eedf. 238 : Todd v. Grove, 33 Md. 188; Wilson's Appeal, 99 Pa. St. 545; Diincombe v. Eichards, 46 Mich. 166. Fraud and Undue Influence. 451 no advantage of liis influence or knowledge, putting the other party on his guard, bringing everything to his knowledge which he himself knew. In short, the rule rightly considered is, that the person standing in such relation must, before he can take a gift, or even enter into a transaction, place himself in exactly the same position as a stranger would have been in, so that he may gain no advantage whatever from his relation to the other party, beyond what may be the natural and unavoidable con- sequence of kindness arising out of that relation."^ The grounds upon which a gift between persons holding confidential relations are held prima facie void is that of public policy, or, as it is otherwise expressed, of public utility. The relief granted in such cases rests upon gen- eral principles applicable to all relations in which domin- ion is exercised by one person over another.^ In the case of a gift between [)ersons sustaining confidential relations to each other, the courts usually require the donee to show that the donor liad independent and proper advice before the gift was made, especially where the donor is old and feeble.'^ 456. Principal and Agent — Partners. — ^In the case of a guardian and ward, trustee and beneficiary, and the like, the confidential relations between them implies control or dominion by one over the will of another ; in which cases dealings between them are subject to an adverse pre- sumption, because of the opportunities and temptations 1 Hunter r. Atkins, 3 My. & K. 113; Miskey's Appeal, 107 Pa. St. 611 ; Garvin V. Williams, 44 Mo. 4G5 ; Yosti v. Longhran, 49 Mo. 594; Hall v. Knappenberger, 97 Mo. 509 ; Haydock v. Haydock, 34 N. J. Eq. 570 ; Sears v. Shafer, 1 Barb. 408 ; affirmed 6 N. Y. 2G8 ; Kersten v. Tane, 22 Or. Ch. 517. 2 .\shton V. Thompson, 32 Minn. 25. ^Beeman v. Knapp, 13 Gr. Ch. 398; Sharp v. Leach, 31 Beav. 404; Wood- bury i,. Woodlmry, 141 Mass. 329. See Parker r. Parker, 45 N. J. Eq. 224; Stewart's Estate, 137 Pa. St. 175; Duncombe v. Richards, 46 Mich. 166. 452 Gifts. which such a relationship affords for the improper exer- cise of the dominion thus acquired. But in the case of principal and agent, and partners, such a presumption does not arise, although their dealings are closely scruti- nized because of the opportunities and temptations which those relationships afford for the abuse of trust and confi- dence. In the case of guardian and ward, and the like, confidence as well as control may, and usually does, exist ; but in the case of principal and agent, confidence alone exists, while dominion is not implied. It cannot, there- fore, be said that an agent, who is the mere creature of the princij^al and whose appointment is revocable at the latter's discretion, has the same opportunity to dominate his principal as the guardian, whose relationship is con- ferred by a will other than the. ward's, who stands in loco pareritis to a person under disability, or just removed from it, and where appointment is for a term fixed by law. Dominion is the characteristic feature of the one relation- ship ; trust, of the other. In a matter of dealing between the agent and the principal with respect to the property the subject of the agency, or in respect to the matter in which the agent is emjDloyed, such agent must show, to the satisfaction of the court, that he gave his principal the same advice in the matter as an independent and disin- terested adviser would have done. He must show that he 2)ut his principal in possession of all the facts ; for the transaction is presumptively fraudulent. But not so in the case of a gift. He is not an agent for the purpose of taking a gift, or for dealing with the subject-matter of the agency in that manner. In his capacity as agent he ex- ercises no dominion over his principal. Therefore a gift by a principal to his agent, who has ever been his confi- dential adviser for many years, is valid, unless the party who seeks to set it aside can show that some advantage Fraud and Undue Influence.^ 453 was taken of the agent of the relation in which he stood to the donor. And in determining whether the gift was void, after both parties have introduced such evi- dence as is admissible, the whole field must be sur- veyed, and the true nature and character of the transaction considered/ It may, therefore, be stated as a rule of universal application, that mere proof on the part of the party attacking the validity of a gift on the ground of fraud, that the donee was the agent of the donor, even though the subject-matter of the gift was the subject-matter of the agency, does not raise a presumption that the gift was fraudulent. Something more must be shown before the gift will be overturned.^ In such an instance it is not necessary to shoAV that the principal had independent advice.^ If the proof show that the donor knew what he was doing, the value of the thing donated, the exact situation of the property, the effect it would have on his own estate, the condition in which he would be left ; if the gift is by deed or a written instrument, that it was read over and explained to him before execu- tion, its contents being fully understood and compre- hended — that is sufiicient to uphold the gift, and to repel the presumption of fraud arising from proof of the rela- tion of the parties which a few cases still adhere to.^ 457. Gift by Client to His Attorney. — Transac- tions between an attorney and his client do not stand, in the eye of the law, precisely on the same footing with lUhlich V. Muhlke, 61 111. 499. 2 Ralston v. Turpin, 25 Fed. Rep. 7 ; McCormick v. Malin, 5 Blackf. 509 ; Harris V. Tremenheere, 15 Yes. 34 ; Huguenin v. Basely, 74 Yes. 273 ; Pressley r. Kemp, 16 S. C. 334; S. G. 42 Am. Rep. 635; Smith v. Kay, 7 H. L. Cas. 751. ' Ralston v. Turpin, supra. * Decker v. Waterman, 67 Barb. 460. See Comstock v. Comstock, 57 Barb. 453 ; Piatt V. Piatt, 2 T. & C. 29 ; Beeman v. Knapp, 13 Gr. Ch. 39S ; Parris r. Cobb, 5 Rich. Eq. 450. 454 Gifts. those which take place between men not connected by any confidential relation. The attitude of an attorney fre- quently enables him to take an undue advantage of his client, and courts for this reason frequently overlook transactions between them. But to justify interference on the part of the court, it must appear that the attorney excited fear in his client, or exerted his influence to ob- tain an exorbitant reward, or that the transaction was tainted by fraud, misrepresentation, or circumvention. But wdien the relationshij) of attorney and client is dis- solved, then they stand upon the same footing as if such relationship had never existed ; yet if it be shown that the attorney, by reason of such former relationship, still had an undue influence over his former client, that fact may be well considered in determining the validity of the gift.^ In an Irish case, w^here the donee was a solicitor of the donor and claimed that his client had made a gift mortis causa of a sum of money then in his hands, the court declined to allow the gift, saying : " This court will not jDcrmit a solicitor, having money of his client in his hands, to come out of a room in which his client was — least of all out of a sick-room where his client was at the j)oint of death, and where he was alone with him — and say that the client allowed him to retain for his own pur- poses a part of the money in his hands. There would be no safety in the ordinary transactions of life if he were allowed to do so ; and there is no class upon whom it would press more heavily than the solicitors themselves, for instead of families reposing confidence in them, as they do now, they w^ould be obliged to shut their doors against them, and see that they were not allowed access to their clients except in the presence of witnesses who would prevent anything of the kind taking place. But ' Bibb I'. Smith, 1 Dana, 580. Fraud and Undue Influence. 455 the law does not allow such transactions to stand ; it says to the solicitor, if you wish to take a gift from your client, you must call in a third person, and then if the client will confer a benefit upon you, and that he is fully ac- quainted with the nature of the act he is doing, and is determined to do it, there is nothing to be said against it. But the court cannot allow payment of a sum of money to be enforced against the assets of the client, depending upon a conversation between him and his solicitor, in the absence of third persons, when the client was in ex- tremis.''^ ^ " A client, for example," said Lord Brougham, " may naturally entertain a kindly feeling toward an attorney or solicitor by whose assistance he has long bene- fited; and he may fairly and wisely desire to benefit him by a gift, or without such an intention being the pre- dominating motive, he may wish to give him the advan- tage of a sale or a lease. No law that is tolerable among civilized men, men who love the benefits of civility with- out the evils of excessive refinement and overdone sub- tlety, can ever forbid such a transaction, provided the client be of mature age and of sound mind, and there be nothing to show that deception was practiced, or that the attorney or solicitor availed himself of his situation to withhold anv knowleds-e, or exercise anv influence hurtful to others and advantageous to himself In a word, stand- ing in the relation in which he stands to the other party, the proof lies upon him (whereas, in the case of a stranger it would be on those who opposed him) to show tliat he has placed himself in the position of a stranger, that he has cut ofi*, as it were, the connection which bound him to the party giving or contracting, and that nothing has iWnlsh V. Studdart, 6 Irish Eq. 161 ; S. C. 4 Stig. Dec. (Ir.) 159; 2 Cn. & Low. (Ir.) 423. It has been said that it is almost impossible for a gift between attorney and client to stand : Hatch v. Hatch, 9 Ves. 292, 296 ; Watt v. Grove, 2 Sch. & Lef. 492, 503 ; Griffiihs v. Eobins, 3 Madd. 191. 456 Gifts. liai^pened, wliicli might not have happened, had no such connection subsisted." ^ 458. Gift to Clergyman. — The gift of a donor to his spiritual adviser is regarded with some degree of sus- j^iciou, especially if made as a mortis causa. " When a clergyman," said Lord Sugden, " attends upon a person in his last moments, and sets up a gift from the dying- man to himself, the evidence of the transaction ought to be i^erfectly free from all suspicion, and such as to leave no reasonable doubt in the mind of the court as to its truth. A death-bed is not the fit place, nor the projDer time, at which a clergyman of any persuasion should look to his own personal interest, or seek to obtain the prop- erty of the dying man. On such an occasion, if a man has a testamentary intention, and the time allows, proper advice should be obtained, some professional person should be sent for, and disinterested witnesses called in ; all due solemnities should attend the disposition of the property. Advantage ought never to be taken of a man's last moments, in order to obtain dispositions of his property, in favor of persons not connected with him by the ties of blood, and I shall always require strong evidence, more especially in the case of a clergyman, before I support a gift made in extremis." ^ In such an instance the burden 1 Hunter v. Atkins, 3 My. & K. 113 ; Gibson v. Jeyes, 6 Ves. 277 ; Wright v. Proud, 13 Ves. 138 ; Harris v. Tremenheere, 15 Ves. 40. A gift to his attorney of a part of the property in litigation is void : Berrien v. M'Lane, Hoff. Ch. 421 ; Howell V. Eansom, 1 N. Y. Leg. Obs. 11 ; Marshall v. Dossett, 20 S. W. Eep. 810; Anonymous, 16 Abb. Pr. 428. See generally Eose v. Mynatt, 7 Yerg. 30; Planters' Bank v. Hornberger, 4 Coldw. 531 ; Starr v. Vanderheyden, 9 Johns. 2o3 ; St. Leger's Appeal, 34 Conn. 434 ; In re Smith, 95 N. Y. 51G. Even if it is shown that the gift was made after the relation of attorney and client ceased, it must be shown that the client made the gift, or confirmed one previously made, with a full knowledge of his rights : Tyars v. Alsop, 61 L. T. 8 ; S. C. 37 W. E. 339 ; 53 J. P. 212 ; 5 T. L. E. 242 ; affirming 59 L. T. 367 ; S. C. 36 W. R. 919. => Thompson v. Heffernan, 4 Sug. Dec. (Ir.) 285 ; Norton v. Eelly, 2 Eden, 286. I Fraud and Undue Influence. 457 of showing that the gift was fair is upon the donee, es- pecially if he in any Avay acted as the agent of the donor.^ 459. Physician axd Patient. — Nearly the same rule seems to prevail with regard to a gift from a patient to his medical attendant that prevails between client and attorney. Thus, where a surgeon, who had attended a poor shoemaker for years and received some comj^ensation for his services, on the latter's daughter being about to marry a nobleman, took a note for much more than his usual charges amounted to, presumably because of the social changes of the shoemaker, brought about by his daughter's marriage, the court declined to allow a recovery for any more than was due by the old scale of fees, because of the confidential relations between them."^ So in a re- cent case it was held that, although there was no rule of law which forbids a man bequeathing his property to his ' Corson's Estate, 137 Pa. St. 160 ; Marx i-. McGlynn, 4 Kedf. 455 ; Merrill v. Rolston, 5 Kedf. 220, 235 ; Drake's Appeal, 45 Conn. 9 ; Kersien v. Tane, 22 Gr. Ch. 547. In case of a will, when it was shown that the legatee was a Roman Catholic priest, that he had resided with the testatrix and her hu>band nianv years as chaplain, and for a part of the time as confessor, being confessor at the time the will was made ; but there was no evidence that he had interfered in the making of the will, or that he had procured the gift from the donor to himself, or that he had brought such gift about by coercion or dominion exercised over the tes- tatrix against her will, or by importunity not to be resisted ; and it was not shown that even in the common aflairs of life, in business, or in anything else, the testa- trix was under his dominion or influence ; it was held that there was no evidence to go to the jury on an issue of undue influence: Parfitt v. Lawless, L. R. 2 P. iS: D. 462; S. C. 41 L. J. P. 68 ; 27 L T. 215 ; 21 W. R. 200 ; 4 Moak. GS7. 2 Billage v. Southee, 9 Hare, 534; S. C. 16 Jur. 188 ; Ahearne v. Ilogan, 1 Drury (Irish), 310. See Pratt v. P>arker, 1 Sim. 1 ; S. C 4 Russ. 507 ; Crispell v. Dubois, 4 Barb. 393 ; Mitchell v. Homfrny, 8 L. R. Q. B. Div. 587 ; S. C. 50 L. J. Q. B. Div. 460 ; 45 L. T. (N. S.) 694; 29 W. R. 558 ; Blaikie v. Clarke, 22 L. J. Ch. 377 ; Whitehorn v. Hines, 1 Munf. 559. In Missouri it was held that merely proving that the donor was a m:in afflicted with a chronic disease, and the purchaser was his family physician, did not warrant an inference of fraud, especially where there were no attending circumstances to corroborate such inference : Doggett i. Lane, 12 Mo. 215. 458 Gifts. medical attendant, yet it is not a favorable circumstance for one in such a confidential position, with respect to a patient laboring under severe disease, to take a large benefit under such patient's will, more particularly if it be executed in secrecy and the whole transaction assumes the character of a clandestine proceeding. In such a case the burden lies very heavily upon the person benefited to maintain the validity of the will.^ But, on the contrary, a gift of 150,000 worth of jDroperty by a patient to his physician, by deed, was upheld, and the burden ruled to be on those attacking the validity of the gift to show that it was brought about by undue influence.^ 460. Ante-Nuptial Agreements. — Gifts between persons under an engagement of marriage are closely scrutinized when a charge of fraud or undue influence is made, such persons occupying confidential relations. When such gifts or contracts are drawn in question, every presumption is against their validity, and the burden of proof is cast upon the man, in order to ujDhold and enforce them.^ 1 Ashwell V. Lomi, L. R. 2 P. & D. 477 ; S. C. 4 Moak. 700. A deed of gift set aside : Gibson v. Russell, 2 Y. & C. N. C. ] 04. A secret agreement to pay |125,000 for medical services set aside : Dent v. Bennett, 4 M)'. & Cr. 269. An annuity of |-')00 for his life, in consideration that tlie ship surgeon would live with him and take care of him, from an apoplectic patient, set aside : Popham r. Brooke, 5 Russ. 8. A dentist holding a draft for §1,300, in consideratinn tiiat he would take care of an aged man's teeth, held void and ordered delivei ed up : Allen v. DaviS; 4 De G. & S. 133. An aged, feeble, and nearly deaf patient, giving his entire estate to a physician who lived with and took care of him, gift set aside: Cadwallader v. West. See, generally, where such gifts are presumptively void: Rhodes v. Bate, 35 L. J. Ch. 207 ; Greenville v. Tyler, 7 P. C. 320. 2 Audenreid's Appeal, 89 Pa. St. 114; S. C. 33 Amer. Rep. 731. 3 Pierce v. Pierce, 71 N. Y. 154; S. C. 27 Amer. Rep. 22 ; Kline's Estate, 64 Pa. St. 122; Tarbell v. Tarbell, 10 Allen. 278; Fay v. Rickman, 1 Busbee's Eq. 278; Woodward r. 'Woodward, 5 Sneed, 49 ; Pager. Hurne, 11 Beav. 227; Cob- bett V. Brock, 20 Beav. 524; Coulson v. Allison, 2 De Gex, F. & J. 521 ; James I'. Holmes, 31 L. J. (N. S.) Ch. 567; Kline v. Kline, 57 Pa. St. 120; Wollaston V. Tribe, L. R. 9 Eq. 44 ; Rockafellow v. Newcomb, 57 111. 186. Fraud and Undue Influence. 459 461. Father to Son. — There is no j^resumption that a gift from a father to a son has been 2:)rocured by unfoir dealing/ unless it is shown that the gift was an unusual one from an aged and feeble man to a son who has been his confidential adviser or manager.^ 462. Sox TO Father. — The influence of a father may- be so great over a son, even after he has married and left the parental roof, as to render his gift to the parent voidable, and to cast upon the donee the burden of showing that it was fully understood and devoid of undue influence. This was held especially true where the son made no provision for his own family, the intimacy of the father and son being unusually confidential, and the son being addicted to the use of intoxicating liquors.^ 463. Brothers axd Sisters. — The mere relation of brother and sister does not impose that confidence Avliich will avoid a gift from one to the other unless it is shown to be fair. If there is nothing in the circumstances showing dependence and trust on the one hand, and the assumed duty of protection and counsel on the other, equity will not compel a brother to treat a sister with more tenderness than any other woman. Such things belong to the imperfect duties, which even a court of equity cannot enforce. Yet if the relation has assumed a confidential character, they must act with the utmost good faith, especially in dealing with regard to inherit- ances or distributive shares of estates coming to them jointly.* 'Tenbrook v. Brown, 17 Ind. 410. ^ Beeman v. Knapp, 13 Gr. Ch. 398 ; Stewart's Estate, 137 Pa. St. ITo. niiskey's Appeal, 107 Pa. St. 611 ; Beith v. Beitii, 76 la. 601. * Million V. Taylor, 38 Ark. 428 ; Dunn v. Chambers, 4 Barb. 376 ; Dunnage !•. White, 1 Swanst 138; Stewart v. Stewarf, 7 J. J. Mar. 183; Boney v. llollings- worth, 23 Ala. 690 ; Gillespie t;. Uolland, 40 Ark. 23. 460 464. Gift to Mistkess. — If lie sees fit, a donor may make a valid gift to his mistress. In such instances, however, the law looks suspiciously for coercion or undue influence ; but the burden is not cast upon the donee to show that neither of them was used, nor to show that the donor was at the time a person of sufficient cajDacity to make the gift.^ The influence exercised by a mistress donee over the donor to procure the gift may be illegiti- mate and undue ; '^ but such donee, by mere proof of the gift, is not called upon to show that it was not undue or illegitimate.^ 465. Gift of Iistebkiate. — The gift of an inebriate, made when he is in a condition to know the effect of his act, is valid, especially if the gift is one proper for him to make ; ^ but if it is not sliown that he was fully aware of the consequences of his act, the gift will be set aside.^ So, if it is shown that the donor had periods of sobriety in which he was able to attend to business, and it is not shown that he was intoxicated at the time the gift is made, it is not sufficient to avoid the transaction, although it is shown that the donor is a hard drinker, and that the habits of intoxication had affected his health and fre- quently rendered him unfit for business.^ 466. Wakd to Guardian — Son to Parent. — Courts have always looked with extreme jealousy upon the gift of a ward to his guardian on the latter's becoming of age. ^Inre McGnire, 1 Tucker, 19G. ^Kessinger v. Kessinger, 37 Ind. 341; Dean v. Negley, 41 Pa. St. 312; S. C. 80 Amer. Dec. 620; Delafield v. Parish, 25 N. Y. 9. * Monroe v. Barclay, 17 Oliio St. 302. As between the mistress and one claim- ing as heir or donee from her paramour, courts will not be overzealous ia her favor : Ralston v. Turpin, 25 Fed. Rep. 7. *Corrigan v. Corrigan, 15 Gr. Ch. 341. ^ Miskey's Appeal, 107 Pa. St. 611 ; Chapleau v. Chapleau, 1 Leg. News, 473. ^ Ralston v. Turpin, 25 Fed. Rep. 7. Fraud and Undue Injluence. 461 Not only is the rule applied to that period of time, but at any time previous thereto, and at any time thereafter so long as it may be sufficient to insure complete emancipa- tion on the part of the ward, and afford him an independ- ent and unbiased opportunity to investigate for himself and see that everything is correct.^ " The confidential relation of parent and child, and the fiduciary relation of guardian and ward, are among those in which such relief is frequently granted. Equity looks with special jealousy upon donations from a child to a parent when made recently after the child becomes of age, or while he is under the constant and immediate influence of the parent (as, for instance, residing with him) , or while his property is in the parent's possession or control." Donations from a ward to his guardian are regarded with still greater jealousy where the circumstances are such as to give the guardian an ascendency over the ward, for here the natu- ral and mutual ties and obligations between parent and child are wanting, and the position of the guardian is fidu- ciary.^ Whether the donation be from a child to a parent or by a ward to his guardian, if the donor is so placed as to be subject to the control or influence of the donee, the onus is on the parent or guardian (as the case may be) to show that ' the transaction is righteous,' ^ In such cases the undue influence is, on grounds of public policy, prima facie presumed from the relations subsisting between the 1 Garvin v. Williams, 44 Mo. 465; In re Van Hornc, 7 Paige, 46; Ilylton r. Hylton, 2 Ves. Sr. 547; Hatch v. Hatch, 9 Ves. 292; lluguenin v. Baseler, 14 Yes. 299; Wood v. Downes, 18 Ves. 127; Gale v. Wells, 12 Barb. 84; Meek r. Perry, 36 Miss. 190; Greenfield's Estate, 2 Harris (Pa.), 489; Ashton r. Thompson, 32 Minn. 25. 2 Citing Wright v. Vanderplank, 8 De Gex, M. & G. 133 ; Baker r. Bradley, 7 De Gex, M. & G. 597 ; Bergen v. Udall, 31 Barb. 9 ; Taylor v. Taylor, 8 How. 183. 'Citing Hylton v. Hylton, 2 Ves. Sr. 547; Hatch r. Hatch, 9 Ves. 292- Fish r. Miller, Hoff. Ch. 267. * Citing Gibson v. Jeyes, 6 Ves. 266 ; Hoghton v. Hoghton, 15 Beav. 278. 462 Gifts. parties.^ Substantially the same rule is applied to tlie case of an ex-guardian, where, notwithstanding the ter- mination of the formal fiduciary relation between him and his ward, he still retains his dominion in fact and his position of influence as respects the ward or his property. This is especially true where the donations called in question are made while (even after his majority) the ward continues to reside with the ex-guardian, or the ex- guardian continues to retain possession or control of the ward's proi^erty.^ In all these cases where the law infers from the relations of the parties the probability of undue influence on the part of the party having dominion or as- cendency over another, it requires that the influence in fact exercised shall be exerted for the benefit of the person subject to it, and not for the benefit of the party posses- sing it, otherwise the donations will be promptly set aside." ' 467. Wife to Husbaxd. — Courts will closely scruti- nize gifts from a wife to her husband, and will promptly set them aside, whenever there is good reason to believe that they were procured by the improper exertion of that influence which the relation of the parties to each other j)uts in the power of the husband. In fact, the transac- tion will be viewed with a jealous eye, on account of the peculiar facilities enjoyed by the husband for the exercise of imjDroper influence. Still his undue influence is not 'Citing Archer v. Hudson, 7 Beav. 551 ; Hjlton v. Hylton, supra; Hatch v. Hatch, supra; Williams v. Powell, 1 Ired. Eq. 460; Ciiambers v. Crabbe, 34 Eeav. 457 ; Garvin v. Williams, 44 Mo. 465 ; Todd v. Grove, 33 Md. 188 ; Berdoe V. Dawson, 34 Beav. 603. ^Citing Hylton v. Hylton, supra; Hatch v. Hatch, supra; Pierse v. Waring, 1 P. Wms. 121 (note). ^ Ashton V. Thompson, 32 Minn 25. Citing Hoghton v. Hoghton, supra; and Cooke v. Lamotte, 15 Beav. 234 ; Taylor v. Johnston, L. R. 19 Ch. Div. 403; S. C. 51 L. J. Ch. Div. 879 ; 46 L. T. N. "s. 219 ; 30 W. R. 508. Fraud and Undue Influence. 4G3 to be presumed from their mere relationship ; it must he shown, either by direct proof or by circumstances from which it may be fairly inferred. When such a gift is drawn in question, it is not unreasonable to suppose that he occupies a prominent place in his wife's affection ; and this fact ought to be cast in the scale u^^holding the gift rather than in the one overturning it. This affection is ever an evidence of the object that prompted the making of the gift — it shows a reason or motive for it, wdiich is always an important factor in the establishment of a gift.^ In a case from Kentucky, on. this subject, it was said : " It is not unreasonable or unnatural that an affectionate wife, without children, should make the husband the object of her bounty in preference to those who would be her heirs-at-law if the estate had been left undis230sed of, and, therefore, fraud is required to be shown before the chancellor will disturb the conveyance. Nor will this rule be departed from when the wife, during her life, as- sails the conveyance as having been obtained by fraud, or the exercise of an improjier influence by the husband over her. The chancellor, at the instance of the wife, will scrutinize closely the conduct of the husband and the motive influencing the wife to part with her estate, and when the husband, having won the affections of his wife, has such an influence over her as to make her entirely subordinate to his will, the chancellor will not mistake to adjudge that the parties are dealing at arm's length, and hold the wife to the contract, as he would a stranger. The husband will not be allowed to take advantage of the marital relation, so as to invest himself with title to the wife's estate, and then insist upon her ability to resist his importunities, as a reason for making 1 Hardy r. Van Harlingen, 7 Ohio St. 20S ; Wilson r. Bull, 10 Ohio 250; Cain V. Ligon, 71 Geo. G9J; Sasser i'. Sa?ser, 73 Geo. 275. 464 Gifts. her stand by the executed agreement, investing him with title." ^ 468. Who May Being Suit to Set Aside Gift. — If the gift is of personal property, the executor or admin- istrator brings the action to set it aside ; ^ but if it is of real estate, or of such property as descends to the heir, then the latter must bring the action, unless it is neces- sary to sell real estate in order to pay the donor's debts, and then only where there is no other or an insufficient amount of property in value to liquidate such debts.^ 1 Golding V. Golding, 82 Ky. 51 ; Todd v. Wickliffe, 18 B. Mon. 860 ; Kennedy V. Ten Broeck, 11 Bush. 241 ; Scarborough v. Watkins, 9 B. Mon. 540; Black v. Black, 30 N. J. Eq. 215; Farmer v. Farmer, 39 N. J. Eq. 211 ; Geibley v. Cox, 1 Ves. Sr. 517. 2 Woodbury v. Woodbury, 141 Mass. 329 ; Tyars v. Alsop, 61 L. T. 8 ; S. C. 37 W. R. 339 ; 53 J. P. 212 ; 5 T. L. E. 242 ; affirming 59 L. T. 367 ; S. C. 36 W. E. 919. 3 Twist V. Bahcock, 48 Mich. 513. If til ere is no fraud or undue influence alleged, in the case of a gift of person- alty, the gift must stand, unless the administrator alleges and proves that the gift is a mortis causa, and that there is a deficiency of assets to pay debts : Fellows v. Smith, 130 Mass. 378. CHAPTER XVII. FRAUDULENT CONVEYANCES. 469. Introduction. 470. Early English Statutes. 471. Statutes Declaratory of the Common Law. 472. Incorporeal Property. 473. Fraudulent Purpose. 474. Gift Must Render Donor Unable to Pay His Then Existing Indebted- ness. 475. Subsequent Creditors. 476. Subsequent and Sudden Insolvency. 477. Gift Made With Intent to Defraud Subsequent Creditors. 478. Donor Retaining Apparent Owner- ship of Gift — Article of Gift. 479. Gift Void as to Prior Creditors, Re- gardless of the Amount of the Donor's Property. 480. 481, 482, Void as to Prior, and Effect on Subsequent Creditors. Gift Insignificant in Value. Gift of Property Exempt from Execution. 483. Husband May Give His Services to His Wife — Father's Eman- cipation of His Minor Child. 484. Donatio Mortis Causa. 4S5. Fraudulent Gift Binding Between Donor and Donee. 486. Fraudulent Donee Liable to Do- nor's Creditors. Gift by Third Person to Another's Wife or Child. Gift by Husband in Fraud of His Wife or Children. 487. 469. Introduction. — It is imj^ossible to discuss in this treatise the subject of fraudulent conveyances as fully and broadly as the subject is discussed in works devoted exclusively to that subject. It is necessary to limit the discussion, and simply point out what gifts are and what are not void or voidable as to the creditors of the donor, leaving out all questions of practice, and all questions of intent to cheat, hinder, or delay such creditors or to se- cretly cover up and hide away pro2:»erty for the benefit of the donor. The cases on this subject with respect to gifts are not altogether in harmony, but many seeming conflicts arise from the peculiar language used in the several stat- utes of the States. 30 , 465 466 Gifts. 470. Early English Statutes. — At an early date in England the practice arose of debtors transferring their properties to their friends by collusion, in trust for them- selves, and then they would flee to privileged j^laces, "and force their creditors to unfavorable terms of settlement. To remedy this evil the statutes of 50 Edw. Ill, ch. 6, and 3 Hen. VII, ch. 4, was enacted, which rendered void all fraudulent gifts of goods and chattels made in trust for the donor, with the intent to defraud creditors. For some reason these statutes were unsatisfactory, because Parliament passed the 13 Eliz., ch. 5, and the 27 Eliz., ch. 4. The former has been the basis of all American legislation on this subject, in many instances been literally copied in its effective parts. By the 13 Eliz., ch. 5, it was, in substance, enacted that all gifts of hereditaments, goods, and chattels, including conveyances or leases of lands, by writing or otherwise, made with intent to delay, hinder, or defraud creditors of the donor and others are rendered clearly and utterly void and of no effect as against the persons so affected, notwithstanding any pre- tended consideration for the transfer between the joarties. Estates and interests in land or chattels lawfully conveyed uj^on a good consideration and bona fide, with notice of the fraud or collusion, are expressly excepted from its opera- tion. The statute of 27 Eliz., ch. 4, was made for the l^rotection of purchasers, and renders void, as against subsequent purchasers of the same lands, tenements, or other hereditaments, all conveyances, etc., made with the intention of defeating them, or containing a power of revocation.^ 471. Statutes Declaratory of the Common Law. — The statute of 13 Eliz. is simply nothing more than ^The statute 13 Eliz., cli. 5, was confirmed by 1-1 Eliz., ch. 11, sect. 10, and made perpetual by 29 Eliz., ch. 5, sects 1, 2. Fraudulent Conveyances. 467 declaratory of the common law of the land.^ Lord Coke considered this was beyond peradventure from the use of the word "declare,"" and Lord Mansfield considered that the courts w^ould have attained the same result in the course of time.^ The Supreme Court of the United States, referring to this statute and the 27 Eliz., said that they " are considered as declaratory only of the jDrinciples of the common law." * It may be also remarked that these statutes are virtually in force in all the States of the Union, excejDt where expressly or impliedly repealed by statute, as their inheritance of the common law of England. 472. Incorporeal Property. — The language of the early English statutes applies to " goods and chattels," and after much discussion it was finally settled that they did not apply to transfers of choses in action, stock, and the like.^ American statutes, however, usually contain language making them expressly applicable to all incor- poreal property. 473. Fraudulent Purpose. — A fraudulent purjDose on the part of the donor, or upon the part of both the donor and donee, is unnecessary; for if such was the case, if the donee acted in good faith he would hold the property as against the defrauded creditors of the donor, although the latter expressly designed by such transfer to deprive them of the power to collect their just claims. The mere fact that the gift prevents them from collecting their ^ Lord Brougham in Rickards v. Attorney-General, 12 CI. & F. 44. Sec Barton V. Vaiihevthiiysen, 11 Hare, It-'ti, 132, and Ryall v. Rolle, 1 Atk. ITS. *Co. Lit. 7G a, 290 b ; 3 Rep. 82 b. ' In Cadogan v. Kcnnett, Cowp. 432; Ez parte Mayor, 34 L. J. Bkcy. 25. 'Hamilton v. Russell, 1 Crancli, 97. * 2 Kent Com. 443, n. 468 Gifts, claims is sufficient to defeat the gift, for the law raises the presumjDtion of a fraudulent intent.^ 474. Gift Must Bender Donor Unable to Pay His Then Existing Indebtedness. — A gift, in order to render it void where no intent to defraud is involved, must have the effect to hinder and delay the donor's creditors in collecting their claims upon him, existing at the time the gift was made. If the donor has sufficient property left to pay his debts, the gift is valid ; and before a cred- itor can set aside the gift he must show that there was not enough property to pay the donor's debts existing at the time the gift was made.^ And if the donor acquire prop- 1 Freeman v. Pope, L. R. 5 Ch. 538 ; S. C L. R. 9 Eq. 206 ; 39 L. J. Ch. (N. S.) 148 ; 21 L. T. (N. S.) 816 ; Crosslev v. El worthy, L. R. 12 Eq. 158 ; S. C. 40 L. J. (N. S.) Ch. 480; 19 W. R. 842 ; 24 L. T. (N. S.) 607 ; Mackay v. Douglass, L. R. 14 Eq. 106, 120 ; S. C. 41 L. J. Ch. (N. S.) 539 ; 20 W. R. 652 ; 26 L.T. (N. S.) 721 ; Cornish V. Clark, L. R. 14 Eq. 184; 42 L. J. (N. S.) Ch. 42; 20 W. R. 897 ; 26 L. T. (N. S.) 494; Harden v. Babcock, 2 Met. 99; Mohawk Bank y. Atwater, 2 Paige, 54; Clark v. Depew, 25 Pa. St. 509. 2 Morgan v. Hecker, 74 Cal. 540; Sherman v. Hogland, 54 Ind. 578; Lam- mons t'. Allen, 88 Ala. 417; Taylor t). Johnson, 113 Ind. 164; Noble v. Ilines, 72 Ind. 12 ; Bull v. Bray, 89 Cal. 286 ; Bentley v. Dunkle, 57 Ind. 374 ; Morgan V. Ball, 81 Cal. 93 ; Rouk Island Stove Co. v. Walrod, 75 la. 479 ; Peck v. Lin- coln, 76 la. 424 ; Threlkel v. Scott, 89 Cal. 351 ; Freeman v. Burnham, 36 Conn. 469 ; Kerrigan v. Rautigan, 43 Conn. 17 ; Dosche v. Nette, 81 Tex. 265; Kent v. Lyon, 4 Fla. 474 ; Ingram v. Phillips, 5 Strob. L. 200 ; Hughes v. Roper, 42 Tex. 116; Terry v. O'Neal, 71 Tex. 592; Hauser r. King, 76 Va. 731; Hayes v. Jones, 2 P. & H. (Va.) 583; Huston v. Cantril, 11 Leigh. 136; /ti re Grant, 2 Story, 312 ; S. C. 5 L. Rep. 11 ; Manders v. Manders, 4 Irish Eq. 434. In Oliio it is said that he must retain clearly and beyond doubt, enougli property to pay his debts: Crumbaugh v. Kugler, 2 Ohio St. 373; Godell r. Taylor, Wright (Ohio), 82; Price v. Myers, 5 Oiiio, 121; Oliver v. Moore, 23 Ohio St. 473; Combs V. Watson, 2 Cin. S. C. (Ohio) 523 ; Jacks v. Tunno, 3 Des. Eq. 1 ; Strauss V. Avers, 34 Mo. App. 248 ; Hurley v. Taylor, 78 Mo. 238; Caswell r. Hill, 47 N. H. 407 ; Conover v. Rucktnan, 36* N. J. Eq. 493 ; Abbott v. Tenney, 18 N. H. 109; Strawn v. O'liara, 86 111. 53; Virgin v. Gaither, 42 111. 39 ; Bay v. Cook, 31 111. 336; Gridley v. Watson, 53 III. 188; Kane v. Desmond, 63 Cal. 464; Winchester v. Charter, 12 Allen, 606; Lerow r. Wilmarth, 9 Allen, 382; "Win- chester V. Charter, 102 Mass. 272; Parker v. Proctor, 9 Mass. 390; Tootle r. Coldwell, 30 Kan. 125; Bennett v. President, etc., 11 Mass. 421; Parkman v. Welch, 19 Pick. 231 ; Davis v. Zimmerman, 40 Mich. 21; Fellows v. Smith, 40 Fraudulent Conveyances. 469 erty after the gift is made and before suit brought, suffi- cient to pay his indebtedness, the gift, which otherwise would have been open to attack, cannot be declared void.^ If the old debts are paid off, yet the total of the donor's indebtedness is the same, although new debts, the gift can still be avoided.^ If the donor has enough property at the time of the transfer to pay his then exist- ing indebtedness, but it so decrease in value that at the time of the suit to set aside the transfer it is insufficient to pay such indebtedness, the gift will be upheld.^ 475. SuBSEQUEXT CREDITORS. — The general rule is that subsequent creditors, or creditors whose claims arose after the gift was perfected, cannot impeach it. They are in no way defrauded by the gift.* And even in those States where subsequent creditors may avoid the gift they can- not do so if they had actual or constructive notice of it, even when the donor retain possession after the gift is perfected.^ 476. Subsequent and Sudden Insolvency. — The in- solvency of the donor arising after the gift from a sudden Mich. 689 ; Cutter v. Griswold, Walker Ch. (Mich.) 437 ; Wood v. Savage, Walker Ch. (Mich.) 471 ; Beach v. White, Walker Ch. (Mich.) 495 ; Chasers. Welsh, 45 Mich. 345 ; Pursel v. Armstrong, 37 Mich. 326 ; Doak v. Eunyon, 33 Mich. 75; Brown i'. Vandermuelen, 44 Mich. 522 ; Behan t;. Erickson, 7 Qub. L. 295 ; Bank of Montreal v. Simson, 10 L. C. 225. * Chase v. McCay, 21 La. Ann. 195 ; Taylor v. Johnson, 113 Ind. 164 ; Cox v. Hunter, 79 Tnd. 590. 2 Madden v. Day, 1 Bail (S. C), L. 337, ^Treacey v. Liggett, 28 Low. Can. Jur. 181. * Kerrigan v. Rautigan, 43 Conn. 17 ; Kendrick v. Taylor, 27 Tex. 695; Terry v, O'Neal, 71 Tex. 592; Stokes v. Oliver, 76 Va. 72; Hayes v. Jones, 2 P. & II. (Va.) 583; Smith v. Littlejolm, 2 McCord, 362; Page v. Kendrick, 10 Mich. 300; Dunham v. Pitkin, 53 Mich. 504; In re Kellog, 1 Silver. (N. Y.) Ct. App. 313; affirming 39 Hun, 275 ; Wooden r. Wooden, 72 Mich. 347 ; Hoag v. Martin, 80 la. 714; Peck v. Lincoln, 76 la. 424 ; In re McEachran, 82 Cal. 219. 5 Madden v. Day, 1 Bail. (S. C.) L. 587 ; Cummingsr. Coleman, 7 Rich. Eq. SOO ; Pyron v. Parker, 25 Geo. 17 ; Jones v. Morgan, 6 La. Ann. 630 ; Harmon v. Ryan, 10 La. Ann. 661. 470 Gifts. cause that he could not foresee does not render the gift void, if, at the time of the gift, he had a sufficient amount of property to jDay his debts.^ 477. Gift Made With Intent to Defraud Subse- quent Ckeditoes. — If a gift is made with the intent to defraud subsequent creditors it may be avoided by them. The language of the statute is that any transfer of projjerty made with " intent to delay, hinder, or defraud creditors," and a conveyance made with such an intent, applies not only to ]orior but to subsequent creditors. Thus a conveyance by a husband to his wife of all or a greater part of his property, who immediately or soon after the execution of the convey- ance contracts debts on credit, is void as against such subsequent creditors.^ 478. Donor Retaining Apparent Ownership of Gift — Notice of Gift. — In some States all gifts are void against the creditors of the donor if he retain the possession and is clothed with the apparent ownership. This is usually by force of some sj^ecial statute. Thus in Iowa a statute j^i'ovided that " no sale ... of personal property, when the vendor . . . retains actual possession is valid against existing creditors or subsequent jDur- chasers without notice, unless a written instrument con- veying the same is executed and acknowledged like a con- veyance of real estate, and filed for record. . . ." It was 1 Buchanan v. McNinch, 3 S. C. 498; Izard v. Middleton, 1 Bail. (S. C.) Eq. 228. ''Hood V. Jones, 5 Del. Ch. 77 ; Stevens v. Work, 81 Ind. 445 ; Bishop v. Red- mond, 83 Ind. 157; Thomas v. Degraffenreid, 17 Ala. 602; Dosche v. Nette, 81 Tex. 205 ; Raymond v. Cook, 31 Te.T. 373 ; Sexton v. Wheaton, 8 Wheat. 229 ; Webb V. Roff, 9 Ohio St. 430 ; Creed v. President, etc., 1 Ohio St. 1 ; Conover v. Rufkman, 36 N. J. Eq. 493; Winchester r. Charter, 12 Allen, 606; Thacher v. Phinney,7 Allen, 146; Muriihy v. Stewart, 12 Rev. Leg. 501. Fraudulent Conveyances. 471 held that this statute applied to a gift, and the donor re- taining the visible possession, although he was the hus- band of the donee, the gift was void.^ 479. Gift Void as to Pkior Creditors, Kegardless OF THE Amount of the Donor's Property. — Many of the earlier cases held all gifts void as to prior creditors, regardless of the amount of property left in the donor's hands ; and raised, regardless of the intention, a conclu- sive presumption that such transfers were fraudulent. To this, however, there was a qualification, that where the in- debtedness was slight, as for the current expenses of the family, or the debts were inconsiderable as compared with the value of the donor's estate, and the creditor, by his delay or laches, allowed the estate remaining in his hands to be wasted, the transfer would be upheld.^ 480. Void as to Prior and Affect on Subsequent Creditors. — If a gift is void as to prior creditors, it is also as to subsequent ones, if there be such prior creditors.^ But here is a sharp conflict of cases ; and in many States it is held that as his subsequent debtors gave him credit as he is — for what he has, not for what he once had — they 1 McAfee v. Busby, 69 la. 32S ; Hesser v. Wilson, 36 la. 152. In such an in- stance the term "existing creditors" cannot be limited to those only who were creditors when the invalid gift was irade. It continues to be invalid until the possession is changed, the instrument recorded, or notice given ; and any creditors becoming such wliile tlie invalidity continues are, as to that gift, existing creditors: Fox v. Edwards, 38 la. 215; Madden v. Day, 1 Bail. (S. C.) L. 337; Smith V. Henry, 2 Bail. (S C.) L. 118; Faiiley v. Fairley, 34 Miss. 18; McWillie r. Van Vacter, 35 Miss. 428 ; Demers v. Lefebvre, 14 Low. Can. Jur. 241 ; Mor- gan V. Ball, 81 Cal. 93. 2 Izard V. Middleton, Bail. (S. C.) Eq. 228 ; Brock v. Bowman, Rich. (S. C.) Eq. Cas. 185 ; Richardson v. Rhodus, 14 Rich. L. 95 ; Buchanan v. McNinch, 3 S. C. 498 ; Howard v. Williams, 1 Bail. L. (S. C) 575 ; Thomas v. Degraffenried, 17 Ala. 602; Hamilton v. Hamilton, 2 Rich. Eq. 355; Corderyv. Zeaiy, 2 Bail. (S. C.) L. 205; Ruse v. Broniberg, 88 Ala. 619. 3 Ingram f. Phillips, 5 Strobh. L. 200; Herschfeldt v. George, 6 Mich. 456. 472 Gifts. cannot impeach the gift on the ground that prior credit- ors are defrauded.^ 481. Gift Insignificant in Value. — By far the greater number of gifts are small in value, and the ques- tion of fraud as against the creditors can have but little importance ; for if there is a transfer of all the donor's property, or the greater part of it, a fraudulent intent, at least on the part of the donor, pervades the entire trans- action, and the design of the donor to confer a benefit upon the donee is usually absent. Gifts of small value, although the donor be hopelessly insolvent, will be usu- ally not set aside. The value of the gift is always mate- rial to the character of the transaction ; and it must always be of sufficient value to pay for the exj)ense of its sale by an officer on execution.^ 482. Gift of Property Exempt from Execution. — A gift of projDerty exempt from execution cannot be im- peached either by the donor's prior or subsequent credit- ors ; and it matters not whether the article given was of the kind especially exempted by the statute, or it, taken in connection with the debtor's other property, is less in value than the amount of the property allowed a debtor against whom an execution has been issued.^ 483. Husband May Give His Services to His Wife — Father's Emancipation of His Minor Child. — If a ^Crumbaugh v. Kugler, 2 Ohio St. 373 ; Webb v. Eoff, 9 Ohio St. 430; Creed V. President, etc., 1 Ohio St. 1. 2 French v. Holmes, 67 Me. 186; Patridge v. Gopp, Amb. 596. But see Cordery v. Zealy, 2 Bail. (S. C.) L. 205; and Euse v. Bromberg, 88 Ala. 619. ^Furman v. Tenny, 28 Minn. 77; Morrison v. Abbott, 27 Minn. 116; Carhart V. Harshaw, 45 Wis. 340; Delashmut r. Tran, 44 la. 613; Smith v. Rumsey, 33 Mich. 183 ; Derby v. Weyrich, 8 Neb. 174 ; Washburn v. Goodheart, 88 111. 229 ; Hixon V. George, 18 Kan. 253. See Herschfeldt v. George, 6 Mich. 456. Fraudulent Conveyances. 473 husband give his wife the benefit of his hibor by bestow- ing it or working upon her property, she is not liable to his creditors ; although at the time she accept or receive it he is totally insolvent.^ But it has been held that a father may not give his son his services when he is insol- vent,^ though the weight of authority is against this hold- ing.^ Yet a husband may give his wife her earnings, although he is at the time hopelessly insolvent."* 484. Donatio Moktis Causa. — A donatio mortis causa is always subject to the payment of the donor's debts, if his estate should prove insolvent; and his administrator or executor may recover the subject-matter of such a gift for that purpose. If, after satisfying the donor's indebt- edness, any part of the gift or its proceeds should be left, the donee is entitled to such part or to such proceeds.^ 485. Fraudulent Gift Binding Between DonoPw AND Donee. — A gift that is void as to the creditors of the donor is binding as between the donor and the donee ; neither can impeach it on this ground ; nor can the donor impeach it on the ground that it is a fraud on his credit- ors and he desires to satisfy their just claims. Only the creditors, or the donor's administrator for them, can im- peach the transaction.^ 1 Aldridge v. Muirheai], 101 U. S. 397 ; Buckley r. Dunn, 67 Miss. 710. But if a husband put improvements with his own money on his wife's land, it is a fraud on his creditors: Ware v. Hamilton Shoe Co., 92 Ala. 145. 2 Moody V. Walker, 89 Ala. 619. ^ Wambold v. Vick, 50 Wis. 456 ; Atwood v. Holcomb, 39 Coun. 270 ; Lackman i>. Wood, 25 Cal. 147. * Carpenter v. Franklin, 89 Tenn. 142. If he give her a home it is not a fraud as to his subsequent creditors, merely because he shares and enjoys tlic home with her: Edgerly v. First Nat. Bank, 30 111. App. 425. ^Kiffi'. Weaver, 94 N. C. 274; Emery r. Clough, 63 N. H. 552; Mitcliell v. Pease. 7 Cush. 350 ; Tate v. Hilbert, 2 Ves. Jr. Ill ; Chase v. Eedding, 13 Gray, 418 ; Michener v. Dale, 23 Pa. St 59 ; Lewis v. Bolitho. 6 Gray, 137. ^ Harmon v. Harmon, 63 III. 512 ; Spaulding v. BIythe, 73 Ind. 93 ; Sherman v. 474 Gifts. 486. Feaudulext Doxee Liable to Doxok's Ceedtt- ORS. — If the gift is void as to the donor's creditors, whether the fraud is actual or only constructive, the do- nee must account to them for its value, or for so much as will pay their claims,^ or he may turn over the subject- matter of the gift to the officer holding a writ of execu- tion against the donor. The donee is in no sense an in- nocent purchaser for value, and does not occupy the jDOsition of such a purchaser.^ 487. Gift by a Thied Person to Another's Child. — A gift to a child when his father is insolvent cannot be questioned by the latter's creditors.^ 488. Gift by Husband in Fraud of His Wife or Children. — A husband may make a gift of his personal property and thereby deprive his wife and children of all interest therein. She and they have no interest in such property until his death, and, therefore, he may wholly disregard her and them, and make a gift of his property, either inter vivos or viortis causal llogland, 73 Ind. 472 ; Barkley r. Tapp, 87 Ind. 25; McLean v. Weeks, 65 Me. 411. Of course, one not a creditor of the donor cannot impeach the gift: Ed- wards V. Ford, 2 Bail. (S. C.) L. 46L 1 Priest V. Conklin, 3S 111. App. 180. ^ Strauss v. Ayers, 34 Mo. App. 248 ; McLean v. Weeks, 65 Me. 411 • S. C. 61 Me. 277. ^Snow V. Copley, 3 La. Ann. GIO. ^Pringle v Pringle, 59 Pa. St. 281 ; Ellmaker v. Ellmaker, 4 Watts, 89; Par- thimer's Estnte. 1 Pears. 433; S. C. 16 Pitts. L. J. 235; 1 Leg. Gaz. Eep. 478; Chase v. Eeddin?, 13 Grav, 418 ; Lines v. Lines, 142 Pa. St. 149 ; Schwartz's Es- tate, 17 Phila. 435 ; S. C. 42 Leg. Int. 16 ; Ford v. Ford, 4 Ala. (N. S.) 142; Smith V. Hines, 10 Fla. 258. CHAPTER XVIII. GIFTS IN FKAUD OF MARITAL RIGHTS. 489. Introduction— An Early Case. 504. 490. General Rule. 491. Mere Concealment — Actual Fraud. 505. 492. Reasons for the Rule. 493. Husband Must Be Ignorant of the 506. Conveyance Until After the Mar- riage. 507. 494. Conveyance Before Treaty of Mar- riage Entered Upon. 495. Intended Wife Dealing With Her 508. Property Before Her Mar- riage. 509. 496. Conveyance of Part of Property. 497. Wife Fraudulently Representing 510. Herself Possessed of Property. 498. The Wife's Property Need Not 511. Have Brought About the Mar- riage. 512. 499. Husband Ignorant of His Intended Wife Owning Property. 500. Wife Incumbering Her Lands — 513. Leases. 614. 501. Release of a Debt or Legacy. 502. Circumstances of the Parties — Pe- 515. cuniary Means of the Husband. 503. Widow W^ith Children Conveying 516. Estate. 517. Consideration for Conveyance — Incumbrance or Debt. Innocent Purchaser from Fraudu- lent Grantee. Husband Seducing His Intended Wife. Intended Husband Misrepresent- ing His Own Property to His Intended Wife. Acquiescence by Husband After Marriage. Delay in Bringing Suit to Set Aside Conveyance. Action by Personal Representa- tives of Husband — Heirs. Husband's Creditors Attacking Conveyance. Heirs of Wife Attacking Hus- band's Fraudulent Convey- ance. The Decree. Husband Secretly Conveying His Property, Wlien Wife May Sue — Right of Action. Personal Property of Husband. Married Woman's Acts. 489. Introduction — An Early Case. — One of the earliest cases upon the subject of frauds upon marital rights was Strathmore v. Bowes} Tlie case is sui generis. Lady Strathmore was the owner of a large amount of property, both real and personal ; and while in treaty for a mar- ^ Reported on appe:il, 1 Ves. Jun. 22 ; and on first and second hearing in 2 Bro. C. C. 345, 1 Sm. L. Cas. 471 ; and 2 Cox 28 ; A parallel case, with the duel left out, in Wilson v. Daniel, 13 B. Mon. 348. 475 476 Gifts. riage with a Mr. Gray, she conveyed it all to trustees for her sole and separate use notwithstanding any coverture. Gray a^^proved of this conveyance. A few days afterward a Mr. Bowes fought a duel on her account, and she there- upon determined to marry Bowes, which she did within a day or so, and after the conveyance to trustees. Bowes, at the time of the marriage had no knowledge of this con- veyance, but he did have knowledge of the fact of her former ownership of j)roperty. He filed a bill to set aside the settlement, but the court refused to do so. In affirming the decree dismissing the bill, Lord Thurlow delivered a characteristic opinion : " As to the morality of the trans- action," said he, " I shall say nothing. They appear to have been pretty well matched. Marriage, in general, seems to have been Lady Strathmore's object ; she was disposed to marry anybody, but not to part with her money. This settlement is to be considered as the effect of a kind of lucid interval, and if there can be reason in madness by doing this she discovered a spark of under- standing. The question which arises upon all the cases is whether the evidence is sufficient to raise fraud. Even if there had been a fraud upon Gray, I would not have permitted Bowes to come here to complain of it. But there was no fraud, even upon Gray, for it was with his consent ; so I cannot distinguish it from a good limitation to her separate use. Being about to marry Gray she made this settlement with his knowledge, and the impu- tation of fraud is that, having suddenly changed her mind and married Mr. Bowes, in the hurry of that im- provident transaction, she did not communicate it to him ; but there was no time, and could be no fraud, which con- sists of a number of circumstances. It is impossible for a man, marrying in the manner Bowes did, to come into equity and talk of fraud." It is somewhat difficult to say Cfifts in Fraud of Marital Rights. 477 upon exactly what principle this case was decided. In the first part of his Oj^inion Lord Thiirlow seems to consider that the principle by which a husband is relieved from a conveyance under such circumstances is the rule of law that inasmuch as the law charges the husband with the wife's debts or burdens, therefore he is entitled in full to his marital rights ; but in the latter part of his opinion, as above quoted, he says that the question in all these cases is one of fraud, meaning no doubt actual fraud. The latter view is no doubt the correct view of this case, for in a later case Lord Eldon said : " I should be very un- willing to relax a principle which has long prevailed both at law and in equity, that if a representation is made upon the circumstances of a person about to form a con- nection in marriage, and the representation is of such a nature that if not made good, or, if varied, it will mate- rially affect the circumstances in life of that party, courts both of law and equity will hold the party bound to make good that representation." ^ In Lady Strathmore^s case it will be observed that at the time she made the convey- ance she had no intention whatever of defrauding her future husband, and at that time she had no intent what- ever of marrying the gentleman she afterward married. Mr. Bowes by inquiry could have easily ascertained that a conveyance of the property had been made ; and if she had, on such inquiry, concealed this fact from him, he would not have been without a remedy. Justice Buller in deciding this same case says, speaking of a case where a woman has never been married : " Fraud as applied to cases of this nature, is falsely holding out an estate to be unfettered, and that the intended husband will, as such, be entitled to it when in fact it is disposed of from him," After reviewing the cases he announces the result as fol- ^ De Manneville v. Crompton, 1 Ves. & B., p. 355. 478 Gifts. lows : " If the wife is guilty of any fraud, and holds out to the husband that there is nothing to interfere with his right, then any deed executed by her, in prejudice of such representation, shall be void." Bare concealment he de- clares is not sufficient/ Justice Buller also announces the rule to be that a court of equity will not decree the wife's conveyance void until the husband makes a settlement upon her. 490. General E,ule. — In a more recent case the Mas- ter of the Rolls declared the rule to be as follows, to render a conveyance by the wife fraudulent : "It must be made out in evidence, that, at the time of the execution of the settlement, marriage was in the contemplation of the par- ties ; that the woman executed the settlement in contem- jDlation of the future marriage ; and that she concealed it from her future husband. If these facts be proved, the cases have established the principle that such a settlement cannot stand against the marital right of the husband." In the case from which this quotation is made it appeared that a woman, ten months before her marriage, but after the commencement of that intimate acquaintance with her future husband which ended in marriage, made a settle- ment of a sum of money which he did not know her to be possessed of. The marriage then took place, she con- cealino; from him both her rii>;ht to the monev and the existence of the settlement. The settlement was condi- tioned to pay the interest to her during her life, for her separate use, and after her death upon trust for such per- son or persons as she should by deed or will appoint ; and in default of appointment for her next of kin. Ten years afterward she died, and her husband then filed a bill to have the money paid to him. It was held that the settle- 1 2 Cox, 28. Gifts in Fraud of Marital Rights. 479 ment was void, because it was a fraud upon his marital rights/ There was no evidence in the case that the hus- band ever knew of the settlement until after her death, so that the principle applicable to acquiescence in the settlement did not apply. As early as 1686 a similar case arose in the court of chancery. Before her mar- riage Lady Dayrill, without her future husband's privity, conveyed her estate to the Earl of Dorset and his heirs, in trust that they should permit such persons to re- ceive the rents and profits, and dispose of them, as she, whether covert or not, should appoint. It does not appear whether marriage negotiations w^ere pending at tlie time of the conveyance or not, but the court decreed the conveyance void, and ordered that the land be con- veyed to the six clerks, subject to the order of the court.^ ^ Goddard v. Snow, 1 Russ. 485. ^Carleton v. Earl of Dorset, 2 Vern. 17 ; S. C. Eq. Ca. Abr. 59, pi. 3 ; Blancliet V. Foster, 2 Ves. Sr. 264 ; Cotton v. King, 2 P. Wms. 358 ; S. C. 2 Eq. Ca. Abr. 53, pi. 10; Ball V. Montgomery, 2 Ves. Jr. 191; S. C. 4 Bro. C. C 339; Hunt v. Mathews, 1 Vern. 408 ; Poulson v. Wellington, 2 P. Wms. 533 ; Lance v. Norman, 2 Ch. Rep. 79 ; Howard v. Hooker, 2 Cli. Cas. 81 ; Thomas v. "Williams, Mose, 177. "The other and main ground of reliance is that the deeds were in fraud of the intended husband's rights, upon the principle that a voluntary conveyance by a woman, while marriage is in contemplation, is avoidable by the husband from whom it was concealed, or who, at least, had no notice of it. This principle has been often laid down, but it has been very rarely acted upon to the extent of avoiding by judicial decision a conveyance in fraud of the future husband's rights. In almost all the cases where the principle is recognized, there were circumstances which the court laid hold of to escape from the application of the rule, or which really took those cases out of the rule. . . . The cases are either such as ended in allowing the conveyance to stand, on account of something which prevented the application of the principle, while it was in general terms recognized; or such as ended in setting aside the conveyance upon grounds wholly independent of the principle; or such (and these are extremely few — two or three, at most) as ap- plied the principle to setting aside the conveyance, but in circumstances of gross fraud and even cnnsjtiracy. . . . Yet it is certain that all the cases in which the subject is approached treat the principle as one of undoubted acceptance in this court; and it must be held to be the rule of the court, to be gathered from a uni- form current of dicta, though resting upon a very slender foundation of actual decision touching the simple point:" Lord Brougham in St. George r. Wake, 1 My. & K. 610 (1833) ; Blithe's Case, Freem. Ch. 91 ; M'Donnell v. Uesilrige, 480 Gifts. Some of the earlier cases held, apparently, that there must be actual fraud proved, and that a constructive fraud is not enough ; but this rule is now well doubted. As early as 1842 it was held by the Vice-Chancellor of Eng- land that the husband was not required to prove actual fraud or deception, if, after the commencement of the treaty of marriage, the intended wife secretly disposed of her proj^erty. The Vice-Chancellor held that deception would be inferred.^ American cases strongly lean to the 16 Beav. 346; Chambers ». Crabbe, 34 Beav. 457 ; Maber v. Hobbs, 2 Y. & Col. 317; Doe v. Lewis, 11 C. B. 1035. American authorities: Tucker v. Andrews, 13 Me. 124; Land v. Jeffries, 5 Rand, 211 ; Fletcher v. Ashley, 6 Gratt. 332; Wil- liams V. Carle, 2 Stock. (N. J.) Ch. 543; Logan v. Simmons, 3 Ired. Eq. 487; Logan V. Simmons, 1 Dev. & Bat. L. 13 (not a fraud at law) ; Goodson v. Whitfield, 5 Ired. Eq. 163; Poston v. Gillespie, 5 Jones Eq. 258; Joyner v. Denny, Busbee Eq. 176; Linker v. Smith, 4 Wash. 224; Terry v. Hopkins, 1 Hill, Ch. (S. C.) 1 ; Ramsay r. Joyce, 1 McMull Eq. 236; Manes v. Durant, 2 Rich. Eq. 404 (said to be an innocent purchaser for value); Cummings i;. Coleman, 7 Rich. Eq. 509; McClure v. Miller, 1 Bailey Eq. 107 ;. Waller v. Armistead, 2 Leigh, 11 ; Belt v. Fer- guson, 3 Gr. (Pa.) 289 ; Robinson v. Buck, 71 Pa. St. 386 (grantee must show that he had no knowledge of the fraud perpetrated on the husband) ; Duncan's Appeal, 43 Pa. St. 67 ; McAfee v. Ferguson, 9 B. Mon. 475 ; Wilson v. Daniel, 13 B. Mon. 348; Leach v. Duvall, 8 Bush. 201 ; Cheshire v. Payne, 16 B. Mon. 618; Hobbs V. Blandford, 7 T. B. Mon. 469 ; Cole v. O'Neill, 3 Md. Ch. 174 ; Jordan v. Black, Meigs, 142; Saunders i'. Harris, 1 Head. 185 (a question of actual fraud) ; Green V. Goodall, 1 Coldw. 404; Hall v. Carmichael, 8 Baxt, 211 (each case judged by its own circnrastances) ; Butler v. Butler, 21 Kan. 521 ; S. C. 30 Am. Rep. 441 ; Freeman v. Hartman, 45 111. 57 ; Kelly r. McGrath, 70 Ala. 75 ; Crauson v. Cran- son, 4 Mich. 230 ; Brown ?.'. Bronson, 35 Mich. 415 (it does not change the fraudu- lent transaction into a valid one by reas(m of the fact that the deed was executed to carry out a previous purpose, which is concealed from the wife and from the public, and not brought to light until after the death of the grantor) ; Dearmond V. Dearmond, 10 Ind. 191 ; Smith v. Smith, 2 Halst. Eq. 515; Jenny v. Jenny, 24 Vt. 324 ; Gainor v. Gainor, 26 la. 337 ; Hamilton v. Smith, 57 la. 1 5 ; Chandler v. Hollingsworth, 3 Del. 99 ; S. C. 17 Am. L. Reg. 31 9 ( in this last case it is held that the wife cannot claim an interest in personal property thus fraudulently disposed of) ; Baker v. Chase, 6 Hill, 482 (not void at law) ; Youngs v. Carter, 50 How. Pr. 410; S. C. 1 Abb. N. C. 136 ; 10 Hun, 194 (to his daughters) ; Reynolds v. Vance, 1 Heisk. 344 (actual fraud necessary) ; Brewer v. Connell, 11 Humph. 500 (void by statute) ; Babcock v. Babcock, 53 How. Pr. 97 ; Gregory v. Winston, 23 Gratt. 102 ; Anonymous, 34 Ala. 430 ; Prather v. Burgess, 5 Cranch. C. C. 376. ^ Taylor v. Pugh, 1 Hare, 608 ; Spencer v. Spencer, 3 Jones Eq. 404 ; Tisdale v. Bailey, 6 Ired. Eq. 358. Gifts in Fraud of Marital Rights. 481 proposition that the mere conveyance, without his knowl- edge, is such a fraud upon him as entitles him to relief/ 491. Mere Concealment — Actual Fraud. — Some- what in repetition it may be said that proof of direct mis- representations by a wife as to her property, or of willful concealment with intent to deceive him, entitles him to relief if he has suffered an injury ; but proof of mere concealment is not always enough, it has been said, to af- ford the husband relief. It may or it may not, accord- ing to circumstances. The vesting and continuance of a separate power in his wife over j^roperty which ought to have been his, and which is, without his consent, made independent of his control, is a surprise upon him, and might, if previously known, have induced him to abstain from marriage. " Nevertheless, cases have occurred in which conceahnent, or rather the non-existence of com- munication to the husband, has been held fraudulent,^ and whether fraud is made out must depend on the cir- cumstances of each case — as an unmarried woman has a right to dispose of her property as she pleases, and as a conveyance made immediately before her marriage is prima facie good, it is to be impeached only by the proof of fraud." =^ ' Strong V. Menzies, 6 Ired. Eq. 544 ; Tisdale v. Bailev, 6 Ired. Eq. 358 ; Jones V. Cole, 2 Bailey L. 330 ; Belt v. Ferguson, 7 Gr. (Pa.) 289 ; Robinson v. Buck, 71 Pa. St. 386 (prima facie a fraud); McAfee v. Ferguson, 9 B Mon. 475; "Wilton v. Daniel, 13 B. Mon. 348 ; Leach v. Duvall, 8 Bush. 201. ^Goddard v. Snow, 1 Russ., p. 490, for instance. 'England v. Downs, 2 Beav. 522. "With the exception of Goddard v. Snow, indeed, there will not be found any direct authority for holding that the bare fact of the husband not knowing what had been done is enough witliout more, so that the transaction is fraudulent and void as against him, although nothing has been done to mislead him ; and the authorities of Buller, J., in one of the cases of Lady Slrathmore v. Bowes, and of Lord Eldon, in DeMannevUle v. Cromplon, are directly and strongly the other way. Yet even in Goddard v. Snnir, it is to be observed tliat the peculiar circumstances of the Imgth of time which first the courtship, and then the coverture lasted, plainly showed a willful and continued 31 482 Gifts. 492. Reasons for the Rule. — At the time this rule had its origin there were some reasons for it. Then a man marrying a woman became liable for all her previous in- debtedness, and as an indemnity against these the law gave him all her personal property, the rents and profits of her lands and the right to control them, and an estate by curtesy in such lands, if they had issue, during his life. To, therefore, allow her to secretly dispose of her lands and property, without his consent and knowledge, immediately before the marriage, was a substantial fraud upon him and his marital rights, and hence the reason for the rule.^ 493. Husband Must Be Ignorant of the Con- veyance Until After the Marriage. — If the husband has any knowledge of the conveyance at any time before the marriage, he cannot complain ; for he may break off the marriage without fear of subjecting himself to a suit for damages, at any time before its consummation. It therefore devolves upon him to show that he had no knowledge of the conveyance until after the marriage.^ The presumption is that the husband had knowledge of the conveyance before he married, and he must negative this presumption both in his pleading and in his evidence or he will fail.^ Where a husband, before his marriage suppression of the fact : " St. George v. Walker, 1 My. & K. 610. See 2 Cox, 28. Actual fraud must be shown : Butler v. Butler, 21 Kan. 521 ; S. C. 30 Am. Rep. 441 ; Gregory v. Winston, 23 Gratt. 102. ^ England v. Downs, 2 Beav. 622. 2 England v. Downs, 2 Beav. 522 ; Williams r. Carle, 2 Stock. (N. J.) Ch. 543 ; St. George v. Wake, 1 My. & K. 610, 618; Taylor v. Pugh, 1 Hare, 608; Downer v. Jennings, 32 Beav. 290; Terry r. Hopkins, 1 Hill Ch. (S. C) 1 ; McClure v. Miller, 1 Bailey Eq. 107 ; Cheshire v. Payne, 10 B. Mon 618. ^ St. George v. Wake, supra; Taylor v Pugh, 1 Hare, 608; Griggs v. Staplee, 2 De G. & Sm. 572. In this last case both the liusband and wife joined in a bill to set aside the conveyance, and the court said relief would be afforded if cer:ain necessary proof be forthcoming : Lewellin v. Cobbold, 1 Sm. & Giff. 376. Gifts ill Fraud of 3Iarital Rights. 483 had sufficiently early notice that it was intended to settle the bulk of the intended wife's property, and nothing jDassed to justify a belief, on the husband's part, that, at the time of the marriage, no such settlement had been made, it was held that the husband was not entitled to set aside a settlement which it appeared had been made be- fore the marriage, although he was no party to it, and was not proved to have been actually cognizant of any settle- ment having been made/ A mere rumor before marriage, which he does not believe, that she has conveyed her property is not sufficient notice to defeat a recovery.^ It has also been held that if the knowledge of the con- veyance is acquired after the engagement and before the marriage, the husband may yet proceed with the marriage and then have the conveyance annulled.^ But in Ken- tucky this view was entirely repudiated. " As it is essen- tial," said the Supreme Court of that commonwealth, " to constitute fraud, that the husband should remain ig- norant of the transaction until the marriage ceremony takes place, it follows as a necessary consequence that his knowledge of it at any time previous to that period will operate to prevent him from impeaching the conveyance on the ground of fraud. In reference to his knowledge the law fixes but one period, and that is the time of the marriage; it does not draw any nice distinctions witli respect to the length of the time before that period, but considers any previous time as sufficient, and leaves the husband to act for himself, according to his own sense of justice and propriety. Until the marriage actually takes place he is at liberty to retreat, and the law justifies him ' Wrigley v. Swainson, 3 De G. & Sni. 458. ^Spencer v. Spencer, 3 Jones Eq. 404. In this case it was held that the defense must show that lie knew of the transfer bef tre the marriage. See, also, llobbs v. Blandford, 7 T. B. Men. 469. 2 Poston V. Gillespie, 5 Jones Eq. 258. 484 Gifts. in so doing, if he be notified that his intended wife, with- out his assent, made a settlement of her estate that will be prejudicial to his marital rights. But, if with this knowl- edge, acquired at any time before the marriage actually takes place, he voluntarily complies with his previous en- gagement, he cannot complain that he was deceived, nor will the transaction be deemed to be a fraud upon his rights as husband. As, therefore, the husband has ad- mitted that he was informed of the transaction before the marriage ceremony was performed, he cannot assail it on the ground that it was fraudulent as to him, although that information was only imparted to him after he had ar- rived at the place fixed for the wedding, and a few mo- ments only before the marriage did take place." ^ 494. CoxvEYAifCE Before Treaty of Marriage Entered Upon. — A conveyance to be fraudulent must be made after a treaty of marriage has been entered upon, for if made before that period there can be no fraud upon the husband. A general intent to protect the property from a future husband with no particular one in view, and before such future husband has in any way indicated his desire of marria2;e with the future wife is not a fraud.^ Thus where in August a widow, having a second mar- riage in contemplation, settled her property on herself for life, for her separate use, with remainder to the chil- dren of her first marriage — the settlement being prepared in August by her directions, without the privity or assent " of her then intended husband " — in a suit to carry the settlement into execution, the second husband insisted 1 Cheshire v. Payne, 16 B. Mon. 618 (overruling:; on this point HoLbs v. Bland- ford, 7 T. B. Mon. 469) ; Ashton r. M'Dougall, 5 Beav. 56. Tn Maryland he is chargeable with constructive notice by the registration of the deed : Cole v. O'Neill, 3 Md. Ch. 174; Jordan v. Black, Meigs, 142 ; Gainor r. Gainor, 26 la. 337. 2 Cotton r. King, 2 P. Wms. 358. Gifts ill Fraud of Marital Rights. 485 that it was void, but it was not shown that in August he was " the intended husband," aUhough the marriage took place in the following October ; it was held that the evi- dence was insufficient to impeach the deed.^ 495. Intended Wife Dealing with Her Property Before Her Engagement. — A question of much deli- cacy arises with respect to the woman's dealing with her property after her engagement, or in fact, after she has entered upon a treaty of marriage. Both parties often have a marriage in view long before there is an actual binding obligation entered into. The matter of court- ship may even extend over a number of years ; and to say to the wife that she may not dispose of her property, even by gift, during these years is to either deprive her of the right of disposing of her property as any other or- dinary individual, or to compel her to break off all atten- tions on the part of the man, or to put her in the indeli- cate position of asking his leave to sell or dispose of her property before he is under any obligation to marry her. In questions of this kind it is not too harsh a rule to hold that the intended husband loses his right to an interest in her pro^^erty by not with reasonable speed pressing his suit to an engagement ; but if the delay is occasioned by the intended wife's obstinacy or delay, then he does not. But after the engagement, even though the day of marriage is delayed by his non-action, he has a right to be consulted before she disposes of her property. Yet here arises a second delicate question, if he is the cause of the delay. Must she demand a speedy marriage, or be de- ^ England v. Downs, 2 Beav. 522 ; Poslon v. Gillespie, 5 Jones Eq. 258 : Cum- mings V. Coleman, 7 Rich. Eq. 509; Cheshire v. Payne, IG B. Mon. 618; Cole v. O'Neill, 3 Md. Ch. 174 ; Gaiiior v. Gainer, 26 la. 337 ; Baird v. Stearne, 15 Phila. 339 ; S. C. 39 Leg. Lit. 374 (an engagement is not necessary to render tlie conveyance void) ; Gregory v. "Winston, 23 Gratt. 102. 486 Gifts. prived of her right of disposal for a long period of time ; must she present to him the alternative of marrying her at once or of losing his prospective right to an interest in her property ? or must she altogether break off the mar- riage engagement in order to dispose of her proj)erty ? These are questions unanswered by the courts ; but com- mon sense would seem to indicate that here, too, by his laches he may lose his prospective right in her proj)erty/ 496. Conveyance of Part of Peoperty. — Whether or not the mere conveyance of a part of her proj^erty, without any actual intent of defrauding her husband, was a sufficient fraud to set it aside was doubted in one case ; but it was held that if the facts clearly show that she in- tended to deceive and defraud him, it would be such a fraud as he would be entitled to relief against.^ 497. Wife Fraudulently Representing Herself Possessed of Property. — Should the wife, in her treaty of marriage, fraudulently represent herself as the owner of real or j^ersonal property, with the intent thereby to induce her suitor to marry her, when in fact she owned none, he is without a remedy. So " the non-acquisition of property, of which he had no notice, is no disappoint- ment."^ And the same is true where the husband deceive his intended wife. ''A wife acquires by marriage no right to the property of her husband, and she cannot maintain a bill in equity to set aside a deed of gift executed by him ^ See Poston v. Gillespie, 5 Jones Eq. 258 ; Butler v. Butler, 21 Kan. 521 ; S. C. 30 Am. Rep. 441. That an actual engagement is not necessary to render the conveyance void, see Baird v. Stearne, 15 Phila. 339 ; S. C. 39 Leg. Int. 374. ^ Logan V. Simmons, 3 Ired. Eq. 487. In Kansas, where it was not shown that all of the husband's property had been conveyed by him, that fact was allowed much weight in deciding the case against the wife : Butler v. Butler, 21 Kan. 521 ; S. C. 30 Am. Rep. 441. ^ England v. Downs, 2 Beav. 522. Gifts in Fraud of Marital Rights. 487 previous to the marriage, on the ground that he contin- ued in possession, and that she married him under the im- pression that the property was his." ^ 498. The Wife's Pkoperty Need Not Have Brought About the Marriage. — It cannot be said with strictness that the wife's property must have brought about the marriage ; for where the husband never knew until after his marriage that the wife was possessed of property, then such property can in no way have induced him to marry her. Bat in England, up to 1833, there was but one case of this kind,^ and there the husband succeeded. 499. Husband Ignorant of His Intended Wife Owning Property. — In a line with the preceding sec- tion it is immaterial that the husband, at the time of the marriage, was ignorant of the fact that his wife was the owner qjl property. In several of the cases cited the husband knew nothing of the fact of her ownership until after her death. His equity does not rest upon his knowl- edge of what she owns at the time she marries him ; but upon his marital rights in all her property which she owned at the time the treaty of marriage is entered upon.^ 500. Wife Incumbering Her Land — Leases. — What is true of a wife secretly conveying her lands is also true if she secretly place a mortgage upon, or exe- cutes a lease of them. Both acts are frauds upon the husband.* 1 Gibson v. Carson, 3 Ala. 421 ; Cranson v. Cranson, 4 Mich. 230; Tate v. Tate, 1 Dev. & B. Eq. 22; Klein « Wolf^ohn, 1 Abb. N. C. 134; Wier v. Still, 31 la. 107. But see, as to wife's right of action, Section 515. ^ Goddard v. Snow, 1 Russ. 485. * Taylor v. Pugh, 1 Hare, 608; Lewellin v. Cobbold, 1 Sm. & G. 376 ; Chandler V. Holiingsworth, 3 Del. 99; S. C. 17 Am. L. Reg. 319. * Thomas v. Williams, Mose, 177; King t;. Cotton, Mose, 259; Busenbark v. 488 Gifts. 501. Release of a Debt or Legacy. — If the in- tended wife has a valid claim against a third person, whether secured or not, and secretly releases it before her marriage, the release will be set aside on the application of the husband ; and the same is true of a legacy that she may have released.^ 502. Circumstances of the Parties — Pecuniary Means of the Husband. — Lord Brougham, after re- viewing all the cases up to the date of his decision (1833), said : " Furthermore, the cases would even seem to author- ize us in taking all the circumstances of the parties into consideration, as the meritorious object of the conveyance, and the situation of the husband in point of pecuniary means." ^ But this rule may be well denied, for the hus- band's equity does not rest upon his own lack of property, but upon his having been inequitably deprived of a right to and in property which the assumption of the marriage obligation gave him.^ 503. Widow With Children Conveying Estate. — The English courts regard a conveyance by a widow with children, just before her marriage, fraudulent much more quickly or with less evidence of fraud than in the case of a woman without children.* But even here special circumstances may take the case out of the rule making such conveyance fraudulent. Thus where a widow, pre- viously to her marriage with a second husband, assigned Busenbark, 33 Kan. 572; Kelly v. McGrath, 70 Ala. 75; M'Wade v. Brodhursl, 34 L. T. N. S. 924, affirming 24 W. R. 232. 1 Thomas v. Williams, Mose, 177. 2 St. George v. Wake, I My. & K., p. C23 ; Jordan v. Black, Meigs, 142 ; Thomas r. Williams, Mose, 177; see M'Wade v. Brodhurst, 34 L. T. N. S. 924, affirming 24 W. R. 232. 3 Taylor v. Piigh, 1 Hare, 608 ; Tisdale v. Bailey, 6 Ired. Eq. 358. *Poulson V. Wellington, 2 P. Wms. 533 ; Green v. Goodall, 1 Coldw. 404. Gifts in Fraud of Marital Rights. 489 over the greatest part of her property to trustees as a pro- vision for the chikh'en of her former marriage, the settle- ment was supported by the court, on the ground that it was made for a proper object — namely, to provide for the children she had by her first husband, before she put her- self and them under the power of a second husband.^ But in all such instances, in order to not render the convey- ance void, she must act without a fraudulent intent toward her second husband.^ Where a mother, the day before her marriage, executed a deed to her daughter to secure a debt due her, it was held to be valid.^ In America it is held that even though the wife only intends to secure her children, yet as against her second husband the convey- ance is void, and especially is this true if she convey all her property.* 504. Consideration^ for Conveyance, Incumbrance OR Debt. — If there was a valuable consideration for the conveyance, or incumbrance placed upon the land or property, though concealed from the husband, the con- tract is valid ; and this is also true of a debt contracted.^ Thus where a woman, just before her marriage, secretly 'Hunt V. Mathews, 1 Vern. 408; .S. C. Eq. Ca. Ab. 59, pi. 5; Thomas v. Wil- liams, Mose, 177 ; Jordan v. Black, Meigs, 142. "^ England v. Downs, 2 Beav. 522 ; King v. Cotton, Mose, 259. The Master of the Rolls very much doubted the decision in Hunt v. Mathews on this point : Downes v. Jennings, 32 Beav. 290, 295. See, also, Williams v. Carle, 2 Stock. (N. J.) Ch. 543; Logan v. Simmons, 3 Ired. Eq. 487. 3 Fletcher v. Ashley, 6 Gratt. 332; Gregory v. Winston, 23 Gratt. 102. *Goodson 2J. Whitfield. 5 Ired. Eq. 163; Tisdale v. Bailey, 6 Ired. Eq. 358 ; Terry v. Hopkins, 1 Hill Ch. (S. C.) 1 ; Ramsay v. Joyce, 1 McMull. E(i. 236; Manes v. Dnrant, 2 Rich. Eq. 404 ; Jones v. Cole, 2 Bailey L. 330 ; McClure v. Mil- ler, 1 Biiiley Eq. 107 ; McAfee v. Ferguson. 9 B. Mon. 475 ; Wilson v. Daniel, 13 B. Mon. 348 ; Leach v. Duvull, 8 Bush 201 ; Bntler v. Butler, 21 Kan. 521 ; S. C. 30 Am. Rep. 441 (actual fraud mu Loader v. Clarke. 2 Mac. & G 382. ^ Spencer v. Spencer, 3 Jones Eq. 404 ; Poston v. Gi!l<^ppie, 5 Jones Eq. 258. But see Hamilton v. Snaith, 57 la 15, as to a rumor unbelieved. Gifts in Fraud of Alarital Rights. 493 died in ignorance of lier ownership of the bonds and stock ; and then the wife brought suit against the trustees to compel a reconveyance to her, and succeeded, it was held that the heirs of the husband could not then main- tain an action against her to compel a conveyance to them.^ But in a South Carolina case the executor of the husband was allowed to maintain the action, the wife surviving the husband.^ 511. Husband's Ceeditoes Attacking Conveyance. — The creditors of the husband can]iot attack the convey- ance, although he owed them at the time of the marriage, and he was then insolvent and consented to the convey- ance. Such a conveyance is not within the statute of frauds, for he is not the grantor and it is only to the latter that it applies.^ 512. Heir of Wife Attacking Husband's Fraudu- lent Conveyance. — In Delaware it is held that an heir of the wife cannot attack the husband's secret conveyance made on the eve of their marriage ; for the reason that the conveyance is only a constructive fraud, and her heirs have not the equity she possessed to have the deed set aside.^ 513. The Decree. — In setting aside the conveyance the court will direct a proper provision for the wife, although the suit be instituted by the husband, to recover her property, which he has not yet reduced to possession.^ ^Grazebrook v. Percival, 14 Jur. (O. S.) 1103: Chandler v. HoUingsworth, 3 Del. Ch. 99 ; S.C. 17 Amer. L. Reg. 319. * Spencer v. Spencer, 3 Jones Eq. 404. ^Land v. Jefleries, 5 Rand. 211 ; Perryclear v. Jacobs, 2 Hill Ch. (S. C.) 504. Contra, Westermnn v. Weslerman, 25 Ohio St. 500. ^Chandler v. HoUingsworth, 3 Del. Cli. 99; S. C. 17 Amer. L. Reg. 319. 5 Tucker?;. Andrews, 13 Me. 124; Kenny r. Udall, 5 Johas. Ch. 4G4. The court of South Carolina declined to follow the rule of the Maine case : Tisdale v. Bailey, 6 Ired. Eq. 358. 494 Gifts, But in the great majority of instances the judgment has been simply an annulling of the fraudulent conveyance, or a decree compelling the fraudulent grantee to reconvey the property to the wife, in the case of personalty. No doubt an accounting can be decreed of the rents and j^rofits received by the wife's grantee. In the case of j)ersonal property a judgment in conversion, if the proper demand has been made, for the value of the property would not be improper. 514. HusBAXD Secretly Conveying His PROPErtTY. — In a South Carolina case, in a dictum, it is said that the intended husband can no more convey his property with- out his intended wife's consent than she can convey her property without his ; that both are equally bound.^ If the intended husband secretly conveys his property, even to his children, he will be bound, but they take it subject to her rights in case she survive him ; ^ and before his death she may maintain an action to have the conveyance declared void so far as it may deprive her of dower in the lands in case she survive him, but no farther.^ But where the husband, a few days before his marriage, conveyed two farms to his children which he represented to his wife that he owned, and she remained in ignorance of the conveyance until after his death, which took place several years after his marriage, and during the marriage he made ample pro- vision for her, and for her two children by a former hus- band, and no evidence Avas given of the amount of prop- erty he died seized of, the court refused to set aside the '" Poston V. Gillespie, 5 Jones Eq. 258. 2 Leach v. Diivall, 8 Bush. 201 ; Petty r. Webb, G B. Mon. 468 ; Gaines v. Gaines, 9 B. i\Ion. 295 ; Petty v. Montague, 7 B. Mon. 55 ; Gainor v. Gainer, 26 la. ;^37 ; Chandler v Hc.llingsworth, 3 Del. Cli. 99 ; S. C. 17 Am. L. Eeg. 319. * Petty V. Petty, 4 B. Mon. 215; S. C. 39 Am. Dec. 501 ; Swaine v. Ferine, 5 Johns. Ch. 482 ; S. C. 9 Am. Dec. 318. Gifts in Fraud of Ifarital Rights. 495 conveyance at her suit, because no actual fraud was sliown.^ Yet where a husband permitted, previous to his marriage, with a view of defeating the marital rights of his wife, fraudulent judgments to be taken against him, it w^as held that his wife, even during coverture, could maintain an action to have them declared a nullity so far as they affected her inchoate interests in her husband's lands."^ The same was held true of a mortgage;^ 515. When Wife May Sue — Right of Action. — The wife may bring an action to protect her contingent or inchoate interest in her husband's real estate before he dies; she is not compelled to wait until his death. This is abundantly established by authority.* At his death she may bring her action for dower the same as if no convey- ance had ever been made,'' or proceed in equity to secure her rights. So a husband may bring the action during 1 Butler V. Butler, 21 Kan. 521 ; S. C. 30 Am. Rep. 441 ; Hamilton v. Smith, 57 la. 15. 2 Busenbark v. Busenbark, 33 Kan. 572 ; Thayer v. Thaver, 14 Vt. 107 ; S. C. 39 Am. Dec. 211 ; Buzick v. Buzick, 44 la. 259 ; Beck v. Beck, 64 la. 155 ; {contra, Stewart v. Stewart, 5 Conn. 317); Holmes v. Holme-:, 3 Paige, 363; Baird v. Stearne, 15 Phila. 339 ; S. C. 39 Leg. Int. 374 ; Pomeroy v. Pomeroy, 54 How. Pr. 228; Baker v. Chase, 6 Hill, 4S2 (not void at law) ; Youngs v. Carter, 50 How. Pr. 410; S. C. 1 Abb. N. C. 136; 10 Hun, 194 (to his daughters). ^ Kelly V. McGrath, 70 Ala. 75. Generally, Reynolds v. Vance, 1 Heisk. 344 (actual fraud necessary) ; Killinger v. Reidenhauer, 6 S. & R. 531 (a mortgage) ; Crecelius u Horst, 4 Mo. App. 419 (a husband, after marriage, purchased land, and had it conveyed to his daughter in order to defeat his wife's dower ; void: Jiggitts V. Jiggitts, 40 Miss. 718; Babcock v. Babcock, 53 How. Pr. 97; Drury v. Drury, Wilmot's Opinions, 177 ; S. C 4 Bro. Ch. 506, note. Lord Hardwicke lield "that if a man. bef ire marriage, conveys his estate privately, without the knowl- edge of his wife, to trustees, in trust for himself and his heirs in fee, that will pre- vent dower:" Swanneck v. Lyford, Co. Litt. lOS, n. 1 ; Banks v. Sutton, 2 P. Wms. 700. In Virginia it is lield that proof of the conveyance is not snfBcient to shew a fraud; there must be an actual fraud : Gregory v. Winston, 23 Gratt. 102. * Babcock v. Babcock, 53 How. Pr. 97; Young v. Carter, 10 Hun, 194; S. C. 1 Abb. N. C. 136; 50 How. Pr. 410; Petty v. Petty, 4 B. Mon. 215; S. C 39 Am. Dec. 501 ; Mills v. Von Voorhies, 20 N. Y. 412; Simar v. Canaday, 53 N. Y. 298. ^ Baker v. Chase, 1 Hill, 482 ; Gilson v. Hutchison, 120 Ma«s. 27; Youngs v. Carter, supra; Brown v. Bronson, 35 Mich. 415 ; Jiggitts v. Jiggitts, 40 Miss. 718. 496 G'tfts. her lifetime, for lie has, usually, a present interest in the rents and profits of her lands. And the same is true, usually, of her personal proj^erty. ol6. Personal Property of Husband. — There is considerable conflict upon the question of a fraudulent conveyance by the husband of his personal jn'operty, with the intent of defeating the claim of his wife at his death. A number of cases have already been cited which hold such a conveyance, made before the marriage, void ; and there are also a number which hold that it is not void. Another line of cases even hold that a conveyance of such property by the husband made during coverture with the intent to defeat the contingent interest of the wife is not void, unless the transfer be a mere device or contrivance by which the husband, not parting with the absolute do- minion over the property during his life, seeks to dej^rive his widow of her share of his personalty at his death.^ 517. Married AVomex's Acts. — It is always a matter of importance how far the recent married women's acts have changed the rule with respect to secret conveyances, such as we have been discussing. The terms of a particu- lar statute of this kind must be closely scrutinized before a conclusion can be drawn. Usually these statutes do not deprive the husband of a contingent or inchoate interest in his wife's lands if he survive her ; and, while they usually give her the right to the rents and profits 1 Dunnock v. Dunnock, 3 Md. Ch. 140; Hays v. Henry, 1 Md. CIi. 337; Cran- son V. Cranson, 4 Mich. 230; Holmes v. Holmes, 3 Paige, 363; Richards v. Rich- ards, 11 Humph. 429 ; Petty v. Petty, 4 B. Mon. 215 ; S. C. 39 Amer. Dec 501 ; McGee r. McGee, 4 Ired. L. 105; Littiet-m v. Littleton, 1 Dev. & B. 327 ; Davis V. Davts, 5 Mo. 183 ; Stone v. Stone, 18 Mo. 389 ; Tucker v. Tucker, 29 Mo. 350 ; S. C. 32 Mo. 464; {co-ntra, Cameron v. Cameron, 10 Sm. & M. 394; Lightfoot v. Colgin, 5 Munf. 42) ; Chandler v. Hollingsworth, 3 Del. Ch. 99 ; S. C. 17 Amer. L. Eeg. 319. {Contra, as to community property); Smith v. Smith, 12 Cal. 216; Lord V. Hough, 43 Cal. 581. Gifts ill Fraud of JIarital Eights. 497 of her own land, they do not empower her to encumber or convey it without his consent. The possibility, there- fore, of his acquiring an interest in her lands that will become of value may be a subject of some consideration when he enters upon a marriage treaty with her. AYhere a statute gives her the absolute control over her property, with the right to convey and dispose of it as she sees fit, without his concurrence, it would seem to logically follow that the husband could not object to a secret conveyance made by her on the eve of their marriage ; for if she may, without his consent, convey or encumber the jDroperty openly, even though she be influenced by a desire to defeat any possibility of his obtaining an interest in her property if he should survive her, after the marriage, there is no reason why she may not make a valid and secret conversance or encumbrance before their marriage. And so the same is true of her personal property, where she is the absolute owner after the marrias-e. At common law the husband was liable for his wife's debts contracted before their marriage, but these statutes usually release him, or hold him liable only to the amount of pro^^erty he himself receives with her. If lie receive nothing, then he is not liable. In all these instances, as we have said be- fore, it would seem to logically follow that her secret con- veyance is not fraudulent.^ These views, however, have not met with the approval, apparently, of the Supreme Court of North Carolina ; for it is there said, since the Constitu- tion of 1868 was adopted in that State, that a husband was under an obligation to support his wife and her children by him, " and for that purpose is entitled to her services, ^ This was the view of Mr. Justice Brewer in Butler v. Butler, 21 Kan. 521, thoueh he does not decide the point ; and tliat, too, even where the husband was entitled to one-half of the wife's property if he survived her, which she owned at her death ; and vice versa. See, also, Green v. Green, 34 Kan. 740 ; and Chief Justice Horton's remarks in State v. Walker, 36 Kan. 297, 310, 311. 32 498 Gifts, and to contribution from the profits of her estate. . . . The plaintiff was surprised by the fact that his wife had been induced to give away all the estate she owned, and to Avhich he with reason looked for aid in supporting her. He was deceived, and the question is was he defrauded of any right to which he was entitled as husband. We think he was. The marriage act authorizes a wife to make contracts charging her real and personal estate for her necessary personal expenses, or for the support of her family. So the plaintiff had in legal contemplation a right to look to this lot as a source which would enable his wife to contribute to her necessary personal expenses, and for the support of the family, and was not only deceived, but was defrauded by the secret conveyance made the day before the marriage."^ So in Ohio a somewhat similar view was taken. A statute provided that ** in any action against the husband and wife upon any case existing against her at their marriage, or upon any tort committed by her during coverture, or upon any contract made by her concerning her separate property . . . the separate property of the wife shall be also liable to be taken for any judgment rendered thereon." Under this statute it was held that a secret conveyance by her of her property on the eve of her marriage was void as to creditors of both of them.^ A similar result was reached in Vir- ginia.^ In a Pennsylvania case it was said : " Nor does our married women's act of 1848 at all affect the ques- tion. It prevents the marriage from o^^erating as a trans- fer of any of the wife's property to the husband, and saves it for herself The plaintiff had, therefore, a right ^ This case was, however, decided against the husband for the renson that he knew of the conveyance the day before the marriage : Baker v. Jordnn, 73 N. C. 145. ^ Westerman v. Westerman, 2o Ohio St. 500 ; Alexander v Morgan, 31 Ohio 546. 3 Powell V. Manson, 22 Gratt, 177. Gifts in Fraud of 3Iarital Rights. 499 to suppose that he was marrying her with all her legal power over her estate ; whereas, by this arrangement, it was secretly slipped into the hands of trustees, and out of her control, just before the marriage was consummated. This is not just or equitable treatment of the husband. A fraud no greater than this would avoid any other contract than that of marriage ; but, as this cannot be avoided, equity avoids the contracts that are in fraud of it." ^ ^Duncan's Appeal, 43 Pa. St. 67. See Freeman v. Hartman, 45 111. 57. 1 CHAPTER XIX. ORIGIN AND ESSENTIALS OF ADVANCEMENTS. 518. Limit of Discussion. 537. 619. Confusion in the Use of the Terms 538. Ademption and Advancement. 520. Early English Law of Personal Ef- 539. fects of Deceased Persons. 640. 521. English Statute of Distribution. 541. 522. Resemblance to Old English and to Roman Law. 523. English Statute of Distribution 542. Common Law in America. 624. Equality Basis of Statute and De- 543. cisions. 525. Definition of Advancements. 544. 526. Differs from " Advances." 545. 627. " Advancement " Distinguished from a " Gift " or " Debt." 540. 628. Distinguished from an " Ademp- tion." 529. Difference Between Ademption and 547. " Satisfaction." 548. 630. Revocation of Advancement. 549. 631. Changing Gift to Advancement. 532. Changing Advancement to Gift. 550. 533. Changing Debt to an Advance- ment. 551. 534. Changing Advancement to a Debt. 535. Assent of Donee to an Advance- ment. 552. 536. Donee Refusing to Accept Ad- vancement. Intention of Donor Controls. Statute Changing Rule as to In- tention. Relation of Donor to Donee. Gift to Grandchildren. Advancement to Parent wlien Grandparent Leave Surviving Him Only Grandchildren. Payment to Son-in-law as an Ad- vancement to Daughter. Mother's Gift to Child as an Ad- vancement. Gift to Stranger. Gift Must be Out of Donor's Own Property. Gift Must be Perfected in Life- time of Donor — Rents and Profits of Real Estate. Donor Must Die Intestate. Partial Intestacy. Will E.x:ecuted After Advance- ment Made. To What Property the Law of Advancement Applies. Heir Releasing to Ancestor His Prospective Interest in His Estate. Purchaser of Heir's Interest Takes Subject to Advance- ment Made. 518. Limit of Discussion. — The author in the discus- sion of the subject of "Gifts" has excluded the subject of Gifts by Will, and limited the consideration of the sub- ject to Gifts Inter Vivos and 3Iortis Causa. In view of 500 I Origin and Essentials of Advancements. 501 this fact it lias been thought best to exchule any discus- sion of the subject of Ademption, and limit the following 23ages to that of Advancement. The subject of Ademp- tions, while in many of its j)rinciples clearly connected with that of Advancements, and w^hile the cases of ademjDtions, and illustrations used in them are often au- thority, and serve to illustrate cases of advancements, yet it is inherently connected with the subject of wills ; for in each and every instance of a controversy concerning ademptions a will is involved, while in advancements a question concerning wills seldom arises. Therefore, a ^practitioner, in his search for a discussion of the subject of Ademptions would almost invariably turn aside from a work bearing the title set on the title-page of this work, not expecting to find it discussed in this connection. 519. Confusion in the Use of the Terms Ademp- tion AND Advancement. — Much confusion has arisen in the decided cases, and even in text-books, by the distinction between ademptions and advancements not being clearly borne in mind, and also by in- accurate distinctions, or no distinctions at all being observed as to the difference between these two terms and that of satisfaction. In many cases instances of ademption are spoken of, and often treated, as instances of advancements ; and to add to the con- fusion the Legislature has more often than otherwise utterly failetl to notice the distinction inherently exist- ing between these two terms. 520. Early English Law of Personal Effects of Deceased Persons. — In very early times of England the king, as parens patron, was entitled to take possession of the goods of an intestate, and he frequently delegated this 502 Advancements. prerogative to tlie lords of manors and others, and they thus acquired what was afterward termed a proscriptive right to grant probate of wills, or administration of the effects of their suitors and tenants. Subsequently the king, except in these cases of proscriptive right, trans- ferred this power or usage to the heads of the Church, who were thought to have more tender consciences than laymen, and to be better able to judge as to " Avhat things would conduce to the benefit of the soul of the deceased." These " ordinaries," as they were termed, were accountable to no one, had unlimited power over the intestate's prop- erty, and they were held to a breach of confidence only when they failed to dispose of the proceeds of such property to pious uses — namely, for the good of the intestate's soul. Great abuses necessarily arose, and after giving to the wife and children their two-thirds, the reverend gentlemen often appropriated the remaining third to their own personal gratification, without even paying the debts of the de- ceased.^ In 1285 Parliament passed an act declaring that the ordinary " from henceforth shall be bound to answer for the debts as far forth as the goods of the dead will ex- tend," just as executors were under a will.'^ This statute simply had the effect to reduce the amount the ordinary would have otherwise received ; for, having paid the de- ceased's debts, he kept what was left. Seventy years later the Parliament provided that " where a man dieth intes- tate, the ordinaries shall depute the next and most lawful friends of the dead person to administer his goods," who were to be accountable to the ordinaries, and to be in the 1 2 Black. Com. 494; 1 Wras. Exrs. 401 ; Graysbook v. Fox, Plowd. 277 ; Hen- sloe's Case, 9 Rep. 39 a. 2 13 Edw. I, c. 19 ; 2 Black. Com. 495 ; Palmer v. Allcock, 3 Mod. 59. It was decided, however, that this statute simply declared the rule at common law : Snelling's Case, 5 Co. Rep. 82 b. See, also, Hensloe's Case, 9 Co. Rep. 39 b ; Snel- lings V. Norton, Cro. Eliz. 409, and Com. Dig. Administrator A. Origin and Essentlah of xidvancements. 503 same position as to suing and being sued as executors.^ A subsequent statute provided that administration should be granted to the widow or next of kin of the intestate, or both, as the ordinary should think fit.^ The result was that the administrator, instead of the ordinary, after the payment of the debts and paying the widow and the in- testate's children their two-thirds, appropriated the re- mainder to his own personal satisfaction. But now as the ordinary was de^^rived of the power to appropriate the remnant of the estate to his own pious use, he was seized with a desire to prevent any one else except the widow and children from so doing, and exacted of the adminis- trator a bond that he would faithfully account to such widow and children for the remainder left after pay- ing the debts of the intestate ; but the common-law courts adjudged these bonds void.^ These several statutes and unjust practices paved the way for the celebrated " Statute of Distribution," * discussed in the next section. 521. ENGLISH Statute of Distribution. — This statute is entitled " An Act for the better settling of intestates' estates," and is given in full in the Appendix. It authorized any officer having the power to grant let- ters of administration to exact a bond from the adminis- trator, conditioned that he will make a fiiithful report of all property that may come into his hands, and will deliver ^ '• Tliis " says Blackstone, " is the original of administrators, as they at present stand ; who are only the officers of the ordinary, appointed hy him in pursuance of this statute, which singles out tlie next and most lawful friend of the intestate ; who is interpreted to be the next of blood that is under no legal disabilities:" 2 Black. Com. 496. The act referred to is 31 Ed. Ill, Stat. I, c. 11. 2 21 Hen. VIII, c. 5. 3 Edwards v. Freeman, 2 P. Wms. 441 ; Hughes v. Hughes, 1 Lev. 233 ; S. C. C;irter, 125. See 2 Black. Com. 515. * 22 & 23 Car. 11, c. 10. 504 Advancements. and 2)ay to sucli j)ersons as tlie court or judge may decree "pursuant to the true intent and meaning of this act;" and directed the courts to " make just and equal distribu- tion of what remaineth clear (after all debts, funeral and just expenses of every sort first allowed -and deducted) , amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead joerson in equal degree, or legally representing their stocks ^ro suo cuiquejure, according to the laws in such cases, and the rules and limitations hereafter set down." ^ After providing that it shall not set aside the custom ob- served in the City of London or within the Province of York,^ the statute provides that so much of the estate as remains after paying the debts, funeral expenses, and ex- penses of administration, the widow shall receive one- third part, " and all the residue " shall be divided " by equal portions, to and amongst the children of snch per- sons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being lieirs- at-law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his life- time, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made : and in case any child, other than the heir-at-law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by such distribution aforesaid ; then so much of the surplusage of the estate of such intestate, to be dis- tributed to such child or children as shall have any land 1 Sects. 1, 2, and 3. 2 Sect. 4. Origin and Essentials of Advancements. 505 by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be esti- mated ; but the heir-at law, notwithstanding any land that he shall have by descent or otherwise from the intes- tate, is to have an equal portion in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent, or otherwise from the intestate." ^ The next section provided that if " there be no wife, then all the said estate to be dis- tributed equally to and among the children ; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representa- tives as aforesaid, and in no other manner whatsoever." It also provided that the distribution be postponed until one year after the intestate's death, and then only on condi- tion that the distributees give a bond to refund a sufficient sum to pay any of the debts of the intestate coming to light thereafter.^ 522. Resemblance to Old English and to Roman Law. — This statute bears a somewhat near resemblance to the ancient English law, de rationbli part bonarum, so far as the equality of distribution is concerned, which has been claimed by some authorities to be unusually appli- cable to England,^ while others doubt if it was more than a custom peculiar to some localities.^ By that law a man's goods were divided into three equal parts, one of 1 Sect. 5. 2 Sect. 7. This statute, after two extensions, was made perpeiual by I Jac. 1, c. 17, f. 5. Of this statute it lias been observed that two objects were in the view of the legislator, one that the residue shall be forthcoming, and the other that it shall be equally divided. By Bayley, B., in The Archbishop of Canterbury v. Kob- ertson, 1 Cr. & M. 690, 705. Lord Hardwicke said that ihe statute was very inac- curately penned : Stanley v. Stanley, 1 Atk. 457. 3 Black. Com. 492. * Co. Litt. 176 b. 506 Advancements. wliicli went to lils lieirs, another to liis wife, and the re- maining third was at his own disposaL If he had no wife, one moiety went to his chihlren, and the remaining moiety he coukl dispose of as he wished.^ This statute also bears some resemblance to the Koman law of succes- sion ab intestatio, and because the act was penned by an eminent civilian,^ the notion at times has prevailed that Parliament copied it from the Koman Praetor. It is, however, but little more than a restoration, with some refinements and regulations, of the old constitutional English law which prevailed as an established right and custom from the time of Cnut downwards, many centuries before Justinian's laws were known or heard of in the western part of Europe.^ 1 1 Wms. Exrs. 1, 2. ^ Sir Walter Walker, see R. v. Raines, 1 Ld. Raym., p. 574, by Lord Holt. ^2 Bl. Com. 516. On the Roman succession ah intestxtio, see Amos' Roman Civil Law, p. 305; Hunter's Roman Law, 559, and Justinian's Tiiird Book. "The idea of requiring children who had been advanced," said Osmond, J., in Mitchell V. Mitchell, 8 Ala. 414, '' during the lifetime of their father, to bring the money or property thus received into hotchpot, when he died intestate, ap- pears to have been obtained in England, from the custom of the city of London, and incorporated in the Statute of Distributions of 22 & 23 Cliarles II. Tlie cus- tom of London, which was referred to, is that which divided the freeman's per- sonal estate into tliree part-, one of which, after his funeral expenses were paid, went to the widow, one to his children unadvanced by him, in his lifetime, and the other third, called the dead man's share, he might dispose of by will. And any of the children who had not been fully advanced in the lifetime of the par- ent, could bring the sum so received into hotclipot, share equally with the others in tiie orphanage part. . . . The question is, what constitutes an advancement? By the custom of London, it appears it was not every gift that constituted an ad- vancement. It must be a marriage portion, or ' something; to set up in the world with :' Elliott v. Collier, 3 Atk. 526. Presents by tlie father of small snms. unless expressly given by way of advancement, are not to be brought into hotchpot: Morris v. Borrough, 1 Atk , p. 403 ; Elliott v. Collier, 3 Atk. 526. Neitlier is money laid out in education or in traveling: Pusey u Desbouvrie, 3 P. Wms. 315, in note. The custom was confined alone to personal property, and a gift of land though expressly intended as an advancement, would be so far to the orphanage share : Cevill v. Rirh, 1 Vern. 181. The father could also, by an act in his life, give away any portion of his persinal estate, to one of Iiis children, provided he divested himself of all property in it; but if it is done in extremis, and could be Origin and Essentials of Advancements. 507 523. English Statute of Distributiox Common Law in America. — This statute was enacted sixty years after the first jDermanent settlement was made by the English in the present boundaries of the United States, and fifty years after the settlement at Plymouth. It may therefore be regarded, and it is in fact, common law in this country, and in force to-day except in so far as it has been modified by statutes local to the general States.^ " When the American colonies were first settled by our ancestors it was held," said the Georgia Supreme Court, " as well by the settlers, as by the judges and lawyers of England, that they brought hither as a birthright and inheritance so much of the common law as was applicable to their local situation, and change of circumstances." "" So it was ruled by the English Court of Chancery in 1722, " That if there be a new and uninhabited country found out by English subjects, as the law is the birtli- right of every subject, so, wherever they go, they carry their laws with them, and therefore such new-found country is to be governed by the laws of England ; though after such country is inhabited by the English, acts of Parliament made in Eno-land, without namins: the foreio'u plantations, Avill not bind them." ^ So Chancellor Kent has said : " The common law so far as it is aj^plicable to considered as a teslamentary act, or if any power was reserved over tlie subject of the gift, it was considered a fraud upon the custom, as it regarded tlie other chil- dren: Tonakyns v. Ladbroke, 2 Ves. Sr. 591; Elliott v. Collier, 1 Yes. Sr. 15. This examination lias been made of the custom of London, as it was the original of that portion of the English Statute of Di-tributions, requiring advancements to be brought into hotchpot, which was the prototype of ours, and is tlierefore proper to be considered as an aid, in coming to a correct conclusion, as to its true intent and meaning " ^ Mr. Bishop in several of his works liasdiscussed the subject of the common biw in force in this country: 1 Bish. New Cr. L., sect. 190; Mar. & Div , sects. 116 to 125 ; First Book, sects. 43 to 59. See, also, 21 Amer. L. Eeg. 523. estate V. Campbell, T. U. P. Charlton, lOo. 3 2P. Wms. 75. 508 Advancements. our situation and government has been recognized and adopted as one entire system by the Constitutions of Massachusetts, New York, New Jersey, and Maryland. It has been assumed by tlie courts of justice or declared by statute, with like modifications, as the law of the land, in every State. It was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charter and colonial statute. It is also the established doctrine that English statutes passed before the emigration of our ancestors, and applicable to our sit- uation, and in amendment of the law constitute a part of the common law of this country." ^ 524. Equality Basis of Statute and Decisions. — The primary object of this statute was to give each child of the intestate, with the exception of the "heir-at-law," or eldest born male, an equal share or portion of the ances- tor's estate ; to do equality among those having a moral right to his ^^roperty. The courts have followed this statute, not only in its letter, but in its spirit, until it has been said that " Equality is equity amongst heirs, and the doctrine of advancement has, for its object, the further- ance of this end." ^ In another case from the same State, it was said that '' The maxim that equality is equity among heirs is a cardinal rule of distribution. In the absence of expressions clearly indicating a contrary in- tention, the courts will presume that the testator intended equality of distribution among his own children, in ac- cordance with the settled policy of the law in this com- monwealth. As between a loan, a gift and an advance- ment, the presumption is in favor of an advancement, 1 1 Kent. Com. 472. See, also, Short v. Stotts, 5S Ind. 29 ; Sackett v. Sackett, 8 Pick. 309 ; Bruce v. Wood, 1 Met. 54 J. * Miller's Appeal, 31 Pa. St. 337. Origin and Essentials of Advancements. 509 because of its tendency to equality." ^ In consider- ing whether a certain transaction between a parent and child is an advancement or not, the maxim of equal- ity and that each and every child he has has an equal moral claim on his property at his death must always be borne in mind. Inequality is not to be presumed, nor favoritism nor preference for one child to the injury of another.^ 1 Patterson's Appeal, 128 Pa. St. 2G9, 280. * Hepworth t'. Hepworth, L. R. 11 Eq. 10; Edwards v. Freeman, 2 P. Wms. 435; Johnson v. Belden, 20 Conn. 322; White v. White, 3 Dana, 374. In speak- ing of a case of ademption, Vice-Chancellor W^igram said, and the statement is applicable to an advancement : " The language of the court in these cases is that it 'leans against double portions ' — a rule which though sometimes called techni- cal, Lord Cottenham says was founded on good sense, and could not be disre- garded without disappointing the intentions of the donors : Pym v. Lockyer, 5 Mylne & C. 29, 46. . . . The rule of presumption, as I before said, is against double portions, as between parent and child ; and the reason is this : a parent makes a certain provision for his children by his will ; if they attain twenty-one, or marry, or require to be settled in life, he afterward makes an advancement to a particular child. Looking to the ordinary dealings of mankind, the court con- cludes that the parent does not, when he makes that advancement, intend the will to remain in full force, and that he has satisfied in his lifetime the obligation which he would otherwise have discharged at his death ; and having come to that conclusion, as the result of general experience, the court acts upon it and gives effect to the presumption tliat a double portion was not intended. If, on the other hand, tliere is no such relation, either natural or artificial, tlie gift i)roceeds from the mere bounty of the testator ; and there is no reason within the knowledge of the court for cutting off anything which has in terms been given. The testator may give a certain sum by one instrument, and precisely the same sum by another ; there is no reason why the court should assign any limit to that bounty which is wholly arbitrary. The court, a'^ between strangers, treats several gifts as ■prima fade cumulative. The consequence is, as Lord Eldon observed, that a natural child, who is in law a stranger to the fatiier, stands in a better situation than a legiti- mate child; for tlie advancement in the case of the natural child is not prima /ao'ean ademption:" Suisse v Lowther, 2 Hare, 424. Thestatemeiit of Lord Eldon referred to occurs in Ex parte Pye, 18 Ves. 140, 147. "The Statute of Distrilui- tion does not break into any settlement that has been made by tlie father ; it only meddles with what is left undisposed of by iiim, and of that only makes such :i will for the intestate, as a father, free from the partiality of affections, would himself make; and this I may call a Parliamentary Will:" Edwards v. Freeman. 2 P. Wms. 435, 453, by Lord Chief Justice Raymond. Such is the rule in Louis- iana: Benoit v. Benoit, S La. 228; Montgomery r. Chaney, 13 La. Ann. 207; Grandchamps v. Delpeuch, 7 Rob. (La.) -129. 510 Advancements. 525. Definition of Advancement. — Turning to the English Statute of Distribution, we may say that an advancement is a provision made by a father in his life- time on behalf of a child. A legacy or any other pro- vision made by a will, consequently, is not an advancement, for the reason that such " legacy is not a provision secured by the parent in his lifetime." ^ But the definition to be evolved from this statute is not broad enough to cover all the cases ; for the courts have not stopped at a gift by a father, but have applied it to a gift made by the mother to her child. We may, therefore, define an advancement as follows : An advancement is a free and irrevocable gift by a parent in his lifetime to his child, or person standing in place of such child, on account of such child or person's share of the donor's estate which he will receive under the statute of descent if the parent or donor die intestate.^ In a Maryland case it was said that " an advancement, in legal contemplation, is simply the giving, ^ Edwards v. Freeman, 2 P. Wms. 435. ^ The definition we have given is not broad enough to cover a gift by a husband to his wife, which the statutes in certain States require to be treated as an ad- vancement. This will be treated of hereafter. We give a few judicial definitions of an advancement: "An advancement is a pure and irrevocable gift by a parent, in his lifetime, to his child, on account of such child's share of the estate, after the parent's decease:" Miller's Appeal, 31 Pa. St. 337. See Christy's Appeal, 1 Gr. Cas. (Pa.), p. 370. "An advancement is that which is given by a father to his child, or presumptive heir, by anticipation of what he might inherit:" Nolan V. Bolton, 25 Ga. 352. " The true notion of an advancement is a giving, by antici- pation, the whole or a part of what it is supposed a child will be entitled to on the death of the parent or party making the advancement:" Osgood v. Breed, 17 ^lass., p. 358. " The true idea of an advancement is a delivery by the parent during his life, to one or more of his children, the whole or a portion of that to which the child would be entitled on a distribution of the estate after the parent's decease:" Wheatherhead v. Field, 26 Vt., p. 668. "An advancement is a pay- ment or appropriation of money or property, or a settlement of real estate, made by a parent to or for a child, in advance or anticipation of the distributive share to which such child would be entitled after the death of the parent, and with a view to a portion or settlement in life:" Holliday r. White, 33 Tex., p. 460. "It is the giving by a parent to the child or heir, by way of anticipation, the whole or a part of what is supposed the donee will be entitled to on the death I Origin and Essentials of Advancements. 511 by anticipation, the whole or part of what it is supposed the child or party advanced would be entitled to receive on the death of the party making the advancement ;" that *' it does not involve the elements of legal obligation or future liability on the part of the party advanced, but is a pure and irrevocable gift, and must result from a com- jolete act of the intestate in his lifetime, by which he divests himself of all property in the subject, though in some cases and under some circumstances it may not take effect in j^ossession until after the intestate's death." ^ 526. DiFFEES FROM "ADVANCES." — The word "ad- vancement " does not cover the word or mean " ad- vances." Thus it has been said that " the word * advances,' when taken in its strict legal sense, does not mean gifts — advenceneti, and does mean a sort of loan ; and when taken in its ordinary and usual sense, both loans and gifts — loans more readily perhaps, than gifts. Advances are said to take place when a factor or agent pays to his prin- cipal a sum of money, on the credit of goods belonging to of the party making it:" Wallace v. Reddick, 119 111. 151, lo6. See, also, Darne V. Lloyd, 82 Va. 859; Grey v. Grey, 22 Ala. 233; Meadows v. Meadows, 11 Ired. L. 148; Kintzr. Friday, 4 Dem. 540; Grattan v. Grattan, 18 111. 167; Cawthon V. Coppedge, 1 Swan. 486 ; House v. Woodward, 5 Coldw. 196 ; Morris v. Morris, 9 Heisk. 814; Rains v. Hays, 2 Tenn. Ch. 669; Dillman v. Cox, 23 Ind. 440; Encli V. Biery, 110 Ind. 444; Brook r. Latimer, 44 Kan. 431 ; Chase v. Ewing, 51 Barb. 597 ; Barker v. Comins, 110 Mass. 477 ; Fellows v. Litle, 46 N. H. 27 ; Crosby v. Covington, 24 Miss. 619. In Canada it is said that an advancement there differs from an advancement in England by statute. " Under our law an advancement is neither a loan or debt to be repaid, nor an absolute gift. It is a bestowment of property by a parent on a child on conditinn tliat, if the donee claims to share in the intestate estate of the donor, he sliall bring in this property for the purposes of equal distribution:" Hall, In re, 14 Ontario, 557. This quo- tation is quite applicable to an advancement in many of our States, where similar statutes have been enacted. ^ Harley v. Harley, 57 Md., p. 342. A conveyance by way of advancement, in good faith, is a disposal of property within the meaning of a covenant to renew a lease, if the lessor "should not dispose of" the premises during the term: Elston V. Schilling, 42 N. Y. 79. 512 Adva ncements. the principal, wliicli are j)laced, or are to be placed, in the possession of the factor or agent, in order to reimburse himself out of the proceeds of the sale." ^ So in another case it was said that " ' Advances ' is not the appropriate term for money or property thus furnished," referring to an advancement ; " the latter phrase [advances] in legal parlance, has a different and far broader signification. It may characterize a loan or a gift, or money advanced, to be repaid conditionally, ' Lent and advanced ' were the language of the old common count, in assumpsit, for money loaned or advanced to be repaid." ^ 1 Nolan V. Bolton, 25 Ga. 352. ^ Chase v. Ewing, 51 Barb., p. 612. In this case the testator's will contained the following clause: " Whatever advances I have made to any of my children, or to tlie husbands of any of my children, for which any receipts or other evi- dences of indebtedness may be found among my papers after my decease, I hereby give and devise to my said cliildren, to each one tlie advance made to eacli ; my intention being by this that such receipt or other evidence of indebtedness shall not be collected or enforced against them, or either of them, who may have signed the same, but that the same be given up to that one of ray cliildren who may have in person, or whose husband may have signed the same, the receipt or other evidence as aforesaid of each to each." It was held that the entire tenor and scope of this clause showed clearly that the testator had in view not gifts and advancements previously made as such, but " advances " onh', in the nature of loans, and for which lie held s-ouchers whereby the claims could be enforced. So this term used in a will was held not to include moneys paid for mainte- nance of the testator's children : Vail t'. Vail, 10 Barb. 69. See Onslow ?>. Mi- chell, 8 Ves. 490. Use of in statute held to include the popular meaning of the word : Orm-;by v. State, 6 Xev. 283. In Nolan v. Bolton, 25 Ga. 352, the testator declared that "it is my will and desire, that at the division of my property, each one" (legatee) "shall be charged with, and account for in said division, all money or property they have received from me, so as to make them share equally in the property to be divided, and in advances " It was held that the legatees were bound to account for all money ''received'' by them, as well as that received by them as a loan, or that received by them as an advancement. In Barker v. Corains, 110 Mass. 477, a testator gave by his will a cert:iin sura to the children of his deceased son G., " which with tlie advavcea made to ray son G., in his life- time, will make them share equally with my other sons." It was held that in considering the bearing of this provision upon the (juestion of the testator's sanity, the v,'ord " advances'* was not necessarily restricted to the meaning "advance- ments," as used in the statutes, but might be taken to include any benefits which the testator might have reasonably considered an appropriation of the estate. Origin and Essentials of Advancements. 513 527. " Advancemext " Distixgutshed fiioma"Gift" OR " Debt." — Ev'ery advancement includes an irrevocable gift, but every gift does not include an advancement. " It is distinguishable from a gift," said the Supreme Court of Vermont, " which parents may make to their children, whether to a greater or less amount ; for in such case there is no intention to have it chargeable on the child's share of the estate." ^ So, too, it is distinguishable from a debt ; for in the case of an advancement the common re- lation of debtor and creditor does not exist.^ 528. DisTixGuisHED FROM AX " Ademptiox." — An ademption differs from an advancement in several things, the chief of which is that it must be connected with a will. Thus in an Indiana case it was said that "where one who has made his will, giving a legacy to a child or grand- children, afterward [not before] gives a portion to or makes provision for the child, though without expressing it to be in lieu of the legacy, it will be deemed an exemp- tion if the circumstances indicate that intention, if it is not less than the legacy, if it is certain, and of the same general nature."^ So, in Xew York, it was said that the term " is used to describe the act by which the testator pays to his legatee, in his lifetime, a general legacy which by his will he had proposed to give him at his death. It is also used to denote the act by which a specific legacy has become inoperative on account of the testator having parted with the subject." * These definitions are broader than it is necessary for our purpose in this connection, for we desire to confine the term to those cases in which a benefit has been given by a prior will, and this benefit is 1 Weatherhead v. Field, 26 Vt. 665. 'lb. 'Clendenning v. Clyrner, 17 Ind. 155; Weston ;•. Johnson, 48 Ind. 1. *Langdon v. Astor, 16 N. Y. 1, 40. 33 514 Advancements. afterward taken away or annulled by the testator's own act in conferring some other gift during his lifetime. Thus if a testator bequeaths a certain horse to his prospective donee, and before his death give him the horse, or give other property in lieu thereof, tlie legacy thus bestowed has been adeemed ; the testator has, as it were, become his own executor or administrator, and delivered to the donee what such official would have been required by the terms of the will to deliver at the testator's decease. It is to be observed in this connection that the donee need not be a child or grandchild of the testator; it is sufficient if the latter bear the relation of loco parentis to the donee.^ 529. DiFFEREisrcE Betwee]!^^ Advancement and Sat- isfaction. — There is an advancement wdiich is distin- guishable from those already discussed as well as from an ademption, and which distinction is not always clearly borne in mind. It is that involved in the term "Satisfac- tion." Suppose a parent makes a settlement on his child on its marriage as a marriage settlement, or covenant in view of such marriage to pay him a certain sum of money when a child shall be born as a fruit of the marriage. There is no legal obligation resting upon him to make such a settlement or to enter into such a covenant ; but having covenanted, at least, to pay a certain sum of money, a court of equity will enforce the covenant, view- ing the marriage as at least a sufficient consideration to sustain it. If then the parent, in after life, make an ad- ^Strother v. Mitchell, 80 Va. 149; Ilansbroiigh v. Hooe, 12 Leigh, 316; Monck V. Monck, 1 B. & B. 298. As to the meaning of the term loco parentis see Powys v. Mansfield, 3 Mvlne & Cr. 359 ; S. C. 6 Sim. 52S ; Ex parte Pye, 18 Ves. 140 ; Weth- erby v. Dixon, 19 Ves. 407, 412; Pollock v. Worrall, L. R. 28 Ch. Div. 552 ; Brinkerhoff v. Merselis, 4 Zab. (N. J.) 680; State v. Crossley, 69 Ind. 203. The subject of ademption is iisnally divided into 1, Satisfaction of debts by legacies ; 2, of legacies by subsequent legacies; 3, of legacies by portions and advancements ; and 4, of portions by legacies. Origin and Essentials of Advancements. 515 vancement to tlie child, it is frequently a question whether the advancement was made in satisfaction of the covenant. Now, it is apparent at a glance, that a child, in the case of an ordinary advancement, where no such settlement has been made, has no option whether or not the gift shall be considered as an advancement ; that is a question en- tirely optional with the donor. If it was his intention that the gift should be taken and deemed an advance- ment, and such intention is clearly shown, then it must be so taken and construed, however much the donee may object. But in the case of a covenant to make a marriage settlement the consent of the donee is essential ; and unless he consent, the transaction cannot be taken as a satisfaction of the covenant. Here are two parties, both of which must ao-ree how the transaction must be consid- ered. Satisfaction is, therefore, to be understood as the cancellation of a prior legal obligation by the substitution, with the consent of both parties, of a performance other than that called for by the terms of the covenant or ao-reement. It differs from the case of an advancement purely, by the facts that there is no prior legal obligation nor any assent of the recipient of the gift essential.^ 530. Revocatiox of an Advancement. — Every ad- vancement is a perfected gift ; and if the gift, for any reason, is not complete, it is not an advancement. It, therefore, results that without the consent of the donee the donor has no power to recall or revoke an advancement.^ ^Lord Chichester v. Coventry, L. R. 2 II. L. 71 ; Tussand's Estate, L. R. 9 Ch. Div. 363, 380; Wallace v. Du Bois, 65 Md. 153. 2 O'Brien v. Shiel, L. R. 7 Ir. Eq. 255; Dame r. Lloyd, 82 Va. 859; Yancy v. Yancy, 5 Heisk. 353 ; High's Appeal, 21 Pa. St. 283 ; Largent v. Berry, 3 Jones L. 531 ; Marston v. Lord, 65 N. H. 4 ; Lisloff v. ITart, 25 jSIiss. 245 ; Gee v. Gee, 32 Miss. 190; Fatheree v. Fletcher, 31 Miss. 265; Slack v Slack, 26 Miss. 287; Mallett V. Page, 8 Tnd. 364; Patterson v. Mills. 69 Ta. 755; Miller's Will, 73 Ta. 118; Alleyne v. Alleyne, 8 Ir. Eq. 493; S. C. 2 Jon. & L. 641 ; Harley v. Har- ley, 57 Md , p. 342. 516 Advancements. 531. Changing Gift to Advancement. — A gift vests the absolute title to the property in the donee, free from any and all control over it by the donor. It differs from an advancement chiefly in the fact that it cannot be l)rought to reduce the portion of the parent's estate that the donee child receives when his parent has died intestate. To permit the donor to change an absolute gift to an ad- vancement without the consent of the donee would ma- terially reduce the value of his prospective interest in his parent's estate. All the cases, therefore, declare that a gift cannot be changed to an advancement without the consent of the donee.^ If the donor desires that an ab- solute gift be charged up against any portion the donee will receive at his death if he die intestate, the only way he can secure the accomplishment of his desire is to exe- cute a will directing that the value of such gift shall be charged to the donee in the final distribution, and that his portion shall be reduced by that amount.^ Therefore, subsequent declarations of the donor that he intended a transaction amounting to an absolute gift to be an ad- vancement is not admissible to show that the gift was changed to an advancement.^ So where a father advanced to his son a " wool carder" of the value $1,000, and afterward took possession of and used it, it was held that he became liable to the son for value of its use, and that the statute of limitations ran against the claim for such use just as it runs against any other claim. The claim for such use being barred before the father's death, the ^ Slack V. Slack, 26 Miss. 287 ; HiUman's Estate, 30 Pitts. L. J. 385 ; Lawson's Appeal, 23 Pa. St. 85 ; Wallace v. Owen, 71 Ga. 544 ; Harper v. Parks, 63 Ga. 705 ; Hall, In re, 14 Ontario, 557. 2 Bradsher v. Cannady, 76 N. C. 445. 3 Fray v. Heydt, 116 Pa. St. 601 ; Heydt v. Frey, 21 W. N. C. 265. As we shall hereafter see, subsequent declarations of the donor or intestate are not admissible for any purpose. Origin and Essentials of Advancements. 517 son could not insist that its value should not be deducted from the amount of his advancement/ 532. Changing Advancement to Gift. — Since the donee will be benefited by the changing of an advance- ment to a gift, the donor may make such a change with- out the consent of such donee.^ 533. Changing Debt to an Advancement. — The do- nor and donee may mutually change a debt to an advance- ment, but inasmuch as every advancement is a perfected gift, and no gift is perfect unless the donee accept its pro- visions and benefits, therefore a debt cannot be changed to an advancement, and a gift thus be thrust upon the do- nee, unless he consent to such change.^ 534. Changing Advancement to a Debt. — An agreement to clianoe an advancement to a debt is not "O' ' The value of the advancement was $1,000, the use $300, and the son claimed lie Jihould be charged with only $700 in his advancement. This claim was dis- allowed: PersoU r. Scott, 64 Ga. 767. As an advancement is perfect before the death of the donor, a delivery of the gift to the administrator of the donor is not binding on the donee and he may rightfully reclaim the gift : Sayre i». Sayre. 5 Stew. (N. J.) 61 ; S. C. 8 Stew. 56S. 2 Wallace v. Owen, 71 Ga. 544; Needles v. Needles, 7 Ohio St. 432. In Har- per V. Parks, 63 Ga. 705. it is said that the change may be made by mutual con- sent of the donor and donee, but this is contrary to all the authorities, and proba- bly a slip of the pen. If a statute requires an advancement to be evidenced by certain written instru- ments, then the change of an advancement to a gift cannot be accomplished ex- ceiit by the destruction or changing of such instruments: Wheeler v. Wheeler, 47 Vt. 637. 3 Dewee's Estate, 3 Brewster, 314; S. C. 7 Phila. 49S ; Kirby's Appeal, 109 Pa. St. 41 ; Darne v. Lloyd, 82 Va. 859. But where it was attempted to turn a debt o.ved by the husband to his wife's father into an advancement, in order to set it off against the amount of a legacy given to the wife by the father in his will sub- sequently executed, it was held that the declarations of the father made after the debt was created were not admissible for that purpose : Kreider v. Boyer, 10 Watts, 54. The forgiving of interest due on a note is an advancement : Leblanc r. Bertrant, 16 La. Ann. 294. 518 Advancements. binding on tlie donee, unless there is a consideration for the ao-reement makino' the chan2;e.^ 535. Assent of Donee to an Advancement. — A donee is not compelled to accept an advancement any more than he is compelled to accept a gift ; but if he ac- cept the benefit of an advancement he cannot insist that he accepted it as a gift and not as an advancement. He must take the gift upon such terms as the donor sees fit to attach to it and not otherwise. The donor has the absolute right of disposal, which includes the right to im- j)Ose just such terms, however onerous, as he sees fit, and the donee cannot dictate to him how he shall offer or be- stow the property.^ 536. Donee Refusing to Accept Advancement. — Sup230se the donee refuse to accept the advancement, and the donor, still insisting that he must accej)t it as such, dies ; what effect will this have upon the portion the donee will receive from the donor's estate ? The solution of this question lies in one of the essentials of a valid gift, Avhich is that no gift is valid unless the donee accept it. ^ Higham v. Vanosdol, 125 Ind. 74; Harris ?•. Harris, 69 Ind. 181. If the ad- vancement is complete, nu memorandum that the donor may subsequently execute can be used to show that the transaction was not an advancement or gift : O'Brien V. Shiel, L. E. 7 Ir. Eq. 255. ^See Burbech v. Spollen, 10 .\mer. Eec 491 ; ZSesmith v. Dinsmore, 17 N. II. 515 (by statute assent not necessary), if the donee receive the proceeds and en- joy it, or even if he does not enjoy it, as where tlie advancement consists of the notes of a third party which are never collected by reason of the insolvency of the maker, he is bound : Alleman v. Manning, 44 Mo. App. 4. In the case of a married woman wlio cannot assent, or who insists that tlie advancement was a contract and not a gift, and repudiates the contract, she will be bound to account for the proceeds thus received, as an advancement : Bucknor's Estate, 7 Pa. C. C. 361. Under the Georgia code the donee's assent must be given : Holliday v. Wingfield, 59 Ga. 206 ; Wallace r. Oven, 71 Ga. 541. In the case of an «c/ Barber v. Taylor, 9 Dana, 84. 528 Advancements. binding on her children, though their father got the fidl benefit of the advancement. "The doctrine of the decisions is," said the court in a later case, " that the intention of the donor to advance his daughter will be presumed from the fact that he conveys to her husband upon the sole consideration of the exist- ence of the marriage relation between tliem."^ Thus where the son-in-law borrowed of his wife's father cer- tain sums of money, and gave his notes; and afterward the payee delivered them up to his son-in-law, forgiving their obligation as an advancement to his daughter, it was held that it was a valid advancement to her.^ In all these cases the presumption may be rebutted.^ In the cases cited the consent oi- acquiescence of the daughter was not deemed essential ; but the modern cases require her con- sent, which may arise out of a mere acquiescence. The person claiming that the gift was an advancement must show that she knew of it and either expressly consented thereto or acquiesced therein. This acquiescence may be inferred from facts and circumstances inconsistent with a lack of such knowledge and assent.^ So if a father-in- 1 Stevenson v. Martin, 11 Bush. 485; Stewart v. Paitison, 8 Gill (Md.), 46; Bridgers v. Hutchins, 11 'red. L. 68; Wilson v. Wilson, 18 Ala. 176; Baker v. Leathers, 3 Ind. 558; McDearman v. Hodnett, 83 Va. 281 ; Towles v. Eoiindtree, 10 Fla. 299; Bruce v. Slemp, 82 Ya. 352; Wanmaker v. VanBuskiik, 1 N. J. Eq. 685 ; S. C. 23 Am. Dec. 748 ; Lindsay v. Piatt, 9 Fla. 150 (forgiving husband's debt to intestate) ; Dilley v. Love, 61 Md. 603, 612 ; James v. James, 41 Ark. 301 ; Pecquet v. Pecquet, 17 La. Ann. 204 229. ^Bridgers v. Hutchins, 11 Ired. L. 68. If a father is indebted to a son-in-law and delivers to him property, it will be presumed that it was in payment of the debt and not an advancement to the daughter : Haglar v. McCombs, 66 N. C. 345. In North Carolina a gift of slaves to a daughter as an advancement was binding on her, though her husband look possession of them and retsiined tliem until her death. On her death they became his property : Hinton v. HInton, 1 Dev. & Bat. Eq. 587 ; Harrington v. Moore, 3 Jones L. 56. When the wife dies before the donor, yet it is still an advancement: Towles v. Eoundtree, 10 Fla. 299. •^ Needles v. Needles, 7 Ohio St. 432. *Dittoe V. Chmey, 22 Ohio St. 436; Oakey's Estate, 1 Bradf. 281; Slump v. Stump, 26 Ohio St. 169. Origin and Essentials of Advancements. 529 law takes his son-in-law's note, the presumption is that the transaction is a loan and not an advancement to his wife/ So merely showing a conveyance of real estate by the father-in-law to the son-in-law is not sufficient to raise the presumption of an advancement to the donor's daughter ; ^ nor is the wife chargeable with money paid by her deceased father as the surety of her husband, as an advancement,^ unless something else is shown.'^ This is undoubtedly the better rule, and especially in case of a gift of real estate. Speaking of the difference between an advancement of personal and real property, the SujDreme Court of North Carolina said : '' If personal j)roperty be given to a wife, it instantly, jure mariti, belongs to the husband ; so it is immaterial whether the gift be made to the wife or to the husband. But if land be given to the wife, it remains hers, and the husband can only become entitled to a life estate as tenant by the curtesy ; whereas, if it be conveyed to the husband, the wife takes nothing, save a collateral right to have dower in case she survives ; so it cannot be said in any sense that she has received of 1 West V. Bolton, 23 Ga. 531. ^ Kains v. Hays, 6 Lea. 303. ^ Kains v. Hays, supra. * Rains v. Hays, 2 Teiin. Ch. 669. Where a father conveyed to his son-in-law a tract of land in consideration of the payment of $17,000 ; and afterward, with her consent, released $5,000 as an advancement to her; and then the son-in-law resold the land to the father-in-law for $18,000, and died; it was held that tlie wife could not recover of his administrator the $5,000 advancement : Stumph v. Stumpli, 26 Ohio St. 169. So where D, the husband of S, received from W, the fatlier of S, money and property as advancements for S, as her share of the estate of W, D was held to hold the same for S ; and, upon the death of W, when the amount of her distributive share was ascertained and rendy for payment, S had a right to compel D to account for and pay to her such money and property, or she might demand and collect her share in full from W's administrator ; and in such a case, S having elected to sue the administrator, and having compelled him to pay lier the distributive share in full, including the amount of .such ndvance- raents, by operation of law, was subrogated to the rights and remedies of S against D as to sjch advancement : Stayner v. Bower, 42 Ohio St. 314. 34 530 Advmicements. her father any land by way of advancement." ^ In view of the recent married woman's property statutes, whicli enable her to hold and control property as distinctively as her own as if she were unmarried, and which she of her own free will may dispose of, exce23t in the case of real estate, without her husband's consent, it may well be doubted if a gift to her husband can any longer be con- strued as an advancement to her, unless it is shown that she, before the gift was made, consented that it might be so made and thereafter charged up against any portion she might be entitled to receive from her parent's estate.^ 'So it was held that a conveyance of land to a son in-law is not to be reckoned as an advancement to the daughter, who, at tlie death of her father, was married to a second husband: Banks i>. Shannonhouse, Phillips L. (N. C.) 284. '^But see contra, Lindsay v. Piatt, 9 Fla. 150, and Towles v. Roundtree, 10 Fla. 299. Where a testator by his will created a fund and directed the trustee of it to pay over to each of his children a certain sum, but provided tliat "any legal debt due from either of said children to my estate at the time of my decease sliall first be deducted by said trustee, and the balance only be paid over to such child as aforesaid;" and at the time the will was executed one of his daughters had executed with her husband notes to the amount of $15,000 for money furnished him by the testator, but the testator had taken no notes from her for money advanced to her, and there were no other debts, either when the will was exe- cuted ur at any time thereafter, due him from any of his children unless a similar note executed by another daughter was regarded as a debt — it was held that these notes could not be deducted from the amount due her, on the ground that it was an advancement ; for the testator having declared tiiat all "legal debts" should be deducted, and these notes not being "legal debts" as against her, they were not such as the will directed to be deducted : Rogers v. Daniell, 8 Allen, 343. In respect to gifts to the husband being advancements of the donor to his daughter^ the wife of the husband, so far as the daughter is bound thereby, there is but little difference in principle between an ademption and an advancement. We, there- fore, give a few cases of ademption. Thus, in Ravenscroft v. Jones, 32 Beav. 669 ; S. C. 4 De Gex, J. & S. 224, a father g^ve his daughter a legacy of £700. The daughter having become engaged thereafter, the father, on her marriage, gave her £100, and after the marriage gave her husband £400 in cash. The Master of the Rolls held that the £100 was a gift, and so was the £400. On appeal one judge coincided with this view, but expressly refused to put his decision as to the £400, upon the fact that it was paid to the son-in-law and not to the daughter; while another judge held that upon all the facts, even if it had been paid to the daugh- ter, there was only a gift. A third judge held that it was an advancement. In Booker v. Allen, 2 Russ. & M. 270, a testator gave to a person to whom he stood Origin and Essentials of Advancements. 531 543. Mother's Gift to Child as an Advancement. — The moral obligation resting upon a mother to make provision for her child, especially for her son, has always been regarded as weaker than that of a father ; and es- pecially is this true where the gift is of land. The Eng- lish authorities are unquestionably to the point that mere proof of a conveyance to the child by a mother, or a pur- chase by the mother in the name of her child, will not raise a presumption of an advancement or a gift ; but very slight additional evidence that it was to be so con- in loco parentis £4,000, the income of which was to lie paid to l\er separate use, and on iier death the principal to be divided amonj; her children. On her mar- riage the testator executed a marriage settlement, giving £4,000 to trustees, the income of which was to be paid her husband for life, then on his death to his wife for life, and on her death the principal to go to their children. Tiiis settle- ment was accompanied by a verbal declaration of the testator that it was intended by him in lieu of the legacy ; and it was so held. A similar case is Carver v. Bowles, 2 Russ. & M. 301. In Kirk v. Eddowes, 3 Hare, 509, a father had given by will £3,000 to his daughter for her separate use, with a remainder to her children. On her subseq^ueut marriage and after the execution of the will, lie gave to his daughter and her husband a promissory note of a third person, then due the testator, for £500. The wife had requested her father to give her hus- band the sum, and he did, declaring at the time that it was in part satisfaction of the legacy ; and it was so held. In Ferris v. Goodburn, 27 L. J. N. S. 574, a father bequeathed his unmarried dmghter a legacy. She then married, and he subsequently gave to her husband £800, in different sums, to be used by him in his business. Tliis gift or payment was made at the husband's request, and it was not shown that it was to be applied on tiie legacy; but it was held that this was an adetiijition of the legacy pro tanto. "There was no reason," said the court, " for giving money to Ferris [the husband] except that he had married the tes- tator's daughter ; and, connecting these gifts with the marriage and the request made by the husband, it is impossible to say that the presumption of satisfaction is not raised or that parol evidence is not admissible, and. there being no evidence to rebut the presumption, there must be a declaration that tlie legacy was adeemed to the extent of £800." In Nevin v. Drysdale, L. R..4 Eq. 517, a father gave by will to liis daughter £500 in case slie should marry. She then married, and two months after the marriage the father gave the husband £400 for furnishing a house, and promised a further sum of £600, which he never paid, dying soon after the promise. It was held tliat the legacy to the daughter was adeemed pro tanto. If payment be made to the husband before the execution of the will, there is no satisfaction or ademption of the legacy : Lyon's Est , 70 la. 375. On general subject, see Paine v. Parsons, 14 Pick. 318. 532 Advancements. sidered "will turn the scale in favor of the claim that the transaction is a gift or advancement.^ 544. Gift to Stkangee. — The father cannot by a gift to a stranger make it an advancement to his own child.^ The law requires the gift to be made to the per- son who would inherit from the donor if he die intestate.^ But if the child agree at the time the gift is made that it may be so made, and the gift shall be deducted from any amount he in the future may inherit from the donor, then he will be bound thereby, and it will be, in effect, an ad- vancement to liim.^ 545. Gift Must be Out of Donor's Ow^x Property. — To be a valid advancement it must be of the donor's own property, and not out of property over which the donor may have the right of disposal or appointment. " There are certain essential elements," said the Supreme Court of South Carolina, " which every advancement must l^ossess, one of which is that it must once have been a part of the ancestor's estate, which upon his death Avould de- scend to his heirs but for the fact that it has, by the act of the ancestor in making the gift, been separated from or 1 Re De Visme, 2 De G., J. & Sm. 17 ; S. C. 33 L. J. Ch. 332 ; Bennet v. Ben- net, 10 Ch. Div. 474 ; S. C. 27 W. R. 573 ; 40 L. T. N. S. 378 ; Re Orme, 50 L. T. N. S. 51 ; but see Sayre v. Hughes, 5 L. R. Eq. 376 ; S. C. 37 L. J. Ch. 401 ; 1(3 W. R. 662 ; IS L. T. N. S. 347 ; Batstone v. Salter, 10 L. R. Ch. App. 431 ; Watson V. Murray, 54 Ark. 499. The rule does not apply to a step-mother : Tockl v. Moorhouse, 19 L. R. Eq. 69; Giirrett r. Wilkinson, 2 De G. & Sm. 244; Re Orme, 50 L. T. N. S. 51 (a widowed mother). In South Carolina it is held that the statute of distributions applies to a mother: Rees v. Rees, 11 Rich. Eq. 86. Can a married woman make an advancement ? It would seem not : Bucknor's Estate, 7 Pa. C. C. 361. ^ Alleman v. Manning, 44 Mo. A{)p. 4. ' Rains v. Hays, 2 Tenn. Ch. 669, 674 ; Chase v. Bot, 1 Eq. Cas. Abr. 155 ; Dupuy V. Dupont, 11 La. Ann. 226 ; Annand v. Honeywocd, 1 Eq. Cas. Abr. 153. *Bridgers v. Hutchins, 11 Ired. Eq. 6S; Dittoe r. Cluney. 22 Ohio St. 436 ; Barbor v. Taylor, 9 Dana, 84 ; Lindsay v. Piatt, 9 Fla. 150. See Stevenson v. Martin, 11 Bush. 485 ; Shiver v. Brock, 2 Jones Eq. 137. Origin and Essentials of Advancements. 533 taken out of his estate, or it must be something which is purchased with the funds of the father in the name of and for the benefit of the chikh" ^ 546. Gift Must be Perfected ix Lifetime of DoNOK — Rents and Profits of Keal Estate. — Every advancement must be a perfected gift ; and as a gift can only be made by the donor, it is clear that an ad- vancement not perfected in his lifetime cannot be con- sidered such after his death.^ If the gift is void, then the donee must account to the donor's personal represen- tative for all 2)roperty received under it,^ The ancestor has no control over a perfect advancement, either during his lifetime,* or by will after his deatli.^ But where the gift was of land, and void, and the donor afterward sold the land and gave half the purchase-money to the donee, the gift of the purchase-money was held to be an advance- ment to the amount paid, although the payment Avas made in Confederate currency.^ So where the gift was void, but the donee held and claimed the property given ' Rickenbacker i;. Zimmerman, 10 S. C. 110; Fennell v. Henry, 70 Ala. 484; Callender v. McCreary, 4 How. (Miss.) 356. A woman executed an imperfect will giving to certain children her pro[)erty. The will failed for want of execution, and the father of the children and his sister inherited the property. The father and living sister then executed a deed to the ciiildren, in order to carry out the intention of the dead sister. It was held that the property the father thus in- herited and cnnveyed was not an advancement: HoUister v. Attmore, 5 Jones Eq- 373. A parent had power to distribute a fund among his children. He paid one of them a sura out of his own property equal to the child's share of the fund. It was held that this was not an apportionment of the fund: Brownlow v. Meatli, 2 Ir. Eq. 383 ; S. C. Dr. & Wal. 674. 2 FennelH'. Henry, 70 Ala. 484; Joyce v. Hamilton, 111 Ind. 163; Neely r. Wood, 10 Yerg. 485: Herkimer v. McGregor, 126 Ind. 247 ; Yancy v. Yancy, 5 Heisk. 353; Crippen v. Bearden, 5 Humph. 128; Williams v. Mears, 2 Dis. 604, 614; S. C. 4 West. L. Mag 293; Meadows v. Meadows, 11 Ired. L. 148 ; Crosby V. Covington, 24 Miss. 619 ; Phillips v. McLaughlin, 26 Miss. 592. 3 Shaw V. Shaw, 6 Humph. 418. * Phillips V. McLaughlin, 26 Miss. 592. 5 Black V. Whitall, 1 Stock. (N. J.) 572. fi West I'. Jones, 85 Va. 616. 534 Advancements. as his own, thus holding adversely to the donor, until his title thereto was perfected by the running of the statute of limitations, it was held that he must account for the property on advancement/ So where the gift of the land was void, but the donee went into possession and received the rents and profits thereof, such rents and j^i'olits thus received during the lifetime of the donor were charged against the donee as an advancement. It was also hekl in the same case that when the donor rented to the donee certain land, the rent to be paid by improvements to be made on the land ; and the donee occupied the premises seven years and made improvements thereon worth $2,500 ; and afterward the donor made a settlement with the donee and executed to him a receipt in full, the donee could not be charged with advancements, though it was shown that the rents were annually worth $550 a year.^ 547. Donor Must Die Intestate. — To constitute a case of advancement the donor must have died intestate. Such is the language of the English Statute of Distributions. Where a will is made and then the gift, the question is one of ademption, and not advancement.^ 1 O'Neal V. Breecheen, 5 Bast. 604. In Long v. Long, 118 111. 638, it was held that an advancement which is not evidenced in the manner required by the statute is, in legal effect, no advancement at all, however clearly it may appear it was so intended : Reversing 30 111. App. 559. - Wakefield v. Gilleland, 18 S. W. Rep. 7GS ; Robinson v. Robinson, 4 Humph. 392. On the question of rents generally, see Shawhan r. Shawhan, 10 Bush. 600 ; Evans v. Evans, 1 Heisk. 577. See Ford v. Thompson, 1 Met. 580 ; Clarke v. Clarke, 17 B. Mon. 698 ; Montjoy v. Mnginnis, 2 Duv. 180. In this last case the heirs of the donor refused to perfect the gift of real estate made by the parent, and the court declined to charge the donee with the lents and profits as an advancement. The wife cannot make an advancement to a child of her husband's property when he is insane, though that was clearly his intention before his infirmity came upon him : Bailey r. Bailey, 6 Conn. 308. marshal! v. Bench, 3 Del. Ch. 2.39, 254; Newell's Will, 1 Brown (Pa.\ 311 ; McDougald i'. King, 1 Bail. Ch. 154 ; Newman v. Wilbourne, 1 Hill Ch. 10 ; Rains- ford V. Rainsford, Speer Eq. 385 ; Allen v. Allen, 13 S. C. 512. Origin and Essentials of Advancements. 535 548. Partial Ixtestacy. — The question whether the law of advancements applies to a case of partial intestacy is one of importance, and often depends upon the statutes in force at the place of distribution. In North Carolina the statute provided that advanced heirs should be charged with such advancements where the donor died " intestate;" and this was held to mean ivholly intestate. In this case the testator bequeathed certain slaves, but before he died, and after he executed his will, these slaves had children, and this was held to render the statute with reference to distributions inapplicable.^ Such is the rule under the English Statute of Distributions.^ In South Carolina, un- der a similar statute, a like rule prevails.^ It would seem but reasonable that if a testator disposed of a part of his estate, and died intestate as to the remainder, then any heir advanced previous to the execution of the will should be charged with such advancement in the disposition of that part of the estate not disposed of by the will ; but such is not the rule, and the advanced heir cannot be called to an account.* 1 Richmond v. Vanliook, 3 Ired. Eq. 581; Hurdle v. Elliott, 1 Ired. L. 176; Donnell v. Mateers, 5 Ired. Eq. 7 ; Hayes v. Hibbard, 3 Kedf. 28. See Ilawley v. James, 5 Paige, 318; Thompson v. Carmichael, 3 Saudf. Ch. 120; Turpia v. Tur- pin, 88 Mo. 337. 2 Vachell v. Jeffreys, Pres. Ch. 170 ; S. C. 2 Eq. Cas. Abr. 435, pi. 7 ; Walton v. Walton, 14 Ves. 317, 322. ^Snelgrove v. Snelgrove, 4 De S. 274. See McNeil v. Hammond, 87 Ga. 618. In Ohio, where a father supposed he had disposed of all his estate, but by mis- take omitted the residuary clause in his will, it was held that the statute concern- ing advancements did not apply: Need es v. Needles, 7 Ohio St. 432. In Georgia it was said that " if a testator dies intestate purpose y, as to part of his estate, and he gives parts of his estate to children who would be distributees of his estate if he had died intestate as to iiis whole property, and who would share with other children to whom nothing is L'iven by the will, it must be presumed that he in- tended to give some of his childi-en an advantage over the rest :" Walker v. Wil- liamson, 25 Ga. 5^9. * Donnell v. Mateers, 5 Ired. Fq. 7; .lohnston ?•. Jobnston. 4 Ireri. Eq : Wat- son V. Watson, 14 Ves. 317 ; Cowper v. Scott. 3 Pr. Wms. 119; Brown r. Brown. 2 Ired. Eq. 309. The case of Norwood v. Branch, 2 No. Cas. 59S, is ovcrruU-d In 536 Advancements. 549. Will Executed After Adyaxcemext Made. — If a father give his child a sum of money by way of ad- vancement, and afterward execute his will devising his estate to his children in certain shares, but says nothing about the advancement to the child thus advanced, such advancement cannot be deducted from the amount re- ceived by such child under the will ; for it is conclusively presumed that this child was to receive the amount thus advanced in addition to that given by the will. But if the testator fix a value in his will upon the amount thus given, and declare that the amount thus fixed shall be deemed an advancement, then to the amount thus fixed it must be so deemed, and the donee is bound by the words of the will.^ So where a father in his will directed his executor to sell all his real and personal estate, and divide the proceeds of the sale equally among all his chil- dren, naming them ; and prior to his death he had ad- vanced various sums of money to several of his children and taken from them receipts acknowledging the receipt of the different sums "as my apportionment of his estate " '' to be deducted out of the estate of the said " donor, it was held that the will did not direct these advances to be charged against the several children, and they were some States children provided by will must bring in the property received under the will if they desire to share in the undevised estate: Sturdevant v. Goodrich, 3 Yerg. 95 ; Pearce v. Gleaves, 10 Yerg. 3.39 ; Gold r. Vauglin, 4 Sneed, 245 ; Perry v. High, 3 Head. 349 ; Vance v. Huling, 2 Yerg. 135 ; Farnsworth v. Dins- more, 2 Swan. 38. For a construction of the phrase, '* Father's estate," see AVilson v. Miller, 1 P. & H. (Va.) 353. In Maryland the statute, it would seem, does not apply to a case of partial in- testacy: Hayden v. Burch, 9 Gill, 79 ; Stewart v. Pattison, 8 Gill, 46 ; Manning v. Thurston, 59 Md. 218; Pole v. Simmons, 45 Md. 246. ^Arnold v. Haronn, 43 Hun, 278 ; Jones )•. Eichardson, 5 Met. 247 ; Tliomp- son V. Carmichael, 3 Sandf. 120 ; Clark v. Kingsley, 37 Hun, 240 ; Hays v. Hib- bard, 3 Ptedf. 28 ; Hine v. Hine, 39 Barb. 507 ; Kreider v. Boyer, 10 Watts, 54 ; Proseus v. Mclntyre, 5 Barb. 424 ; Zeiter v. Zeiter, 4 Watts, 212. Origin and Essentials of Advancements. 537 not to be considered in dividing the estate.^ So where a testator, having made complete transfers of certain shares of stock, executed his will devising all his property " as provided by the laws of the State of Kew York in cases of intestacy," it was held that the stock could not be deemed an advancement.^ So Vvdiere the testator executed a will bequeathing $1,000 to K, and a few months afterward loaned S $400 and took from him his note for the loan payable to K or bearer which she handed to K, and a year later executed another and last will by which she bequeathed $1,000 to K ; it was held that the $400 note (which was then paid) should not be treated as an ad- vancement and payment upon the legacy, for the last will was executed after the gift was made.^ So where a will directed that the testator's property should be distributed equally among his six sons, and also provided that " whatever obligations shall be found that I hold against my sons for whatever I have let them have heretofore shall be considei'ed as my propei'ty and shall be considered as their legacy, in whole or in part, as the case may be ;" and it appeared that one of the sons owed tlie testator by notes a sum larger than one-sixth part of the estate, it was held that it was not the intent of the testator to treat the notes as an advancement, but his design was that they should be treated as a legacy to an amount equal to the legatee's share in the estate and as a debt for the residue.* So where a father had four sons and a daughter, and he gave three of his sons £500 each, the daughter £200, and directed that none of his sons to whom he should have advanced any sums of money in his lifetime should be entitled to receive his legacy of £500 without bringing such sums ^Camp V. Camp, 18 Hun, 217, reversing 2 Redf. 1-il. 2 De Caumont r. Hogert, 36 Hun, 382. ^ Clark V. Kingsley, 37 Hun, 240. *Eitch V. Hawxhurst, 114 N. Y. 512. 538 Advancements. into hotclipot ; and the residue of his property be divided equally among his four sons and daughter ; and the tes- tator had advanced the son to whom he left no specific legacy, at different dates before the date of the will, £728 in small sums, and to another son, who was given a spe- cific legacy, was given two sums after tlie execution of the will of £500 and £380 ; it was held that the ad- vancement to this son who was not given a specific legacy sliould not be taken into account against him, for the reason that the testator directed that none of his sons to whom he shoukl have advanced any sums of money in his lifetime should be entitled to receive his legacy of £500 without bringing any such sum into hotchpot, and that was construed to be a declaration that only those sums advanced toward payment of the legacy of £500 should be deducted, and not any small sums that may have been advanced.^ In all these instances only the will can be looked to in determining whether or not the gift shall be regarded as an advancement, and parol evidence is not admissible to show that the testator so regarded it.^ 550. To What Property the Law of Advance- ments Applies. — The En2;lish Statute of Distributions aj^plies only to the distribution of personal property.^ * Peacock's Est., L. R. 14 Eq. Cas. 236. See Upton v. Prince, Cas. t. Talb. 71 ; Watson V. Watson, 33 Beav. 574 ; Lawrence v. Lindf^ay, 68 N. Y. 108. ''Watson V. Watson, 6 Watts, 254; Trendweil v. Cordis, 5 Gray, 341 ; Nichols V. CofSn, 4 Allen. 27; Strother v. Mitchell, 80 Va. 149; Caylor v. Merchant, 5 West L. Mag. 194; Lyon's Est., 70 la. :-!75; Fiunliam v. Averill, 45 Conn. 61; Chapman v. Allen, 56 Conn. 152 ; Hartwell r. Rice, 1 Gray, 587 ; Jones v. Rich- ardson, 5 Met. 247 ; Hall v. Hill, 1 Dru. War. 94, 133, S. C. 4 Ir. Eq. R. 27. A writing given by a child to a father, acknowledging the receipt of an advance- ment, cannot be used by way of set-ofF in a suit by the child to recover a legacy given to him in a will afterward made by the father, nor as evidence of the pay- ment or ademption of such legacy : Jones v. Richanison, 5 Met. 247. But the execution of a will afterward revoked cannot operate as an extinguishment or merger of an advancement : Hartwell v. Rice, 1 Gray, 587. ='CevilIi>. Rich.l Vern ISl. Origin and Essentiols of Advancements. o'39 "Whether or not gifts of real estate must be considered as advancements, or whether only real estate advancements can be offset against other real estate advancements, or personal property advancements can be offset only against other personal property advancements, or a real estate advancement can be offset by a personal property ad- vancement, depends upon the peculiar wording of the statute in force at the place of distribution. If the statute declares that the real or personal property of the intestate shall be distributed equally among his heirs, and that advancements in either shall be taken into consideration in making such distribution, then an advancement in money must be considered.^ Unless the statute expressly refers to real property, an advancement in personal prop- erty cannot be used to offset the amount of the real estate that would otherwise descend to the person thus ad- vanced.^ So, if a statute provides that advancements in real estate shall be considered and says nothing a})out advancements in personal property, a gift of the latter cannot be considered.^ Usually the statutes provide for advancements in either real or personal property ; ^ but a statute having reference only to advancements in real estate does not apply to the gift of a mortgage.^ The gift of a remainder in pro[)erty may be an advancement-/ or of a life estate; ' or the rent of land onto which a hither has put a son ;^ or to life insurance purchased by the in- ' Mitchell V. Mitcl.ell, S Ala. 414; Smith v. Smith, 21 Al;i. 761. ■^Havens v. Tiiom{isoii, 8 C. E. (Jr. 321 ; Lin. II v Linell, 6 C. E. Gr. 81; Davis V. Duke, 2 Hay. 224 (40(i) ; Marshall v. Reneh. 3 Del. Ch. 2;^9. ^Putnam v. PiUikum, 18 Ohio, 347; Myors v. Warner, 18 Ohio, 519; Needles V. Needles, 7 Ohio St. 432. * Needles v. Needles, 7 Ohio St. 432; Terry ,: D.iyton, 31 Barb. 519; Headen r. Headen, 7 Ired. Eq. 159 ; McRae v. McRae, 3 Bradf. 199. » Mowry v. Smith 5 K. I. 255. «Raifnrd v. Raifonl, G Ired. Eq. 490; Hiigl.ey v. Eichelberger, 11 S. C. 3G. MVainwright's Estate, 37 Leg. Int. 104. 8 Robinson v. Robinson, 4 Humph. 392; Erans v. Evans, 1 Heisk. 577; Wake- 540 Advancements. testate on liis life in the name of the donee, where the intestate pays the premiums ; ^ or reservation of a life estate to donor and wife is an advancement as to the latter ; ^ but not to the reservation of the mere use of a slave where the property in the slave is vested in the donee's children ; ^ nor to advancements of real estate situated in another State,'^ though the rule is different as to personal property.^ A gift to a daughter and her child jointly, or to a daughter and her husband jointly, may be an advancement to her ; "^ so is^ a deposit in the joint names of the donor and donee."^ 551. Heir Releasing to Ancestor His Prospec- tive Interest in His Estate. — The question we are considering in this section is not a sale of the heir's pros- pective interest in his ancestor's estate to a third person ; but it is a release by the heir to his ancestor of what he would inherit at such ancestor's death. The authorities are one that a release by a child to a father or mother, or by a grandchild to its grandparents, of his expectancy field V. Gilleland, 18 S. W. Rep. 768; Slmwhan v. Shawhan, lU Bush. 600. See Montjoy I'. Maginnis, 2 Duv. 186. 1 Rickenbacker v. Zimmerra n, 10 S. C. 110. See Chase's Estate, 7 Pa. C. C. 298 ; In re Richardson, 47 L. T. N. S. 514, and Worthington v. Curtiss, 1 Ch. Div. 419. 2 Wilks V. Greer, 14 Ala. 4.'^7. ^Cawthon v. Coppedt;e. 1 Swan. 487. * McRae v. McRae, 3 Eradf. 11.9. ^Blackerry v. Holton, 5 Dana, 520. Contra, Hog^rett v. Gibbs, 15 La. Ann. 700; Succession of Tournillon, 15 La. Ann. 26.3. ^Kyle V. Conrad, 25 W. V^a. 760; Edwards v. Freeman, 2 P. Wms. 4o5 ; Wet- land V. Weyland, 2 Atk. 632. 'Talbot V. Codv, L. R. 10 Ir. Eq. 138. In Illinois the statute concerning advancements applies to transactions both before and after its passage : Simpson r. Simpson, 114 111. 603. See Wallace v. Reddick, 119 111. 151. An agreement for an advancement of real estate, followed by possession, will not be enforced if the result would bring about an injustice to the other heirs: McMahill r. McMahill, 69 la. 115. But see when specific performance will bd decreed: McFerran v. McFerran, 69 Ind. 29. Origin mid Essentials of Advancements. o41 in such father, mother, or grandparent's estate, when made in consideration of a present benefit bestowed, is binding, and will deprive such child from claiming any- thing from the ancestor's estate at his death.^ Thus where a son executed a receipt reciting "payment in full up to date for all services rendered, and all claims now and in the future, against [the ancestor] and his estate, living or dead, and that he has no further claim, in any shape, manner, or form against [the ancestor] or heirs or any one else bearing the name," it was held that the words claims and claim referred to the interest of the heir in the estate of the ancestor, and that the release was valid, even against subsequent attaching creditors.^ Usually these releases are in w^riting, signed by the heir expect- ant ; ^ but the execution of a deed by the donor reciting that the j^roperty given is given in full of all future claim on the donor's estate is sufficient to bar the heir from setting up any claim to the donor's estate on his death ; * and so the same is true where the donor executes an ordi- nary deed and the donee executes back a receipt reciting that it is in full of all future claims on the donor's es- tate ; ^ or the donor executes back a deed in full of all future claims.® Some are cases of releases under seal, and the iGalbraith v. McLain, 84 111. 379; Simpson v. Simpson, 114 111. 603; Kershaw V. Kershaw, 102 111. 307 ; Long v. Long, 118 111. 638, reversing 30 111. .\pp. 559 ; Jones V. Jones, 46 la. 466; Gushing v. Gushing, 7 Bush. 259 ; Gray r. Bailey, 42 Ind. 349; Smith v. Smith, 59 Me. 214; Nesmith v. Dinsmore, 17 N. II. 515; Quarles v. Quarles, 4 Mass. 680; Kenney v. Tucker, 8 Mass. 142; Havens r. Thompson, 11 G. E. Gr. 383 ; Steele r. Frierson, 85 Tenn. 430 ; Bishop v. Daven- port, 58 111. 105; Fitch v. Fitch, 8 Pick. 480. ^ Liginger v. Field, 78 Wis. 367. 3 Gray v. Bailey, 42 Ind. 349 ; Jones v. Jones, 46 la. 476 ; Galbraith v. McLain, 84 111. 379 ; Gushing v. Cusliing, 7 Bush. 259; Havens r. Thompson, 11 G. E. Gr. 383. * Kershaw v. Kershaw, 102 111. 307 ; Simp.«on i-. Simpson, 114 111. 603; Parsons V. EI3', 45 111. 232. ^Smithr. Smith, 59 Me. 214. « Quarles v. Quarles, 4 Mass. 680. This instrument was under seal. 542 Advancements. courts seems to place their decisions on the fact of tlie seal importing a consideration/ But a quit-claim deed to the ancestor, describing the lands of the latter was held not to be binding on the heir, because notevidenced as an advance- ment is required by statute to be evidenced.^ In New York a son received a parol gift of real estate from his father, went into |)OSsession, and died. The value of the land thus given was equal to the amount his children were entitled to of their grandfather's estate. The agree- ment was that the land should be in full of all claims on the grandfather's estate ; and it w^as held that the chil- dren were not entitled to any part of the grandiather's estate, on the ground, however, that the land was Avortli as much as they would receive were it yet a part of the estate to be divided.^ In Vermont it is held that a release in full, not under seal, is not binding, though the court did not lay much stress upon the lack of a seal, but upon the fact that the statute concerning advancements did not apply to an instance of this kind ; but it was considered to be an advancement to the extent of the value of the l^roperty thus received.* So in Indiana where a father gave his son a sum of money under a verbal agreement that it should be in full of all claims of the son to his estate, and the father died seised of certain real estate, it was held that the amount thus received should be treated only as an advancement of the amount j^aid.^ 1 Barhara v. McKneely (Ga.), 15 S. E. Eep. 761. 2 Long r. Long, US 111.638. 3 Parker v. McCluer, 36 How. Pr. 301 ; S. C. 5 Abb. N. S. 97 ; 3 Keves, 318. * Buck t\ Kittle, 49 Vt. 288; Robinson v. Robinson, Brayt. 59; Robinson v. Swift, 3 Vt. 283 This was also held in Adam's Estate, 35 Pa. L. Jr. 285. ^Stokesberry v Reynolds, 57 Ind. 425. In Maryland a release by the heir is a nullity : Young's Estate. 3 Md. Ch. 461. A husband cannot make an assisn- ment or transfer of his wife's interest in expectnncy, even of personal property : Needles r. Needless, 7 Ohio St. 432. In this la-^t case all releases of an expect- ancy are held void. If one child release another child from liability to account at their father's death for an over-due amount it has received, no one can object Origin and Essentials of Advancements. 543 552. Purchaser of Heir's Interest Takes Sub- ject TO Advancement Made. — The j^iirchaser of an heir's interest, after his ancestor's death, takes it subject to any advancements made to such heir during the an- cestor's life, although he have no knowledge of the trans- action at the time of the purchase.^ So the creditors of the heir are likewise bound." And if the heir has been fully advanced, he has no interest in the real estate of the ancestor,^ and a judgment against such an heir is not a lien on any part of the land of his ancestor.* A pur- chaser from an heir after the death of the ancestor stands exactly in the shoes of such heir ; and if any of his co- heirs have been advanced, or advanced more than such heir, he may insist that these advanced heirs shall account for the amounts advanced to them.° A father made a will disposing of all his property in five shares, giving five to his grandchildren, and providing that their parents should have its use and control during their lives. Three years afterward he delivered to his children cer- tain tracts of land, and took from them papers, duly but the person executing the release; and it is binding on him until he repu- diates it : Andrews v. Halliday, 63 Ga. 263. A son entered into business witii his father, the entire capital of the firm con- sisting of money wliich belonged to the son's mother; subsequently the fatlicr transferred the business to the son, taking a judgment note. When the father attempted to collect the judgaient the son resisted on the ground that tlie money was part of his mother's estate, and his father had no right to it. The son then proposed to give his father a receipt acknowledging that he had received from him the money on account of his share in his mother's estate. This propos.:! wa'! acquiesced in by the father, wlio made no further attempt to collect the judgment. On the distribution of the mother's estate, the court found, as a con- clusion of law, that tl)e amount was an advancement from the mother's e-tato, and not a debt due the father, and that the agreement of the son operated as an estoppel: Skinner's Appeal. 1 Mon. (Pa.) 439. 'Steele v. Frierson, 85 Tenn. 430; Gillian v. McCormack, 85 Tenn. 597. 2 Liginger v. Field, 78 Wis. 367. ^Flesher v. Mitchell, 5 W. Va. 59. * Liginger v Field, svpra. * Duncan v. Henrv, 125 Ind. 10. 544 Advancements. sealed, acknowledging that they had received the property described " as part of my portion of his [the father's ] es- tate under his will, and which I am to hold as his will directs after his death, and which is to be taken and con- sidered as a part of my portion (Urected to be given me by the will aforesaid." These papers Avere duly recorded in the clerk's office of the county where the land was situated. Five years afterward one of the sons sold his land to his brother, who, three years later, sold his tract and the one he had bought to a stranger, who bought without any notice of a defect in the title, except the con- structive notice arising from the recording of the papers. At the time of the sale to the stranger the son selling was in possession, and his father still living. As against this purchaser the court decided that the flither was estopped to set up title to the land inconsistent with that described in the recorded papers ; that the purchaser got from the son such title and right to the land as Avas de- scribed in the papers, according to the legal tenor and effect thereof; that the legal effect of these papers was that the sons took the property described as an advance- ment, as their OAvn property, Avith the condition attached that they should hold it subject to the disposition their father might make of it by his will and at his death, which condition was repugnant to the grant, and void ; and that any understanding of the father and sons that the reference in the papers to his will was not to the will, as a will, but only as a paper describing the nature and extent of their title to the property received, whatcA^er might have been its effect between them, could not affect the purchaser from the son, who had a right to stand upon the legal effect of the papers, taken by the father, as the measure of the son's title.^ ' Keaton v. Jordan, 52 Ga. 300. CHAPTER XX. PRESUMPTION TRUSTS. 553. Purchase in Name of Stranger. 566. 554. Purcliase of Land by Father and Conveyance to His Cliild. 555. Contract by Fatiier for Purchase in 567. Child's Name. 5G8. 556. Conveyance or Gift by Father to Child. 569. 557. Recital of Consideration in Deed. 570. 558. Gift by Father to Infant Son. 571. 559. Gift to Child Already Provided for. 560. Purchase in Name of Illegitimate 572. Child. 561. Father Remaining in Possession — 573. Receiving Rents and Profits — Life Estate — Reversionary In- 574. terest. 562. Purchase by Father in His Own and Joint Name of Child — Pur- 575. chase in Name of Child and 576. Stranger. 563. Purchase or Gift of Personal Prop- 577. erty for or to Child. 564. Gift to be Advancement must be by 578. way of Donee's Portion. 565. Argument of Court in Rendering 579. Decision on Facts Stated in Foregoing Section. Same — Disposal of Items in Fore- going Section — " Setting up in Business." Cost of Education. Trifling Sums or Articles — Watch — Horse — Furniture. Contingent Interest — Annuity. Parent Paying Debt of Child. Child Executing Note to Parent for Money Advanced. Receipt for Debt — Surrender of Note or Bond. Child Purchasing Property with Parent's Money. Donor Purchasing Property with Money Charged as an Ad- vancement. Note of Father— Sealed Bill. Purchase or Gift by Mother for or to her Child. Rule of Presumption Applies to a Gift to a Daughter. Purchase by Grandfather in Name of Grandchild. Gift by Husband to Wife. 553. Purchase in Name of Stranger. — In a well considered English case Lord Chief Baron Eyre, said : " The clear result of all the cases, without a single excep- tion, is that the trust of a legal estate, whether freehold, copyhold, or leasehold ; whether taken in the names of the purchaser and others jointly, or in the name of others without that of the purchaser ; whether in one name or several, whether jointly, or successive, results to the man 35 545 546 Advancements. who advances the purchase-money ; and it goes on a strict analogy to the rule of the common law, that where a feof- ment is made without consideration, the use results to the feoffor." ^ In the absence of all rebutting circumstances, this rule has its foundation in a natural presumption, that he who supplies the money never intended that the grantee in the deed should be the beneficiary of the trans- action, and that the conveyance was made in this way for the convenience of the purchaser. Every day's experi- ence shows the usefulness of this presumption.^ Yet the burden is on the person claiming that the transaction is a trust for his benefit, to establish such claim by clear and satisfactory evidence.^ If only part of the purchase- money is paid by a third person a trust results pro tanto.^ The trust must arise at the time the purchase is made ; and no trust can arise merely by the application of money to the payment of the purchase price, after the purchase ^ Dyer v. Dyer, 2 Cox, 92. ''The cases upon this point are a legion, and we only cite a few: Edwards v. Edwards, 39 Pa. St. 369 ; Wilson v. Beauchamp, 44 Miss. 556 ; Rothwell v. De- wees, 2 Black, 613; Buck v. Pike, 11 Me. 9; Hall t;. Young, 87 N. H. 134; Clark V. Clark, 43 Vt. 685 ; Root v. Blake, 14 Pick. 271 ; Dean v. Dear, 6 Conn. 285; Boyd v. M'Lean, 1 Johns. Ch. 582 ; McCartney v. Bostwick, 32 N. Y. 53; Johnson v. Dougherty, 18 N. J. Ch, 406; Nixon's Appeal, 63 Pa. St. 279 ; Cecil Bank v. Snively, 23 Md. 253 ; Bank of U. S. v. Carrington, 7 Leigh. 566 ; Hender- son V. Hoke, 1 bev. & B. Eq. 119 ; Williams v. HoUingsworth, 1 Strobh. Eq. 103; Kirkpatrick v. Davidson, 2 Kelly (Ga.), 297; Caple v. McCollum, 27 Ala. 461 ; Oberthier r. Stroud, 33 Tex. 522; Gass v. Gass, 1 Heisk. 613; Doyle v. Sleeper, 1 Dana, 531; McGovern r. Knox, 21 Ohio, 547 ; Elliotts. Armstrong, 2 Bla-kf. 198 ; Church v. Cole. 36 Tnd. 34 ; Latham v. Henderson, 47 HI. 185 ; Johnson v. Quarles, 46 Mo. 423; Tinsley ?\ Tinsley, 52 la. 14; Rogan v. Walker, 1 Wis. 527; Irvine v. Marshall, 7 Minn. 286; Case v. Codding, 38 Cal. 191 ; Frederick r. Haas, 5 Nev. 389 ; Harris v. McTntyre, 118 111. 275 ; Forrester v. Moore, 77 Mo. 651; Sexton v. Hollis, 26 S. C. 231 ; Murry v. Sell, 23 \N . Va. 475; Ex parte Houghton, 17 Ves. 251 ; Reddington v. Reddington, 3 Ridg. 106, 177 ; Groves v. Groves, 3 Y. & J. 163, 170; Trench t-. Harrison, 17 Sim. 111. 3 Bibb D. Hunter, 79 Ala. 351; Carter v. Challen, 83 Ala. 135; Reynolds v. Caldwell, 80 Ala. 232. *Somers v. Overhulser, 67 Cal. 237; Lipscomb v. Nichols, 6 Col. 290. Presumption — Trusts. 547 has been made.^ If the money is advanced by way of a loan no trust arises.' So the lending of money by a father to a stranger and taking back a note and mortgage pay- able to his child is an advancement to it the same as a purchase of property.^ In an Irish case it was said of this kind of a transaction that it cannot " be questioned that investments of this character are in the nature of ad- vancements. In truth it is a question of evidence ; and the whole doctrine of advancements is founded on j)re- sumption — a presumption which rebuts the other presump- tion of law — that a purchase by one man in the name of another is a trust for himself. If the party in whose name the investment is made stands in the relation of son or wife to the party making the investment, a pre- sumption of advancement arises; but, if there is evidence to rebut that presumption, the parties will be remitted to their original positions ; so that as the question is one of presumption, depending upon circumstances, every case is liable to be encompassed with difficulties, and every case therefore must be regulated by the views taken of its particular circumstances ; and though this has been regretted by some judges, the law is so.""* 554. Purchase of Land by Father and Convey- ance TO His Child. — A purchase by a father in the name of a child does not, however, raise the presumption ' Miltier v. Freeman, 40 Ark. 62 ; Fitckett r. Durham, 109 Mass. 419 ; Steere v. Steere. 5 .lolins Ch. 1 ; Niver v. Crane, 98 N. Y. 40 ; Gerry v. Stimson, GO Me. 186 ; Boozer v. Teague, 27 S. C. 348. MVhalej V. Wlialey, 71 Ala. 159; Bartlett v. Pickersgill, 1 Eden. 515; Harvey V. Pennybacker, 4 Del. Ch. 445; Dudleys. Bachelder, 53 Me. 403; Gibson r. Foote, 40 Miss. 788. In some of the States the trust nuist appear on the face rf the deed or there is no trust: see Campbell v. Campbell, 21 Midi. 438 ; Campbell V. Campbell, 70 Wis. 311 ; Schultze v. New York City, 103 N. Y. 307 ; Stebbins V. Morris, 23 Blatchf. 181. ^Cerney v- Pawlot, 66 Wis. 262. * Fox V. Fox, 15 Ir. Ch., p. 95. 548 Advancements. of a resulting trust, and it is considered not a gift but an advancement to the child. " If there exists a moral duty to advance and provide for the recipient of the legal title," said the Supreme Court of Mississippi, " as in the case of a son or daughter, or wife, then the advancement of the money by the father or husband, will be referred to this moral obligation, and will be placed to the account of a natural duty wliich he is performing ; and the pre- sumption ini?tead of being in favor of a ' trust ' will be that it was a gift by way of advancement and provision. In the case of the child or wife, the rule is not inflexible, that it shall be a provision or advancement, but only shifts the burden of proof, so that if it shall be clearly proved that it was not so meant as an advancement, but that the title was placed in the child or wife for other reasons, to be held in trust for the father or husband, then the presumption is overcome." ^ Lord Chief Baron Eyre, referring to this rule, in an early case, said : ^' The cir- cumstances of one or more of the nominees being a child or children of the purchaser, is held to operate by rebut- ting the resulting trust ; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence, that it would be disturbing landmarks if we suffered either of these proj^ositions to be called into question — namely, that such circumstance shall rebut the resulting trust ; and, that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine if the children had been considered as 'purchasers for valuable consideration. This way of considering it would have shut out all the circumstances of evidence which have found their way into many of the cases, and would have prevented very nice distinctions, and not very easy to be ' Wilson V. Beauchamp, 44 Mlsrf. 556. Presumption — Trusts. 549 understood. Considering it as a circumstance of evidence, there must, of course, be evidence admitted on the other side. Thus it was resolved into a question of intent, which was getting into a very wide sea Avithout very certain guides." ^ Tliese quotations are supported by a long list of cases, botli in this country and in England ; and it is to be observed that the presumption, where merely the purchase, the conveyance, and the relationship of the purchaser and grantee are shown, is that the trans- action was not a gift but an advancement. Of course it is almost impossible to merely prove these three facts alone, without revealing something more of the transac- tion which Avill tend to show a gift, advancement, or a resulting trust. But as between a gift or an advance- ment, the presumption is that it was an advancement, especially when the property purchased is of considerable value.'^ » Dver V. Dyer, 2 Cox, 92. 2 Parker v. Newitt, ]8 Ore. 274; Taylor r. Miles, 19 Ore. 550; Wormley v. Wormley, 98 111. 544; Taylor v. Taylor, 4 Gilm. 303; Bay r. Cook, 31 111. 33G ; Lewis's Appeal, 127 Pa. St. 127; Stanley v. Brannon, G Blackf. 193; Mallett v. Page, 8 Ind. 364 ; Woolery v. Woolery, 29 Ind. 249 ; White r. White, 52 Ark. 188 ; James v. James, 41 Ark. 301; Baker r. Leathers, 3 Iiid. 558; ISIcClintock v. Loisseau, 31 \V. Va. 8G"> ; Ciabbe v. Crabbe, 1 Mylne & K. 511 ; Bone v. Pollard, 24 Beav. 283; Lamplugh v. Lamplugh, 1 P. Wms. Ill; Butler v. M. Ins. Co., 14 Ala. 777; Hatton v. Landman, 28 Ala. 127; Brown v. Burke, 22 Ga. 574; Maxwell v. Maxwell, 109 III. 588; Hayden v. Burch, 9 Gill (Md ), 79; Lisloff v. Hart, 25 Miss. 245; Gee v. Gee, 32 Miss. 190; Allen v. De Groodt, 98 Mo. 159; Page V. Page, 8 N. H. 187; Proseus v. Mclntyre, 5 Barb. 424; Partridge v. Havens, 10 Paige, 618; Creed v. Lancaster Bank, 1 Ohio St. 1; Tremper v. Bar- ton, 18 Ohio, 418 ; Phillips i-. Gregg, 10 Watts, 158 ; Long v. Long, 2 Penny. (Pa.) 180; Douglass v. Brice, 4 Eich. Eq. 322; Hamilton r. Bradley, 5 Hayw. 127; Dudley v Bosworth, 10 Ilu'iiph. 9; Gaugh v. Henderson, 2 Head, 627; Gass v. Gass. 1 Heisk. 613; Shepherd v. White, 10 Tex. 72; S. C. 11 Tex. 346; Lott V. Kaiser, 61 Tex. 665; Shales v. Shales, 2 Freem. 252; Lockiiard v. Beck- ley, 10 W. Va. 87; Grey v. Grey, 1 Ch. Cas. 296; Redington v. Red- ington, 3 Ridgw. 106, 179; Dyer v. Dyer, 2 Cox, 92; Beikford v. Beckford, Lofft. 400; Stileman v Ashdown, 2 Atk. 480; Taylor v. Taylor, 1 Atk. 3SG ; Mumma v. Mumma, 2 Vern. 19 ; Bateraan v. Bateman, 2 Vern. 436 ; Grey v. Grey, 2 Swanst. 694; Jennings v. Selleck, 1 Vern. 467; Finch i'. Finch, 15 Ves. 43; 550 Advancements. 555. Contract by Father for Purchase in Child's Name. — If a father contract for the purchase of land in his child's name, and die before the conveyance is com- plete, the presumption is that the contract was an ad- vancement and not a trust/ In such instances the estate of the donor is liable for the purchase-money.^ 556. Conveyance or Gift by Father to Child. — With regard to a gift or conveyance by a father to his son, Vice-Chancellor Malins announced the following rule : " The law is not doubtful that if this had been a transfer ^ to a stranger it would have operated as a trust, but if a gift is made in favor of a child the presumj)tion of law is that it is intended as an advancement or pro- vision for the child. The old cases turned upon the ques- tion, whether the child was provided for or not, but re- cent authorities have gone upon whether the gift was in- tended as an advancement. Thus, in the j^resent case, the transfer having been made to the son, it is thrown ujDon those who deny that it was an absolute gift to prove that there was no intention on the part of the father to make an advancement or provision for his son." * So in an American case, where a father made conveyances of Christy v. Courtenay, 13 Beav. 96 ; Skeats v. Skeats, 2 Y. & Coll. C. C 9 ; S. C. 12 L. J. Ch. N. S. 22 ; 6 Jur. 942 ; Scroope v. Scroope, 1 Ch. Cas. 27 ; Elliott v. Elliolt, 2 Ch, Cas. 231 ; CoUinson v. Collinson, 3 De G., M. & G. 409; Jeans v. Cooke, 24 Beav. 513; S. C. 4 Jur. N. S. 57; 27 L. J. Cii. 202; Ouseley v. Anstruther, 10 Beav. 453. The advance to a son of money to purchase a farm is an advance- ment : Weaver's Appeal, 63 Pa. St. 309. A purchase in the name of an idiot son is an advancement : Cartwright v. Wise, 14 III. 417. So to an infant son : Hall V. Hall, 107 Mo. 101. ' Redingtion v. Redington, 3 Ridgw. 106 ; Vance v. Vance, 1 Beav. 605 ; Drew v. Martin, 2 H. & M. 130 ; S. C 10 Jur. N. S. 356 ; 33 L. J. Ch. 367. See Nichol- eon V. Mulligan, L. R. 3 Ir. Eq. 308. 2 lb. See Crosbie v. McDoual, 13 Ves. 148 ; Skidmore v. Bradford, 8 Eq. 134. 'The case concerned a transfer of £3.200 of Reduced Bank Annuities. * Hepworth i-. Hepworth, L. R. 11 Eq. 10; Sayre v. Hughes, L. R. 5 Eq. 376; S. C. 16 W. R. 662; 18 L. T. N. S. 347. Presump Hon — Tr usts. 551 land to his son tlie court said : " They were assurances of land, and in each case the value of the property conveyed was large, when considered relatively to the whole estate of the grantor. The presumj)tion of law, therefore, is, that they were advances, and not mere gifts, and hence the burden lies upon those who allege they were not ad- vancements to rebut the presumption raised from the sub- ject and the value of the property thus transferred to the children. Nothing is better settled than that a convey- ance of land by a father to a child, either directly or by payment of the purchase-money and having the deed made to the child, is pi^hna facie an advanced portion, and this presumption is greatly strengthened when the value of the land bears any considerable proportion to the father's whole estate." The court then proceeds to quote the statute there in force, comparing it with the English Statute of Distributions,^ and adds : " It is notice- able that the act speaks of settlements, which are or- dinarily by deed, and its main purpose is to cause equality among children, not equality in that which may remain at the death of the intestate, but equality in the distribution of all that came from the ancestor. The statute itself then would raise a presumption, without the aid of what is known to be the common understanding, that when a father makes a deed of gift to a child he in- tends the gift to be an advanced portion, and such is the doctrine of the decisions." ^ Many cases are to the same effect.^ If the child claims it was an absolute gift, and ' The court quotes a remark of Sir Joseph Jekyl, concerning the statute that " the design of tlie statute was to do what a just and good parent ought for all his children ;" and another of Lord Raymond, that " it makes such a will for the intestate, as a father free from partiality of affections, would make :" 2 P.Wms. 440. 2 Dutch's Appeal, 57 Pa. St. 461. ' Hummel v. Hummel, SO Pa. St. 420 ; Harper v. Harper, 92 N. C. 300 ; San- ford V. Sanford 61 Barb. 293; Gordon r. Barkelew, 2 Hal. Ch. 94; McGinnis v. McPeake, Pen (N. J.) 291 ; Comings v. Wellman, 14 X. H. 2S7 ; Ray v. Loper, 552 Advancements, not an advancement, lie lias the burden to show that fact.^ 557. Recital of Consideration in Deed. — The pre- sumption that a conveyance of land by a father or parent to his child is an advancement does not prevail where the deed recites a consideration for the transfer, especially if the consideration is the full, or near the full, value of the land ; and the burden to prove it an advancement is upon 65 Mo. 470 ; Nelson v. Wyan, 21 Mo. 347 ; Grove v. Spedden, 46 Md. 527; Hatch v. Straight, 3 Conn. 31 ; Ruch v. Biery, 110 Ind. 444 ; Mutual Fire Ins. Co. v. Deale, 18 Md. 26 ; Hall v. Hall, 107 Mo. 101 ; State v. Jameson, 3 G. & J. 442 ; Scott r. Harris, 127 Ind. 520 ; Hodgson v. Macy, 8 lud. 121 ; Dillraan v. Cox, 23 Ind. 440; Higham v. Vanosdol, 125 Ind. 74; Wolfe v. Kable, 107 Ind. 565 ; Holliday V. Wingfield, 59 Ga. 206; McMahill v. McMahill, 69 la. 115; Burton v. Baldwin. 61 la. 283; Kingsbury's Appeal, 44 Pa. St. 460; Lentz v. Herizog, 4 Whart. 520 ; Hall v. Hall, 17 S.' W. Rep. 811 ; Palmer v. Culbertson, 20 N. Y. Supt. 391. In England a deed whereby a father gave all his property, of whatever kind, to his son was held not to be an advancement, and the deed was annulled: Hughes r. Seanor, 18 W. R. 108. A deed to a child in pay for his services cannot be con- verted into an advancement : Murrel v. Murrel, 2 Strobh. Eq. 148. ^ Higham v. Vanosdol, 125 Ind. 74 ; Scott v. Harris, 127 Ind. 520 ; Buch v. Brery, 110 Ind. 444. The donor's heirs cannot set up tliat the conveyance was made to defraud the creditors of the donor, and therefore void : McClintock v. Loisseau, 31 W. Va. 865. The cases of Scott v. Scott, 1 Mass. 526, and Whitman v. Hapgood, 10 Mass. 437, seem to follow the old rule, allowing proof, however, to be made showing that it was an advancement. In Illinois something more must be shown than the relationship of the parties, a statute requiring it : Wallace v. Reddick, 119 111. 151. Where a father put his son in possession, and he held such possession twenty years and sold the land, and the father made the deed, it was held that the pur- chase-money was an advancement to the amount for which the land was sold : Gordon v. Barkelow, 2 Hal. Ch. 94. A gift of property by a father to a son not living with him is presumed to be an advancement : Holliday v. Wingfield, 59 Ga. 206. The purchaser at a sheriff's sale assigned his interest in the same, before re- demption, to the daughter of the judgment debtor, with his assent and direction, and tlie judgment debtor failed to redeem. It was held that this was an advance- ment by the judgment debtor to his daughter, and that his other heirs were pre- cluded from setting up any interest in the land : McCoy i;. Pearce, Thonip. Ca& (Tenn.) 145. Presumption — Trusts. 553 the person claiming the transaction to be such.^ If the deed contains a recital that the conveyance is made in consid- eration of parental love and affection, and partly in con- sideration of a snni named, the presumption is, perhaps, that it is a sale equal to the consideration paid and an advance- ment as to the remainder." Inadequacy of price, how- ever, is not alone sufficient to show an advancement.^ 558. Gift by Father to Infaxt Sox. — At one time it was considered that a father's gift to his infent son was not an advancement,* on the ground that the child could not enjoy it nor manage it, and it would not be taken that the father intended to bestow a separate and independent provision on the child. But tbis rule has long since been abrogated, and infancy is now looked upon as a circum- stance peculiarly favoring the claim of advancement.^ 559. Gift to Child' Already Provided For. — If a child has already been provided for, still the transac- tion is an advancement, though that fact is evidence to rebut the presumption of an advancement, and to show that the son is a trustee.'' •Miller's Appeal, 107 Pa. St. 221; Aden v. Aden, IG Lea. 453. If the deed contains a recital that it is a fjlft, the grantee cannot be required to account for it as an advancement : James v. James, 76 N. C. 331. 2 The question arose in Bullard v. Bullard, 5 Pick. 527, but the case turned on another point. It is quite well settled that a transaction may be in part gift and part advancement : Meeker v. Meeker, 16 Conn. 383. ^Merriman v. Lacefield, 4 Heisk. 209. * Binion v. Stone, 2 Freem. 169 ; S. C. Nels. 68. ^ Lamplugh v. Lamplugh, 1 P. Wras. Ill ; Christy v. Courtenay, 13 Beav. 96; CoUinson v. CoUinson, 3 De G., M. & G. 403; Mumma r. Mumma, 2 Vern. 19; Finch V. Finch, 15 Ves. 43; Hall v. Hall, 107 Mo. 101; Cartwright v. Wi.e, 14 111. 417 (idiot). « Elliot V. Elliot, 2 Ch. Cas. 231 ; Pole v. Pole, 1 Ves. Sr. 76 ; see Grey v. Grey, 2 Svv. 600 ; Lloyd v. Reed, 1 P. Wms 607 ; Reddington v. Reddington, 3 Ridgw. 106, 190; Sidraomh x. Sidmouth, 2 Beav. 447, 456. It may ha remarked here that insolvency of an ancestor does not defeat the right to have property accounted for as an advancement : Young's Estate, 3 Md. Ch. 461. 554 Advancements. 560. Purchase in Name of Illegitimate Son. — Though the law does not recognize any relationship be- tween a father and his illegitimate son, yet a purchase by the father in his name will raise the presumption of a gift and not one of a resulting trust ; for the father is under a moral obligation to provide for a child which he has thus brought into the world.^ But it is to be observed that no question of advancement can arise between an illegitimate child of an ancestor and his legitimate children, though one of gift or resulting trust may arise. Yet in some of the States statutes permit illegitimate children to inherit from their reputed fathers where they have acknowledged them as their children, in which event questions of advance- ment may arise. 561. Father Remaining in Possession — Receiving Rents and Profits — Life Estate — Reversionary In- terest. — If the advancement is real property, and after the execution of the deed the father remains in possession, receives the rents, lease or even devise it, this is not suffi- cient to rebut the presumption of an advancement, whether the son be an infant or adult.^ If a father deed his son a tract of land, reserving a life estate, or receiving back from the son a deed conveying a life estate, the re- mainder or reversion is an advancem'ent.^ So a deed to a child of j^i'operty charged with payments to other chil- 1 Beckford v. Beckford, Lofft. 490; see Tucker v. Burrow, 2 H. &. M. 515. ^McClintock v. Loisseau, 31 W. Va. 865; Reddington v. Reddington, 3 Redw. 106, 190 ; Grey v. Grey, 2 Swanst. 600 ; Dyer v. Dyer, 2 Cox, 92 ; Woodman v. Mor- rell, 2 Freem. 32; Sholes v. Sholes, 2 Freem. 252; Scawin v. Scawin, 1 Y. & C. Ch. 65 ; Williams v. Williams, 32 Beav. 370 ; Alleyne v. Alleyne, 8 Jr. Eq. 493 ; S. C. 2 J. & L. 544 ; State v. Jameson, 3 G. & J. 442 ; Allen v. Groodt, 98 Mo. 159. 3 Comings v. Wellman, 14 N. H. 287 ; Rich v. Briery, 110 Ind. 444 ; Rumboll V. Rumboll, 2 Eden. 16; Murless?'. Franklin, 1 Swanst. 13; Finch v. Finch, 15 Ves. 43 ; Eales v. Drake, L. R. 1 Ch. Div. 217 ; S. C. 45 L. J. Ch. 51 ; 24 W. R. 184; Williamson v. Jeffreys, 18 Jur. 1071. Presumption — Trusts. 555 dren is an advancement to such other children to the extent of the charges.^ Where a father purchased stock in the name of his son, but received the dividends under a power from the son, it was held that this was an ad- vancement to the son.^ 562. Purchase by Father in His Own and Joint Name of Child — Purchase in Name of Child and Stranger. — If a father purchase property in his own and his son's name, jointly, the j^resumption is that the transaction so far as it relates to the son is an advance- ment.^ So a purchase in the joint names of a son and stranger is an advancement to the son.* 563. Purchase or Gift of Personal Property FOR OR TO Child. — Aside from the amount of property, a purchase of personal property in the name and for his son, by a father, is equally an advancement with a like purchase of real property. Of course, the kind of per- sonal property bought, the occasion when it is bought, the wealth of the donor, the condition of the child, and the value of the property bought, are all questions enter- ing into the one of advancements.'* So, with certain limi- tations, a gift of money or personal property to a child will be deemed an advancement, whether it is a gift or ' Leniz V. Hertzog, 4 Wluirt. 520. ^Sidmouth v. Sidmouth, 2 Beav. 447 ; S. C 9 L. J. Ch. N. S. 282. As to land and paying taxes tliereon by the father, see Tuggle v Tuggle, 57 Ga. 520. ^Dummerr. Pitcher, 2 M. & K. 202 ; Grey r. Grey, 2 Swanst. 594; Back v. Andrew, 2 Vern. 120 ; Scrope v. Scrope, 1 Ch. Cas 27. The cases of Pole v. Pole, 1 Ves. Sr. 7G; and Stileman r. Ashdown, 2 Atk. 477, can no longer be regarded as authorities. * Hayes v. Kingdome, 1 Vern. .S3; Kingdon v. Bridges, 2 Vern. 67 ; Laniphigii V. Lamplugh, 1 V. Wms. Ill ; Crabbe v Crabbe, 1 Mylne & K. 511 ; S. C. 30 L. J. Ch. N. S. 181 ; In re Eykyn, 6 Ch. Div. 115. ^ Dtimmer v. Pitcher, 2 M. &. K. 262 ; Sidmnuth i-. Sidmouth 2 P.eav. 447 ; Hep- worth V. Hepworth, L. R. 1 Eq. 10 ; Fox v. Fox, lo Jr. Ch. 89 ; O'Brien v. Shell, L. R. 7 Ir. Eq. 255 ; Batstone v. Salter, L. R. 10 Ch. App. 431. 556 Advancements. advancement, depending generally upon tlie size of the gift, which may be taken either to show or rebut the claim that the ti-ansaction was an advancement/ 564. Gift to be Advancement Must be by Way OF Donee's Portion. — A gift to be an advancement must be by way of the portion the donee would inherit at the donor's death. It is not a mere casual provision or pay- ment. An English case well illustrates this view of the subject. A widower dying intestate left the plaintiff and defendant, his only sons, as his only next of kin. The de- fendant administered on the estate, and, as he thought, set- tled it. Thirteen years later the plaintiff filed a bill against the defendant for administration, an accounting, and other relief. At the trial it was found that the intes- tate had given, advanced, or settled money or property to or on the plaintiff to the amount of nearly £5,000, con- sisting of, among others, the following items : [a] Sums of money given to the plaintiff before his marriage, and an annual allowance of £200 after his mari'iage. {b) One hundred guineas, the fee payable on his entering the chambers of a special pleader, (c) An admission to membership of the Middle Temple, £133 8s. {d) Dues payable to that Inns of Court, £32 7^. Qd. (e) The price of a commission in the army purchased for the plaintiff, £450. (/) Cost of outfit for the plaintiff and his wife, and the payment of their passage to India, £350. {g) Several suras paid by the intestate to discharge the plain- tiff's debts in India, and but for the payment of which, according to the evidence, he must have left the army. {h) Three sums, amounting to £450, advanced to the ' McDeartnan v. Hodiiett, 83 Va. 281 ; Ford's Estate, 1 P. & B. (N. B.) 551 ; Watkins v. Young, 31 Ciratt. 84; Johnson v. Hoyle, 3 Plead. 5G ; Steele v. Frier- son, 85 Tenn. 430 ; Johns m v. Patterson, 13 Lea, 626 ; Stewart v. Pattison, 8 Gill, 46. But see Johns )n v. Belden, 20 Conn. 322. Presumption — Trusts. 557 plaintiff after his return from India to enable him to carry on some mining operations. To the defendant it was found that the intestate had given, advanced, or set- tled upon him, £10,410 Ss. 2d of which £6,387 9s. was made up of varying annual allowances given to him be- fore his marriage, an annual allowance of £200 a year afterward. 565. Argument of Court in Rendering Decision ON Facts Stated in Foregoing Section. — In passing on the questions involved, the Master of the Rolls (Jessel) very lucidly illustrated the subject of advancements as applied to the items we have named. " I have always understood an advancement," said he, " by way of portion is something given by the parent to establish a child in life, or to make what is called a provision for him, not a mere casual provision for him — not a mere casual pay- ment of this kind. I agree, you may make provision by marriage portion on the marriage of the child ; you may make it on putting him into a profession or business in various ways ; you may pay for a commission ; you may buy him the good-will of a business or give him a stock in trade: all these things I understand; they are portions or provisions. I also agree that, if in the absence of evi- dence you find a father giving a large sum to a child in one payment, there is a presumption that it is intended to start him in life and make a provision for him, and if there is a small sum you require evidence to show the purpose. But I do not agree that the words of the statute ' by portion ' are to be disregarded, nor do I agree that the word 'advancement' is to be disregarded. It is not every payment you make to the child which is to be regarded as an advancement. It must he advanced by way of portion. In every case which I have referred to, 558 Advancements. it has been sometliing of this kind. There has either been the settlement itself, or a purpose which every one would recognize for establishing the child or making a provision for the child. I see in the case of Edwards v. Freeman^ the words used by Sir J. Jekyll, M. H., are *a provision;' he says it is to be a provision. ... So that the whole judgment goes upon this, that it is to be a 2^rovision for a child. Not every payment is a provision for the child, and I think that is what Vice-Chancellor Wood meant when he said in Boyd v. Boyd '^ that the pay- ment must be made for a particular purpose — he meant with a view to the establishment of the child. Now, that certainly was the case as regarded the custom of London ; nobody thought of taking an account of small sums which a father had given to his children whether they were under or over age." ^ bQQ. Same — Disposal of Items in Foregoing Sec- tions — "Setting Up in Business." — In disposing of the case, the court decreed that the entrance fee to the Middle Temple paid for the plaintiff, the sums paid for plaintiff's commission and outfit, and the aggregate sum of £845 paid for his establishment in business, were advance- ments. This was upon the ground that these payments w^ere for the purpose of " setting up " the plaintiff in three different callings. Each payment was a provision within that portion of the English Statute of Distribu- tions which declares that any gift, made as such, shall be accounted for by the recipient thereof before he can share in the estate of the intestate from whom he received the gift. The other items received by the plaintiff were held not to be advancements. The sums that had been given ' 2 p. Wras. 435. 2 L. R. 4 Eq. 305 ; S. C. 36 L. J. Ch. 877. 'Taylor v. Taylor, L. R. 20 Eq. 155 ; S. C. 41 L. J. Ch. 718. Presumption — Trusts. 559 to the defendant were held not to have been advance- ments, and therefore he was not, in order to share the estate with his brother, bound to bring those sums into hotchpot.^ 567. Cost of Education. — Money expended by a father, or even a mother, in the education of his child are lyrima facie gifts and not advancements, as we have seen in the three preceding sections. This was very well put in a Pennsylvania case. " As a general rule," said the court, " money expended in the education of a child, is not presumed to be an advancement. The presumption is that the parent makes these expenditures in the dis- charge of his parental duties, and that all his children are treated with equality in this respect. But this pre- sumption may be repelled by evidence. The tastes, tal- ents, and constitution of one child may be of such a na- ture as to induce the parent to believe that the expendi- ture of a large portion of his inheritance, by anticipation, to advance him in the art or profession for which he evinces peculiar tastes and qualifications, might greatly promote his interests and happiness ; while the same ad- vanta2;e mis-ht be secured to the other children, havino; dissimilar inclinations and abilities, by giving to them, in some other form, their equal share of the estate. If a parent disposes of his estate in this way, and from motives of this character, who shall gainsay the justice or pro- priety of his decision ? The law does not condemn it. 'That money spent in setting? up a son in business is an advancement, see M'Rae V. M'Rae, 3 Bra.If. 199; Sanford v. Sanford, 61 Barb. 293; and Meadows V. Meadows, 11 Ired. L. 148. Army commission is an advancement: Kircu- bright V. Kircubrislit, 8 Ves. 51 ; Boyd v. Boyd, L. R. 4 Eq. Cas. 305 ; S. C. 36 L. J. Ch. 877 ; 15 W. R. 1071 ; 16 L. f. N. S. 660 ; Andrew r. Andi ew, 30 L. T. N. S. 457 ; 22 W. R. 682. S ) much of tliis opinion as holds that a gift to pay a debt is not an advancement has been overruled : Blockley v. Blockley, 29 L. R. Ch. Div. 250 ; S. C. 54 L. J. Ch. 722 ; 33 W. R. 777. 560 Advancements. Ou the contrary, a judicious advancement of eacli child, in pursuits which accord with its taste and capacity, may be the best means of promoting its own happiness, as well as its usefulness to society." ^ A statute of South Caro- lina provides that a child should be charged with the value of an advancement, which value should be estimated as of the date of the ancestor's death. The court consid- ered that this alone was an utter refutation of the claims that the expenses of an education, professional or other- wise, should be charged as an advancement. "It is not the sum expended,^'' said the court, " but the thing which is bought with it — the thing received by the child — which constitutes the advancement ; nor is the cost of the pur- chase the measure of the value of the thing advanced. The rule of the statute is that the advancement is to be estimated, not at what it cost, nor even at its value when given by the parent, but according to its value at the par- ent's death. No matter whether the negro which a father bestows on his son cost him much or little, it is the value of such a negro at the father's death which is to be charged to the son. So here, if the education of young May, general or professional, is to be considered an advancement, its value is to be estimated by its intrinsic worth, and not by the money expended in procuring it. Such is the imperative direction of the statute ; and I am at a loss for any rule by which a money valuation can be placed upon the mental proficiency resulting from education, whether of one kind or the other." ^ The court did not, however, rest its decision exclusively upon this statute, but also rested it upon the general rule that there is no presumj^- tion that a parent intended moneys paid for the educa- tion of a child to be an advancement. Other cases are to ' Riddle's Estate, 19 Pa. St. 481 ; Bradsher v. Cannady, 76 N. C. 445. ^ Cooner v. May, 3 Strobh. Eq. 185. Presump Hon — Trusts. 561 the same effect.^ Even money paid for a professional education of the child is not deemed an advancement.^ Nor is there such a presumiDtion where security is taken from the child for the amount received, or where the parent attempts to procm'e evidence of it as a debt, by note, bond, book account, or otherwise. Thus where a parent expended money for the education of his son, which he charged against the son in his ** day book " (wherein he kept his accounts, and in which the son was credited for partial repayments) and not in a " family book," where advanced portions are usually entered, it was held that the money so furnished was not an advancement, but a debt due from the son, intended to be such by the father when it was expended for the use of the son.^ But there is no doubt that if a parent intended money expended in educating a child should be an advancement, and that in- tent should be clearly shown, the court would so ad- judge.* 568. Trifling Sums or Articles — Watch — Horse — Furniture. — Trifling sums of money paid a child, or small presents made him, are not deemed advancements.^ > Pusey V. Desbouvrie, 3 P. Wms. 320 ; Edwards v. Freeman, 2 P. Wms. 435 ; Mitchell' t;. Mitchell, 8 Ala. 414 ; Fernell v. Henry, 70 Ala. 484. * White V. Moore, 23 S. C. 456 ; Cooner v. May, 3 Stroth. Eq. 185. 3 Miller's Appeal, 40 Pa. St. 57. See Riddle's Estate, 19 Pa. St. 431 ; Lentz v. Hertzog, 4 Whart. 520. In some instances money expended for an education is an advancement : Reynolds v. Reynolds, 13 Ky. L. Rept. 793; Succession of Montamat, 15 La. Ann. 332; Succession of Tournillon, 15 La. Ann. 2G3. In Missouri it was held that where the elder set of children were educated before tlie younger set were born, the cost of educating the elder should be eqii.ilized with the cost of educating the younger, in the distribution of the estate : State v. Stephenson, 12 Mo. 178, and see Duling v. Johnson, 32 Ind. 155. Morris v. Burroughs, 1 Atk. 399, cannot be regarded as an authority. *See Robinson r. Robinson, Brayt. (Vt.) 59. * Mitchell V. Mitchell, 8 Ala. 414; Taylor v. Taylor, L. R. 20 Eq. 155 ; S. C. 44 L J. Ch. 718; Cooner r. May, 3 Strobh. Eq. 185; Sandford v. Sandford, 61 Barb. 293; Pusey v. Desbouvrie, 3 P. Wms. 320; Fennell v. Henry, 70 Ala. 4S4; 36 562 Advancements. Thus a horse and saddle was held not to be an advance- ment, though the gift of a stallion as a foal-getter was said to be such.^ So a gift of a watch made with a view to equalize the donee with the other children was charged to him as an advancement.^ So a gift of furniture to a child, especially on its marriage, is presumed to be an advancement ; ^ but this may not be so if the father is possessed of ample property or means.^ 569. Contingent Interest — Annuity. — A future or contingent interest or provision made for a child is deemed an advancement, if the contingency is to take place in a reasonable time, as where a portion was payable at the age of eighteen or on marriage. So an annuity settled upon a child is also deemed an advancement.^ In a Maryland case it was said that " it is not necessary to constitute an advancement, that the provision should take place in the j^arent's lifetime. A portion secured to the child in faturo, or to commence after the father's death, or upon a contingency that has happened, or to arise within a reasonable time, is an advancement." ^ Bac. Abr. tit. Exrs. K. In Crosby v. Covington, 24 Miss. 619, it is said to be a ques- tion for the jury, and this is no doubt true where some evidence is given tending to rebut the presumption that it is an advancement. Considerable sums are not so treated: Boyd v. Boyd, 4 L. E. Eq. Cas. 305 ; S. C. 36 L. J. Ch. 877; 15 W. R. 1071 ; 16 L. T. N. S. 660. ' Ison V. Ison, 5 Rich. Eq. 15. ^ Glenn, Ex parte, 20 S. C. 64. ^Shiver r'. Brock, 2 Jones Eq. 137, and Hollister v. Attmore, 5 Jones Eq 373; Pratt V. Pratt, 2 Strange, 935 ; S. C Fitzg. 284. Contra, Johnson v. Belden, 20 Conn. 322. See Kilpin v. Ratley [1892], 1 Q. B. 582. * King's Estate, 6 Whart. 370; Fennel! v. Henry, 70 Ala. 484. * Edwards v. Freeman, 2 P. Wnis. 435. sClarkw.Willson, 27 Md. 693 ; see Wilkes v. Greer, 14 Ala. 337 ; Hook v. Hook, 13 B. Mon. 526. That the eldest son in England is not accountable for an annuity in land, see Chantrell v. Chantrell 37 L. T. N. S. 220. See, also, where daughters were not charged with annuities : Hatfield v. Minet, 8 L. R. Cb. 136 ; S. C. 47 L. J. Ch. 612 ; 38 L. T. N. S. 629 ; 26 W. R. 701 ; reversing 46 L. J. Ch. 812. Presumption — Trusts. oG3 570. Parent Paying Debt of Child. — Where a father pays off a debt owed by his son to a third person, the law presumes the money paid is an advancement, unless it is shown by proof, or circumstances, that it was not intended to be an advancement.^ Such is the case wdiere a father pays off a purchase-money debt the son owes on real estate that he has purchased."^ Especially is this so when the father treats the payment as an advancement and not a debt.^ A number of cases, however, hold that the presura]3tion is that by the 23ayment the son becomes indebted to the father, and that there is no advancement.'' And if the father has become the surety of the son and he has been compelled to pay the debt, the presumption is that it is a claim he holds against the son, and that the payment is not an advancement.^ 571. Child Executing Note to Parent for Money Advanced. — If a parent take a note or security from a child for money loaned or otherwise given him, the pre- sumption is that the amount thus loaned or given is a debt and neither a gift nor an advancement ; ^ but the pre- »Dilley v. Love, 61 Md. 603, 612; Jolinson v. Hoyle, 3 Head. 56. Where ;i father was surety for his daughter, but the debt as to her was void because of her coverture ; and tlie father p;ud the debt, it was held that the j)ayment was uot an adviincement as against her children : Morr's Appeal, 80 Pa. St. 427 ; Succession of Tournilion, 15 La. Ann. 263; Higham v. Vanosdol, 125 Ind. 74. ^'O'Neale v. Dunlap, 11 Rich. Eq. 405; Catoe v. Catoe, 32 S. C. 595. As to gaming debt, see Carter v. Cutting, 5 Munf. 223. * Reynolds v. Reynolds (Ky.), 18 S. W. Rep. 517. *Vaden v. Hance, 1 Head. 300; Rains r. Hayes, 2 Tenn. Ch. 600; White v. Moore, 23 S. C. 456 ; Hagler v. McCombs, 66 N. C. 345. ^Hart V. Chase, 46 Conn. 207; White v. Moore, 23 S. C. 456; Berry v. Mors.', 1 H. L. Cas. 71 ; Johnson v. Belden, 20 Conn. 322. Thus where father and .m>ii gave a note for the purchase-money of Innd sold to the son, and the father piii-l tiie note, and the land was then conveyed by the purchaser to the son, it was held that this was not an advancement: Wliite v. Moore, supra. «Grey v. Grey, 22 Ala. 233; West v. Bolton, 23 Ga. 531 ; Batton v. Allen, 1 Hal. Cii. 99; Bruce v. Griscom, 9 Hun, 280; S. C. 70 N. Y. 612; Kintz v. Friday, 4 Dem. 540; Mann v. Mann, 12 Heisk. 245; Fennell v. Henry, 70 Ala. 484; Jones's Estate, 29 Pitts. L. Jr. 89. 564 Advancements, sumption that it is a debt and not an advancement may be repelled by parol proof/ And it is still a debt though the parent never intended to collect it unless he needed the funds during his life.^ It is error to allow a note given by a son to his father to go to the jury " as evidence of an advancement." ^ Where a father agreed that a note he held against his son should be taken as an advance- ment, and afterward changed his mind, it was held that he was not bound by the agreement, and could collect the amount due thereon.^ 572. Receipt for Debt — Surrender of Note or Bond. — The release of a debt by a father, owed him by ^ Fennell v. Henry, 70 Ala. 484 ; S. C. 45 Am. Rep. 88. ^ House V. Woodard, 5 Coldw. 196. If an heir to an estate is indebted to it, this debt may be treated as an advancement when it is less than the distributive share of such heir would be after the debt is added to the amount of the assets of the estate: Springer's Appeal, 29 Pa. St. 208. There are many cases to the effect that a bond or note given by a child to a father for money received is presumed to be a debt and not an advancement : High's Appeal, 21 Pa. St. 283; Roland r. Schrack, 29 Pa. St. 125; Miller's Appeal, 31 Pa. St. 337; Chusty's Appeal, 1 Grant (Pa.), 369; Harris's Appeal, 2 Grant (Pa.), 304; Seagrist's Appeal, 10 Pa. St. 424; Whelen's Appeal, 70 Pa. St. 410; Dawson v. Macknet, 42 N. J. Eq. 633; Batton v. Allen, 1 Hal. Ch. 99; Harley V. Harley, 57 Md. 340; Denman v. McMahin, 37 Ind. 241; Harris v. Harris, 69 Ind. 181 ; Brook v. Latimer, 44 Kan. 431 ; Grey v. Grey, 22 Ala. 233. This is especially true if tlie son pay interest on the note: Levering v. Kitten- house, 4 Wliart. 130: Harris's Appeal, 2 Grant (Pa.), 304. 3 Grey v. Grey, 22 Ala. 233. * Denman v. M'Mahin, 37 Ind. 241. To a complaint on a note an answer show- ing that the payee was the father of the maker ; that the payee was wealthy ; that prior to the execution of the note the father gave the son two horses, stating at the time that the horses were an advancement ; that the son was then a minor working on his father's farm and making a member of his family ; that when he became of age, at the request of iiis father, he executed the note sued on upon the representation that it was ne^er to be paid, but only to be held as evidence of an advancement; and that the son, confiding in such representations, and believing them to be true, signed the note, states a good defense : Harris v. Harris, 69 Ind. 181. In Alabama parol evidence is not admissible to show that such a note was an advancement ; but this is contrary to the general rule: Fennell v. Henry, 70 Ala. 484. Presumption — Trusts. 565 his son, with the intention thereby to prefer the son is an advancement and not a gift ; so the cancellation of notes held by a father against a son, with a like intent, has the same effect.^ So if the intention of the donor is not made to appear on the face of the receipt, or it is only shown that there is a release of the debt so that the donor could not collect it if he were an heir, then the presumption is that the release of the debt was intended to be an advance- ment and not a gift ; especially is this so when the amount released is large, or it is something more than a mere trifling sum, and approaches an amount appreciably re- ducing the donee's portion of his parent's estate. In some States, however, the intent of the donor is not a matter of consideration ; for the statute arbitrarily says that the transaction shall be taken and deemed an advancement.'^ 'Bridgers v. Hutchins, 11 Ired. L. G8 ; Gilbert v. Wetherell, 2 Sim. & St. 254; Austin I'. Palmer, 7 N. S. (La.j 21 ; Planner v. Winbiirn, 7 Ired. Eq. 142. But a promise to cancel them, or forgive the debt, is not a gift nor an advancement: Denman i). M'Mahin, 37 Ind. 241. 2 Rees V. Rees, 11 Rich. Eq. 86 ; Glenn, Ex parte, 20 S. C. 64. A testator directed bv will that '' all charges against any of my children standing on my bonks at the time of my decease, shall be void;" and his son, being liis executor, claimed a credit of $1,040, the amount of his note to the testator and which the son in- cluded in the inventory. This note was never entered in the testator's book, though another of earlier date for $1,020, of which the last note was claimed to be a re- newal, had been so entered and the entry afterward erased. It was held that there was nothing on the testator's books to bring the note within the discharging clause of the will, and that the son must account for the amount he thus owed the estate: Brolasky's Estate, 3 Penny. 329. A son-in-law, after the death of his wife (who had left children), received from her father a large sura of money, " in part of my former wife's share of his personal estate as willed to her, which sura I bind myself to account for to his executors and his other legatees in the final settlement of his estate, without interest." This was hehl, after the death of the father, to be a loan due the estate, which could be collected before the final ac- count of the administrator had been rendered ; and that the son-in law was not entitled to set it off against anything that might be due from the estate : Craig v. Moorhead, 44 Pa. St. 97. See Caylor v. Merchant, 5 West, L. Mag. 194. A father conveyed land to his son at the price of $1,200, and took the son's note, payable to him, for $200, with interest, and for the remaining $1,000 took from the son a receipt as follows: "Received of B O [the father] $1,000 for the use without interest received by me. DO" (the son). It was held that this $1,000 was not an B66 Advancements. 573. Child Purchasing Property with Parent's Money. — If a child, intrusted witii its parent's money, purchase property, as land, in his own name, and it is, in the case of land, so conveyed to him without the knowl- edge or consent of the parent, the son cannot set up title to the property or land, as an advancement to him on the part of the parent ; but if the purchase was so made with the consent of the j)arent, or if the deed was so made with his consent, the presumption is that it was intended as an advancement, which presumption may be rebutted by parol evidence, by declarations of the parties, and by cir- cumstances contemporaneous with the transaction itself.^ The uninterrupted possession of the parent, claiming title adversely to the deed, will rebut the presumption of an advancement.^ Where a son purchased land in his own advancement, but simply a part of the consideration for the conveyance, payable to the father, but in the hands of the son to use witliout interest until the father sees proper to require its payment : Overholser v. Wright, 17 Ohio St. 157. A father was accustomod to make loans to his children, keeping memoranda of the same as advancements. His son bought land from a third person, borrow- ing the purchase-money from the father, who paid it to the vendor, taking the title in his own name as security. By his will tlie father directed that in the dis- tribution of his estate an account should be taken of the amounts advanced to, and the debts due from, his children. It was held that the son in equity was the owner of the land, the father was the mortgagee, and the amount so paid for the land at the instance of the son was an advancement to him : Chiles v. Gallagher, 67 Miss. 413. AVhere a testator stated in his will that he held certain notes on a legatee which he was to pay to his estate ; and on such legatee becoming the executor, produced a receipt for a large sum signed by the testator, staling that the amount therein mentioned was to be a credit on the notes held by him, it was held error, on the trial of a bill for an account filed against such executor by the other legatees, for the court to charge the jury that if they should find the notes extinguished bv the receipt,that the executor should account for the same as an ad- vancement. The question was held to be whether the notes were extinguished during the life of the testator ; for if they were not, they could pass under the will ; otherwise they could not. The question of advancement, therefore, was not involved : Thrasher v. Anderson, 51 Ga. 542. ^Peer v. Peer, 3 Stock. 432; Gregory v. Winston, 23 Grat. 102 (mother's money); Mullen v. Mullen, 2 Am. L. Rec. 611. '^ Peer v. Peer, supra. Presump tion — Trusts. 567 name, with his father's money, and the father did not seem to know he had so purchased, and in a will, not sufficiently attested, he attempted to give the property to the son ; it was held that the land so purchased was an advancement to the son.^ 574. Donor Purchasing Property with Money Charged as an Advancement. — If a father charge money to a child as an advancement so that it can be en- forced against it on his death and be deducted from that portion of his estate it would otherwise receive from his estate, and then take the amount as a part of the advance- ment and invest it in property in his own name, a trust in such property arises in its favor ; and this is true though it furnishes part of the purchase-money.^ It must be shown that the property was purchased with the money thus advanced ; and in the absence of proof of the actual advancement appropriated at the time of the purchase, a letter written by the intestate two years after the pur- chase, disclosing a promise and intention that the child should have the property, is insufficient to show an ad- vancement or establish a trust.^ 1 Douglas V. Brice, 4 Rich. Eq. 322. " Beck V. Gravbill, 28 Pa. St. 66. In this case the father conveyed the land to one, who liad a wife at the time but afterward married his child thus advanced. The husband claimed the land by virtue of the cash payment and advancement; but it was held that he had no title even though an independent purchaser ig- norant of her equitable title. 3 Wolff's Appeal, 123 Pa. St. 438. A father made an advancement to one of his sons and took from him a cove- nant, by which he agreed "that he would pay to his brothers and sisters, on final settlement of his father's estate, without interest, whatever sum or sums of money he had received, if above his ratable part of said estate." Afterward, the father borrowed a sum of money from his son (not equal to the amount ad- vanced) and gave his bond for it. It was held tliat the brotliers and sisters, not advanced, had no right to restrain the collection of this bond : Webb v. Lyon, 5 Ired. Eq. 67. Where a father, in debt, conveyed, by way of gift or advancement, his land to his children ; and two sons, in part consideration of the portion conveyed to 568 Advancements. 575. Note of Father — Sealed Bill. — Of course, a promissory note, without consideration, promising to pay a child a certain sum of money is void, and cannot be en- forced against the maker's estate. Consequently, such a note cannot be an advancement. But such is not the case of a sealed note ; for such a note is valid, and when collected the amount so collected is an advancement, if it appears that no actual consideration was given for it.^ 576. Purchase or Gift by Mother for or to Her Child. — A mother does not rest under the same moral obligation to provide for her child as a father, so that proof of a mere purchase by a mother in the name of her child will not raise a presumption of an advancement, but of a trust. Speaking of the presumption that arises from a purchase by a father in the name of a child, the Master of the Rolls, Jessel, said : " It is clear that in that case the presumption can only arise from the obligation, and, therefore, in that case, the doctrine can only have reference to the obligation of a father to provide for his child, and nothing else. But the father is under that obligation from the mere fact of his being the father, and therefore no evidence is necessary to show that obligation to provide for his child, because that is part of his duty. In the case of a father, you have only to prove the fact that he is the father, and when you have done that the obligation at once arises ; but in the case of a person loco parentis you must prove that he took upon himself the them, agreed to pay his debts ; it was held, in a suit by a judgment creditor, whose debt accrued before tlie division, to subject tlie lands so conveyed to the payment of his judgment, that the lands so conveyed to these two sons ought to be first subjected to the judgment, and that the amount of recovery specified in the judgment, in the absence of fraud was conclusive evidence, both as to the fact and amount of the indebtedness : Swihart v. Shaum, 24 Ohio St. 432. ^Shotwell V. Struble, 21 N. J. Eq. 31. Presump t lo n — Trusts. 5G9 obligation. But in our law there is no moral legal obli- gation — I do not know how to express it more shortly — no obligation according to tlie rule of equity — on a mother to provide for her child ; there is no such obliga- tion as a court of equity recognizes as such. From Holt v. Frederick^ downward it has been held that no such obli- gation exists on the part of a mother ; and therefore, when a mother makes an advancement to her child, that is not of itself sufficient to afford the presumption in law that it is a gift, because equity does not presume an obligation which does not exist." This was a case between the mother and her son's estate, and while the question was one of gift and not a question of advancement between the heirs of the mother, yet it is quite in point ; for every advancement is a perfected gift.^ 577. Rule of Presumption Applies to a Gift to a Daughter. — In the case of an advancement to a daugh- ter, it has been said that the presumption is not so strong against a resulting trust as in the case of a gift to a son ; ^ but this distinction has been contradicted by a number of decisions.* 578. Purchase by Grandfather in Name of Grand- child. — Where a child's father is dead, and the child's 1 2 p. Wms. 356. "^ Bennet v. Benaet, 10 L. R. Ch. D. 474 ; S. C 27 W. R. 573 ; 40 L. T. 378. The Master of the Rolls reviews Re De Visorae, 33 L. J. Ch. 332; 2 D. J. & S. 17; Sayre v. Huglies, L. R. 5 Eq. 376; S. C. 16 W. R. 662; 18 L. T. N. S. 347 ; 37 L. J. Ch. 401. See, also, Stone v. Stone, 3 Jur. N. S. 708, and Garrett V. Wilkinson, 2 De G., G. & Sm 244; Evans v. Maxwell, 50 L. T. N. S. 51 ; Batstone v. Salter, 10 L. R. Ch. App. 431 ; S. C. L. R. 19 Eq. (^as. 250. If tlie mother is a widow, the courts are inclined to lean toward the view that the trans- action is either a gift or an advancement : Evans v. Maxwell, 50 L. T. 61. In some American cases this distinction between the presumption of a gift by a father and mother is not noticed : Watson v. Murray, 54 Ark. 499. 'Gilb. Lex. Pract. 272. * Lady Gorge's Ca.se, cited Cro- Car. 550 ; 2 Swanst. 600 ; Jennings v. Selleck, 1 Vern. 467 ; see Woodman v. Morrel, 2 Freem. 33 ; Clark v. Danvers, 1 Ch. Cas. 310. 570 Advancements. grandfather purchases land in the name of such child, the presumption is that it is an advancement and not a trust.^ 579. Gift by Husband to Wife. — Gifts by a husband to his wife are usually regarded purely as gifts and not as advancements ; but in several States statutes put her on the same footing as children, and she is required to ac- count for a gift, in the division of her husband's estate, the same as if she were his child and had received the gift. It therefore becomes of interest to examine the cases in view of these facts. If a husband convey real 2)roperty to his wife, or purchase real property in her name, he paying the purchase price ; or if he give her personal j)roperty, or purchase personal property for her and pay the purchase price out of his own funds, the transaction is either a gift or an advancement, jo?'ima/«cie, and she is not liable to account for its value either to him or his personal representatives.^ But this rule does not ^Soar r. Foster, 4 K. & J. 152. * Gadbiuy, In re, 11 W. R. 895 ; S. C. 32 L. J. Ch. 780 ; Drew v. Martin, 3 Hem. & M. 130; 10 Jur. N. S. 356; 33 L. J. 367; Kingdon v. Bridges, 2 Vern. 67; Christ's Hospital v. Budgin, 2 Vern. 683; Futheree. ^. Fletcher, 31 Miss. 265; Spring V. Hight, 22 Me. 408; Maxwell v. Maxwell, 109 111. 588; Boyd v. White, 32 Ga. 530; Wormley v. Wormlev. 98 III. 544; Taylor v. Taylor, 4 Gilm. 303; Bay V. Cook, 31 111. 336 ; Parker v. Newitt. 18 Ore. 274 ; Taylor v. Miles, 19 Ore. 550; Welton v. Devine, 20 Barb. 9. A husband by arrangement with his wife and his two daughters — by a former marriage, one of whom was a minor — pur- chased lands and built thereon, and paid for the property out of moneys produced by the joint labor of himself, his wife, and the daughters. The deed for the property was taken in the name of the wif', upon the understanding that she should iiold it for the benefit of herself and husband during their lives, and after tlieir decease it should go to the daughters. By his will the husband declared he had no real jiroperty, but requested the wife to direct her executors to sell the property so purchased, and divide the proceeds between the two daughters and a daughter of his wife by a former husband. It was held that the purchase could not be treated as an advancement to the wife; that there was a resulting trust in favor of the testator, and that the trusts in favor of the daughters, having been de- clared by parol, were within the statute of frauds and void : Owen v. Kennedy, 20 Gr. Ch. 163. Presumption — Trusts. 571 apply to the case of a woman with whom the donor lives as his wife, or to his mistress/ In case of a j)urchase by the husband for his wife, it matters not that the purchase was made in their joint names.^ Thus if a husband lend out his money and take the securities in their joint names, and die, his wife is entitled to the fund by way of survivor- ship.^ So where a husband directed his brokers to invest a sum of money in stock in the joint names of himself and wife, and the next day they made the purchase, but the transfer was not made until after the death of the hus- band, it was held that the wife was entitled to the stock,* So where a husband holding a note directed the maker to transfer the debt in his books into the names of himself and wife, expressing an intention to benefit the wife, and he cancelled the note and took a fresh one to himself and wife, it was held, the wife surviving him, that the debt belonged to her.' A sum of money was invested in funds in the joint names of the husband and wife, and the wife, by ])Ower of attorney from him, sold out a portion, and with his knowledge kept it locked up in her own special custody until his death. The portion which remained in the funds in their joint names was adjudged to be hers, but the other portion to be a part of his estate.^ So where a husband contracted to purchase lands in the names of himself and wife, and died before the whole of the pur- chase-money was paid or a conveyance executed, it was decreed tliat this was an advancement both as to the paid and unpaid purchase-money, and on the latter being paid ' Soar V. Foster, 4 Kay & J. lo'i ; S. C. 4 Jur. N. S. 406. - KiDgdon V. Bridges, 2 Vern. 67 ; Low v. Carter, 1 Beav. 426 ; Vance v. Vance, 1 Beav. 605; Gosling v. Gosling 3 Drew, 335 ; Talbot u Cudy, 10 Ir. Eq. 138; Eykyn, la re, 6 L. R. Ch. Div. 115 ; S. C. 37 L. T. N. S. 261. 'Christ's Hospital v. Budgin, 2 Vern. 6S3. * Vance y. Vance, 1 Beav 605. 'Gosling r. Gosling, 3 Drew. 335. «i2e Gudbuiy, 11 W. R. S95 ; S. C. 32 L. J. Ch. 780. 572 Advancements. oat of the husband's estate, the vendors were trustees of the property for her/ A husband, for a series of years, lodged money in two banks on deposit-receipts, some of which were in his own name and some in the joint name of himself and wife, and he frequently changed deposits already made in his own name into their joint names. At his death there were in the two banks four deposit-receipts in their joint names and one in his, and it was de- creed that these joint deposits were advancements for her.^ But a transfer into the name of the wife, or into their joint names for mere convenience, is not an advancement.^ 1 Drew?'. Martin, 2 Hem. & M. 130 ; S. C. 10 Jur. N. S. 356 ; 33 L. .J Ch. 367. 2 Talbot V. Cody, 10 Ir. Eq. 1 38. Re Eykyn, 6 L. R. Ch. 115; S. C. 37 L. T. N. S. 261. 3 Marshall v. Crutwell, 20 L. E. Eq. 32S ; S. C. 4 L. J. Ch. 504. CHAPTER XXI. EVIDENCE — REBUTTING PRESUMPTION. 580. Intention of Donor. 581. Contemporaneous Declarations and Acts of Donor. 582. Contemporaneous Declarations and Acts of Donee. 583. Prior Declarations of Donor. 584. Subsequent Declarations of Do- nor. 585. Subsequent Declarations Admitted in Certain Forums. 586. Subsequent Statements of Donor to Donee. 587. Rationale of Doctrine Concerning Subsequent Declarations. 588. Contemporaneous Acts and Declara- tions. 539. Admissions of Donee. 590. Conduct of Parties witii Reference to Subject-Matter of Gift. 591. Donor's Declarations Concerning Other Gifts Made by Him. 592. Memorandum Made bv Dtmor. 593. Will Referring to Account to Show Advancements Made. 594. Statute Making Book-Entry Sole Rejiository of Donor's Inten- tion. 595. Statute Requiring Advancement to be in Writing. 596. Parol Evidence to Sliow Consid- eration of Deed. 597. Evidence to Rebut Presumption Arising from Purchase in Name of and Conveyance to Child. 598. Advancement in Writing. 599. Will Declaring What Shall be Deemed an .\dvancenient 600. Amount of Intestate's Estate — Value of Gift — Surrounding Facts. 601. Unequal Distribution. 602. Burden — Sufficiency of Evidence — Question for Jury. 580. Intention of Donor. — "Whether or not a trans- action is a gift or advancement depends upon the inten- tion of the donor unless some statute intervenes, which is seldom the case. The intention of the donor lends color and fixes the character of the transaction, and overrides, when clearly ascertained, all other considerations. In determining the character of the transaction, that is the centre of the inquiry, around which all other questions cluster, and toward which the attention of the court and jury should be directed. The intention of the donor at the time of the gift is the one to ascertain, and not his 573 574 Advancements. intention before and after except in so far as the last two tend to show the former. As a rule the intention of the donee is immaterial and not a question of inquiry ; for, if the donor sees fit to give, the intent with which the donee receives is immaterial ; for he cannot give character to the transaction as between a gift and an advancement. The rule that the intention of the donor must control is the whole foundation for the admission of the donor's dec- larations,^ A very good illustration of the point under discussion occurred in an English case. There a father transferred stock into the joint names of himself, wife, and infmt child. This, of course, raised a presumption of an advancement. But the transferrer swore no trust was intended, the transfer having been made under a mis- apprehension of its legal effect. For ten years the father received and used the dividends. At the time of the transfer he was in good circumstances. On his filing a bill alleging that he w^as in extreme want, and required the stock for the maintenance of himself and wife and children, and alleging that when he made the transfer he was not aware that he was placing it beyond his control, the court decreed that the infant child should be a trustee ^ Williams ?•. Williams, 15 Lea, 438 ; Steele v. Frierson, 85 Tenn. 430 ; Mason /•. Holman, 10 Lea, 315 ; Fennell ?•. Henry, 70 Ala. 484 ; Merrill r. Rhodes, 37 Ala. 449 ; Clements v. Hood, 57 Ala. 450 ; Comer v. Comer, 119 111. 170 ; Weatherhead r. Field, 26 Vt. 605 ; Darden v. Harrill, 10 Lea, 421 ; Higliarii v. Vanosdol, 125 Ind. 74; Law v. Smith, 2 R. L 244; Middleton v. Middleton, 31 la. 151 ; Powell v. Powell, 5 Dana, 168; Ciinei'. Jones, 111 111. 563; Wallace v. Owen, 71 Ga. 544; Nolan V. Bolton, 25 Ga. 352 ; Johnson v. Belden, 20 Conn. 322 ; Woolery v. Wool- erv, 29 Ind. 249 ; Clark v. Willson, 27 Md 693 ; Parks v. Parks, 19 Md. 323 ; Oiler V. Bonebrake, 65 Pa. St. 338 ; Muriels v. FVanklin, 1 Swanst. 13 ; Sidmouth v. Sid- mouth, 2 Beav. 447 ; S. C. 9 L. J. N. S. 282 ; Devoy r. Devoy, 3 Jur. N. S. 79 ; 26 L.J Ch. 290 ; 3 Sm. & G. 403 ; Williams r. Williams 32 Beav. 370; Dumper v. Dumper, 8 Jur. N. S. 503; S. C. 6 L. T. N. S. 315; Fox v. Fox, 15 Ir. Ch. 89; Stock V. McAvoy, 15 L. R. Eq 55; S. C. 42 L. J. Ch 2;s0; 21 W. R. 520; 27 L, T. 441 ; Fowkes v. Pascoe, 10 L. R. Ch. 3-13; S. C. 44 L. J. Ch. 367; 32 L. T, 545 ; 23 W. R. 538 ; Down v. Ellis, 35 Beav. 578 ; Hoyes v. Kindersley, 2 Sm. & G. 195. Evidence — Rebutting Presumption. 575 for the father.^ If the leading intention of the intestate is equality among his children, what would bean advancement, if the value of the estate would produce equality, will be held a debt against the donee in order to produce equality.^ 581. Contemporaneous Declarations and Acts of Donor. — When the transaction rests in parol, the con- temporaneous declarations and acts of the donor are always admissible, no matter who produces them, to prove either a gift or advancement. There is scarcely any other way to prove the character of the transaction ; for the acts and declarations of the donor show his intention, and this in- tention is the heart of the inquiry. They form a })art of the res gestw. There are many cases to this effect." 582. Contemporaneous Declarations and Acts of Donee. — So likewise declarations and acts of the donee forming a part of the res gestae are admissible, as much so as those of the donor.* 1 Devoy v. Devoy, 3 Jur. N. S. 79 ; S. C. 20 L. J. Ch. 290 ; 3 Sm. k G. 403. If an article is loaned by a father to his child it shall not be taken as an advancement, unless it was understood that it was not to be returned : Law v. Smith, 2 li. I. 244. ''■ Darden v. Harrill, 10 Lea, 421. An agreement among cliildren, unknown to the father, that certain sums sliall be advancements does not make iliem such : Fitts r. Morse, 103 Mass. 164. 3 Fennell v. Henry, 70 Ala. 484 ; Merrill r. Rhodes, 37 Ala. 449 ; Clements r. Hood, 57 Ala. 459 ; Autrey v. Autrey, 37 Ala. 614; Middleton c. Middleton, 31 la. 151; Cline ?'. Jones, 111 111. 563; Nolan v. Bolton, 25 <-ia. 352; Duling v. Johnson, 32 Ind. 155; Woolery v. Woolery, 29 Ind. 249; Joyce r. Hamilton, 111 Ind. 163 (prior); Oiler r. Bonebrake, 65 Pa. St. 338; Christy's Appeal, 1 Grant (Pa.), 3G9; Bruce v. Slerap, 82 Va. 352; "Williams ,•. Williams, 15 Lea, 438 ; Steele r. Frierson, 85 Tenn. 430; Mason v. H.-lmun 10 Lea, 315; Harley v. Harley, 57 Md. 340 ; Batton v. Allen, 1 Hal. Ch. 99 ; Arnold v. Barrow, 2 P. & H. (Va.) 1 ; Haverstock r. Sarbach, 1 W. & S. 390; M'Dearraen r. Hodnett, S3 Va. 281 ; Williams r. Williams, 32 Beav. 370; Dumper v. Dumper, 8 .Tur N. S. 503; S. C. 6 L. T. N. S. 315; Stock v. McAvoy, 15 L. R. Eq. 55 ; S. C. 42 I>. J. Ch. 230 ; 21 W. R. 520 ; 27 L. T. 441 ; Fowkes r. Pascoe, 10 L. R. Ch. 343 ; S. C. 44 L. J. Ch. 367 ; 32 L. T. 545 ; 23 W. R. 538 ; Turner v. Turner, 53 L. T. 379 ; Middleton v. Middleton, 31 la. 151. * Sidmonth v. Sidraouth. 2 Baav. 447 ; Knabb's Estate, 30 Leg. Int. 361 ; S. C. 1 Lesr. Chron. 337. 576 Advancements. 583. Prior Declarations of Donor. — Declarations of an intestate made prior to the time of the gift or ad- vancement, showing an intention to make one or the other, are admissible for the purpose of proving his inten- tion, though such expressions are of little value, unless they show a long and fixed determination on the part of the donor, and are continued down until shortly before making the gift/ 584. Subsequent Declarations of Donor. — Subse- quent declarations of the donor to third persons are not admissible to prove either a gift or an advancement, nor to repel the presumption of an advancement. Thus Avhere it was attempted to show that the donor subsecpiently said that the property turned over to his child by him was a o-ift and not an advancement it was hekl that it was not o admissible, although it was sought to introduce it on the ground that it was an admission by him against his in- terest. " The offered declarations were made several years after the transaction," said the court, " and were not, in any sense, part of the acts. They were too re- mote in point of time to be considered as of the res gestae, and they were, therefore, not competent upon that ground. Nor do we think they are competent upon the ground that they were declarations against the interest of the party by whom they were made, inasmuch as so far as his in- terest was concerned it was immaterial whether the trans- fer of the money and property was by way of gift or advancement," ^ The rule is founded in wisdom for the ' Joyce V. Hamilton, 111 Ind. 163; S. C. 12 N. E. Rep. 294. ^ Tliistlewaite v. Thistlewaite, 132 Ind. 355 ; Harness v. Harness, 49 Ind. 384, overruling Woolery v. Woo'ery, 29 Ind. 249, and Hamlyn v. Nesbit, 37 Ind. 284; Joyce v. Hamilton, 111 Ind. 163 ; Hatch ?;. Straight. 3 Conn. 31 ; Ray d. Loper, 65 Mo. 470 ; Nelson v. Nelson, 90 Mo. 460 ; Sockwell t. Bateman, 1 South (N. J.), 364; Buchanan's Estate, 2 Chester (Pa.), 74; Homiller's Estate, 17 W. N. C. 238 ; O'Neal v. Breecheen, 5 Baxt. 604 ; Mason v. Holmau, 10 Lea, 315 ; Evide7ice — Rebutting Presumption. 577 security of property and the repose of titles, for otherwise the character of such a transaction would at any time after its performance be subject to the whim or caprice of the donor/ In a Missouri case it was said : " When the j)arent gives property to the child he may, at the time, fix upon it, what value he pleases, as an advancement, or he may do so in his will — or probably by a memorandum charging it against the child as an advancement, but his verbal declarations, that he had given property to a child, made to third persons, are not evidence of the fact. That he has given land must first be established by competent evidence, and then the law presumes it to have been by way of advancement, but to permit the gift to be estab- lished by the declarations of the parent, made to third persons, is to enable him virtually to disinherit one of his children, without making a last will and testament." ^ 585. Subsequent Declarations Admitted in Cer- tain Forums. — Notwithstanding the strong array of au- thorities cited in the foregoing section there are a number of cases holding that the subsequent declarations of the donor are admissible, not only to show that the transac- tion was a gift, but also to show that it was only an ad- vancement.^ Merriman v. Lacefield, 4 Heisk. 209 ; Rains v. Havs, 2 Term Ch., p. 672 ; O'TJrien V) Shell, L. R. 7 Ir. Eq. 255 ; Sldmoutli v. Sldmouth, 2 Beav. 447 ; Nelson v. Nelson, 90 Mo. 460. 1 Harness v. Harness, 49 Ind. 384; Duling i'. Johnson, 32 Ind. 155; Sidmouth V. Sidmouth, 2 Beav. 447 ; Parks v. Parks. 19 Md. 323 ; Cecil v. Cecil, 20 Md. 153. 'Ray V. Loper, 65 Mo. 470; Haverstock v. Sarbach, 1 W. & S. 390; Levering r. Ritteiihouse, 4 Whart. 130; Porter v. Allen, 3 Barr, 390. ■'' Watkins v. Young, 31 Gratt. 84; Law v. Russell, 2 R. I. 244 ; M'Doaiman r. Hodnett, 83 Va. 281. In this last case the court seems inclined to limit them to the proof of a gift, on the ground of an admi.ssion : Phillips v. Chappell, 16 Ga. 16; Wallace y. Owen, 71 Ga. 544 ; Johnson u. Belden, 20 Conn. 322; Clements V. Hood, 57 Ala. 459. Of course dying declarations are not admis>^ible as siich : Middleton v. Middle- ton, 31 la. 151 ; Duling v. Johnson, 32 Ind. 155. 37 578 Advancements. 586. Subsequent Statements of Donor to Donee. — Statements made to the donee by the donor at any time are held admissible in some of the cases, either in the nature of admissions on the part of the donor, or even on the part of the donee when not contradicted. If the contest is whether the transaction was a gift or an ad- vancement, then a statement made on the part of the donor to the donee that it is a gift is taken as an admis- sion ; but if the statement is that it is only an advance- ment, and the donee acquiesce therein or does not contri- dict it, then it is taken as an admission on his part that he is subject to be charged with the amount received in the distribution of the donor's estate.^ 587. Rationale of Doctrine Concerning Subse- quent Declarations. — It seems to the author that if clear distinctions are borne in mind there need be no confusion on this subject. If the contest is between the donor or his personal representative and donee as to whether there has been created a trust on the one hand, or a gift or advancement on the other, then the donor's subsequent declarations are not admissible except in so far as they support the claim of the donee that there was either a gift or advancement ; ^ for this is an admission against interest. But a subsequent statement by the al- leged donor that the transaction was only a trust would not be admissible, because that is not an admission against interest but a self-serving assertion of it. Where, how- ever, the contest is after the donor's death, and is between ^Phillips V. Chappell, 16 Ga. 16; Nelson v. Nelson, 90 Mo. 460; Prince r. Slemp, 82 Va. 352 ; Fox v. Fox, 15 Jr. Ch. 89 (father reproved son for interfer- ing with subject-matter of gift) ; Clements t". Hood, 57 Ala. 459; Autrey v. Au- trey, H7 Ala. 614. 2 West V. Bolton, 23 Ga. 531 ; Murray's Estate, 2 Chest. (Pa.) 300 ; Beresford v. Crawford, 51 Ga. 20. Eh'idence — Rebatt'uiy Presumption. o79 the claim on the one side that it is an advancement and on the other that it is a gift, then the subsequent declara- tions of the donor that it was an advancement and not a gift are not admissible. For then his declarations cannot be said to be against his interest. He has parted with all interest in the property, whether the transaction was either a gift or an advancement. So far as his interest is concerned it is immaterial whether the transfer was by way of gift or advancement.^ 588. Contemporaneous Acts and Declarations. — Acts and declarations of the donor that are contemporary with the transaction give effect and color to it, and are always admissible to show whether a gift or advancement was intended. So too the acts and declarations of the donee are admissible. These all form a part of the res gestae} ' Thistlewaite v. Thistlewaite, 132 Tnd. 355, 2 Williams v. Williams, 15 Lea, 43S ; Sidmoutli v. Sidraouth, 2 Beav., p. 455. In an early case the following facts were proved : " The evidence to prove this purchase in the name of the son to be a trust for the father consists of, Fir&i, Deeds: 1. Father possessed the money; 2. Received the prolits for twenty years; 3. Made leases; 4. Took fines; 5. Inclosed part in a park; G. Built much ; 7. Provided materials for more; 8. Directed Lord Chief Justice North to draw a settlement; 9. Treated about the sale of it. Secondly, Vi" or il^: 1. Thomas Grey confessed the truth; 2. Advised his father to sell, and buy York House; 3. 'If it was mine,' says he, ' I would sell it ;' 4. Before he made his will, said it wan his father's ; 5. After he made his will, said it was to keep his brother from pre- tending. The disproof of the trust stands upon the like evidence, Deeds and Words. FtVs^, Deeds: For Thomas Orey bound with Lord William for £7,000 of the purchase-money. Secomil;/, Words of Lord William. 1. Before the pur- chase, said he would buy it for his son ; 2. After tiie purchase, said he had liought it for his son; 3. The now purchased hind mine, but Gosfield my son's, T. CJ. ; 4. Gosfield was the inheritance of n)7 son's mother, henre would better have bought Hatton Garden. I have no title but my son's will, it being the purcha.«e of my son, T. G. Thirdly, Words of Thomas Grey : 1. I believe my father will give me all, but Gosfield is mine already ; 2. Thomas Grey, when he lay dyin^, excused it to his brother Ralph, that he had by his will given Gosfield to his father :" Grey v. Grey, 2 Swanst. 594. 580 Advancements. 589. Admission of Donee. — The admissions or state- ments of the donee that the transaction was an advance- ment are always admissible as an admission or statement against interest. Even the admissions ^ of a married woman are admissible.^ Of course such admissions are not evidence in favor of the donee.^ 590. Conduct of Parties with Keference to Subject-Matter of Gift. — When the controversy is between the alleged donor and donee, the one claiming that the transaction created a trust and the other an abso- lute gift, then the conduct of the parties (at least before any controversy arose) with reference to the property in controversy is admissible to prove or disprove tlie claim of either. This is upon the ground that the acts of the person in possession of property is always admissible to explain such possession ; for actual and visible possession usually raises the presumption, unless explained or quali- fied by the evidence, of an absolute ownership in the pos- sessor. 591. Donor's Declarations Concerning Other Gifts Made By Him. — The general rule is that decla- rations of a donor concerning other gifts he has made can- not be shown ; but his prior and contemporaneous decla- rations made with reference to such other gifts, though the character of them is not directly in issue, may l)e 1 Green v. Hathaway, 36 N. J. Eq. 471 ; Williard v. Williard, 56 Pa. St. 119; Murray's Estate, 2 Chest. (Pa. ) 300. ^ Clements r. Hood, 57 Ala. 459. ' Admissions made by a donee under mistake may be explained : Chapman v. Allen, 56 Conn. 152. Where grandchildren claimed a distributive share of their grandfather's estate, in right of their deceased mother, the admisi^ions of their father, that he had re- ceived advancements on her account, made after the grandfather's death, were held not to be evidence against the grandchildren, for they did not claim through the father : Nelson v. Bush, 9 Dana, 104. Evidence — Rebutting Presumption. 581 admissible when they tend to show the donor's fixed and general policy in reference to gifts to his children. Thus where it was sought to prove that the donor at the time, and prior thereto, executed certain deeds and declared that the property described therein was given to the grantees named as separate and independent gifts, and not as advancements ; that he intended his sons, the grantees, to have the lands conveyed independent of their distributive shares in his estate ; that the negroes which he had given to each of his children, including the plain- tiffs as well as the defendants, were separate and indepen- dent gifts, and not intended by him as advancements ; and that he intended his sons to have the lands conveyed more than his daughters, it was held that the evidence was ad- missible as tending to show a general and fixed policy of the donor.^ 592. Memorandum Made by Doxor. — Memoranda made by the donor contemporaneous with, or even before, the gift stand upon the same footing with the donor's declarations, and are admissible to prove the character of the transaction.^ Bat a mere account kept by the donor in his usual account-books, show^ing the donor as creditor and the donee as debtor, for certain property received by the latter at a certain price named, or the receipt of a cer- tain sum of money by the latter, is not sufiicient to estab- lish either a gift or an advancement ; but, on the con- ^ Merrill v. Rhodes, 37 Ala. 449. As a rule, declarations concerning other gifts are not admissible: Sanford v. Sanford, 61 Barb. 293; Murless v. Franklin, 1 Swanst. 13. 2 Law V. Smith, 2 R. I. 244 ; Culkeley v. Noble, 2 Pick. 337 ; Pole v. Simmons, 46 Md. 246 ; Harlwell v. Rice, 1 Gray, 587 ; Nelson v. Nelson, 90 Mo. 460; Eis- ner V. Koehler, 1 Dem. 277 ; Fels v. Fels. 1 Ohio C. C 420 ; Hengst's Estate, (J Watts, 86 ; Oiler v. Bonebrake, 65 Pa. St. 338 ; Whitman's Appeal, 2 Grant (Pa. i, 323 ; Hoak v. Hoak, 5 Watts, 80 ; Thompson's Appeal, 42 Pa. St. 345 ; Gillespie V. Piatt, 6 Phila. 485. 582 Advancements. trary, shows a mere business transaction — a debt owed by the donee to the donor, and is a circumstance against the claim of an advancement/ If the account is kept in what is often termed a " family book," reciting that the charges are for moneys or property advanced to the person charged, then the presumption that the account shows a debt is rebutted.^ The account must, how- ever, be entered at the time the advancement is made ; and if it is entered at a subsequent period, it is not enti- tied to go in evidence any more than subsequent declara- tions made by the donor. In this respect there is no dif- ference between subsequent declarations and subsequent entries.^ AVhere a parent makes a charge against a child for money paid it, and afterward expunges the account, this is evidence of a gift and not an advancement.'* If the parent declare at the time he erases the account that he intends the property or money an advancement, his conduct is for the jury to consider.^ Where a father fur- nished his married daughter articles of household furni- ture to an amount over $500, and entered them on his account-book, declaring at the time that he did not do this for the purpose of making a charge, but for his own gratification ; and he afterward expunged the entry thus 1 Clark V. Warner, 6 Conn. 355; White v. Moore, 23 S. C. 456; Fels v. Fels, 1 Ohio C. C. 420; Miller's Appeal, 40 Pa. St. 57; Harris's Appeal, 2 Grant (Pa.), 304 ; Bulkeley v. Noble, 2 Pick. 337 ; Hartwell v. Kice, 1 Gray, 587 ; Ashley's Case, 4 Pick. 21. ^Mengel's Appeal, 116 Pa. St. 292; Brown v. Brown, 16 Vt. 197; Weatherhead V. Field, 26 Vt. 665 ; Murray's Estate, 2 Chest. (Pa.) 300. 3 Nelson v. Nelson, 90 Mo. 460; Fellows v. Little, 46 N. H. 27. Of course the donor cannot chanjre the effect of a transaction by changing a c inteniporaneous entry into one of a different effect: O'Brien v. Shell, L. E. 7 Ir. Eq. 255. If money is lent or paid by the father to or for a son, at the request of the lat- ter, and an account is stated by the father and interest charged, such loan or pay- ment is a debt and not an advancement: Harris's Appeal, 2 Grant (Pa.), 304. * Murray's Estiite, 2 Chest. (Pa.) 300. ^Wallace v. Owen, 71 Ga. 544. Evidence — Rebutting Presumption. 583 made, it was held that there was not sufficient proof to show an advancement.^ In cases of book-accounts, charges, and memoranda, jDarol evidence is always admissible, unless a positive statute intervenes, to show the actual intention of the donor.^ 593. Will Eefeeeing to Account to Show Ad- vancements Made. — It is a very common occurrence for a testator to declare in his will that any child advanced as shown by his books shall be charged with the amount 'Johnson v. Belden, 20 Conn. 322. In this case it was also held that the mere relationsliip of parent :ind child is not sufficient to decide a question of an ad- vancement; nor that the mere fiict that a parent h.is delivered chattels or ad- vanced money to or for a child; nor the equality of patrimonial estate, for in families a judicial discrimination is equitable. In the distribution of an intes- tate's estate, a memorandum, kept by tlie parent, of his advancements to his children, indicating a scheme of distribution of specific articles in kind, is only- evidence of tiie fact of the advancements, etc., prima facie of their value, and its indications of the intestate's scheme for the distribution of his estate, cannot be used as a will unless properly attested : Sims v. Sims, 39 Ga. 108. "^ Mitchell V. Mitchell, 8 Ala. 414. Thus a father kept an account, in this case, with his own son, upon his books, which was added up, and at the foot was writ- ten by the father, "accounted for, as so much that he has had of my estate; if it is over his portion, he must pay back to them." No question having been made of this as a testamentary paper it was held competent to explain the nature of the items, and to detail a conversation his wife had with him in relation to it, to show that the account was not a debt due from the son as an advancement. Where the application to open a decree that an intestate made no advance- ments to any of his children, was based upon newly discovered "memorandum of donations" to his children, in his handwriting and dated twenty-five years before his death, but to which he had never called the attention of any of his family, the bill was dismissed : Langtbrd v. Nahers, 86 Ga. 449. That declarations contemporaneous with book entries may be explained by evidence: see Oiler v. Bonebrake, 65 Pa. St. .'^38. Wliere entries or charges on the books of a decensed parent of property de- livered to his children are made in such a manner and under such circumstances as reasonably to exclude the idea of a debt or present gift, they become evidence that they were intended .as an advancement: Fellows r. Little, 46 N. 11.27; Tliompson's Appeal, 42 Pa. St. 345; Gillespie v. Piatt, 6 Phila. 485; Albert i-. Albert, 74 Md. 52G. A mere entry that the donor had made an advancement to a designated child does not make an advancement if none in fact was made: Alleman v. Manning, 44 Mo. App. 4, 9. 584 Advancements. therein stated. Thus a testator declared in his will that each of his children were " to be charged in the distribu- tion [of my estate] with what I have given them, or shall have given them at the time of my death, and with which I have charged them in my book and in my foregoing will." Upon an issue to try the truth and validity of certain alleged entries of advancements parol testimony was admitted to show that the entries were not advance- ments, and that it was competent to ask a witness who had made them in the testator's book whether the sum charged therein against some of the children had been actually advanced. Proof of the testator's admissions that the charges were excessive was also admitted.^ A testa- trix by her will gave her own property, and apportioned other property by virtue of a power in her deceased hus- band's will, equally among her children, directing that no child should be charged with any money advanced on its account, unless the same was charged in a memorandum filed with her will. She acquitted each of her children from all debts due her or her husband's estate, unless charged in such memorandum. After making this will she gave one of her daughters a sum of money who signed a receipt therefor stating that the sum was to be deducted from out of the estate of her father's which was coming to her. This receipt was deposited by the busi- ness asrent of the testatrix in a trunk devoted exclusivelv to papers concerning the testatrix (including her will) and her husband's estate, but was not otherwise connected with the will. It was attempted to charge this sum of money to this daughter, as an advancement, but the court decided that the receipt was not such a memorandum as was contemplated by the will, and the sum advanced could not be deducted from the daughter's share.^ » Hoak 1-. Hoak, 5 Watts, 80. "Loiing V. Blake, 106 Mass. 592. See, also, Paine r. Tarsons, MPick. 318. For Evidence — Rehuttiny Presumpiion. 58o 594. Statute Making Book-Entry Sole Eeposi- TOEY OF Donor's Intention. — Statutes in a few States make the entry in the books of the donor or the do- nee's receipt the sole repository of the donor's intention, and exclude all parol evidence of that intention. Thus a statute provided that " all gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant." The donee and her husband signed a receipt, as follows: "Re- ceived of J. S. $500, it being a part of my wife's portion." This receipt was found among the papers of the donor at his death, and was deemed sufficient proof of the advance- ment. So an acknowledgment by a husband, whose wife was insane, of a gift from her father for her support, " as a part of her portion out of her father's estate," preserved by the father in a bundle of letters relating to her sui3- an instance where the account was proved in an insolvencj' count, see Bigelow r. Poole, 10 Grey, 104. If a will provide that the devisees shall be chargeable with "any book acL'ounts wliicli may stand cliarged in my books " against them, en- tries made tliereafter of amounts received by the devisees maybe used in evi- dence in determining the amount of the advancements: Whitman's Appeal, 2 Grant (Pa.), 323. By a paper a testatrix gave certain sums of money to her children therein named, and declared that the sums thereby given were " absolute gifts ; and in any distribution to be made at my death of my real and personal estate, in case I should die intestate, must be taken and considered as absolute gifts and not advance- ments, and must not be abated or deducted out of tlie shares of my respective children above mentioned in the distribution of my real and personal estate." After the execution of this paper she gave certain sums of money to sevend of her children as advancements; and then made another will disposing of her property, and directed that all her children should be charged interest on all money advanced to them from the time they received it up to the time of her death in order that they all may be equal It was held that the paper executed before the execution of the will showed an intent to make an absolute gift and not an advancement ; and that a memorandum of calculations made by her be- fore executing the papers were admissible to show her intention : Pole v. Simmons, 45 Md. 246. '386 Advancements. port at an asylum for the insane, was deemed to satisfy the statute. But the production of a book of accounts, kept by the deceased, with three leaves cut out, together with evidence of his declarations that he had made charges in his books as advancements to his children, was held not to be competent evidence of such advance- ments, for the reason that the statute required evidence of adv^ancements to be in writing, and there was no evidence that these three missing leaves contained an entry of the advancements claimed.^ 595. Statute Requiring Advancement to be in Writing. — In some States statutes require the gift to be expressed in writing as an advancement before it can be deemed an advancement. Thus in Illinois a statute provided that " no gift or grant shall be deemed to have been made in advancement, unless so expressed in writing by the in- testate as an advancement, or acknowledged in writing by the child or other descendant." A donor conveyed land to the donee without using any expression in the deed that the conveyance was by way of advancement ; and it was held that the transaction could not be taken as an advancement however clear the donor's intention ap- peared to make it such.^ Consequently, parol evidence is not admissible in that State to show an advancement.^ A father in that State, for the expressed consideration of one dollar and love and affection, conveyed to his daugh- ter a lot worth $1,000 ; and also for a like consideration ^Hartwell v. Rice, 1 Gray, 587. The words, "Articles that I let my daughter N. have," in a book containing memoranda made by a parent of advancements to his other children is a sufficient compliance with the s;atute, and parol evidence is not admissible to control or vary it : Bulkeley v. Noble, 2 Pick. 337. 2 Long?'. Long, 118 111. 638; Wallaces. Reddick, 119 Til. 151; Wilkinson r. Thomas, 128 111. 363; Comer v. Comer, 119 111. 170; Filman t-. Filman, 15 Gr. Ch. 643. ' Wilkinson v. Thomas, supra. Evidence — Rebutting Presuinpiion. 587 two eighty-acre tracts of land to his two sons. Ten years later he executed his will, which was not j^robated on ac- count of a subsequent marriage, in and by which he devised to his daughter $5, and recited : " She having heretofore received the sum of $1,000 in real estate. . . . My several sons all had land and other property to the value of at least i|2,000." The court held that the words used in the will were not sufficient to afford evidence of an advancement to the daughter and sons.^ So where a child gave its father a receipt for articles delivered to it, promising to return them if called for, and the parent wrote underneath that they were not to be exacted, but were to answer as a part of the child's portion, it was held to be an advancement, which could not be varied by parol.^ Nor can it be shown that a note given by a child to his father was not to be paid but taken as an advance- ment.^ ^ Wilkinson v. Tliomas, supra. 2 Bulkeley v. Noble, 2 Pick. 337. ^ Barton v. Rice, 22 Pick. 508. A statute of this character may apply to ad- vancements made before its passage where the death of the intestate occurs after such passages : Clarke v. Clarke, 17 B. Mon. 698. A statute provided tiiat "A raemoranthini of advancements, in the handwrit- ing of the parent, or subscribed by him, shall be evidence of the fact of advance- ment, but shall not be conclu-ive as to tlie valuation of the i)roperty, unless in- serted as part of testator's will or referred to therein." It was held that this statute did not exclude evidence of the declarations of the intestate that notes on a son were held as advancements and not debts: Bransford r. Crawford, 51 Ga. 20 ; West V. Bolton, 23 Ga. 531 ; Sims v. Sims, 39 Ga. 108. In Rhode Island a statute provided that " If real estate shall be conveyed by deed of girt, or personal estate shall be delivered to a child or grandchil.l and charged, as a memorandum made thereof in writing by the intestate, or by iiis order, or siiall be delivered ex- pressly for the purpose in the presence of two witnesses, who are requested to take notice thereof, the same shall be deemed an advancement to such ciiild, to the value of such real or personal estate." It was lieM that this did not exclude other and higlier proof of an advancement than is therein designated, but only inferior proof; but it was also held that parol declarations, witir ut evidence of a written memorandum, was not sufficient to sliow an advancement: Law v. Smith, 2 R. I. 244. In Massachusetts the statute of 1805 prescribed what should be evidence of an 588 Advancements. 596. Parol Evidence to Show Consideration of Deed. — In the case of a conveyance by a parent to a cliild the Supreme Court of Virginia said, speaking with reference to evidence to show the true consideration of a deed : " Ordinarily parol evidence is not admissible to add to, vary, or contradict a written statement. We do not think, said Cochran, J., in Parks v. Parks,^ that rule can operate to exclude such evidence when offered to show the particular character of the subject-matter of a deed collaterally adduced to support or oppose as a con- troverted right to other property than that described by the deed. It is a settled matter that written instruments are to be interpreted according to their subject-matter, and that parol evidence may be iutroduced to ascertain the qualities and nature of the subject to which the in- strument refers. If a deed may be construed by the aid of parol evidence of the nature and qualities of the prop- erty conveyed, there certainly can be no objection to the admission of such evidence to show the character of the property in a case where the construction of the deed is not involved. The question presented on the evidence objected to is not one of construction of the bond and lease, nor does it arise between the parties thereto, nor can the determination of it either way affect or change their rights or obligations as they stand upon these in- struments ; but it is as to the peculiar nature and prop- erties of the estate conveyed, in respect to which these papers are silent ; or, in other words, whether that estate aJvancement to a child or grandchild, and repealed all prior acts falling within its purview; but it was held that a deed made prior to that statute and which by the existing laws would have been evidence of an advancement should have that effect, the repealing clause notwithstanding, although the grantor died after the statute of 1805 was in operation : Whitman v. Hapgood, 10 Mass. 437 ; Eemis v. Stearns, 16 Mass. 200. ' 19 Md. 323. Evidence — Rebutting Presumption. 589 as conveyed takes the character and legal properties of an advancement, or those of a full and absolute gift, without a view to a portion or settlement. The nature of the estate in these respects follows the intention of the donor, and that intention, as we understand the authori- ties, may be ascertained by parol evidence of the donor's declarations at the time of executing the conveyance, or of the donee's admissions afterward, or by proof of facts and circumstances from which the intention may be in- ferred. In the absence of such evidence, and of any- thing in the deed to indicate the intended character of the property conveyed, the law, looking to the equal re- lationship and right of other distributees, will presume the character most favorable to equal distribution to have been intended by the donor. In this case there is no effort to defeat or impede the title of the grantee to the land conveyed him ; there is no question of construction of the deed ; there is no question between him and his grantor ; the deed is not only not assailed, but is ad- mitted in all its force, and there is no effort made to disturl) him in the possession and enjoyment, to the fullest ex- tent, of the property conveyed therein. But when he comes in to claim for his wife an equal share in the par- tition of the other lands of his wife's father, the other ten children or their descendants deny his right to share further in the estate of the intestate, upon the ground that he has already received, in the lifetime of the intestate, a larger share than can M\ to any other child. He ex- hibits his deed as evidence that he paid $2,000 for this land. It is well known on all sides, and admitted by him, that he never paid anything for the land (except a conveyance in Kentucky of a few acres of land which he has been allowed for), but he contends that parol evidence cannot be invoked to show what the true consideration 500 - Advancements. was, and what was the real intention of the grantor as to the said conveyance. Neither his deed nor his title thereunder is questioned ; but the question is, whether, when this deed was made, with whatever estate or title it conveyed, was it intended by the grantor as an advance- ment? That parol evidence may be so admitted aud used is undoubtedly the rule. As has been said often by the courts, the exclusion of this extrinsic evidence to show the true design of the grantor would tend to defeat the provisions of our laws for i\\Q equal distribution of the in- testate's estate ; for the introduction of proof for this purpose does not contravene the general rule of evidence excluding parol proof to explain or vary the terms of a written contract. The object being collateral to effect the title to other property evidence can be gone into to show its true character and design." ^ ' Bruce v. Slemp, 82 Va. 352. These propositions are supported bv many cases : Maxwell v. Maxwell, 109 III. 588 ; Hall v. Hall, 107 Mo. 101 ; S. C. 17 S. W. Rep. 811; Kingsbury's Appeal, 44 Pa. St. 460 ; Mutual Fire Ins. Co. v. Ded, 18 Md. 26; Palmer v. Culbertson, 20 N. Y. Supp. 391 ; McCIanalian v. McCIanahan, 14 S. E. Rep. 419 ; Gordon v. Gordon, 1 Met. 285 ; Powell v. Powell, 5 Dana, 168 ; Clark V. Willson, 27 Md. 693 ; Parks v. Parks, 19 Md. 323 ; Aden v. Aden, 16 Lea, 453; Lott v. Kaiser, 61 Tex. 665 ; Lench v. Lench, 10 Ves. 511 ; Conyers v. Welt- man, 14 N. H. 287; Stewart v. I'attison, 8 Gill, 46; Wilson v. Beauciianip, 44 Miss. 556; Murrel v. Murrel, 2 Strobh. Eq. 148; Hattersley r. Bassett, 25 Atl. Rep. 332 ; Wilks v. Greer, 14 Ala. 437. If the consideration stated is merely nominal, the presumption is that the trans- action was an advancement: Harper v. Harper, 92 N. C. 300; Hatch v. Straight, 3 Conn. 31 ; McCIanahan v. McCIanahan, 14 S. E. Rep. 419. In some of the States statutes requiie the fact of advancement to be stated in tlie deed, and a failure to make such a statement will not admit of parol evidence to show that the conveyance was in fact an advancement: Adams w. Adams, 22 Vt. 50; Newell v. Newell, 13 Vt. 24. In such instances the intention of the grantor must be gathered from the fate of the papers : Weatherhead v. Field, 26 Vt. 665. Wliere a statute required an advancement to be evidenced by a writing, a recitation in a deed that the consid- eration was $1, and that the donor the same day executed a writing reciting that the land conveyed was conveyed " as portion of his [tlie son's] patrimony," giving the actual value of the land, it was held that this writing was admissible to show that the land conveved was an advancement : Power v. Power, 52 N. W. Rep. 60. Evidence — Rebutting Presumption. 591 597. EviDEXcE TO Rebut Presumption Arising from Purchase ix Name of and Conveyance to Child. — Parol or other legitimate evidence is always admissible to rebut the presumption of an advancement arising from the act of a parent purchasing land in the name of and jDrocuring it to be conveyed to his child. This evidence must be such as to show his intentions at the time of the purchase of the conveyance, or at the time of the conveyance or both.^ This rule applies to purchases of both real and personal property.^ Thus a father having purchased stock in his son's name, the latter gave him a power of attorney to receive the dividends, which he did during his life ; yet the transaction was adjudged to show an advancement If the object of the conveyance is to protect the land from ilie grantor's credit- ors it is no advancement, though we apprehend the grantee would keep tiie hind: Jackson t;. Matsdurf, 11 Johns. 91. Where a husband conveyed land to his wife, remained in possession, ]iaid the taxes and improved it, and the wife in her will made no allusion to it, it was iield that the presumption that it was an advancement was not repelled : Maxwell v. Maxwell, 109 111. 588. If the deed recites that the conveyance is a gift by way of advancement, parol evidence to contradict this statement is not admissible unless there Ikls i)een an accident, mistake, or fraud : Lott v. Kaiser, 61 Tex. 605. There is a line of old authorities which hold that if the deed recites a receipt of the consideration in money, parol evidence is not admissible to show the actual consideration: Hooper v. Eyles, 2 Vern. 480; Williams v. Williams, 3 West. L. Mag. 258 ; Ambrose v. Ambrose, 1 P. Wms 321 ; Ryal r. Ryal, 1 Atk. 59. Where a father had no other property thnn that he hnd conveyed to his infant son, and he made no provision for either his wife or ciiildren, and after the con- veyance the father remained in possession and treated the land as his own in every respect, the presumption of a gift or advancement was deemed rebutted : Hall V. Hall, mpra. Acts of ownership asserted over the property ccnveyed are alwavs admissible to rebut the presumption of a gift or advancement: Stock r. McAvoy, 15 L. R. Eq. 55 ; S. C. 42 L. J. Ch. 230; 21 W. R. 520; 27 L. T. 441. 1 Murless v. Franklin, 1 Swan. 13; Jeans v. Cook, 24 P.eav. 513; S. C. 4 Jur. K. S. 57; 27 L. J. Ch. 202 ; Williams r. Williams, 32 P.eav. 370; Shepherd r. White, 10 Tex. 72 ; S. C. 11 Tex. 34G ; Lott v. Kaiser, 61 Tex. 665 ; Page v. Page, 8 N. II. 187 ; Kerr v. Dickinson, 7 Siip. Ct. Rep. of N. S. W. 12. 2 O'Brien v. Shell, 7 Ir. Eq. 255; Fox v. Fox, 15 Ir. Ch. 89. 592 Advancements. and not a trust.^ In the case of land purchased by a father in his child's name, it was shown that the father agreed to allow a tenant to retain his possession at an increased rent without consulting the child, and during his life received the rent and paid the outgoings ; and it was held that this ostensible possession by the father re- butted the presumption of an advancement.^ 598. Advancement in Writing. — If a transaction is in writing, and the claim is made that it is a gift on the one side and an advancement on the other, the authorities are not in unison as to Avhether parol evidence is admissi- ble to show either the one or the other. It is easy to see how various phases of this inquiry may arise. Suppose the writing declares that the property is given purely as a gift, or as an advancement ; or it simply avers words of gift without declaring that it shall be taken as an advance- ment. It is quite evident that in the latter instance the question must be judged somewhat from a different stand- point than it would in the two former instances. In the 1 Sidraontli v. Sidmouth, 2 Bear. 447 ; S. C. 9 L. J. Ch. N. S. 282 ; O'Bren v. Sheil, 7 Ir. Eq. 255. Where the purchase of stock is made in the joint names of father and child, or wife, and the fatlier causes the transfer to be made jointly t > liiinself and hiscliildor wife, evidence to rebut the presumption of a gift or advancement must be cogent to overcome such presumption ; and the fact that the parent drew the dividends on the stock is regarded as rather immaterial in showing his dominion over the stock : Fox v. Fox, 15 Ir. Ch. 89 ; George v. Howard, 7 Price, 661 ; Down V. Ellis, 35 Beav. 578; Forrest v. Forrest, 11 Jur. N. S. 317; S. C. 34 L. J. Ch. 428; 13 \V. R. 380; 11 L. T. N. S. 763; Fowkes v. Pascoe, 10 L. R. Ch. 343 ; S. C. 44 L. J. Ch. 367 ; 32 L. T. 545 ; 23 W. R. 538 ; Devoy v. Devoy, 3 Jur. N. S. 79; 26 L. J. Ch. 290; 3 Sm. & G. 403. Shnres of .«tork trans- ferred by a father into his son's name merely to qualify him as a director is not an advancement : Gooch, In re, 62 L. T. 3S4 ; S. C. W. N. C. (1890) 59 ; 6 T. L. Rep. 224. 2 Stock V. McAvoy, 15 L. R. Eq. 55 ; 42 L. J. Ch. 320 ; 21 W. R. 520 ; 27 L. T. 441. In this case there was also evidence of an intention to recover successive life interests to the father and mother; and this was held a distinct indication that no advancement was intended. See, also, Nicholson v. Mulligan, 17 W. R. 659 ; S. C. 3 Ir. Eq. 308. Evidence — Rebutting Presumption. 593 one the intention is clearly put in writing, the highest and best evidence that can be used to show the intention ; while in the other the intention is merely an inference of law from the facts stated in the paper. And it may be laid down as a rule that, in the absence of fraud, accident, or mistake, where the instrument of gift recites that the property is an absolute gift or a gift by way of advance- ment, parol evidence is not admissible to vary or contra- dict its terms/ But where only words of gift are used — or words of conveyance — and nothing is said that the property giv^en shall be an advancement or a gift, then parol or other evidence is admissible to show that it was either a gift or an advancement.^ 599. "Will Declaring What Shall Be Deemed an Advancement. — If a will declares what shall be consid- ered an advancement, then no evidence is admissible to in fact show that it was not. If the transaction was an abso- lute gift, yet the testator may charge the donee with it as an advancement, by declaring that it sliall be so consid- ered, and the donee cannot object.^ If the will is clear ' Lott V. Kaiser, 61 Tex. 665; see, also, Marshall v. Rench, 3 Del. Ch., p. 257, where the same rule is strongly enforced ; Kirk v. Eddowes, 3 Hare, 509 ; Weems r. Andrews, 22 Ga. 4.'^. 2 Phillips V. Chappell 16 Ga. 16; see Weall v. Rice, 2 R. & M. 251, 263, Booker v. Allen, 2 R. & M. 270; Lloyd v. Harvey, 2 R. & M. 310, 316; Lord Glengall v. Barnard, 1 Keen, 769. It may be shown that a note given by a son to a father was never to be paid, but the amount for which it was given was to be considered an advancement: Dawson v. Macknet, 42 N. J. Eq. 683; Brook v. Latimer, 44 Kan. 431 ; Grey v. Grey, 22 Ala. 233; Jennings v. Jennings, 2 Heisk. 283; Ruch v. Bicry, 110 Ind. 444; Harris v. Harris, 69 ind. 181, unless some positive statute forbids it: Glan- ton V. Whitaker, 75 Ga 523. 2 McAllister v. Butterfield, 31 Ind. 25 ; Nolan v. Bolton, 25 Ga. 352. In this case the will ran : '*It is my will and desire that at the division of my property each one" [legatee] ''shall be cha;ged with and account for in said division all money or property they have received from me, so as to make them share equally in the property to be divided, and in advance." It was held that this covered both debts nnd gifts. The word "advancement" used in a will need not be given its techuical sense 38 594 Advancements. then no resort can be had to parol or other evidence to determine what is or is not an advancement ; for that is fixed by the will, and is to be determined solely by a con- struction of its terms.^ 600. Amount of Intestate's Estate — Value of Gift — Surrounding Facts. — It is always admissible to show the amount of the intestate's property at the time the gift is made (not at the time of his death), the amount or value of the property given to the heir sought to be charged with an advancement, and the amount or value of any property given to any of the other heirs of the de- ceased. If the amount given is large, it will be assumed to have been an advancement, in the absence of proof to the contrary,^ especially where it is shown that the gift was a very considerable portion of the donor's estate,'^ though mere inquality is not enough ; * nor is the fact if the testator evidently did not use it in tliat sense, bnt did not use it in a popular sense: Eisner v. Koehler, 1 Dem. 277. 1 Hufsmith's Estate, 65 Pa. St. 141 ; litimmel v. Hummel, 80 Pa. »St 420; Wood- ruffs. Migeon, 46 Conn. 236; Lyon's Estate, 70 la. 375; Wright's Estate, 6 W. N. fj. 387 ; S. C. 89 Pa. St. 67 ; 93 Pa. St. 82. Evidence is not admissible to contradict the recitals of a will : McAllister r. Biitterfield, 31 Ind. 25; nor to show that there was a mistake in the amount the will alleges was advanced : Painter?'. Painter, 18 Ohio, 247; but otherwise of a book entry : AUeman v. Manning, 44 Mo. App. 4, 9. Nor can an inequality in the advancements raise an intention contrary to that expressed in the will : McFall v. Sullivan, 17 S. C. 504 ; Andrews v. Halliday, 63 Ga. 263. Power given in a will to advnnce gives power to advance by deed of real estate: Freiike v. Auerbach, 72 Md. 580. When a clause in will applies only to the residueof estate, and tliereisno residue, the law of advancements does not apply : Hammett v. Hamniett, 16 S. E. Kep. 293. 2 Bruce v. Griscora, 9 Hlin, 280 283 ; Grattan v. Grattan, 18 111. 167 ; Kintz V. Friday, 4 Dem. 540, 543 ; Clements v. Hood, 57 Ala. 459 ; Fennell v. Henry, 70 Ala. 484; Merrill v. Rhodes, 37 Ala. 449; Autrey v. Autrey, 37 Ala. 614; Smith V. Smith, 21 Ala. 761. 'Tuggle V. Tuggle, 57 Ga. 520; White v. White, 3 Dana, 374 ; Kn abb's Estate, 30 Leg. Int 361 ; S. C. 1 Leg. Cliron. 337. ^ Comer v. Comer, 119 111. 170 ; Johnson v. Belden, 20 Conn. 322. Evidence — Rebutting Presumption. 595 that the father was jDoor sufficient alone to show that the son holds the property as trustee where the father pur- chases the property m the name of the son.^ " What are, or are not, advancements, must always depend very much on the condition in life of the parties, and may be abso- lutely fixed by their intentions at the time, if they can be ascertained." ^ So the facts surrounding the transaction may always be shown, or at least may be shown when the evid-^nce is not satisfactory ; and we have no hesitancy in saying that " surrounding circumstances," ^ may al- ways be shown, either to aid the presumption of a gift or to rebut it.* 601. Unequal Distribution. — An unequal distribu- tion of the intestate's estate, which will result if the donee is not required to account as an advancement for the property given, is not alone sufficient to establish an ad- vancement ; it does not show the intention of the donor, although it may aid in arriving at that intention upon the view that "equality is equity," and that a presumption is indulged in that a parent usually intends to make an equal distribution of his property at his deatli.^ ^ Page V. Page, 8 N. H. 187, 202. Evidence that the property given a son was inherited by the father from tlie son's mother is too remote to show a gift and not an advancement, and is not admissible : Thistlewaite v. Thistlewaite, 132 Ind. 355 ; S. C. 31 N. E. Rep. 946. * YouDgblood V. Norton, 1 Strob. Eq. 122. So where a father gave four chil- dren each a tract of land, and charged upon each tract the payment of certain sums of money payable to a designated person, but the amount charged upon the tract given an invalid child was very much less than the several sums charged on the other three tracts, it was held that tlie court would consider such child's physical condition and ability to earn money to pay the charge, in determining whether the intestate meant that the four portions should be considered equal advancements : Burbeck v. Spollen, 10 Am. Rec. 491. 'Lawyers and courts still insist on using this tautological phrase. *Ruch V. Biery, 110 Ind. 444; Parks v. Parks, 19 Md. 323; Clark v. Willson, 27 Md. 693 ; Dutch's Appeal, 57 Pa. St. 461. ^Corner v. Comer, 119 111. 170; Johnson v. Belden.. 20 Conn. 322. Still, see Patterson's Appeal, 128 Pa. St. 269. 596 Advancements. 602. BuEDEN — Sufficiency of Evidence — Question FOR Jury. — If the flicts proved, without the introduction of any evidence of the intestate's intention, raise a pre- sumption of an advancement, or, on the other hand, a presumption of a gift, then the party claiming, in the first instance, that it is not an advancement, and tlie party claiming, in the second instance, that it is not a gift, has the burden of rebutting the presumption raised by the law.^ But until such evidence is introduced, showing the transaction, as raises a presumption of an advancement, the party alleging that the transaction was such advance- ment has the burden of showing the truth of his allega- ton.^ Loose declarations of the intestate are not enough to change a debt to an advancement or gift.^ And where the deed from a parent to a child recites only a nominal consideration, or one totally inadequate as a fair price for the land ; or where it is shown that the parent purchased the land and had it conveyed to the son — then the pre- sumption that the transaction was an advancement " is not to be frittered away by mere refinements." * No particu- lar words are necessary, so the intestate's intention is clearly made to appear ; ^ but vague and unsatisfactory proof is not enough to turn what the law regards as a ^ Piper?;. Barse, 2 Eedf. 19; Middleton v. Middleton, 31 la. 151; Clemenls v. Hood, 57 Ala. 459; Burton v. Baldwin, 61 la. 283; Jones v. Kinnear, 4 R. & G. (Nov. Sco.) 1. * Middleton v. Middleton, supra; Clements v. Hood, supra; Piper v. Barse, supra. 3 Harley v. Hailey, 57 Md. 340 ; Harerstook v. Sarback, 1 W. & S. 390 ; Porter V. Allen, 3 Pa. St. 390; Ynndt's Appeal, 13 Pa. St. 575 ; High's Appeal, 21 Pa. Si. 283; Roland v. Sclirack, 29 Pa. St. 125; Miller's Appeal, 40 Pa. St. 57; Dutch's Appeal, 57 Pa. St. 461 ; Arnold v. Barrow. 2 P. & H. (Va.) 1 ; McDearman V. Hodiiett, 83 Va. 281 ; Storey's Appeal, 83 Pa. St. 89 ; Trimmer v. Bayne, 7 Ves. 508; Robinson v. Wliitley, 9 Ves. 577 ; Powys r. Mansfield, 3 Mylne & Cr. 359. * Finch V. Finch, 15 Ves. 43 ; Jeans v. Cooke, 24 Beav. 513 ; S. C. 4 Jur. N. S. 57 ; 27 L. J. Ch. 202;' Fox v. Fos, 15 Ir. Ch., p. 95; Johnson v. Patterson, 13 Lea, 626. *Bulkeley v. Noble, 2 Pick. 337 ; Batton v. Allen, 1 Halsi. Ch. 99. Evidence — Rebutting Presumption. 597 gift into an advancement.^ Whether or not there has been an advancement or gift is a question for the jury ^ unless the facts are uncontroverted, when it is for the court ; ^ but, of course, if different conclusions may be drawn from the facts as to the intestate's intention, then the question is one for the jury. 1 White V. Moore, 23 S. C. 456. 2 Datt's Estate, 34 Pitts. L. Jr. 349. » Yeich'a Appeal, 1 Mona. (Pa.) 296. CHAPTER XXII. HOTCHPOT. 603. Doctrine of Hotchpot. 604. For what Property Heir Must Ac- count. 605. Application to Wife or Widow of Deceased Donor. 606. Doctrine Applicable to All Dis- tributees. 607. Distributee Not Compelled to Bring Advanced Property into Hot- potch — Over-advancement — In- fant. Kind of Property to be Brought In — Value. Agreement of Distributees with Other Distributees to Account for Property Advanced. 610. Refusal to Come in First Distribu- tion Does Not Bar Right to Come and Share Second Distri- bution. 611. Estimating Value of Advancement — Time of. 608. 609. 612. Value of Imperfect Gift which is Perfected at Later Date. 613. Value Fixed by Will. 614. Charging Donee witii Interest on Property Advanced. 615. Rents and Profits — Increased Value. 616. Improvements Erected by Do- nee. 617. Property Wasted or Destroyed — Slaves Emancipated. 618. Efiect on Title to Property Ad- vanced by Bringing into Hotch- pot. 619. Statute of Limitations. 620. Not a Part of Assets of Estate. 621. How Question of Advancement Litigated — Partition. 622. Competency of Advanced Dis- tributee to be a Witness. 603. Doctrine of Hotchpot. — Strictly speaking, the term " hotchpot " is not applicable to a case of settling an intestate's estate with reference to the requirement that advanced distributees shall bring in and account for ad- vancements made them by the intestate in his lifetime ; but various statutes have the term incorporated in their provisions, and the doctrine of one rather obscure term has been applied to the distribution of the estates of in- testates, and even to instances of partial intestacy. The best description of the term can be drawn from Little- ton's own words. " If a man seized of certain lands in fee 598 Hotchpot. 599 simple,'' says he, " has issue two daughters, and the eklest is married, and the father giveth part of his lands to the husband with his daughter in franh-marriage, and dieth seized of the remnant, the which remnant is of a greater yearly value than the lands given in frank-marriage. In this case neither the husband nor wife shall have any- thing for their purparty of the said remnant, unless they will put their lands given in frank-marriage in hotchpot, with the remnant of the land, with her sister. And if they will not do so, then the youngest may hold and occupy the same remnant, and take the profits only to herself And it seemeth that this word [hotchpot] is in English di, pudding ; for in this pudding is not commonly put one thing alone, but one thing with other things to- gether. And therefore it behooveth in this case to put the lands given in frank-marriage with the other lands in hotchpot (that is, to estimate their value in the division), if the husband and wife will have any part in other lands." ^ Blackstone says, in commenting upon the use of the word " hotchpot," " By this housewifely metaphor our ancestors meant to inform us that the lands, both those given in frank-marriage and those descending in fee simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frank-marriage : and if she did not choose to put her lands into hotchpot, she was presumed to be sufficiently provided for, and the rest of the inheritance was divided among her other » 1 Thomas' Coke, 720 ; Coke Litt. 176. The entire chapter of Coke on Little- ton from 176 (sect. 265 to 180 a (sect. 276) is very interesting for its meaning in tlie old law, and this is especially so of Bu'Jer and Hargrave's notes. "Hutspot or hotspot is an old Saxon word," says Coke, " and signifieth so much as Littletcn here speaks. And the French use liotclipot for a coramixion of divers things to- gether. It signifieth here metaphorically inparlem podtlo. In English we use to say hodgepodge, in Latin farago or mi^cellaneura."— Coke Litt. 177 a. 600 Advancements. sisters. The law of liotchpot took place then only when the other lands descending from the ancester were fee simple ; for if they descended in tail, the donee in frank- marriage was entitled to her share, without brino-ino- her lands into hotchpot. And the reason is, because lands descending in fee simple are distributed, by the ]3olicy of law, for the maintenance of all the daughters ; and if one has sufficient provision out of the same in- heritance, equal to the rest, it is not reasonable that she should have more ; but lands descending in tail are not distributed by the operation of law, but by the designa- tion of the g\YQY, per fornam doni ; it matters not there- fore how unequally this distribution may be. Also no lands, but such as are given in frank-marriage, shall be brought into hotchpot ; for no others are looked upon in law as given for the advancement of the women, or by way of marriage portion. And, therefore, as gifts in frank-marriao;e are fallen into disuse, I should hardlv have mentioned the law of hotchpot, had not this method of division been revised and copied by the statute for dis- tribution of personal estates." ^ 604. For what Property Heir Must Account. — It has already been discussed as to what property may constitute an advancement. The English statute related only to advancements in personal property ; but statutes in this country usually apply the doctrine of advance- ments both to real and personal property.^ ^2 B'ack. Com. ]90, 191. The liistorical side of hotchpot is discussed in the following casei? : Wariield v. Warfield, 5 11 & J. 439 ; Terry v. Davton, 81 Barb. 519 ; Law v. Smith, 2 R. I. 244; Hall v. Davis, 3 Pick. 450; Marshall v. Rench, 3 Del. Cli. 254. In M'Caw v. Blewit, 2 McC. Ch. 90, it is said that by the use of the term hotchpot in tlie Statute of Distributions was meant that each child is to draw at tiie death of the parent ;in equal proportion. *H:imer v. Hamer, 4 Strobh. Eq. 124. A devisee under a will, if there is a partial intestacy, is not compelled to bring Hotchpot. 601 605. Application to Wife or Widow of Deceased DoNOK. — The duty of an advanced distributee to account for gifts by way of advancement does not apply to the wife or widow of the deceased donor ^ unless the statute in express words require it.^ Consequently the fact that she has received property from her husband under such circumstances that it would be an advancement if she were his child does not affect or reduce the amount she would be entitled to if she had not received such prop- erty,^ unless the statute in words is made applicable to her. And since she cannot be compelled to account for property she has received, neither can she compel her husband's heirs to account for property they have re- ceived as advancements in order to increase her share of the estate ; and if an heir at the instance of a co-heir is compelled to bring in property he has received by way of advancement, her share, although her husband has not given her any property, cannot be thereby augmented.'' into liotchpot the |.ropeity taken under the will, unless the will especially Ji- recieJ that he shall be charged therewitii in the final distribution: C'awHicld v. Brown, 45 Ala. 5-52 ; Nettleton v. Neltleton, 17 Conn. 542; Biedler v. Biedler, 87 Va. 300. 1 Barnes v. Allen, 25 Ind. 222; Miller's Will, 73 la. 118; Euch v. Biery, 110 Ind. 444; Willelts v. Willetts, 19 Ind. 22 ; Porter v. Collins, 7 Conn. 1 ; Rioliards V. Richards, 11 Humph. 423; McDearman v. Hodnett, 83 Va. 281 ; Jackson v. Jackson, 28 Miss. 674; Whitley v. Stephenson, 38 Miss. 113; Morgan, In re, 104 N. Y. 74; Knight v. Oliver, 12 Gratt, 33; Miller's Estate, 2 Brewster (Pa.), 355; Greiner's Appeal. 103 Pa. St. 89; Murray's Estate, 2 Pears. (Pa.) 473. 2 Davis V. Duke. 1 Taylor (N. C), 213 (102) ; S. C. Conf. Rep. 361 (439) ; Little- ton V. Littleton, ID. & B. 327 ; Headen v. Headen, 7 Ired. Eq. 159. « Jackson v. Jackson, 28 Miss. 674; Wiiitley v. Stephenson, 38 Miss. 113. * Miller's Estate, 2 Brewster (Pa.), 355; Knight v. Oliver, 12 Gratt. 33; Mc- Dearman V. Hodnett, 83 Va. 281 ; Brunson v. Brunson, Meigs, 630; Richards v. Richards, 11 Humph. 428 ; Porter v. Collins, 7 Conn. 1 ; Murray's Estate, 2 Pears. (Pa.) 473; Logan v. Logan, 13 Ala. 653; Andrews v. Hall, 15 Ala. 85; Rnch r. Biery, 110 Ind. 444; Willetts v. Willetts, 19 Ind. 22. She simply takes a share of wiiat her husband possessed at his death : Miller's Will, 73 la. 1 18. Of course a statute may put her on the same fo ting with her children : Boyd v. White, 32 Ga. 530; Headen v. Headen, 7 Ired. Eq. 159. Where it appeared that the father had delivered to his daughter-a married 602 Advancements. 606. Doctrine Applicable to All Distributees. — With the exception of the wife or widow of the intes- tate, and sometimes she is included, as we have seen in the previous section, the doctrine is applicable to all the dis- tributees of the estate, to all the heirs of the intestate ; to the eldest son,^ and to an infant,'^ or imbecile child.'* 607. Distributee Not Compelled to Bring Ad- vanced Property into Hotchpot — Over-Advanced — Infant. — The law does not compel an advanced dis- tributee to bring his property into hotchpot ; it is en- tirely optional with him, the only penalty inflicted upon him for declinhig to account for the advanced property is to prohibit his participation in the distribution of the in- testate's assets ; if, therefore, an heir has been advanced more than he would receive if the amount of the ad- vanced property were added to the property of the intestate, he may decline to biiiig his pro{)erty into hotchpot and refuse to refund the excess, and there is no power to compel him to account for it.* But if an ad- woman — i)roperty of the value of $1,070, and took iier bond payable on dLinand fur $'J70, but made no charj^e against liei- upon his books of an advancetuent ; it was lield thai tiie difference between the value of the property and tiie bond was not intended as an advancement, bnt a gift, and that, although the payment of the bond could not be enforced, the oljligor was not entitled to paiticipate in the dis- tribution of her fatiier's estate until she paid it or submitted to have it charged ag:iinst lier: Walker v. Brooks, 99 N. C. 207. •Doe V. Saunders, 2 Kerr (N. B.), 18; Kircu(ll>right v. Kircudbright, 8 Ves. 61 ; Pratt v. Pratt, Fitzg. 284; S. C. 2 Stra. 9:^>5. 2 Powell V. Powell. 5 Dana, 108. But see Wilson w. Wilson, 18 Ala. 17G. ^Eastham v. Powell, 51 Ark 530. ♦Marston v. Lord, Go N. H. 4; Phillips «. McLaughlin, 20 Miss. 592 ; Ken- nedy V. Badgett, 26 S. C. 591 ; Wilk v. fJr.-er, 14 Ala. 437 ; Coleman v. Smith, 55 Ala. 3fi8 ; Thompson v. Thomp.son, 1 Yerg. 97; llamer v. Hamer, 4 Strobh. Eq. 124; Taylor v. Reese, 4 Ala. 121. A child born after a will is executed cannot recover from brothers or sisters advanced before its e.'^ecution : Sanford v. Saiiford, Gl I'arb. 29.'^ A creditor of the advanced distributee is bound by his refusal to bring the ad- vanced pro{)erty into hotchpot : Stone v. Ilalley, 1 Dana, 197. Hotchpot. G03 vanced distributee desires to participate in the assets of the estate of his donor he must first bring into hotchpot the value of the property he received/ or at least consent that it may be considered in making the division.^ If all the heirs have been equally advanced, then it is not necessary to bring it into hotchpot;^ but if a part of the property received was a gift and part an advancement, then the part that was an advancement must be accounted for.* When the advanced distributee is an infant, and consequently incapable to consent that the property ad- vanced shall be brought in, then the court will act for him, and if it be to his interest that the property be brought in, the court will so order, but if not, the court will not so order.^ The refusal of an advanced adult distri- butee to bring in the amount of property he has received * Marston v. Lord, 65 N. H. 4 ; Smrilevnnt i-. Goodrich, 3 Yerg P5 ; Pearce r. Gleaves, 10 Yerg. 3G0 ; Gold v. Vaughn, 4 Sneed, 245 ; Perry v. [ligh, 3 Head, 349 ; Vance v. Huling, 2 Yerg. 133 ; Farnsworth v. Dinsinore, 'A Swan. 38 ; Walker V. Brooks, 99 N. C. 207; Slierwood v. Wooster, 11 Paige, 441 ; Haw ley v. James, 5 Paige Ch. 318 ; Ray v. Loper, 65 Mo. 470 ; St. Vrain, In re, 1 Mo. App. 294 ; Grattan i-. Grattan, 18 ill. 167 ; Haden v. Haden, 7 J. J. Mar. 168 ; Nelson v. Bush, 9 Dana, 104; Sims v. Sims, 39 Ga. 108; Mitchell r. Mitchell, 8 Ala. 414 ; Wilson ti. Wilson, IS Ala. 176. 'In some of the States no provi>ion is made for bringing in the amount of the property advanced, but the advanced distributee is simply charged with the amount advanced, whether he will have it so or not. In other words, tiie amount of his advancement, when it is asct?rtained, is addetl to the total of the assets of the estate of tlie intestate, the whole sum divided by the number of distributees (after the widow's portion is deducted, if there be one), and from the share due the advanced distributee the amount of his advancement is deducted, and he is paid the remainder, if there be any. Thus he is forced to bring into hotchpot the property he has received from his ancestor. ^Cole V. Leake, 27 Miss. 767. * Walker v. Brooks, 09 N. C. 207. * Powell V. Powell, 5 Dana, 16S; Grattan r. Grattan, 18 111. 167. In Andrew r. Hall, 15 Ala. 85. 90, it was held that an inAint's pnardian ad litem culd, with the consent of the court, bring in his property. A judgment of distributi.>n again>t a minor is errone heirs was advanced $9,000. After paying the widow and debts there was left $9,689.64 for distribution. The intestate died May 13, 1883, and the estate was ready for distribution December 14,1886. The court decreed that the amount due the nnadvanced heir was to be estimated as of the death of tJie iiite-;tate; that is, that he was to receive a sum December 14, 1886, which would be worth, discounted at six per cent., May 13, 1883, $9,000. This for the reason that the advanced heir had had the income of his $9,000, while the unadvanced heir had not; and the two sluuld be put on as near an equal footing as possible : Dixon v. Marston, 64 N. H. 433. Hotchpot. G07 of a donor in advancing a child is that the donee may enjoy the property advanced during the lifetime of the donor ; therefore, where a statute declared that the ad- vancement should be valued as of the date when made ; and the advancement consisted of an estate to take effect in the future, it was estimated according to its value when completed by enjoyment thereof by the donee.^ So where a father insured his life in favor of his daughter and regularly paid the premiums, it was held that its value must be estimated at the time of the father's death, relation being had to its situation at the time the policy was issued. It was also held that the subsequent annual payments of premiums were to be charged without interest as an advancement of such money.^ 612. Value of Impekfect Gift which is Perfected AT Later Date. — If the gift by way of advancement is so imperfect that no title passes at the time, but by some subse- quent act of the donor the gift is made complete, then the ad- In Georgia tlie value affixed in a memoiandtim of advancements kept by the donor, is, prima facie, by statute, the vahie of the property advanced: Sims r. Sims, 39 Ga. 108. ' Hook V. Hook, 13 B. Mon. 52G ; Ford v. Ellingwood, 3 Met. 359; Clark r. Willson, 27 Md. 693. (The estate was "the value thereof at the time such ad- vancement was received"). For a leugluliy discussion of the question see Chinn V. Murray, 4 Gratt. 348, though the point is not decided. Wlien donee only gets life estate with remainder over to his children, see Brown v. Dortch, 12 lleisk. 740. " Rickenbacker v. Zimmerman, 10 S. C. 110. "Where a father made a deed of slaves to his child, reserving a life estate to himself, the value was estimated at date of his death, the statute providing that the v;ilne of an ndvancement should be estimated "at the time it was delivered:" Wilks v. Greer, 14 Ala. 437. Where the gift was a slave, and the donee, an infant, resided with his father until of age, and then left, taking the slave, the value was estimated as of the date of his arriving at full age: Meadows v. Meadows, 11 Ircd. L. 148 ; Adams r. Hayes, 2 Ired. L. 361. If there are two distributions of the estate, one by will and the other by the law, and the donor place a value on the advancement, the donee is estopped to contro- vert the value so far as he claims under the will : Hook v. Hook, 13 B. Mon. 526. 608 Advanceiiie7its. vancement is estimated as of tlie date that the gift is per- fected. Such was held the case wliere a parol gift of land was held void, but which was subsequently perfected by the execution of a deed.^ Where the gift of land was void, but the son having sold it, the father made the deed, and the son received the purchase-money, the son was charged with the amount of money he received.^ Yet when the son took possession and enjoyed the premises and profits thereof, and a deed was executed by the donor to him after the date of his taking possession, the value was estimated as of the date he took possession ; and this is undoubtedly a fair rule.^ 613. Value Fixed by A¥ill. — If the donor in his will fixes a value on the property advanced, then the value thus fixed must control, especially if it appears from the will that the testator was attempting to make a fair division of his property.* If the will refers to memo- randum or an account of the testator showing what prop- erty the donee has been advanced, and such memorandum or account shows the value fixed upon it by the testator, then the value as thus fixed must control in determining the value of the advancement made the donee ; but if the property thus advanced was worthless at the time of the advancement, it would seem that the donee may show that flict, and if such clearly appears to be the case, he will not be charged with the value thus fixed, upon the ground ^ Moore v. Burrow, 89 Tenn. 101 ; Shiver v. Brock, 2 Jones' Eq. 137 ; Haynes V. Jones, 2 Head, 371 ; Hnghey v. Kiclielberger, 11 S. C. 36 ; O'Neal v. Breeclieen, 5 B;ixt. 604 The same is true of personal property: Meadows r. Meadows, 11 Ired. L. 148; Adams v. Hayes, 2 Ired. L. 361 ; Paryear v. Cabell, 24 Grait. 260, 2 Barber v. Taylor, 9 Dana, 84; see Hook v. Hook, 13 B. Mon. 526 ; Stevenson V Martin, 11 Bush, 485; Bowles d. Wincliester, 13 Bush, 1. spijrg??. Carroll, 89 111. 206. *Ndson V. Nelson, 7 B. Mon. 672; Hook v. Hook, 13 B. M n. 526 ; Grigsby v. Wilkinson, 9 Bush, 91. Hotchpoc. 009 that the donor was relying upon a thing not in existence, and would not so charged the donee if he had known the actual facts concerning the supposed property attempted to be thus charged to him.^ 614. Charging Donee with Interest on Property Advanced. — Interest cannot be charged the donee before the donor's death on the projierty advanced ; and this rule is manifestly fair ; for no one would care to take tlie property for the uncertain length of time of the donor's life, and be chargeable in the final distribution of his estate with interest from the time of the reception of such property until the final distribution thereof. Especially would this be true if the property was non-productive."^ Interest on a debt due from the donee to the donor, and which by will is turned into an advancement, will not be charged.^ But interest is charged on the value of the ^ Marsh v. Gilbert, 2 Redf. 465. It cannot be said that this case is an authority for ail that is stated in the text, but reason and common sense seems to be with the statements in the text. The statement in the text is supported b_v tiie lan- guage of the court in Nelson v. Nelson, 7 B. Mon. 672. If the will treats a debt as part of the assets of the estate, the heir owing it cannot repudiate the debt and claim the legacy given him : "Williams v. AVilliaMis, 15 Lea, 438 ; Cannon v. Apperson, 14 Lea, 553. 'Fowler v. Roundtree, 10 Fla. 299; Harris v. Allen, 18 Ga. 177; Boyd v. White, 32 Ga 530 ; Manning v. Thurston, 59 Md. 218 ; Osgood v. Breed, 17 Mass. 356; Hall v. Davis, 3 Pick. 450; Black v. Whitall, 1 Stock. (N. J.) 573; Wan- maker t;. Van Buskirk, Sax. (N. J.) 685; Patterson's Appeal, 128 Pa. St. 269 ; Hudson v. Hudson, 3 Rand. 117 ; Wheleu's Appeal, 70 Pa. St. 410. 3 Patterson's Appeal, 128 Pa. St. 269 ; Green v. Howell, 6 W. & S. 203 ; Krebs V. Krebs, 35 Ala. 293. Even though the debt is due from the son-in-law, and the amount due is taken as an advancement to the daughter, no inlerest is chargeable : Grim's Appeal, 105 Pa. St. 375; Green v. Howell, 6 W. & S. 203. The testator may direct in his will that an advancement is to draw intere-t, and indicate from what date it shall begin to run : Patterson's Estate, 6 Pa. C. C. 443 ; S. C. 45 Leg. Int. 474 ; Treadwell v. Cordis, 5 Grey, 341. Where a testator in his will dated 1852, forgave all his children all advancements, loan« and debts due from any of them "except the capital in the hands of my son Daniel since he entered into his present business of broker, which is to be regarded by my executors as | ai i of my estate;" and in 1854 took from his son Daniel a bond for $52,488, being 39 610 Advancements. advancements from the date of the intestate's death. ^ In a few States interest does not begin to run until the amount with interest of various sums of money he received from his father from time to time, and used in his business ; and by a codicil, dated in 1857, repub- lished and ratified his will ; it was held that the word " capital" was not equiva- lent to " debt;" that his son could not be charged with the amount of the bond and interest; that his liability to the estate was to be meabured by the amount lent to him by the testator as capital in his business, and that this sum should be added as part of the estate as of the time of the testator's death, without interest : Hutchinson's Appeal, 47 Pa. St. 84; see Wilkins v. Wilkins, 43 IS'. J. Eq. 695. In order to equalize the distribution of estates under a will, interest may be charged on advancements, if necessary to secure an equal distribution : Kichols V. CofSn, 4 Allen, 27; Monks v. Monks, 7 Allen, 401 ; Cummings v. Bramhall, 120 Mass. 552 ; Wilkins v. Wilkins, 43 N. J. Eq. 595. A testator directed his executors " to ascertain how much has been advanced by me to each and every of ray children, and how much each of them may be indebted to me on bond, note, book-account, or otherwise, and to so divide the residue of my proj^erty among my said children as that each may have an equal share of my estate — that is, that the moneys so advanced to any of my children, and for which they shall be indebted to me as aforesaid, be counted as so much paid on account of the share of such child in my estate." The testator at his death held notes of each of his sons, a book-account against one, and a bond and warrant of his son-in-law never entered up. On one of the notes he had received a year's interest eight years before the date of the will ; on the others no interest was ever paid. It was held that the will converted the notes, bonds, and book- acc Hint from debts into advancements, and that no interest was chargeable on them : Green v. Howell, 6 W. & S. 203. Advancements made by trustees, pursuant to the terms of a will, are not chargeable with interest unless the will so directs : Hosmer v. Sturges, 31 Ohio St. 657. 1 McDougald v. King, Bail. Ch, 154 ; Youngblood v. Norton, 1 Strobh. Eq. 122 ; Glenn, Ex parte, 20 S. C. 64; Kyle v. Conrad, 25 W. Va. 760; Moore v. Burrow, 89 Tenn. 101; Roberson v. Nail, 85 Tenn. 124; Williams v. Williams, 15 Lea, 438; Johnson v. Patterson, 13 Lea, 626, 657; Steele v. Frierson, 85 Tenn. 430. Wiiere a father made adranceraents to his married daughters, and took from them receipts bearing interest, interest was charged only, from the date of his death, on the ground that they were not bound by their contract to account for interest during liis life and were chargeable only as the law fixed their liability: Roberson v. Nail, 85 Tenn. 124. In Pennsylvania advancements to all the heirs are settled as of the same time, after the death of the testator ; and the heirs last paid are entitled to interest from the time when the other heirs received the balances due them respectively : Yundt's Appeal, 13 Pa. St. 575 ; see Miller's Appeal, 31 Pa. St. 337. In Georgia, at one time, interest was charged only froiu the time the advance- ment was brought into hotchpot: Harris v. Allen, 18 Ga. 177. Hotchpot. 611 the period within which the administrator has to make a settlement has expired.^ 615. Rents and Profits — Increased Value. — The rents and profits are the donee's, and they cannot be charged to him as a part of his advancement;" nor can the accrued value of the estate given be charged him.^ 616. Improvements Erected by Donee. — Improve- ments erected by the donee on the land given cannot be 1 Watson's Estate, 2 W. N. Cas. 113 ; S. C 32 Leg. Int. 404; Bovd v. Wliite, 32 Ga. 530 ; Thompson's Estate, 8 W. N. Cas. J6; Ford's Estate, 28 Leg. Int. 221 ; S.C. 11 Phila. 97 ; Manner v. Winbnrn, 7 Ired. Eq. 142. Where a widow under her liusband's will advanced all his cliildren, but one of them much Lss than the others, interest was charged to each legatee on tlie excess of tlie advancements made to him from the death of the widow until the division : Cabell v. Piiryear, 27 Gratt. 902. The same rule was followed in Barrett v. Morriss, 33 Gratt. 273. If an heir bring in his advancement, altiioiigh unduly advanced, and he will receive nothing back, he is slill cliargeable with interest from the date of the death of the ancestor : McDougald v. King, Bail. Ch. 154. Hson V. Ison, 5 Rich. Eq. 15; Kyle v. Conrad, 25 W. Va. 760; Williams v. Stonestreet, 3 Rand. 559. Where a child, at the request of its parent, took pos- session of land and cultivated it for his own benefit, the court refused to charge him with the rents and profits he had received, for the reason that Jiis possession was precarious, and could not be considered as an advancement toward a permanent advancement in life : Christian v. Coleman, 3 Leigh, 30. But where a father permitted a child to rent out his (the father's) land, and to receive llie rents and profits, the child was charged with such rents and profits as an advance- ment: Williams v. Stonestreet, 3 Rand. 559. Rents may be charged wiien by tiic terms of the will it is necessary to equalize the shares: Jordan v. Miller, 47 Ga. 346; Wakefield v. Gilliland, 13 Ky. L. Rep. 845. In Louisiana the donee is charged with rent from the time of tlie opening of the succession, but he is reim- bursed for the taxes and insurance lie has paid out: Berthelot v. Fitch, 10 So. Rep. 867 (La.). ^Beckwith v. Butler, 1 Wash. (Va.) 224 (the slave given had a child, and it was decreed to be the donee's without charge to him as an advancement) ; Walton V. Walton, 7 Ired. Eq. 138 (increase of slave) ; Puryear v. Cabell, 24 Gratt. 260; M'Caw t;. Blewit, 2 McC. Ch. 90 (by statute). Where a life estate was reserved to the donor, the children of the slave, born after the gift, belonged to the donee: Wilks V. Greer, 14 Ala. 437 ; Burton v. Dickinson, 3 Yerg. 112. 612 Advancements. charged to him in estimating his advancement. It would be manifestly unfair to do so.^ 617. Property Wasted or Destroyed — Slaves Emancipated. — If the donee waste the property given him, before the donor's death, or it is destroyed, he cannot claim that it shall not be taken into account in the final distribution, even though it be destroyed the next day after title is fully vested in him. Its loss is his and not the donor's nor his co-distributee.^ Even though the property is destroyed by operation of law, yet the donee is chargeable with its value as of the date the gift is made. This is well illustrated by an advancement of slaves which were emancipated, before the final distribu- tion of the estate. In such instances the donee is charge- able with their value.^ But if the donor has died after the emancipation of the slave, then it is not to be con- sidered an advancement.* 618. Effect on Title to Property Advanced by Bringing into Hotchpot. — By bringing into hotchpot ^Powell V. Powell, 9 Dana, 12; M'Caw i;. Blevvit, 2 McC Ch. 90 (by statute). If the donee has received no title to the land given, he will be allowed for the improvements he has put on the land during his occupancy of it: Ware i'. Welsh, 10 Mart. (La.) 430. '^ Fleming's Appeal, 5 Phila. 351. 3 Banks V. Shannonhouse, Phil. (N. C.) L. 284; Puryear v. Cabell, 24 Gratt. 260; Kelley v. McCallum, 83 N. C. 5G3; McLure v. Steele, 14 Rich. Eq. 105; Meyer's Succession, 11 So. Rep. 532; West v. Jones, 85 Va. 616. If the slave was a loan, of course it cannot be charged as an advancement, though the value of its services may be : Hanner v. Winburn, 7 Ired. Eq. 142. *Hughey v. Eickellberger, 11 S. C. 36; Wilson v. Kelly, 21 S. C. 535; Ex ■parte Glenn, 20 S. C. 64. Where three heirs were advanced in slaves in 1855, 1859, and 1861, respectively, it was held proper, in allotting slaves in December, 1864, to equalize an heir who liad received none, to allot them asof their value in 1861, the subsequent emancipa- tion causing a loss common to all the heirs: West v. Jones, 85 Va. 616 (1889). In Louisiana if the slave was emancipated before the opening of the succession, the donee cannot be charged with its value as an advancement : Succession of Guillory, 29 La. Ann. 495. Hotchpot. Glo the property advanced the donee does not relinquish liis title to it ; but the title still remains in him, and only the value of such property is considered/ If the distributee advanced brings the property advanced into hotchpot, and it is then found that he has more property than, by counting his property a part of the assets of the estate, each distributee is entitled to, yet this will not effect his title to the overplus, unless he has executed a conveyance to his co-distributees or delivered to them such possession of the overplus as will render them on an equality with him.^ 619. Statute of Limitations. — The advanced distri- butee cannot plead the statute of limitations as an excuse for not bringing in the property advanced him, and in this way keep such property and share equally in the re- mainder of the assets of the intestate's estate.^ And this is true even if the advancement consists of a debt owed by the donee to the donor and which could not be col- lected because of the statute having run against it.* 620. Not a Part of Assets of Estate. — Property advanced, just like the case of a gift, is not a part of tli.- estate of the intestate ; and the administrator is not en- titled to the possession of it.^ ' Jackson v. Jackson, 23 Miss. 674 ; Elliott's Estate, 98 Mo. 379, 384. == We know of no case on this point, but the above statement is certainly rea- sonable. Perhaps, the court in awarding a distribution, in such a circumstance, would award judgment against the over-advanced distributee in favor of the other distributees for the amount severally due each. 3 Ackerman v. Ackerman, 24 N. J. Ch. 315 ; Marston v. Lord, 65 N. H. 4 ; Hughes's Appeal, 57 Pa. St. 179. ^Bird's Estate, 2 Pars. (Pa.) 168. Where a father purchased land in the name of his infant son, so as to make it an advancement, and then look po- session of the land as his own; it was held that the father could not^claim title by reason of his adverse claim and possession : White r. White, o2 Ark. 188. * French v. Davis, 33 Miss. 167 ; Haxton v. McClaren, 132 Ind. 235. 614 Advancements. 621. How Question of Advancement Litigated — Partition. — The question of udvaiicemerit may be liti- gated upon petition to the probate court having charge of the estate of the intestate.^ So it may be litigated where one distributee brings suit against another for having re- ceived, since the intestate's death, more than his share of the estate. So, too, where the advancement may consist of both real and personal property, modern statutes per- mit the question of advancement to be raised in a suit for the partition of the real estate of the intestate.^ If the advancement of the donee has been of jDcrsonal property, and there has been a distribution of the personal assets of the estate without such advancement having been taken into consideration, or if there are no assets of the estate, or not enough to equalize the heirs, then the question of advancements must be raised in the action of partition ; for the judgment of partition will preclude the un- advanced heirs from afterward raising the question or bringing an action against the advanced heir to call him to an account. The same is true of an action for distri- bution ; if the question of advancement is not raised and litigated, and there is no real estate subject to an action for partition, the unadvanced heirs will be barred from afterward bringing forward the question of advancement.'^ 'Smith V. Smith, 21 Ala. 761 ; Andrews v. Hall, 15 Ala. 85 ; Wilson r. Wilson, 18 Ala. 176. 2 Hobart v. Hobart, 58 Barb. 296 ; Green v. Walker, 99 Mo. 68 ; New v. New, 127 Ind. 576; Melvin v. Billiard, 82 N. C 33; Foltz v. West, 103 Ind. 404 ; Ben- oit V. Benoit, 8 La. 230; Scott v. Harris, 127 Ind. 520; White v. White, 41 Kan. 556 ; Ramsey v. Abrams, 58 la. 512. Contra, Myers v. Warner, 18 Ohio, 519. If an heir is indebted to the intestate his indebtedness may be considered as an advancement in an action of partition : New v. New, 127 Ind. 576. 3 Blancliard v. Commonwealth, 6 Watts, 309 ; .see Carlisle v. Green, 19 S. W. Rep. 9"J5, and Nonis v. Norris, 3 Ind. App. 500. Usually tiie case is tried by ihe court, but often statutes provide for juries: Gaillard v. Duke, 57 Ala. 619. Hotchpot. 615 622. Competency of Advanced Distributee to be A Witness. — In an action of partition or in a suit for distribution, the donee or advanced heir, under the usual statute concerning the competency of witnesses, is not competent as a witness to prove the declarations of the donor or intestate.^ If the party bringing a suit for distribnlion admit in his bill that he Las been advanced, lie must aver a willingness to bring the advanced property into hotch- pot : Tison v. Tison, 12 Ga. 208 ; S. C. 14 Ga. 167. Where a testator charged his real estate with the paymentof his debts, it was held that advancements are not to be considered in fixing the proportion of the debts wliich each devisee was to pay : Gaw v. Huffman, 12 Gratt. 628. An advancement made to a daughter cannot be offset by a claim held by her husband against her father: Adair v. Hare, 73 Tex. 273; Seagrist's Appeal, 10 Pa. St. 424. 1 Wolfe V. Kable, 107 Ind. 565 ; Dille v. Webb, 61 Ind. 85 ; Comer v. Come-, 119 111. 170, distinguishing Pigg v. Carroll, 89 111. 205. But contra, Graves v. Sped- den, 46 Md. 527 ; Williams v. McDowell, 54 Ga. 222. It has been held tliat the widow of the intestate may testify what her husband told her about certain property being an advancement when such advancement does not affect her distributive share, and no objection is raised that the testimony relates to confidential communications: Scott v. Harris, 127 Ind. 520. If the donee is the executor or administrator, it may be shown that he in- cluded the advanced property in his inventory of the assets of the estate; and he may then explain why he did it : Williams v. McDowell, 54 Ga. 222. APPENDIX. STATUTE OF DISTRIBUTIONS. AN ACT FOR THE BETTER SETTLEMENT OF INTESTATE's ESTATES. Be it enacted by the King's most excellent Majesty, with the advice and consent of the lords spiritual and temporal, and the commons in this present Parliament assembled, and by the authority of the same, That all ordinaries, as well as the judges of the prerogative courts of Canterbury and York for the time being, as all other ordinaries and ecclesiastical judges, and every of them, having power to commit administration of the goods of j)ersons dying in- testate, shall and may ujDon their respective granting and committing of administration of the goods of persons dying intestate, after the first day of June, one thousand six hundred seventy and one, of the respective person or persons to whom any administration is to be committed, take sufficient bonds with two or more able sureties, re- spect being had to the value of the estate, in the name of the ordinary, with the condition in form and manner fol- lowing, mutatis mutandis, viz. : II. The condition of this obligation is such. That if the within bounden A B, administrator of all and singular the goods, chattels, and credits of C D, deceased, do make and cause to be made, a true and perfect inventory of all and singular the goods and chattels and credits of the said deceased, which have or shall come to the hands and possession of any other person or persons for him, and the same so made do exhibit or cause to be exhibited into the 616 A'p'pendlx. 617 registry of court, at or before the day of next ensuing; (2) and the same goods, chattels, and credits, and all other goods, chattels, and credits of the said deceased at the time of his death, which at any time after shall come to the hands or pos- session of the said A B or into the hands and possession of any other person or persons for him, do well and truly administer according to law ; (3) and further do make or cause to be made, a true and just account of his said ad- ministration, at or before the day of and all the rest and residue of the said goods, chattels, and credits which shall be found remaining upon the said ad- ministrator's account, the same being first examined and allowed of by the judge or judges for the time being of the said court, shall deliver and pay unto such person or persons respectively, as the said judge or judges by his or their decree or sentence, pursuant to the true intent and meaning of this act, shall limit and appoint. (4) And if it shall hereafter appear. That any last will and testament was made by the said deceased, and the executor or ex- ecutors therein named do exhibit the same into the said court, making request to have it allowed and approved accordingly, if the said A B within bounden, being there- unto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said court ; then this obligation to be void and of none effect, or else to remain in full force and virtue. III. Which bonds are hereby declared and enacted to be good to all intents and purposes, and pleadable in any courts of justice ; (2) and also that the said ordinaries and judges respectively, shall and may, and are enabled to proceed and call such administrators to account, for and touching the goods of any person dying intestate ; 618 Ajipendix. (3) and upon hearing and due consideration thereof, to order and make just and equal distribution of what re- maineth clear (after all debts, funerals, and just expenses of every sort first allowed and deducted) amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks 'pro fuo cuique, jure, according to the laws in such cases, and the rules and limitation hereafter set down ; and the same distributions to decree and settle, and to compel such administrators to observe and 2:)ay the same, by the due course of his Majesty's ecclesiastical laws ; (4) saving to every one, supposing him or themselves aggrieved, their right of appeal as was always in such cases used. IV. Provided, That this act, or anything herein con- tained, shall not always prejudice or hinder the customs observed within the city of London or within the prov- ince of York, or other places, having known and received customs peculiar to them, but that the same customs may be observed as formerly ; anything herein contained to the contrary notwithstanding. V. Provided always, and be it enacted by the authority aforesaid, that all ordinaries and every other person who by this act is enabled to make distribution of the surplus- age of the estate of any person dying intestate, shall dis- tribute the whole surplusage of such estate or estates in manner and form following : that is to say, (2) one-third part of the said surplusage to the wife of the intestate, and all the residue by equal portions, to and amongst the children of such persons dying intestate, and such per- sons as legally represent such children, in case any of the said children be then dead, other than such child or chil- dren (not being heir-at-law) who shall have any estate by the settlement of the intestate, or shall be advanced Aj>pen(llx. 610 by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made ; (3) and in case any child, other than the heir-at-law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said in- testate in his lifetime by portion not equal to the share which shall be due to the other children by such distri- bution as aforesaid ; then so much of the surplusage of the estate of such intestate, to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the in- testate, as shall make the estate of all the said children to be equal as near as can be estimated ; (4) but the heir-at- law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the chil- dren, without any consideration of the value of the land which he hath by descent, or otherwise from the in- testate. VI. And in case there be no children nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate, who are in equal degree and those who legally represent them. VII. Provided, That there be no representations ad- mitted among collaterals after brothers' and sisters' chil- dren ; (2) and in case there be no wife then all the said estate to be distributed equally to and amongst the chil- dren ; (3) and in case there be no child, then the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever. 1 620 Appendix. VIII. Provided also, and be it likewise enacted by the authority aforesaid, To the end that a due regard be had to creditors, that no such distribution of the goods of any person dying intestate be made till after one year be fully expired after the intestate's death ; (2) and that such and every one to whom any distribution and share shall be allotted, shall give bond with sufficient sureties in the said courts, that if any debt or debts truly owing to the intestate shall be afterward sued for and recovered, or otherwise duly made to appear ; that then and in every such case he or she shall respectively refund and pay back to the administrator his or her ratable part of that debt or debts, and of the costs of suit and charges of the administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid. IX. Provided always, and it be enacted by the author- ity aforesaid, That in all cases where the ordinary hath used, heretofore, to grant administration cum testamento annexo, he shall continue so to do, and the will of the deceased in such testament expressed shall be performed and observed in such manner as it should have been if this act had never been made. X. Provided also, That this act shall continue in force for seven years, and from thence to the end of the next session of Parliament and no longer. 29 Car. 2, c. 3, s. 25 ; 30 Car. 2, stat. 1, c. 6, made perpetual by I Jac. 2, c. 17, s. 5. TABLE OP CASES CITED. Abbott V. Tenney, 18 N. H. 109 241, 468 Acker v. Phoenix, 4 Paige, 305 422 Ackerman v. Ackerman, 24 N. J. Eq. 315, affirmed lb. 585 386, 403, 404, 613 V. Fisher, 57 Pa. St. 457 400, 402, 403 Adair v. Hare, 73 Tex. 273 615 Adam's Estate, 35 Pa. L. Jr. 285 542 Adams v. Adams, 22 Vt. 50 521, 590 V. Brackett, 5 Met. 280 49 51 353 V. Hayes, 2 Ired. L. 36l' 12, 117, 127, 607, 608 V. Lansing, 17 Cal. 629 227 V. Lopdell, 25 L. R. Ir. 311 419 V. McMichael, 37 Ala. 432 182 V. Nicholas, 1 Miles, 90 36 Adamson v. Lamb, 3 Blackf. 446 383, 388 Aden v. Aden, 16 Lea, 453 519, 553, 590 Ahearne v. Hogan, 1 Drury (Irish), 310 457 Airey v. Hall, 3 Sm. & Gif. 315 428 Albany Fire Ins. Co. v. Bay, 4 N. Y. 9 211 Albert v. Albert, 74 Md. 526 132, 583 Alderson v. Peel, 64 L. T. 645 ; S. C. 7 T. L. Rep. 418 118, 125 Aldridge v. Muirhead, 101 U. S. 397 473 Alexander v. Alexander, 1 N. Y. St. Rep. 508 520 V. Brame, 7 De G., M. & G. 525 425 V. Morgan, 31 Ohio, 546 498 Alger V. North End SavingsBank, 146 Mass. 418 341 Alleman v. Manning, 44 Mo. App. 4 ' 518, 532, 583, 594 Allen V. Allen, 13 S. C. 512 534 V. Arme, 1 Vern. 365 87 V. Cowan, 23 N. Y. 502 106, 154 V. De Groodt, 98 Mo. 159 549, 554 V. Davis, 4 De G. & S. 133 458 Allen V. Duffie, 43 Mich. 1 ; S. C. 38 Am. Rep. 159 231, 281 V. Hooper, 50 Me. 371 53 V. Polereczky, 31 Me. 3.38 66, 86, 147 V. Richmond College, 41 Mu. 302 82 Aller V. Aller, 40 N. J. L. 446 242 Allerton v. Lang, 10 Bosw. (N. Y.) 362 69 V. Lang, 10 Bosw. 362 348 Alleyne v. Alleyne,8 Ir. Eq. 493; S. C. 2 Jon. & L. t>44 515, 554 Allman v. Pitrg, 82 111. 149 ; S. C. 25 Amer. Rep. 303 443 Alsop r. Santhold Savings Bank, 21 N. Y. Sup. 300 189, 317 Ambrose i'. Ambrose, 1 P. Wiuh. 321 591 AiTierican Bible Societv ';. Mar- shall, 15 Ohio St." 537 59 American, etc., Rv. Co. v. Miles, 52 111. 174 ' 56 Amer v. Chew, 5 Met. 320 51, 344 Amherst Academy v. Cowls, 6 Pick. 427 274 Anderson v. Baker, 1 Goo. 595 118, 121, 122, 204 V. Belcher, 1 Hill (S. C), L. 246 106 V. Dunn, 19 Ark. GnO 177, 202 V. Ellsworth, 7 Jur. N. S. 1047; S. C. 3 Girt. 154 447 r. Jackson, 16 Johns. 381 79 r. Scott, 94 -Mo. 637 226 V. Tliompson, 11 Leigh. 4;)9 176 Anderwood c. Waldron, 12 Mich. 73 ^'■•» Andree r. Ward, 1 Rn.«s. 2(">0 ^ l.s2 Andrew v. Andrew, 30 L. T. N. S. 457 ; 22 W. R. (W2 5.50 r. Blachlv, 11 Ohio St. SO 2t»2 V. Hall, 15 Ala. 85, «K) ^m Andrews v. Hall. 15 Ala. 85 601, 614 V. Hobson, 23 Ala. 219 420 V. Hallidav, 63 Ga. 263 543, 594 V. Oxlov, 38 la. 578 213 Annand r. Honevwood, 1 Eq. Cas. Abr. 153 621 532 622 Table of Cases Cited. Amis V. Witt, 33 Beav. 619 ; S. C. 1 B. & S. 109 ; 7 Jur. (N. S.) 499 ; 30 L. J. Q. B. 318 ; 9 W. R. 691 ; 4 L. T. N. S. 283 243, 248, 307 Anon., 3 Swan. 400, note 170 34 Ala. 430 480, 491 16 Abb. Pr. 428 456 Anson v. Townsend, 73 Cal. 415 385 Anthony v. Harrison, 14 Hun, 198, attirmed 74 N. Y. 613 242 Antrobus v. Smith, 12 Ves. 39 224, 351, 423, 425, 439 Archbishop of Canterbury v. Robertson, 1 Cr. & M. 690 505 Archer v. Hudson, 7 Beav. 551 442, 462 V. M'Fall, Rice L. (S. C.) 73 217, 218 Armitage v. Mace, 96 N. Y. 538 ; S. C. 16 J. & S. 107 49, 62, 107, 149, 156 V. Midoe, 36 Mich. 124 70, 73 Armstrong v. Timperon, 19 W. R. 558 : 24 L. T. N. S. 275 426 Arnold v. Haronn, 43 Hun, 278 536, 575, 596 Arrington v. Arrington, 1 Hav, 1 108, 115 V. Dortch, 77 N. C. 367 525 Ashbrook v. Rvan, 2 Bush. 228 312, 425 Ashley, Ex parte, 4 Pick. 21 521 582 Ashton V. Clerk, Sel. Ch. Cas. 14' 23 V. Dawson, Sel. Ch. Cas. 14 45 V. Dawson, 2 Colby, 364, note 191, 197 V. M'Dougall, 5 Beav. 56 ; S. C. 6 Jur. 447 ; 11 L. J. (N. S.) Ch. 447 484, 491 V. Thompson, 32 Minn. 25 457, 461, 462 Ash well V. Lomi, L. R. 2 P. & D. 477 ; S. C. 4 Moak. 700 458 Aston V. Pye, 5 Ves. 350 262 Atkinson, In re, 16 R. I. 413 320 V. Atkinson, 15 La. Ann. 491 212 V. Jackson, 8 Ind. 31 386 Attorney General v. Batley, 26 L. J. (N. S.) 392 59 Atwood V. Holcomb, 39 Conn. 270 473 Aubuchon v. Bender, 44 Mo. 566 437 Audenreid's Appeal, 89 Pa. St. 114; S. C. 33 Amer. Rep. 731 458 Augusta Savings Bank v. Fogg, 82 Me. 538 37, 141, 320 Austin V. Mead, L. R. 15 Ch. Div. 651; S. C. 50L. J. Ch.30; 43 L. T. 117; 28 W. R. 891 244, 245, 303 V. Palmer, 7 N. S. La. 21 565 Autrey v. Autrey, 37 Ala. 614 575, 578, 594 Babcock v. Babcock, 53 How. Pr. 97 480, 495 Back V. Andrew, 2 Vern. 120 555 Backer v. Meyer, 43 Fed. Rep. 702 121, 204 Badger v. Lyon, 7 Ala. 564 408 Baggs V. Baggs, 54 Geo. 95 213 Baiche v. Alie, 1 Rev. Leg. 77 24 Bailey v. Bailey, 6 Conn. 308 534 Baird v. Stearne, 15 Phila. 339 ; S. C. 39 Leg. Int. 374 485, 486, 489, 495 Baker v. Bradley, 7 De Gex., M. & G. 597 461 V. Chase, 6 Hill, 482 488, 495 V. Clark Inst., 110 Mass. 88 58 V. Johnston, 21 Mich. 319 275 V. Jordan, 73 N. C. 145 498 V. Leathers, 3 Ind. 558 528, 549 V. Williams, 34 Ind. 547 35, 72 Bakersfield, etc., v. Chester, 55 Cal. 98 392 Bale V. Newton, 1 Vern. 464 87 Ball V. Montgomery, 2 Ves. Jr. 191 ; S. C. 4 Bro. C. C. 339 479 Baltimore Retort, etc., Co. v. Mali, 65 Md. 93 ; S. C. 57 Amer. Rep. 304 351 Banks v. Hatton, 1 Nott. & McC. 221 197, 217 V. Marksberrv, 3 Litt. 275 5, 66, 67, 106, 170, 175, 177 V. May, 3 A. K. Marsh ,425 423 V. Sliannonhouse, Phillips L. (N. C.) 284 530, 612 V. Sutton, 2 P. Wms. 700 495 Bank of London v. Tyrell, 5 Jur. (N. S.) 924 57 Bank of Montreal v. Simson, 10 Low. Can. 225 469 Bank of U. S. v. Carrington, 7 Leigh. 576 546 Barber v. Taylor, 9 Dana, 84 527, 532, 606 Barclay's Estate, 2 W. N. C. 447 ; S. C. 33 Leg. Int. 108 119, 140 Barker v. Cormins, 110 Mass. 477 511, 512 V. Barker, 2 Gratt. 344 176 ■V. Frye, 75 Me. 29 228, 342 Table of Case's Cited. 623 Barker v. Harbeck, 17 N. Y. St. Rep. 678 333 V. Koneman, 13 Cal. 9 4, 369 Barnes v. Allen, 25 Ind. 222 601 V. People, 25 111. App. 136 45, 140, 144, 146 V. Ferine, 9 Barb. 202 ; S. C. 15 Barb. 249 ; 12 N. Y. 18 278, 279 Barkam v. McKneely (Ga.), 15 S. E. Rep. 761 542 Bark ley v. Tapp, 87 Ind. 25 474 Barney v. Ball, 24 Geo. 505 204 Barns v. Hatch, 3 N. H. 304 71 Barnum v. Reed, 136 111. 388 48, 193, 204, 229, 413 Barrett v. Morriss, 33 Gratt. 273 611 Barrill v. Calender, etc., Co., 50 Hun, 257 56 Barrow v. Greenough, 4 Ves. 152 438 Bartholomew v. Jackson, 20 Johns. 28 83 Bartlett v. Gillard, 3 Russ. 149 211 V. Pickersgill, 1 Eden, 515 547 V. Remington, 59 N. H. 364 335 Barton v. Gaines, 3 H. & N. 387 237 V. Rice, 22 Pick. 508 521, 587 t. Vanheythuysen, 11 Hare, 126 467 Barziza v. Graves, 25 Tex. 322 197, 202, 203, 204 Basket v. Hassell, 107 U. S. 602 ; S. C. affirming 6 Rep. 609, 8 Biss. 303 ; S. C. 108 U. S. 267 98, 120, 178, 243 307 Bason v. Harden, 72 N. C. 281 605 Bateman v. Bateman, 2 Vern. 436 549 Bates V. Kempton, 7 Gray, 382 99 240 V. Vary, 40 Ala. 4.34 ' 116 Batstone v. Salter, 10 L. R. Ch. App. 431 ; S. C. L. R. 19 Eq. Cas. 250 532, 555, 569 Battersbee v. Farrington, 1 Swanst. 106 49 Batton V. Allen, 1 Hal. Ch. 99 563, 564, 575, 596 Baurne v. Fosbrooke, 18 C. B. N. S. 515 ; S. C. 34 L. J. C. P. 164 ; 11 Jur. N. S. 202 107 Bay V. Cook, 31 lU. 336 11, 468, 549, 570 Bayley v. Boulcott, 4 Russ. 345 92,226,421,422 Baxter v. Knowles, 12 Allen, 114 51, 199 Beach v. First M. E. Church, 96 111. 177 280 V. White Ch. (Mich.) 495 469 Beak v. Beak, 13 L. R. Eq. 489 ; S. C. 4 L. J. Ch. 470, 26 L. T. 281 302 Beale ?;. Dale, 25 Mo. 301 2 is V. Warren, 2 Grav, 447 437 Beall V. Beall, 8 Ga. 2'l0 96 V. Clark, 71 Geo. 818 376, 387, 392, 395, 404 Beals V. Crowley, 59 Cal. 665 37, 140 Beard v. Nutthall, 1 Vern. 427 87 Beardslee v. Reeves, 76 Mich. 661 243 Beatie v. Calhoun, 73 Geo. 269 369 Beatson v. Beatson, 12 Sims. 281 S7, 426 Beaver v. Beaver, 62 Hun, 194; S. C. 16 N. Y. Supp. 476 320, 321 V. Beaver, 32 N. E. Rep. 998 308 V. Beaver, 117 X. Y. 421 ; re- versing 53 Hun, 258 117, 126, 320, 321, 419 Beck V. Beck, 64 la. 155 495 V. Graybill, 28 Pa. St. 66 567 Beckford v. Beckford, Loflt. 490 549 554 Beckwith v. Butler, 1 Wash. (Va.)' 224 606,611 Bedell v. Carll, 33 N. Y. 581 16, 21, 55, 62, 64, 76, 106, 192, 194, 231,241,258 Beebe v. Estabrook, 79 N. Y. 24(3 ; S. C. 11 Hun, 523 524 Beech v. Keep, 18 Beav. 285 : S. C. 18 Jiir.971;23L. J.Ch. 539; 2 W. R. 316, 352 423, 428 V. Mayall, 16 Ciray. 37(i \W Beeden or Beecher r. Mavor, 11 Jur. N. S. 537 : S." C. 13 W. R. 853; 12 L. T. (N. S.) 562; affirmed 18 L. T. (N. S.) 554 352 Beeman v. Knajip, 13 Gr. Ch. 398 445,451,453,459 Beers r. New York Life Ins. Co., 20 N. Y. Supp. 7S8 58 Behan v. Erickson, 7 Qui). L. 295 4(«» Beith r. Beith, 76 la. 601 44S Bell V. Ferguson, 3 Gr. (Pa.) 289 4*^0, 4S1 V. ISfcCawlev, 29 Geo. 355 21 S, 220, 228 V. Strother, 3 ^foC. 207 ' 217, 224 Beniis v. Stearns, l(i Mass. 200 588 Bennett, In re, 17 L. T. N. S. 4.38 417 V. Bennett, 10 Ch. Div. 474 ; S. C. 27 W. R. 573 ; 40 L. T. N. S. 378 532, 569 624 Table of Cases Cited. Bennett v. Cook, 28 S. C. 353 66, 164, 184, 199, 201 V. President, etc., 11 Mass. 421 168 V. St. Louis, etc., 19 Mo. App. 349 56 Benoit v. Benoit, 8 La. 228 509, 614 Bensley v. Atwell, 12 Cal. 231 71 Bent V. Bent, 44 Vt. 555 213 V. Priest, 86 Mo. 475 58 Bentley v. Dunkle, 57 Ind. 374 468 V. Mackav, 15 Beav. 12 419 Berdo v. Dawson, 34 Beav. 603 462 Beresford v. Archbishop of Ar- magh, 13 Sims. 643 211 V. Crawford, 51 Ga. 20 578 Bergen v. lldall, 31 Barb. 9 4()1 Berrien r. M'Lane, Hoff. Ch. 421 456 Berry v. Berry, 31 la. 415 80 V. Kinnaiird, 20 S. W. Rep. 511 87 V. Morse, 1 H. L. Cas. 71 563 Berthelot v. Fitch, (La). 10 So. Pvep. 867 606, 611 Bestor v. Wathen, 60 111. 138 58 Bettes V. Magoon, 85 Mo. 301 49 Bettle V. Wilson, 14 Ohio, 257 213 Betts V. Frances, 1 Vr. 152 213 Bettv V. Moore, 1 Dana, 235 182 Bibb V. Hunter, 79 Ala. 351 546 V. Smith, 1 Dana, 580 423, 454 Biedler v. Biedlei', 87 A' a. 300 601 Biehn v. Biehn, 18 Gr. Ch. 497 376 Bigelow V. Paton, 4 Mich. 170 112, 120 V. Poole, 10 Grey, 104 585 Billage v. Southee, 9 Hare, 534 ; S. C. 16 Jur. 188 457 Billings V. Devaux, 3 Man. & Gr. 565 300 Binion v. Stone, 2 Fren. Ch. 169 ; S. C. Nels. 68 553 Birch V. Blagrave, Amb. 264 425 Bird's Estate, 2 Pars. (Pa.) 168 613 Birr v. People, 113 111. 7 Bishop r. Davenport, 58 111. 105 541 V. Redmond, 83 Ind. 157 470 Bissell V. City of Kankakee, 64 111. 249 58 Bivins v. Jarnigin, 3 Baxt. 282 96 Black V. Black, 2 E. & A. U. C. 419, reversing 9 Gr. 403 398 V. Black, 30 N. J. Eq. 215 52, 53, 464 V. Whitall, 1 Stock. (N. J.) 572 533, 609 Blackerrv v. Holton, 5 Dana, 520 540 Blagg V. Hunter, 15 Ark. 246 201, 204, 372 Blaisdell v. Lock, 52 N. H. 238 336, 424 Blaikie v. Clarke, 22 L. J. Ch. 377 457 Blain v. Terryberry, 9 Gr. Ch. 286 207 Blake v. Jones, Bail Eq. (S. C.) 141 104, 203 V. Kearney, Manning (La.), 320 260 V. Pegram, 109 Mass. 541 141 Blakey v. Blakey, 9 Ala. 391 170, 175 Blakely v. Brady, 2 Dru. & Wal. 311 256, 428 V. Tisdale, 14 Rich. Eq. 90 54 Blalock V. Milard, 87 Geo. 573 198, 369, 377 Blanchard v. Commonwealth, 6 Watts, 307 614 V. Sheldon, 43 Vt. 512 32, 77, 141 V. Williamson, 70 111. 647 268 Blanchett v. Foster, 2 Ves. Sr. 264 479, 489 Bland v. Macculloch, 9 W. R. 65 154 Blatchford v. Ross, 5 Abb. Pr. N. S. 434 56 Blithe's Case, Freem. Ch. 91 479 Blockley v. Blocklev, 29 L. R. Ch. Div. 250;S. C. 54L.J. Ch. 722 ; 33 W. R. 777 11, 559 Bloomer v. Bloomer, 2 Bradf. 339 23, 41, 98 Blount V. Burrow, 4 Brown C. C. 72 21, 27, 29 Board, etc., v. Auditor-General, 68 i\Iich. 659 64, 87 V. Callihan, 33 W. Va. 209 111 Boardman r. AVillard, 73 la. 20 430 Bohanan v. Bohanan, 96 111. 591 377 Bohn V. Headley, 7 H. & J. 257 170, 177 Bolin's Estate, 32 N. E. Rep. 626; S. C. 20 N. Y. Sup. 16 329 Bolton V. Bolton, Swanst. 414 440 Bonaffe v. Bonaffe, Mann (La.), 339 67, 119 Bone V. Pollard, 24 Beav. 283 549 Boney v. Hollingsworth, 23 Ala. 690 459 Booker v. Allen, 2 R. &. M. 270 530, 593 Boone v. Citizens' Savings Bank, 21 Hun, 235 324, 342 Booth V. Cornell, 2 Redf. 261 62 V. Terrill, 16 Ga. 20 ; S. C. 18 Geo. 570 7, 9, 176, 182 V. Woodbury, 32 Conn. 118 59 Boozer v. League, 27 S. C. 348 547 Borneman v. Sidlinger, 15 Me. 429 ; S. C. 21 Me. 185 45, 140, 145, 241, 243 Table of Case^i Cited. 625 Boruflf V. Stipp, 126 Ind. 32 48 Borum v. King, 37 Ala. GOi) 241 Boston, etc., Co. v. Ansell, 59 L. J. Rep. 345 57 Bostwick V. Mahaffy, 48 Mich. 342 140, 146 Bottle V. Knocker, 25 W. R. 209 ; S. C. 35 L. T. N. S. 545 ; 46 L. J. Ch. 159 370 Boudreau i'. Boudreau, 45 111. 480 194, 228 Bouajhton v. Boughton, 1 Atk. 625 87 Bourne v. Hart, 93 Cal. 321 54 V. Steven,» Bank, 10!) Mass. 149 .345 Brolasky's Estate, 3 Penny, 329 5 L. R. Iv]. 275;S.C. 37L.J. Ch.W2; ]8 L. T. N. S. 628: 16 W. R. 1006 244, 2.»4. 295 Brook V. Latimer, 44 Kan. 431 511. 5»;4. .193 Brooks V. Brooks, 12 S. C. 422 -W. V. Fowler, 82 Geo. 329 -JO*] Brown r. Bisiiop,5 Hawaiian, .■>4 AU V. Brown, 18 C >nn. 410; S. C. 46 Am. Dec. 328 21.239,241,243 r Brown, 4 B. Mon. 5:V> 86, 107 V. Brown, 2 Ired. Eq. 309 53o 626 Table of Cases Cited. Brown v. Brown, 16 Vt. 197 521, 582 V. Brown, 23 Barb. 565 326 V. Bronson, 45 Mich. 415 480, 495 V. Burke, 22 Ga. 574 549 V. Dortch, 12 Heisk. 740 607 V. Kelsey, 2 Gush. 243 182 V. Kennedy, 33 Beav. 133 ; 8. G. 9 Jur. N. S. 1163 371 V. Moore, 3 Head. 670 32, 268 V. Niethammer, 141 Pa. St. 114 91, 156 V. Taylor, 62 Ind. 295 526 V. Vandermuelen, 41 Mich. 522 469 Browne v. Cavendish, 1 J. & L. 637 436 Brownlee v. Fenwick, 103 Mo. 420 64, 226 Brownlow v. Meath, 2 Ir. Eq. 383 ; S. C. Dr. & Wal. 674 533 Browns v. Brown, 4 B. Mon. 535 6,170 Bruce v. Griscom, 9 Hun, 280 ; S. G. 70 N. Y. 612 563, 594 V. Slemp, 82 Va. 352 528, 575, 590 V. Wood, 1 Met. 542 508 Brummet v. Barber, 2 Hill (S. G.), 543 182 Bruner v. Bruner. 115 111. 40 91 Brunson v. Brunson, Meigs, 630 107, 601 Brvant v. Ingraham, 16 Ala. 116 106, 204, 225 Bryan v. Duncan, 11 Ga. 67 9 Brysoin v. Browrigg, 9 Ves. Jr. 1 23, 168 Buchanan's Estate, 2 Ghester (Pa.), 74 576 V. McNinch, 3 S. G. 498 470, 471 Buck V. Kittle, 49 Vt. 288 542 r. Pike, 11 Me. 9 546 Buckeridge v. Glassie, A. & P. 126 211 Buckingham's Appeal, 60 Gonn. 143 320, 329 Buckley v. Dunn, 67 Miss. 710 473 Bucklin v. Bucklin, 1 Abb. Ajip. Dec. 242 273 • Bucknor's Estate, 7 Pa. G. C. 361 518, 532 Buford's Heirs, 1 Dana, 107 440 Buford V. McKee, 1 Dana, 107 371 Bulbcck V. Silvester, 45 L. J. Gh. 280 433 Beith V. Beith, 76 la. 601 459 Bulkelev /'. Noble, 2 Pick. 337 582, 586, 587, 596 Bull V. Brav, 89 Gal. 286 468 Bullard v. Bullard, 5 Pick. 331 553 207 29() 8S 38'.t 278 394 Bullard v. Randall, 1 Gray, 606 2SS Burn V. GarvaIho,4 M. & Cr. 690 42(5 Bunn V. Markham, 7 Taunt. 224 ; S. G. 2 Marsh, 532, Holt, N. P. 352 20, 21, 43, 98, 116, 135, 176 V. Winthrop, 1 Johns. Gh. 329 420, 425 Burbeck v. Spollen, 10 Amer. Rec. 491 518, 595 Burgers v. Ghandler, 4 Rich. L. 170 218, 220 Burgess v. Pollock, 53 Iowa, 273 Burk V. Turner, 79 Tex. 276 Burke v. Bishop, 27 La. Ann. 465 ; S. G. 21 Ainer. Rep. 567 V. Steele, 40 Ga. 217 Burkholder v. Ludlam, 30 Gratt. 255; S. C. 32 Am. Rep. 668 Burlington University v. Barrett, 22 la. 60 Burney v. Ball, 24 Geo. 505 36, 199 Burns v. Burns, 21 Gr. Gh. (U. C.) 7 378, V. Sutherland, 7 Barr, 103 386, 401, 408 Burt V. Kimbell, 5 Port. (Ala.) 137 12 Burton v. Baldwin, 61 la. 283 522, 552, 596 V. Bridgeport Savings Bank,'52 Conn. 398;S. G 52 Am. Rep. 602 V.Dickinson, 3 Yerg. 112 V. Duffield, 2Del. Ch. 130 V. Pierpont, 2 P. Wnis. 78 Busby V. Byrd, 4 Rich. Eq. 9 172, 176 Buschain );. Hugart, 28 Ind. 449 166 Busenbark v. Busenbark, 33 Kan. 572 487, 495 Bush V. Decuir, 11 La. Ann. 503 64, 70 Buswell V. Fuller, 31 N. E. Rep. 294 128 Butler's and Baker's Case, 3 Coke Rep. 26 h. 229, 427 Butler V. Butler, 21 Kan. 521 ; S. C. 30 Am. Rep. 541 480, 462, 486, 487, 495, 497 V. Hughes, 35 Geo. 200 218 V. M. Ins. Co., 14 Ala. 777 549 V. Scolield, 4 J. J. Mar. 139 337 611 376 50 Buzick ;,'. Buzick, 44 la. 259 Byrd v. Ward, 4 McC. 228 Byrn v. Godfrey, 4 Ves. 6 170, 36S 495 220 2f)2 Cabell V. Puryear, 27 Gratt. 902 611 Table of Cases Cited. 627 Cadogan v. Kennett, Cowp. 4;]2 467 Cadwallader v. West, 458 Cain V. Ligon, 71 Geo. 692 210, 212, 463 Cameron v. Cameron, 10 Em. & M. 394 496 Caines v. Marlev, 2 Yerg. 582 170, 177 r. Colburn, 104 Mass. 274 213 Caldwell v. Renfrew, 33 Vt. 213 140, 186 V. Stuart, 2 Bail L. 574 230 V. Williams, 1 Bail, Eq. 175 422, 431 V. Wilson, 2 Speer Eq. 75 104, 107, 187 Calker's Estate, 5 Redf. 480 227 Cullender v. Horner, 26 Neb. 687 49 V. McCreary, 4 How. (Miss.) 356 533 Calvert r. Davis, 5 Gill. & J. 269 449 Camp V. Camp, 18 Hun, 217, re- versin-z 2 Redf. 141 537 Camp's Appeal, 36 Conn. 88 ; S. C. 4 Amer. Rep. 39 241, 317 Campbell's Estate, 7 Pa. St. 100 66, 254, 257, 260 Campbell v. Campbell, 21 Mich 438 52, 547 V. Campbell, 70 Wis. 311 547 V. Mayes, 38 la. 9 376 Cannon v. Apperson, 14 Lea, 553 609 Capek V. Kropik, 129 111. 509 209, 369 Caple V. McCollum, 27 Ala. 461 54() Carew v. Mathews, 49 Mich. 302 52 Carhart v. Harshaw, 45 Wis. 340 472 Carle ton v. Earl of Dorset, 2 Vern. 17 ; S. C. Eq. Ca. Abr. 59, pi. 3 479 Carley v. Green, 12 Allen, 104 51 Carlisle v. Green, 19 S. W. Rep. 925 614 Carpenter v. Butterick, 41 Mich. 706 191 V. Davis, 71 111. 395 163 V. Lodpe, 20 Vt. 595 5 V. Frankhn, 89 Tenn. 142 49 50,473 V. Soule, 18 N. Y. 251, af- firming 13 Wkly. Dig. 55 245, 260, 263 Carradine v. Carradine, 68 Miss. 286 117, 118, 125, 166, 173, 187 Carter v. Buchanan, 9 Geo. 539 218 V. Buckingham, 1 Handv, 395 107, 109, 159, 191, 193, 198, 204 V. Challen, 83 Ala. 135 546 V. Cutting, 5 Munf. 223 563 PA46 Central Trust Co. v. New Yurk City, etc., R. R. Co., 18 Abb. N. C. .381 3»i<-. Ccrney v. Pawlot, m Wis. 262 .547 Cevill V. Rich, 1 Vern. 181 50<5, hX^ ChacluM-e v. Dumurtrait, 2 La. 40 37« Chadoin v. Carter, 12 B. Mun. 383 17'' Chadwick v. Doleman, 2 ^ trn. 528 ^' Chalker v. Chalker, 5 Redf. 480 448 Chamberlaine r. Cliamlx^rlaino, Freem. Ch. 34 4.S.8 Chambers v. Crabbe, 34 Bcav. 455 462, 480 V. St. Louis, 29 Mo. 543 59 628 Table of Cases Cited. Champion v. Gordon, 70 Pa. St. 474 202 Champney v. Blanchard, 39 N. Y. 411 16, 27, 125, 131, 246, 247 Chandler v. Chandler, 62 Ga. 612 89 V. Ferris, 1 Har. 454 449 t'.Hollingsworth, 3 Del. Ch. 99; 8.' C. 17 Amer. L. Reg. 319 480,487,493, 494, 496 Chaney ('.'Basket, 6 Repr. 769 241 Chantrell v. Chantrell, 37 L. T. N. 8. 220 562 Chapleau v. Chapleau, 1 Leg. News, 473 460 Chapman v. Allen, 56 Conn. 152 518, 538, 580 V. Gibson, 3 Bro. C. C. 229 523 Chappell V. Griffith, 52 L. T. 459 ; S. C. 50 J. P. 86 421, 423 Charlebois v. Cahill, 20 Law Can. Jur. 27 74 Charles v. Coker, 2 S. C. 122 211 Charlesworth v. Holt, L. R. 9 Exch. 38 213 Chase's Estate, 7 Pa. C. C. 298 389, 540 Chase V. Box, 1 Eq. Cas. Abr. 155 532 V. Ewing, 51 Barb. 597 511, 512 V. McCay, 21 La. Ann. 195 469 V. Redding, 13 Gray, 418 46, 473, 474 V. Welsh, 45 Mich. .345 469 Chenier v. Coutlee, 7 Low. Can. Jur. 291 81 Cheshire v. Pavre, 16 B. Mon. 618 480, 482, 484, 485, 490 Cheval v. Morrin, 6 Low. Can. .Jur. 229 81 Chevallier v. Wilson, 1 Tex. 161 99, 105, 108, 110 Chew r. Calvert, 1 Walk. (Miss.) 54 383 V. Chew, 383 la. 405 213 Chichester r. Coventry, L. R. 2 FT T 71 51 5 Child w." Child, 5 N. Y. Wkly. Dig. 16 71 Chiles V. Gallagher, 67 Miss. 413 566 Chinn v. Murray, 4 Gratt. 348 606, 607 Christian College v. Hendley, 49 Cal. 347 275 Christian v. Coleman, 3 Leigh. 30 611 Christ's Hospital v. Budgin, 2 Vern. 683 266, 570, 571 Christy's Appeal, 1 Grant (Pa.), 369 510, 564, 565 Christy v. Courtenay, 13 Beav. 96 213 550 553 Church V. Cole, 36 Ind. 34 ' '546 Citizens' Nat. Bank v. Elliott, 55 la. 104 56 City Wharton v. Walker, 4 B. & C. 163 ; S. C. 6 Dowl. & Ry. 288 89 Claiborne v. Tanner, 18 Tex. 68 12 Clark's Case, 37 L. J. (N. S.) 222 57 Clark V. Clark, 108 Mass 522 333, 345, 546 V. Danvers, 1 Ch. Cas. 310 569 V. Depew, 25 Pa. St. 509 468 V. Kingsley, 37 Hun, 246 536, 537 V. Smith, 13 S. C. 585 49 V. Troy, 20 Cal. 219 439 V. Warner, 6 Conn. 355 582 V. Willson, 27 Md. 693 562, 574, 590, 595, 606,607 Clark Co. v. Lawrence, 63 111. 32 59 Clarke v. Clarke, 17 B. Mon. 698 534, 587 V. Imperial, etc., Co., 4 B. & Ad. 315 57 V. King, 34 W. Va. 631 214 V. Lott, 11 111. 105 423 Clarkson v. Stevens, 106 TJ. S. 505 ; S. C. 29 N. J. Eq. 602 ; 28 N. J. Eq. 487 192 Clavering v. Clavering, Prec. Ch. 235 ; S. C. 2 Vern. 473 87 V. Yorke, 2 Colly, 363 2()1 Clawson v. Clawson, 25 Ind. 229 49 V. Eichbaum, 2 Grant Cas. 130 71 Cleaver v. Kirk, 3 Met. 270 521 Clement v. Chesseman, 27 Ch. Div. 631 ; S. C. 54 L. J. Ch. 1.58; 33 W. R.40 297,304 Clements v. Hood, 57 Ala. 459 574, 575, 578, 577, 580, 594, 596 Clendenning v. Clymer, 17 Ind. 155 513 Cline V. Jones, 111 111. 563 574, 575 Clock V. Chadeagne, 10 Hun, 97 131 Clough V. Clough, 117 Mass. 83 79 Cobb V. Knight, 74 Me. 253 436 Cobbett V. Brock, 20 Beav. 524 458 Cochrane v. Moore, 25 Q. B. Div. 57; S. C. 59 L. J. Q. B. 377 ; 63 L. T. 153 ; 38 W. R. 588 ; 54 J. P. 804 ; 6 T. L. R. 296 107, 108, 109, 117, 124, 1.30, 131 Coggeshall v. Pelton, 7 Johns. Ch. 292 60 Table of CUses Cited. (j'2'j Cole V. Leake, 27 Miss. 767 603 V. Lucas, 2 La. Ann. 946 54, 118, 127 V. O'Neill, 3 Md. Ch. 174 480, 484, 485 Coles V. Pilkington, 44 L. J. Ch. 381 ; S. C. 19 L. R. Eq. 174 384 Coleman v. Parker, 114 Mass. 30 136, 196 V. Smith, 55 Ala. 368 602 Collier v. Baptist Education Societj^ 8 B. Mon. 68 274, 276 Collins V. Johnson, 57 Ala. 304 97, 377, 391 CoUinson v. Collinson, 5 De G., M. & G. 409 550, 553 r. Pattrick, 2 Keen, 123 250, 419, 429 Colman v. Parker, 114 Mass. 30 134 r. Sarrel, 1 Ves. 50 ; S. C. 3 Bro. C. C. 12 370, 415, 423, 421 V. Williams, 1 Bailv (S. C), Eq. 175 " 440 Combs V. Watson, 2 Cin. S. C. (Ohio) 523 468 Comer v. Comer, 119 HI. 170 586, 594, 595, 615, 574 V. Folsom, 13 Minn. 213 59 Comings v. Wellman, 14 N. H. 287 551, 554 Commissioners of Canal Fund v. Perry, 5 Ohio St. 55 275, 276 Commonwealth v. Crompton, 137 Pa. St. 138 350 Commonwealth Ins. Co. v. Crane, 6 Met. 64 56 Comstock V. Comstock, 57 Barb. 453 453 V. Howd, 15 Mich. 237 275, 280 Congregational Society v. Perrv, 6 N. H. 164 ■ * 275 Coningham v. Plunkett, 2 Y. & Coll. N. C. 245 427 Conklin v. Conklin, 20 Hun, 278 223, 230, 259 Conkling v. Springfield, 39 111. 98 80 Conn V. Prewitt, 48 Ala. 637 377, 392, 408 Conner v. Hull, 36 Miss. 424 2 V. Root, 11 Colo. 183 65, 140, 209, 210, 230, 307 Connor v. Trawicks, 37 Ala. 289 171, 172 Conover v. Ruckman, 36 N. J. Eq. 493 468, 470 Conrad v. La Rue, 52 Mich. 88 279 Conser v. Snowden, 54 Md. 175 ; S. C. 39 Am. Rep. 368 22, 27, 29, 37, 105, 322 Constant v. Schuyler, 1 Paige, 316 241,270 Conyers v. Weltman, 14 N. H. 287 590 Copeland v. Northeastern R. W Co., 6 El. & Bl. 277 a51 Copp V. Sawyer, 6 N. H. 386 268, 2H9 Cook V. Husted, 12 Johns. 188 1U.> Cooke v. Lamotte, 15 Beav. 234 99, 4H2 Cooner v. May, 3Strobh. Eq. 185 521, 560, 5»)l Cooper V. Burr, 45 Barb. 9 107, 137, 181, 207 Cordery v. Zealy, 2 Bail. (S. C.) L. 205 106, 471, 472 Corle V. Monkhouse, 25 Atl. Rep. 157 152, 241 Corley v. Corlev, 2 Coldw. 520 370, 372 Corman v. Carroll, 7 Allen, 199 274 Cormerais v. Wesselhoeft, 114 Mass. 550 213 Cornell v. Cornell, 12 Hun, 312 230, 243, 348 Cornish v. Clark, L. R. 14 Eq. 184 ; 42 L. J. (N. S.) Ch. 42 : 20 W. R. 897;26L. T. (N. S.) 494 4(>S Cornwall, In re, 6 Nat. Bank Ref. 305 2H'.) Corrigan v. Corrigan, 15 Gr. Ch. 341 460 Corson's Estate, 137 Pa. St. 160 551, 457 Corwn V. Corwin, 9 Barb. 219 4.39 Cosnahan v. Grice, 15 Moo. P. C. 215 ; S. C. 7 L. J. N. S. 81 21, 27, 231 Cottage Street Church v. Ken- dall, 121 ]\rass. 528 280, 28(i Cotteen v. Missing, 1 Maild. Cli. 103 ()3. (14, 415, 422, 429 Cotton r. King, 2 P. Wms. 358 ; S. C. 2 Eq. Ca. Abr. 53, pi. 10 87, 425, 479, 4S4 r. Wood, 25 la. 43 213 Coulson r. AUison, 2 De Gex., F. ct J. 521 458 Coutant V. Schuyler, 1 l'aige,316 1-10 Coutta V. Acworth, L. R. 8 Eq. 558 99. 437, 447, 44H Cowee /'. Cornell, 75 N. Y. 91 ; 8. C. 31 Am. Rei>- -128 197. 253. 259, 2H9 Cowell V. Dacrgett, 97 Ma.>^s. 434 49 Cowen, In re, 3 Pitts. 471 242. 2f>') Cowper V. Scott. 3 Pr. Wms. 119 53.) Cox i\ Barnard, 8 Hare, 310 256 630 Table of Cases Cited. Cox V. Cox, 26 Gratt. 305 382, 398 V. Hill, 6 Md. 274 65, 106, 176, 182 V. Hunter, 79 Md. 590 469 V. Sprigg, 6 Md. 274 420 (Jrobbe v. Crobbe, 1 Mvlne & K. 511 ; S. C. 36 L. J. Ch. N. S. 181 549, 555 Craig V. Craig, 3 Barb. Ch. 76 268 V. Kittredge 46 N. H. 57 32, 88, 119 V. Monitor, 76 la. 577 49, 50 V. Moorhead, 44 Pa. St. 97 565 Crain v. Wright, 46 111. 107 213 Crane v. Allen, 11 La. Ann. 492 202 V. Gough, 4 Md. 316 ; S. C. 3 Md. Ch. 119 440 Cranson v. Cranson, 4 Mich. 330 480, 487, 496 Cranz v. Kroger, 22 III. 74 87, 160, 171 Crawford, Matter of, 113 N. Y. 560 254, 308 Crawford's Appeal, 61 Pa. St. 52 418, 433 Crawford r. Munson, 82 Ga. 118 7 8 378 V. McElvoy, 2 Sp. (S. C.) 225 ' 199 V. Puckett, 14 La. Ann. 639 2, 12, 90 Cray v. Rooke. Talb. Cas. 156 271 Crecelius v. Horst, 4 Mo. App. 419 495 Creed v. President, etc., 1 Ohio St. 1 470, 472, 549 Crops V. Baird, 3 Ohio St, 277 71 Cressman's Appeal, 42 Pa. St. 147 428 Crippen v. Bearden, 5 Humph. 128 533 Crispell v. Dubois, 4 Barb. 393 457 Crittenden v. Canfield, 87 Midi. 152 369, 377 V. Phoenix Mutual Life Ins. Co., 41 Mich. 442 184, 249 Crompton v. Vasser, 19 Ala. 259 422 Crook V. First Nat. Bank, 52 N. W. Rep. 1131 248 Crosbie v. M'Doul, 13 ^'es. 148 376 V. McDonal, 13 Ve.s. 148 550 Crosby v. Covington, 24 Miss. 619 511, 533, 562 Cross V. Cross, L. R. 1 Ch. (Ir.) Div. 389 22, 262 V. Sprigg, 6 Hare, 552 ; S. C. 18 L. J. Ch. N. S. 204 262 Crosslev v. Ehvorthv, L. R. 12 Eq. 158; S. C. 40 L. J. (N. S.) Ch. 480 ; 19 W. R. 842; 24L. T. (N. S.) 607 468 Crowles v. Crowles, 56 Conn. 240 518 Crum V. Thornley, 47 111. 192 191 Crumbaugh v. Kugler, 2 Ohio St. 373 468, 472 Cruse V. Axtell, 50 Ind. 49 58 Cunimings v. Bramhall, 120 Mass. 552 364, 610 V. Coleman, 7 Rich. Eq. 509 228, 469, 480, 485 V. Meaks, 2 Pitts. 490 ; S. C. 11 Pitts. L. Jr. 291 194, 224 Curlin v. Hendricks, 35 Tex. 225 376 Currant v. Jago, 1 -Coll. 261 523 Curry v. EUerbe (not reported) 157 V. Powers, 70 N. Y. 212 ; S. C. 26 Am. Rep. 577 303, 323 V. Rogers, 21 N. H. 247 280 Cutler V. Tuttle, 19 N. J. Eq. 549 214 Curtis V. Portland Savings Bank, 77 Me. 151 ; S. C. 52 Am. Rep. 750 317 318 Curtiss V. Barrus, 38 Hun, 165 36, 256 Cutter r. Butler, 5 Post. (N. H.) 355 51 V. Griswold, Walker Ch. (Mich.) 437 469 Cutting V. Oilman, 41 N. H. 147 127 V. Tavlor, 51 N. W. Rep. 949 54 Cutts V. Perkins, 12 Mass. 206 300 Gushing v. Gushing, 7 Bush, 259 541 Cushman v. Thaver Manuf. Co., 76N. Y. 365; S. C. 32 Am. Rep. 315, affirming 7 Daly, 330 365 D'Orgenay v. Droz, 13 La. 382 6 Dalbiac ?'. Dalbiac, 16 Ves. 116 211 Dale V. Knapp, 98 Pa. St. 389 ; S. C. 42 Amer. Rep. 624 ; 38 Amer. 165 281 V. Lincoln, 62 111. 22 369 Danby v. Tucker, 31 W. R. 578 107, 123 Daniel v. Frost, 62 Geo. 697 394, 396 V. Smith, 64 Cal. 346 ; 75 Cal. 548 25, 43, 45, 106 120 V. Veal, 32 Ga. 589 92 Danlev v. Rector, 5 Eng. (Ark.) '211 49 Darden v. Harrill, 10 Lea, 421 520, 574, 575 Darland v. Taylor, 52 la. 503 70, 72, 260 Darlington v. McCoole, 1 Leigh, 36 423 Darne r. Llovd, 82 Va. 859 515, 517 Darrier r. Darrier, 58 Mo. 222 213 Datt's Estate, 34 Pitts. L. Jr. 349 597 Table of Cases Cited. 631 Daves v. Haywood, 1 Jones Eq. 253 525 Davis V. Bowman, 55 Miss. 071 392, 399, 405 V. Boyd, 6 Jones L. 249 12 V. Davis, 5 La. Ann. 5(il 604 ,. V. Davis, 5 Mo. 183 496 V. Davis, 68 Miss. 478 392 V. Davis, 1 Beav. 371 159 V. Davis, 1 ]Sott. & McC. (S. C.) 224 ; S. C. 1 Beav. 371 217 V. Duke, 2 Hav, 224 (400) 539 V. Duke, 1 Taylor (N. C), 213 (102) ; S. C. Conf. Rep. 361 (439) 601 V. Dumas, 1 McC. (S. C.) 213 7, 217 V. Garrett, 18 S. W. Rep. 113 140, 159 V. Moodv, 15 Ga. 175 96 V. Ney, 125 Mass. 590 46, 319 V. Zimmerman, 40 Mich. 24 149, 193, 468 Davison v. Davison, 2 Beas. (N. J.) 246 83 Dawson v. Dawson, 1 Dev. (N. C.) Eq. 93 422, 436 Dawson v. McFaddin, 22 Nebr. 131 375, 379, 389, 385, 387, 402 V. Macknet, 42 N. J. Eq. 633 564, 593 Day t). Dav, 100 Ind. 460 9 Dayton r. "Rounds, 27 Mich. 82 59 De'Cauip r. Dobbins, 31 N. J. 671 58 De Caumont v. Bogert, 36 Hun, 383 ' 537 De Graffenreid v. Mitchell, 3 McC. 506 217 De Levillain v. Evans, 39 Cal. 120 68,71,72 De Manneville v. Crompton, 355, 481 De Ruviane's Case, L. R. 5 Ch. Div. 306 57 De Visme, In re, 2 De G., J. & Sm. 17 ; S. C. 33 L. J. Ch. 332 532, 569 De Voe v. Jones, 82 la. 66 213 Dean v. Adler, 30 Md. 147 437 V. Corbett, 51 N. Y. Supr. Ct. 107 258 V. Dear, 6 Conn. 285 546 i;. Negley, 41 Pa. St. 312; S. C. 80 Amer. Dec. 620 400 Deacon v. Colquhoun, 2 Drew, 21 356 Dearmond v. Dearmond, 10 Ind. 191 480 PAGE Decker v. Waterman, 67 Barb. 460 ()5, 202, 440, 443, 450 Dedell v. Carll, 33 N. Y. 581 225 Degroffenreid v. Thomas, 14 Ala. 681 202 Delafield v. Parish, 25 N. Y. 9 450, 460 Delamater's Estate, 1 Whart. 362 361 Delashmut v. Trau, 44 la. 613 472 Delaney v. Salina, 24 Kan. 532 60 Deloach v. Turner, 7 Rich. L. 140 372 Delmotte v. Taylor, 1 Redf. 417 105, 107, 109, 112, 120, 135, 137, 100 Demers v. Lefebyre, 14 Low. Can. Jur. 241 471 Deming v. Williams, 26 Conn. 226 ; S. C. 68 Am. Dec. 386 49, 347 Denman v. McMahon, 37 Ind. 241 262, 564, 565 Dening v. Ware, 22 Beav. 184 420, 431 Dennisoni;. Goehring, 7 Barr, 175 431, 436 Dent V. Bennett, 4 My. & Cr. 269 458 Deppe V. People, 9 Bradw. 349 117,132 Derby v. Weyrich, 8 Xeb. 174 472 Deschappelles v. Labarre, 3 La. Ann. 522 376 Destrehan v. Destrehan, 4 X. S. (La.) 557 524 Devay v. Devav, 3 Jur. N. S. 79 ; S. C. 20 L. J. Ch. 290 ; 3 Sm. & G. 403 213, 574, 575, 592 Devenish v. Baines, Prec. Ch. 3 438 Develin v. Farmer, 16 Dalv, 98 192, 320 Devlin r. Greenwich Savings Bank, 125 N. Y. 756 193, 194, 230 Devol V. Dve, 123 Ind. 321 45, 104, 109, 110, 114, 117,119, 120, 139, 140, 142, 148, 168, 176, 195 Dewce's Estate, 3 Brewster, 314 ; S. C. 7 Phila. 498 2, 517 Dexheimer v. Gautier. 34 TInw. Pr.472;S.C.5Rob. (N.Y.) 216 19, 21,34, 7() Dickeschied v. Exchange Bank, 28 W. Va. 340 22, 24, 43, 104, 108, 109. no, 112, 114, 117, 118, 127, 140, 143, 144, 145, 166 632 Table of Cases Cited. Dicta. McEwen v. Troost, 1 Sneed, 185 134 Diefendorf v. Diefendorf, 132 N. Y. 100 142 Dille V. Webb, 61 Ind. 85 520, 615 Dilley v. Love, 61 Md. 603, 612 520, 528, 563 Dillman v. Cox, 23 Ind. 440 511, 520, 522, 552 Dillon V. Coppin, 4 Mynle & Craig 647; S. C. 9 L. J. (N. S.) Ch. 87, 4 Jur. 427 351, 358, 370, 425, 439 Dilron v. Bone, 3 Giff. 538 428 Dilts V. Stevenson, 2 C. E. Gr. (17 N. J.) 407 106, 190, 194 Dillwyn v. Llewelyn, 8 Jur. N. S. 1068 ; S. C. 10 W. R. 742 ; 6 L. T. N. S. 878 ; 4 De G., F. & J. 517 384 Dinsmore v. Webber, 59 Me. 103 290 Dipple V. Corles, 11 Hare, 183 422, 430 Dismukes v. Musgrave, 2 La. 337 87 Dittoe V. Cluney, 22 Ohio St. 436 528, 532 Dixon V. Marston, 64 N. H. 433 606 Doak r. Runvon, 33 Mich. 75 469 Dodd V. McCrow, 3 Eng. 83 158, 160 Doe V. Lewis, 11 C. B. 1035 480 V. Saunders, 2 Kerr (N. B.) 18 602 Doering v. Kenamore, 86 Mo. 588 107, 166 Doggett V. Lane, 12 Mo. 215 457 Dole V. Lincoln, 31 Me. 422 24, 27, 66, 87, 98, 140, 147 Donaldson v. Donaldson, Kav, 711; S. C. 23 L. J. Ch. 788 352, 426, 428 Donalston v. Donalson. Kay, 711 425 Donnell i: Donnell, 1 Head, 267 241 V. Mateers, 5 Ired. Ec]. 7 535 Donner v. Palmer, 31 Cal. 500 72 Donover v. Argo, 79 la. 574 109 Dosche V. Nette, 81 Tex. 265 468, 470 Doty V. Wilson, 47 N. Y. 580 64, 180, 189, 201, 428 Dougherty v. Dougherty, 2 Strob. Eq. 63 ■ 182 V. Moore, 71 Md. 248 322 Douglass V. Brice, 4 Rich. Eq. 322 549, 567 Dow V. Gould, 31 Cal. 629 72, 151, 189 Down V. Ellis, 35 Beav. 578 574, 592 Downes v. Jennings, 32 Beav. 290 482, 489, 490, 492 Dowing V. Marshall, 23 N. Y. 366 59 Dovle V. Sleeper, 1 Dana, 531 546 Dozier v. Matson, 94 Mo. 328 376 Drake's Appeal, 45 Conn. 9 4-50, 457 Draper v. Jackson, 16 Mass. 480 266 Dresser v. Dresser, 46 Me. 48 17, 22, 36, 38, 86, 105, 1^0 Drew V. Hagerty, 81 Me. 231 22, 23, 126, 157, 320, 326 V. Martin, 2 Hem. & M. 130; S. C. 10 Jur. N. S. 356 ; 33 L. J. Ch. 367 550, 570, 572 Drewe-Mercer v. Drewe-Mercer, 6 T. L. R. 95 302 Drischler v. Van den Henden, 49 N. Y. Supr. Ct. 508 259 Druke v. Heiken, 61 Cal. 346 ; S. C. 44 Am. Rep. 553 241, 243 Drurv V. Drury, AVilmot's Opin- ' ions, 177 ; S. C. 4 Bro. Ch. 506 495 V. Smith, 1 P. Wms. 404 140, 144, 235 Duckett V. Duckett, 71 Md. 357 374, .396, 410 Ducland v. Rosseau, 2 La. Ann. 168 80 Dudlev V. Bachelder, 53 Me. 403 547 V. Bosworth, 10 Humph. 9 549 Duff V. Leary, 146 Mass. 533 197, 393, 405 Duffell V. Noble, 14 Tex. (J40 120, 428 Duffield V. Elwes, 1 Bligh, N. S. 497, 530, reversing 1 Sim. & St. 239 ; S. C. 1 L. J. Ch. 239 21, 24, 45, 237 V. Hicks, 1 Dow. H. 1 ; S. C. 1 Bligh. N. S. 497 207, 208, 243 Duffin V. Duffin, 44 Ch. Div. 76 ; S. C. 59 L. J. Ch. 420 ; 62 L. T. 614 ; 38 W. R. 369 ; 6 T. L. R. 204 303, 308 Duigan v. McCormack, 53 How. Pr. 411 358 Duke of Richmond v. Milne, 17 La. 312 54 Duling V. Johnson, 32 Ind. 155 107, 561, 575, 577 Dumper v. Dumper, 8 Jur. N. S. 503 ; S. C. 6 L. T. N. S. 315 574, 575 Dummer v. Pitcher, 5 Sims. 35, affirmed 2 Mvlne & Keen, 262 ■ 266, 356, 555 Dunbar v. Dunbar, 80 Me. 152 112, 1.32, 18(i V. Soule, 129 Mass. 284 60 V. Woodcock, 10 Leigh, 628 107 Table of Cases Cited. Duncan's Appeal, 43 Pa. St. 67 480, 491, 492, 499 Duncan v. Duncan, 5 Litt. 12 67, 86, 98, 142 V. Henry, 125 Ind. 10 543 Duncombe v. Richards, 46 Midi. 166 63, 450, 451 Dunham v. Averill, 45 Conn. 61 538 V. Pitkin, 53 Mich. 504 469 Dunn V. Chambers, 4 Barb. 376 459 V. German American Bank, 18 S. W. Rep. 1139 111 Dunne v. Buvd, 8 Jr. Eq. Rep. 609 " 36, 37, 38, 194, 205, 307 Dunnage v. White, Wils. Ch. 67 394, 459 Dunnock v. Dunnock, 3 Md. Ch. 140 496 Dupre V. Thompson, 4 Barb. 279 420 Dupree v. Dupree, Bu.sb. Eq. 164 56 Dupont V. Wertheman, 10 Cal. 3.54 83 Duplessis V. Kennedy, 6 La. 231 72, 90 Dupuis V. Cedillot, 10 Low. Can. Jur. 338 74 Dupuy V. Dupont, 11 La. Ann. 226 118, 152, 522, 532 Durfee v. McClurg, 6 Mich. 223 52 Durham v. Shannon, 116 Ind. 403 198, 202, 230 Dutch's Appeal, 57 Pa. St. 461 551, 595, 596 Dyer v. Dver, 2 Cox, 92 546, 549, 554 V. WiUiams, 62 Miss. 302 212 Eales V. Drake, L. R. 1 Ch. Div. 217 ; S. C. 45 L. J. Ch. 51 ; 24 W. R. 184 Earl V. Peck, 64 N. Y. 596 Earle v. Botsford, 20 N. B. 407 22, 32, 37, 39, Ebrand v. Dancer, 2 Ch. Cas. 26 Eckert v. Eckert, 3 P. & W. 332 386, 387, V. Gridlev, 104 111. 306 V. Mace, 3 P. & W. 364 Ector r. Welsh. 29 Geo. 443 Ea&ley v. Dye, 14 Ala. 158 86. 183, Eastham v. Powell, 51 Ark. 530 V. Moronoco Savings Bank, 136 Mass. 208 180, Easton r. Pratchett, 2 Cr. M. &R.442; S.C.5Tyrwk. 1129 Eaton V. Carruth, 11 Neb. 231 Eden r. Smith, 5 Ves. .341 Edings V. Whaley, 1 Rich. Eq. (S. C.) 301 554 269 120 523 388 86 388 159 230 602 325 252 192 262 63 Edgerly v. Edgerly, 112 Mas.s. 175 213 V. First Xat. Xat. Bank, 30 111. App. 425 473 V. Whalan, 106 Mass. 307 51 Edrington v. Mayfield, 5 Tex. 363 12 Edwards v. Edwards, 39 Pa. St. 369 546 V. Ford, 2 Bail. (S. C.) L. 461 474 V. Freeman, 2 P Wms. 441 11, 503, 509, 510, 540, 560, 562 f. Jones, 1 Myl.&C. R.226; S. C. 5 L. J. Ch. 194, aiBrming 7 Sim. 325 21, 23, 24, 25, 37, 44, 98 Egerton v. Carr, 94 N. C. 648 421, 4.33, 424 V. Egerton, 2 C. E. Gr. 419 64, 65, 127, 241, 268 Eisner v. Koehler, 1 Dem. 277 581, 594 Elam V. Keen, 4 Leiirh, 333 ^ 174,241,248 Elliott's Appeal, 50 Pa. St. 75 428 Estate, 98 Mo. 37i), 384 613 ElUott r. Armstrong, 2 Blackf. 198 546 V. Collier, 1 Ves. Gr. 15 507 V. Ojllier, 3 Atk. 526 506 V. Elliott. 2 Cii. Cas. 231 550, 553 Ellmaker v. Ellmaker, 4 Watts, 89 474 Ellis V. Nimmo, L. ct G. (Ir.) .333 439 V. Sccf.r, 37 Midi. 185; S. C. 18 Am. Rej). 178 17, .36, 121, 19.5. 241,419, 423, 42fi V. Ward, 25 N. E. Reji. 5.30 o.s Ellison V. Ellison, 6 Ves. J r. 6.i6 414, 428, 4.3() Elston V. Schilling, 42 N. Y. 79 51 1 Emerv r. ClouL'h, (>.{ N. H. ."v2 ' 12, 23, 24, 37, 43, 44, 45, 46, 51 . 140, 1.S9 England v. Downs, 2 Beav. 522 481. 482, 485, 486, 489 English t'. People, 96 111. 566 58 Eshleman's Appeal, 74 Pa. St. 42, rev. 1 Leg. Chron. m 524 Eskridge r. Farrar, 30 La. Ann. 718; S. C. 34 La. Ann. 709 6S, 90, 445 Essex's Est.. 20 N. Y. Sup]). 61 1'.'2 Essex V. Atkins, 14 Ves. .542 .^2 Esswein v. Seiuling, 2 Hill Ch. (S. C.)r>00 86.114.12.5,127 Evans v. Battle. 19 Ala. 398 37S. 42-' V. Evans, 2 E. ct A. U. C 1.56 3'.t7 V. Evans, 1 Heisk. 577 534, oZ'3 634 Table of Cases Cited. Evans v. Grey, 9 L. R. Ir. 539 424, 425 V. Jennings, 4 Jur. X. S. 551 ; S. C. 6W. K. 616 436 V. Lipscomb, 31 Ga. 71 107, 112, 118, 197, 198, 204 V. Maxwell, 50 L. T. 51 11, 569 V. Russell, 31 Leg. Int. 125 437 Evelyn v. Templar, 2 Bro. Ch. 148 431 Everitt v. Everitt, 10 L. R. Eq. 405 437 Ewing V. Ewing, 2 Leigh, 337 106, 170 V. Handley, 4 Litt. 346 410 Eykyn, In re, 6 L. R. Ch. Div. 115; S. C. L. T. N. S. 261 555, 571, 572 Ezell V. Giles Co., 3 Head, 583 73 Fairfield v. Barbour, 51 Mich. 57 399 Fairley v. Fairley, 34 Miss. 18 471 Fairly v. Fairly, 38 Miss. 280 5 V. M'Lean, 11 Ired. (N. C.) L. 158 241 Falconer v. Holland, 5 Sm. & M. 689 8, 206, 218, 219 Falk V. Turner, 101 Mass. 494 436 Fanning v. Russell, 94 111. 386 265 Farman v. Smith, 57 L. J. Ch. 637 ; S. C. 58 L. T. 12 308 Farmer v. Farmer, 39 N. J. Eq. 211 .52, 464 Farmers', etc., Bank v. Downey, 53 Cal. 466 58 Farmington Academy v. Allen, 14 Mass. 172 274, 281 Farnsworth v. Dinsmore, 2Swan, 38 538, 603 Farquharson v. Cave, 2 Collv, 355; S. C. 15 L. J. Ch. N. S. 137 24, .36, 118, 136,140,142 Farrel r. Ferry, 1 Hay, 2 215 Farrelly v. Ladd, 10 Allen, 127 345 Fatheree v. Fletcher, 31 Miss. 265 218, 515, 570 Faulk ;•. Faulk, 23 Tex. 653 12, 39, 212. Fav II. Rickman, 1 Busbee's Eq. 278 458 Faxon v. Durant, 9 Met. 339 87 Faxton V. Faxon, 28 Mich. 159 376 Fearing?'. Jones, 149 Mass. 65 122, 151 Fellows V. Litle, 46 N. H. 27 511, 582, 583 V. Smith, 130 Mass. 378 197, 464 V. Smith, 40 Mich. 689 469 Fels V. Fels, 1 Ohio C. C. 420 519, 581, 582 Fennell v. Henry, 70 Ala. 484; S. C. 45 Am. Rep. 88 533, 561, 562, 563, 564, 574, 575, 594 Ferris v. Goodburn, 27 L. J. N. S. 574 531 V. Parker, 13 Tex. 385 213 Ferry v. Stephens, 66 N. Y. 312, reversing 5 Hun, 109 263, 264, 383 V. Stevens, 66 N. Y. 321 405 Fettiplace v. Gorges, 1 Ves. Jr. 46; S. C.3Bro.C. C.8 51 Fickett V. Durham, 109 Mass. 419 547 Fiero v. Fiero, 5 T. & C. 151 62 Filmanv. Filman, 15 Gr. Ch. 643 586 Finch V. Finch, 15 Ves. 43 549, 553, 554, 596 V. Winchelsea, 1 P. Wms. 277 Fink V. Cox, 18 Johns. 145 First Baptist Society v. Robin- son, 21 N. Y. 224 First Nat. Bank v. Balcom, 35 Conn. 351 V. Woods, 128 N. Y. 35 First Religious Society v. Stone, 7 Johns. 112 Fish V. Miller, Hoff. Ch. 267 Fisk V. Cushman, 6 Cush. 20; S. C. 52 Am. Dec. 761 Fiske V. Hazzard, 7 R. I. 478 Fitch V. Fitch, 8 Pick. 480 V. Rathbun, 61 N. Y. 579 Fitts V. Fitts, 14 Tex. 443 r. ]Morse, 103 Mass. 154 Fitzgerald v. Fitzserald, 10 Gr. Ch. (U. C.y 410 Fitzhugh V. Anderson, 2 Hen. & M. 289 r. Beale, 4 Munf. 186 Flanders v. Blandy, 45 Ohio St. 108 t^. Blandy, 415 Ohio St. 108, 113 2 Flanigan v. Flanigan, 115 Pa. St. 233 191, 210 Fleming's .Aijpeal. 5 Phila. 351 612 Flesher «. Mitchell, 5 W. Va. 59 543 Fletcher v. Ashlev, 6 Gratt. 332 480, 489, 490 V. Fletcher, 4 Hare, 67 370, 425 V. Fletcher, .55 Vt. 325 165 Flint V. Pattee, 33 N. H. 520 268 Florv V. Dennv. 7 Exch. 581 107 Flower's Case,' Noy, 67 170 Flower v. Marten, 2 Myle & Cr. 459 262 Fogg *;. Middlfton, Riley, Ch. 193 420 440 268 274 27 228 274 461 344 59 541 53 49, 212 575 384 182 75 415 Table of Cases Cited. 635 P'olger V. Heidel, (JO Mo. 284 82 Foltz V. West, 103 Ind. 404 614 Forbes v. Forbes, 6 W. R. 92; S. C. 3 Jur. N. S. 1206 436 V. Jason, 6 Bradw. 395 70 Force v. Haines, 2 Harr. (N. J.) 385 83 Ford's Estate, 1 P. & B. (N. B.) 551 556 Estate, 28 Leg. Int. 221 ; S. C. 11 Pliila. 97 611 Ford V. Aiken, 1 Strobli. L. 93 220 V. Eliingwood, 3 Met. 359 607 V. McElray, 1 Rich. Eq. 474 55 V. Thompson, 1 Met. 580 534 Foreman 7-. Bigelow, 4 Cliff. 508 366 Forney r. Rem'ev, 77 la. 549 170 Forrest ;•. Forrest, 11 Jur. N. S. 317; S. C. 34 L. J. Ch. 428; 13 W. R. 380; 11 L. T. N. S. 763 592 Forrester v. Moore, 77 Mo. 651 546 Forshaw v. Welsby, 30 Beav. 243 93,99 Fortesque r. Barnett3 Myl. & K. 36 ; 2 L. J. Ch. N. S. 106 171, 248, 256, 428 Forward v. Armstead, 12 Ala. 124 377, 423 Foster v. Emerson, 5 Gr. Ch. (U. C.) 135 381, 391 V. Hale, 3 Ves. 696. 386 Foss V. Lowell, etc., Bank, 111 Mass. 285 319 Fourth Parish v. Root, 18 Pick. 318 224 Fowkes r. Pascoe, 10 L. R. Ch. 343; S. C. 44 L. J. Ch. 367 ; 32 L. T. 545 ; 23 W. R. 538 532, 574, 575 Fowler v. Lockwood, 3 Redf. 465 193 227 V. Roundtree, 10 Fla. 299 ' 609 V. Stuart, 1 M'Cord L. 504 191, 205 Fowlerlv v. Butterlv,78 N. Y.68 ; R." C. 34 Am.'Rep. 507 265 Fox's Will, 52 N. Y. 530; S. C. 94 U. S. 315 59 V. Edwards, 38 la. 215 471 V. Fox, 15 Ir. Ch. 89 547, 555, 574,5(8,591,592, 596 Foxcroft V. Lister, Gilb. Rep. 4 Prec. Ch. 517, 526 nom. 403 Frame v. Frame, 32 W. Va. 463 111, 125, 389, 404 France v. France, 4 Halst Eq. ( N. J.) 650 380 Francis «. Love, 63 Mich. 181 181, 215 Francis v. New York, etc.. Ele- vated R. R. Co., 17 Abb. N. C. 1 361 Frankford Bank v. Johnson, 24 Me. 490 56 Eraser v. Dupres, 15 Low. Can. Jur. Ill 80 Frazier v. Perkins, 62 N. H. 69 78 Frederick v. Haas, 5 Nev. 3S9 546 French v. Davis, 38 Miss. 167 613 V. French, 46 Vt. 357 605 V. Holmes, 67 Me. 186 472 V. Quincv, 3 Allen, 9 60 V. Raymond, 39 Vt. 623 21, 27, 29, 105, 321 Freeland ?;. Hastings, 10 Allen. 570 59 Freeman v. Burnhani, 36 Conn. 469 468 V. Flood, 16 Geo. 528 219 V. Freeman, 43 N. Y. 34 ; S. C. 3 Am. Rep. 657, aiiirming 5 Barb. 306 376 V. Freeman, 8 Amer. L. Reg. (X. 8.) 29 380 V. Hartman, 45 111. 57 480, 490, 499 t'. Pope, L.R.5Ch. 538;S.C. L. R. 9 Eq. 206 ; 39 L. J. Ch. (N. S.) 148 ; 21 L. T. (N. S.) 816 4(18 Freemantle v. Bankes, 5 Ves. 79 49 Frenke r. Aucrbach, 72 Md. 580 594 Frey v. Heydt, 116 Pa. St. 601 51(1 Frideau v. Frideau, 8 Mart. 707 \W Frisbie v. IM'Cartv, 1 Stew. &. Por. 56 170, 174 Fritz r. Brustle, 41 Leg. Int. 4 94 Froro's Appeal, 105 Pa. St. 258 254 Fro-t V. Frost, 33 Vt. 639 60, 66 Fruhauf v. Bendheim, 127 N. Y. 587 •19 Fuller r. Dame, 18 Pick. 472 5S V. Ferguson, 26 Cal. 574 llK) Fulton V. Fulton, 48 Barb. 581 3, 106, 121 Furinan r. Tenny, 28 Minn. 77 472 Fur.'jaker r. Robinson, I're. Ch. 475; S. C. 1 Eq. Cas. Abr. 123, pi. 9 440, 523 Fuselier v. Masse, 4 I^. 423 (jS, 72 Gadbury, Lire, 11 W. R. 895; S. C. 32 L. J. Ch. 780 267, 570, 571 (^Taff r. Flesher, 33 Ohio St. 107 3( Hagler v. McCombs, 66 X. C. 345 528, 563 Haines v. Haines, 6 Md. 435 376 Halbert v. Halbert, 21 ]Mo. 277 78, 79, 182 Hale V. Lamb, 2 Eden, 292 431 Hall, In re, 14 Ontario, 557 511, 51t) V. Davis, 3 Pick. 450 600, 609 i;. Carraichael, 8Baxt. 211 480 V. Hall, 14 L. R. Eq. 365 ; S. C. 8 Ch App. 430 99, 437, 448 V. Hall, 107 Mo. 101 ; S. C. 17 S. W. Rep. 811 522, 550, 552, 553, 590, 591 t;. Hill, 1 Dru. War. 94, 133; S. C. 4 Ir. Eq. R. 27 538 V. Howard, Rice L. (S. C.) 310 86, 268, 271 V. Knappenberger, 97 ^lo. 509 444, 446, 451 V. Young, 37 N. H. 134 546 Hallum r. Gourie, 1 Sneed, 368 182 Halsa V. Halsa, 8 Mo. 303 389 Halsey v. Peters, 79 Ya. 60 376, 400 Ham V. Van Orden, 84 N. Y. 257 131 Hambrooke r. Simmons, 4 Russ. Ch. 25 19, 44, 98, 231 Hamden v. Rice, 24 Conn. 350 59 Hamer v. Hamer, 4 Strobh. Eq. 124 600, 602 V. Sidnay, 57 Hun, 229 65 Hamilton v. Armstrong, 20 S. W. Rep. 1054 443 V. Bradley, 5 Hayn. 127 549 V. Hamilton, 5 Litt. 28 397 V. Hamilton, 2 Rich. Eq. 355 471 V. Rus.'^ell, 1 Cranch, 97 467 V. Smith, 47 la. 15 480, 489, 492, 495 Hamilton College v. Stewart, I N. Y. 581 285 Hammersley v. De Biel, 12 CI. & F. 45, affirming 3 Beav. 469 384 Hammett v. Hammett, 16 S. E. Rep. 293 594 Hammonds v. Barclay, 2 East, 227 300 Hamlyn v. Nesbit, 37 Ind. 284 576 Hamor r. Moore, 8 Ohio St. 239 115, 268 Hanncr v. Sheehan, 19 N. Y. Supp. 698 328 V. Winburn, 7 Ired. Eq. 142 5H5, 611, 612 Hansbroutrh v. Hove, 12 Leigh. 316^ 514 Hansen v. Brvan, 10 Ga. 167 121, 187, 199 Hanson v. Millett, 55 Me. 184 106 Hardesty v. Richardson, 44 Md. 617 ; S. C. 22 Am. Rep. 57 376, 379, 386, 387, 402 Hardin v. Baird, 6 Litt. 340 420 Hardy v. Van Harlingen, 7 Ohio ■ St. 208 4(53 Hare on Contracts, 182, 183 101 Hargroves v. Freeman, 12 Ga. 342 96 Harley v. Harley, 57 Md. 342 511, 515, 5(M, 575, 596 Harmon v. Harmon, 63 111. 512 473 V. James, 7 Ind. 2a3 64 V. Osgood, 151 Mass. 501 41, 46 r. Ryan, 10 La. Ann. 661 469 Harness r. Harness, 49 Ind. 384 576, 577 Harper v. Harper, 92 N. C. 300 551, 590 V. Parks, 63 Geo. 705 84, 516, 517 r. Pierce, 15 La. Ann. 666 6 Harris's Appeal, 2 Grant (Pa.), 304 564, 582 Harris r. Allen, 18 Ga. 177 609, 610 r. Clark. 3N. Y.93; S. C. 51 Am. Dec. 352; 2 Barb. 94 23, 27,83,86,104, 105, 107, 243, 271, 302, 304, 307 V. Currier, 44 Vt. 468 83 V. Harris, 69 Ind. 181 518, 564, 593 V. Hopkins, 43 Mich 272 203, 204, 227 V. Mclntyre, 118 111. 275 546 r. Mcl^ran, 30 Miss. 533 182 V. Tremenbeere, 15 Ves. 34 453, 456 Harrison v. Harrison, 15 S. E. Rep. 87 377 r. Wright, 100 Ind. 515 ; S. C. 50 Am. Ryp. 805 289, 291 Harrison's Will, 1 B. Mon. 351 449 Harvev v. Carroll, 72 Tex. 63 400 r. Hunt, 119 Mass. 279 36-5 V. Pt-nnybacker, 4 Del. Ch. 445 547 V. West, 87 Geo. 553 407 Harrington v. Moore, 3 Jones L. 56 528 Hart V. Chase, 46 Conn. 207 563 V. Hart, 3 Des. Eq. 592 376 { Table of Cases Cited. G;39 PAGE Hart V. Robertson, 21 Cal. 346 49 Hartman's Entate, 2 Thorn. 62 136 Hartwell v. Jackson, 7 Tex. 576 369 V. Rice, 1 Gray, 587 538, 581, 582, 586 Haskell v. Hervey, 74 Me. 192 9 Hassell r. Basket, 8 Biss. 303; affirmed, 107 U. S. 602; S.C. 108 U.S. 267 241 V. Tynte, Ambl. 318 231, 127, 243 Hatch V. Atkinson, 56 Me. 324 135, 186, 194, 205 V. Hatch, 9 Ves. 292 455, 461, 462 i\ Lamos, 63 N. H. 1 66, 228 V. Straight, 3 Conn. 31 4, 198, 552, 576, 590 Hatfield v. Minet, 8 L. R. Ch. 136; S.C.47L. J. Ch. 612; 38 L. T. N. S. 629 ; 26 W. R. 701, reversing L. J. Ch. 812 562 Hatterslev v. Bassett, 25 Atl. Rep. 332 590 Hatton V. Jones, 78 Ind. 466 255, 434 V. Landman, 28 Ala. 127 549 Hauser v. King, 76 Va. 731 468 Haven & Thompson, 8 C. E. Gr. 321 539 Havens v. Thompson, 11 C. E. Gr. 383 541 Haverstock v. Sarbaoh, 1 W. & S. 390 575, 577, 596 Hawkins v. Blewitt, 2 Esp. 663 111 V. Lee, 22 Tex. 544 49 Hawley v. James, 5 Paige, 318 535, 603 Haxton r, McClaren, 132 Ind. 235 613 Hav V. Hav, 3 Rich. Eq. 384 230 Hay's Case, L. R. 10 Ch. A pp. 593 57 Hayden v. Burch, 9 Gill (Md.), 79 536, 549 V. Havden, 142 Mass. 448 329 V. Stiiison, 24 Mo. 182 182 Havdock r. Havdock, 34 N. J. Eq. 570 ' 445, 447, 451 Hayes i'. Alliance, etc., Ins. Co., L. R. 8Ir. 149 (1881) 49,248 V. Hibbard, 3 Redf. 28 535 V. Jones, 2 P. & H. (Va.) 583 468, 469 V. Kershaw, 1 Sand f. 258 422, 440 V. Kingdome, 1 Yern. 33 555 Haygood v. Marlowe, 51 Ala. 478 105 Hayne's Case, 12 Coke Rep. 113 56, 159 Haynes v. Jones, 2 Head, 373 60(i, 008 Havslep v. Gvmer, 1 A. & E. 162 ; S. C. 3 N. & M. 479 21 Hays 7;. Henry, 1 Md. Ch. 337 496 PAGE Hays v. Hibbard, 3 Redf. 28 53() V. McConnell, 42 Ind. 2So S3 Headen v. Headen, 7 Ired. Eq. 159 529, 539, 601 Headlev v. Kirbv, 18 Pa. St. 326; S. C. I'Amcr.L. Reg. (O. S.) 25 40 Heartlev v. Nicholson, 19 L. R. Eq. 233 ; 44 L. J. Ch. 277 ; 21 L. T. N. S. 822 413, 420, 42.) Hebb V. Hebb, 5 (iill (Md.), 5U(i 16, 22, 26, 27, 29, 105, 204 Hebert v. Winn, 24 I^. Ann. 385 55 Hedges v. Hedges, Finch's Ch. 269; S. C.GibbEq. 12, 13; 2Eq.Cas.Abr. 263; 2 Ver- non, 615; 7 Vin. Abr. 13H 15, 27, 105. 215 Helfenstein's Est., 77 Pa. St. 328 &S, 280 Hellman r. Mc Williams, 70 Cal. 449 436 Helm V. Martin, 59 Cal. 57 8 Henderson v. Adams, .35 Ala. 723 12, 176 I'. Bank, 40 Ch. Div. 170; S. C. 58 L. J. Ch. 197 ; 59 L. J. 856 ; 37 W. R. .3.32 58 V. Bank, 59 L. J. (Ch.) 794 57 V. Henderson, 21 :Mu. 37!t 42S V. Hoke, 1 Dev. & B. Eq. 119 546 V. McDonald, 84 Ind. 149 2 Hendricks v. Snediker, 30 Tex. 296 37(1 Hendrickson v. Godsey, 54 Ark. 155 65 Hengst's Estate, 6 AVatts, ^^\ 5M Hcnrv v. Fowler. 3 Dalv. 199 41 V. G roves, 1 (5 ( i rat t . 244 8( ; V. Harbison, 23 Ark. 25 217 V. Vi'nnillion,etc., R. R. Co., 17 Ohio, 187 365 Henschel v. Maurer. 69 Wis. 57(5; S. C. 2 Am. St. Ro)). 757 21,27,37,38,43 Hensloe's Case, 9 Rep. 39a .■'Xi2 Henson v. Kinard, 3 Strobh. (S. C.) Eq. 371 2, 190, 206, 208, 217, 218, ^2■"'•■' Herschfelt v. George, G Mich. 450 472 Hertzog v. Hertzog, 29 Pa. St. 4(i5 ^"^ Hess V. Brown, 111 Pa. St. 124 49 640 Table of Cases Cited. PAGE Hesser v. Wilson, 36 la. 152 471 Hewitt V. Kaye, 6 L. R. Eq. 198 ; S. C. 37 L. J. Ch. 633 ; 16 W. R. 835 243, 302 Hevdt r. Frev, 21 W. N. C. 265 516 Hick V. Keats, 4 B. & C. 69 8, 222 Hickman v. Grimes, 1 Marsh (Kv.),86 382 Hibish V. Catherman, 64 Pa. St. 154 59 Higert v. Asburv University, 53 Ind.326 * 275 Hisfzins v. Jolinson, 20 Tex. 389 197 ' v. Riddel], 12 Wis. 587 275 High's Appeal, 21 Pa. St. 283 515, 564, 596 High V. Stainback, 1 Stew. (Ala.) 24 213 Higham v. Vanosdol, 125 Ind. 74 518, 522, .552, 563, 574 Higinbotham v. Rucker, 2 Call. 313 182 Higman v. Stewart, 38 Mich. 513 70,71 Hildreth v. Eliot, 8 Pick. 293 436 Hill V. Buckminister, 5 Pick. .391 268 V. Chambers, 30 Mich. 422 376 V. Chapman, 2 Brown Ch. 612 125, 185 V. Duke, 6 Ala. 2.59 217, 219 V. Freeman, 73 Ala. 200 96 V. Hill, 3 Ves. & B. 183 523 V. Sheiblev, 64 Geo. 529 241, 259 V. Stevenson, 63 Md. 3(>4; S. C. 18 Am. Rep. 231 140, 317 V. Williams, 6 Jones Eq. 242 80 V. AVilson, L. R. 8 Ch. App. 888; S. C. 42 L. J. Ch. 817; 29 L.J. 238; 21 W. R. 557 10 Hillabrent v. Bower, 6 Tex. 45 115, 158, 1-59 Hills V. Downton, 5 Ves. 557 523 V. Hills, 8 M. & W. 401; S. C. 5 Jur. 1185 21 Hilton V. Morse, 75 Me. 258 219 Hine v. Hine, 39 Barb. 507 536 Hindson v. Weatherill, 5 De Grex, M. & G. 301 441 Hinson v. Pickett, 1 Hill Ch. (S. C.) 35 9 Hinton v. Hinton, 1 Dev. & Bat. Eq. 587 528 Hitch V. Davis, 3 Md. Ch. 266 68, 106, 109, 117, 184, 205 Hixon V. George, 18 Kan. 2.53 472 Hoag V. Martin, 80 la. 714 469 Hoak V. Hoak, 5 Watts, 80 581, 584 Hoar V. Hoar, 5 Redf. 637 320 Hobart v. Hobart, 58 Barb. 296 614 Hobbs V. Blandford, 7 T. B. Mon. 469 480, 483, 484 Hodges V. Spicer, 79 N. C. 223 371 Hodgson r. Macy, 8 Tnd. 121 552 Hoge V. Hoge, 1 Watts, 163 438 Hoggatt V. Gibbs, 15 La. Ann. 700 96, 540 Hoghton V. Hoghton, 15 Beav. 278 447, 461, 462 Hogue V. Bierne, 4 W. Va. 658 170, 175 Hoig V. Adrain College, 83 111. 267 370 Holder v. Lafavette, etc., Rv. Co., 71 111. 106 * 56 Holeman v. Hart, 3 Strobh. Eq. 66 11 V. Fort, 3 St rob. Eq. 66 48 Holladav v. Patterson, 5 Oreg. 177 58 Holland v. Alcock, 108 N. Y. 312 430 V. Lewiston, etc.. Bank, -52 Me. 564 56 Hollister v. Attmore, 5 Jones Eq. 373 533, 562 Hollev V. Adams, 16 Vt. 206 ; S. C. '42 Am. Dec. 508 27,271 HoUidav v. Atkinson, 5 Earn. & C. 501 ; S. C. 8 Dowl. & Rvl. 163 250, 268 V. White, 33 Tex. 460 510 V. Wingfield, 59 Ga. 206 11,.518, .519, .522, 552 Holloman v. Holloman, 12 La. Ann. 607 12 Hollowav V. Headington, 8 Sim. 324 439 Hollo wel V. Skinner, 4 Ired. L. 165 216 Holmes v. Cartier, 5 Low. C. Rep. 296 2 V. Holmes, 3 Paige, 363 495, 496 V. Patterson, 5 La. 693 171 V. Patterson, 5 Mart. 693 100 Holt V. Holt, 59 Me. 464 2, 89 Homes r. Dana, 12 Mass. 190 277 Homiller's Estate, 17 Phila. 513; S. C. 42 Leg. Int. 488 ; 17 W. X. C. 238 520, 576 Hood V. Jones, 5 Del. Ch. 77 470 r. Lynn, 1 Allen, 103 58, .59 Hooe V. Harrison, 11 Ala. 499 217 Hook V. Hook, 13 B. ]VIon. 526 562, 606, 607, 608 Hooker r. Axford, .33 Mich. 453 52 Hooper v. Evles, 2 Vern. 480 591 V. Goodwin, 1 Wils. Ch. 212; S. C. 1 Swanst. 486 63, 64, 65, 106, 109, 122, 254, 359 Hope V. Harman, 11 Jur. 1097 425 Table of Cases Cited. 641 I Hopkinpon v. Forster, L. R. 19 Eq. 74 291 Hopkins v. Manchester, 16 R. I. 663 230, 243 Horn V. Gartman, 1 Fla. 63 2, 119, 174, 177 Horner's Appeal, 2 Penny. 289 134 Hosmer r'. Sturges, 31 Oliio St. 657 610 Houghton, In re, 17 Ves. 251 546 V. Houghton, 34 Hun, 212 93, 226, 374 House V. Grant, 4 Lan?. 296 227, 241, 268 r. Woodward, 5 Coldw. 196 511, 564, 606 Houser v. Singiser, 1 Leg. Chron. (Pa.) 145 87, 93 Howard r. Hooker, 2 Ch. Cap. 81 47H t'. Copley, 10 La. Ann. 504 12, 72 V. Samples, 5 Dana, 306 175 V. Savings Bank, 40 Vt. 597 71, 420 V. Williams, 1 Bail. L. fS. C.) 575 157, 159, 471 V. Windham Co. Savings Bank, 40 Vt. 597 313, 321 Howard CoUecre v. Pace, 15 Ga. 486 " 88 Howell V. EUsberrv, 79 Geo. 475 408 1'. Howell, 59 Geo. 145 199, 444 *'. I^nsom, 1 N. Y. Leg. Obs. 11 456 Howe V. Howe, 99 Mass. 88 450 Howes )'. Prudential Assurance Co., 49 L. T. N. S. 133 249, 250 Hoxie V. Price, 31 Wis. 82 52 Hoyes ?'. Kinder^rlev, 2 Sm. & G. 195 " 574 Hubbard v. Allen, 59 Ala. 283 97, 377 Tiuber v. Huber, 10 Ohio, 371 369 Huddleston r. Huey, 73 Ala. 215 105 Hudson r. Green Hill Seminary, 113 111. 618 276 V. Hudson, 3 Rand. 117 606, 609 Huffman v. Huffman, 118 Pa. St. 58 400 Hufsmith's Estate, 65 Pa. St. 141 594 Hughes's Appeal, 57 Pa. St. 179 613 Hughey v. Eichelberger, 11 S. C. 36 6, 539, 606, 608, 612 Hughes V. Berrier, 70 Geo. 273 407 V. Hughes, 72 Geo. 173 322. 387, 405, 407 V. Hughes, 1 Lev. 233 ; S. C. Carter, 125 ; 2 Black. Com. 515 503 V. Roper, 42 Tex. 116 468 V. Seanor, 18 W. R. 108 552 41 Hughes V. Stubbs, 1 Hare, 476 ; S. C. 6 Jur. 831 420, 434, 436 V. Stubbs, 11 Jur. N. S. 913 ; S. C. 13 L. T. N. S. 492 48, 423 Huguenin v. Baselv, 14 Ves. 299 99, 445, 448, 4.53, 461 Hugus V. Walker, 12 Pa. St. 173 405, 407 Hull r. Hull, 2 Strobh. Eq. 174 55 Hulton V. West., etc., Rv. Co., L. R. 23 Ch. Div. 6.54 57 Hummel v. Hununel, 80 Pa. St. 420 551, 594 Hunley r. PInnley, 15 Ala. 91 106 Hunnewell r. Lane, 11 Met. 1))3 345 Hunt r. Hunt, 119 Mass. 474 187 V. Johnson, 44 N. Y. 27; S. C. 4 Am. Rep. 631 53, 273, 369 V. iNLathews, 1 Vern. 408 ; S. C. Eq. Pa. Ab. 59. pi. 5479, 489 Hunter v. Hunter, 19 Barb. ()31 64, as, 70. 73, 107, 109, 121, 140, 196, 204, 225, 307, 446, 451, 456 Huntiuirton v. (iilmore, 14 Barb. 243 27, 42, 45, 98, 107, 121, 133, 140, 144, 185 Huntly V. Huntly, 6 Ired. Eq. 514 213 Hurdle v. Elliott, 1 Ired. L. 176 5:» Hurlbut r. Hurlbut. 49 Hun, 1S9 22!) Hurlev v. Tavlor, 7S Mo. 23S 468 Hurst" r. Beach, 5 Madd. .351 2m Huston r. Cantril, 11 Leiuh, 136 4as V. Markley, 49 la. 162 189 Hutchins v. Smith, 46 Bar)). 2^5 278 Hutchinson's Appeal, 47 Pa. St. 84 610 Hutman's Estate, 30 Pitts. L. J. 385 516 Hylton V. Hylton, 2 Yes. Sr. 547 461,462 Hynscn r. Terrv, 1 Ark. 83. 87 2, m, 75, 170 Ide r. Pierce, 134 IVIass. 260 8 Illinois Co. r. Hough, 91 111. 63 57 Imperial, etc., Assn. r. Coleman, L. R. 6 II. L. 189 57, .5.K Ingersole (•.Trueb.jdy,40 Cal.603 213 Ingram v. Phillips, 5 Stn)b. L. 200 468. 471 Ireland r. Geraghty. 11 Biss. 46-5 4:J0 Irish V. Nutting, 47 Barb. 370 2, 22, 2(1, .33, 34. 62. 76 Irons r. Smallpiece. 2 B. A Aid. 551 108, \il\ 170, 190 Irvine r. Greer, .32 < Iratt. 411 213 r. :Marshall. 7 Minn. 286 546 Irwin V. Dvke, 114 111. 302 376, 387 642 Table of Cases Cited. PAGE Isaac V. Williams, 3 Gill, 278 186 Isenhart v. Brown, 2 Edw. Ch. 341 271 Isham V. Delaware, etc., R. Co., 3 Stockt. (N. J.) 227 436 Ison V, Ison, 5 Rich. Eq. 15 521, 562,606,611 Ivalt V. Finch, 1 Taunt. 141 199 Ives V. Sterling, 6 Met. 310 274 Ivey V. Owens, 28 Ala. 641 161, 165, 185 Izard V. Middleton, 1 Bail. S. C. Eq. 228 470, 471 Jaggers v. Estes, 3 Strobh. Eq. 379 Jahns V. Nolting, 29 Cal. 507 Jacks V. Tunno, 3 Deasus. 1 157, Jacki^on v. Combs, 7 Cow. 36 V. Jackson, 28 Miss. 674 601, V. Matsdorf, 11 Johns. 91 V. Pike, 9 Cow. 69 V. Rogers, 2 Cai. Cas. 314 V. TM-entv-third St. R. W. Co., 15 J. & S. (N. Y.) 85 V. Twentv-third St. Rv. Co., 88 N. Y. 520 64, 106, 120, 226, 355, Jacobus V. r»Iunn, 37 N. J. Eq. 48 James v. Allen, 3 Merriv. 16 r. Deya, 16 Ala. 221 V. Holmes, 31 L. J. (N. S.) Ch. 567 V. James, 41 Ark. 301 528, V. James, 76 N. C. 331 V. McKinsey, 4 J. J. Mar. 625 Jacques v. Four'thman, 137 Pa. St. 428 Jaques v. Methodist Episcopal Church, 17 Johns. 549 ; S. C. 8 Am. Dec. 477 Jarry v. Trust & I^an Co., 11 L. Can. Rep. 7 Jayne v. Murphy, 31 111. App. 28 Jeans v. Cooke, 24 Beav. 513 ; S. C. 4 Jur. N. S. 57 ; 27 L. J. Ch. 202 520, 550, 591, . Jeffervs ?'. Jetferys, 1 Cr. & Ph. '138 370, Jenkins v. Jenkins, 1 Mill. (S. C.) 48 Jennings r. Blocker, 25 Ala. 415 V. Jennings, 2 Heisk. 283 r. Selleck,' 1 Vern. 467 549, Jennv v. Jennv, 24 Vt. 324 480, Jewett V. Salisbury, 16 Md. 370 r. Shattuck, 124 I^Iass. 590 Jervoise v. Jervoise, 17 Bev. 566 Jiggitts V. Jiggitts, 40 Miss. 718 172 192 468 49 613 591 60 391 321 57 60 109 458 549 553 397 231 211 53 98 596 439 87 202 593 569 490 274 345 50 495 PAGE Joeckel r. Joeckel, 56 Wis. 436 228 Johnson r. Alden, lo La. Ann. 505 48, 89 r. Ball, 5 De G. & Sm. 85 ; S. C.21L. J. N.S.Ch.210; 16 Jur. 538 248 V. Belden, 20 Conn. 322 509, 556, 562, 563, 574, 577, 583, 594, 595 V. Burford, .39 Tex. 242 197 V. Dougherty, 18 N. J. Ch. 406 * 546 V. Ghost, 11 Xeb. 414 7. 222 V. Grifhn, 80 Geo. 551 392, 407 V. Hoyle, 3 Head. 56 556, 563 V. Johnson, Hayes, 322 417 V. Johnson, Walk. Ch. 309 213 V. Lusk, 6 Coldw. 113 ; S. C. 1 Tenn. Ch. 3. 266, 267 V. Patterson, 13 Lea. 626 556, 596, 610 V. Quarles, 46 :Mo. 423 546 V. Smith, 1 Ves. Sr. 314 36, 44 V. Spies, 5 Hun, 468 190, 197, 241 V. Stevens, 22 La. Ann. 144 87 V. Waters, 111 U. S. (>40 182 Johnston v. Dilliard, 1 Hay. (S. C.) 232 217 V. Johnston, 4 Ired. Eq. 9 535 V. Wabash College, 2 Ind. 555 ■ 274 Jones' Estate, 29 Pitts. L. Jr. 89 563 Jones, In re, 6 Biss. 68 52 r. Ashburnham, 4 East, 455 275 V. Briscoe. 24 Mo. 498 218 V. Brown, 34 N. H. 439 23, 51 V. Clark. 59 Geo. 136 376, 387, 392, 405, 407 V. Cole, 2 Bailey L. 330 481, 490, 489 V. Dever, 16 Ala. 221 106, 140, 241, 255, 264 V. Jones, 46 la. 466 541 V. Kinnear, 4 R. & G. (Nov. Sco.) 1 596 V. Lock, 1 L. R. Ch. 25 ; 35 L. J. Ch. 117 ; 13 L. T. K S. 514; 11 Jur. N. S. 913; 14 W. R. 149 297, 417, 422, 424 r. Morgan, 6 La. Ann. 630 469 V. Morri^-on, 31 ^linn. 140 56 V. Obenchain, 10 Gratt. 259 49,.S69, 371,425, 428 V. Powell, 1 Eq. Cas. Abr. 84 271 V. Richardson, 5 ]\Iet. 247 536,538 r. Tvler, 6 Mich. 364 375 1). Selbv, Fincli. 300 27, 43, 44, 98, 174, 233 Jordan v. Black, ]\Ieigs, 142 480, 484, 488, 489 Table of Cases Cited. 643 PAGE Jordan r. Miller, 47 Ga. 346 611 V. Money, 5 H. L. Cas. 185 ; S. C. 23 L. J. Ch. 865 384 V. Murray, 3 Call. 85 106 Joyce V. Hamilton, 111 Ind. 163 533, 575, 576 V. Hutton, 11 Ir. Ch. 123 440 Joynes v. Denny, Busbee Eq. 176 480, 490 Judd V. Esty, 6 Low. Can. Rep. 12 74 Kane v. Desmond, 63 Cal. 464 49, 150, 468 Karr v. Read, 23 Gr. Ch. 525 247 Kay V. Crook, 3 Sm. & G. 407 440 Keaton ?;. Jordan, 52 Ga. 300 544 ij. Miller, 38 Miss. 630 217 Kee V. Vasser, 2 Ired. Eq. 553 49 Keeler v. Fas^ett, 21 Vt. 539 49 Keene v. Beard, 8 C. B. N. S. 380 291 V. Macey, 4 Bibb. 35 7, 8, 182, 217, 219 Keenv v. Handrick, 23 Atl. Rep. ' 1068 231 Keffer v. Keffer, 27 C. P. U. C. 257 381,391 Keiley v. Kennard, 60 K H. 1 60 Kekewick v. Manning, 1 De. G., M. &. J.176; S:C. 21L.J. Ch. N. S. 577 ; 16 Jur. 625 147, 173, 417, 419, 428, 429, 431 Kellog, In re, 1 Silver (N. Y.) Ct. App. 313, affirming 39 Hun, 275 469 Kellogg V. Adams, 51 Wis. 138 86, 150, 152, 160 Kelly V. Campbell, 2 Abb. Ajjp. Dec. 492 213 V. Dawson, 2 Moll. 87 211 V. McGratt, 70 Ala. 75 ; S. C. 45 Am. Rep. 75 480, 488, 490, 495 V. Rogers, 1 Jur. N. S. 514 490 Keiley v. McCallum, 83 N. C. 563 612 Kemper v. Kemper, 1 Duv. (Ky.) 401 36 Keingon v. Rautigam, 43 Conn. 17 72 Kendrick ;'. Taylor, 27 Tex. 695 469 Kenistan r. Sceva, 54 X. H. 24,37 21,27,32.36,106,191, 19(), 204, 241 Kennedy ''. Badgett, 26 S. C. 591 602 V. Ten Broeck, 11 Bush. 241 464 V. Ware, 1 Barr, 445 431 Kennev v. Public, 2 Bradf. 319 127 V. tucker, 8 Mass. 142 541 Kenninirham v. McLau^lilin, 3 Mon. 80 ■" 49 Kennv v. Udall, 5 Johns. Ch. 464 493 Kent V. Lyon, 4 Fla. 474 468 Kentucky Baptist Education So- ciety r. Carter, 72 111. 247 278 Kentucky Female (^rj^hun School r. Fleming, 10 Bu.sh. 234 274 Kerr r. Dickinson, 7 Sup. Ct. Rep. of N. S. W. 12 591 Kerrigan v. Rantiyan, 43 Conn. 17 160, 309, 3:I3. 4(>8, 409 Kershaw r. Kershaw, 102 111. 307 541 Kersten r. Lane, 22 Clr. Ch. 547 445, 457 Kessinger v. Kessinger, 37 Ind. 341 460 Kettle r. Townsend, 1 Salk. 187 52.3 Keyer v. Carleton, 141 Ma-^s. 45 437 Keyl V. Westerhaus, 42 Mo. App. 49 31,65, tM Kid V. Mitchell, 1 Nott. &. MlC 334 159 Kidder v. Stevens, 60 Cal. 414 443 V. Kidder, 33 Pa. St. 268 66 Kiddill V. Farrell,3 Sni. it tJ. 428 428 V. Farrell, 3 Jur. (X. S.) 786; S. C. 26L.J. Ch. 818 359 Kiff V. Weaver, 94 N. C. 274 ; S. C. 55 Am. Rep. (501; 34 Alb. L.J. 11 1,22.27.10-}. 239, 241, 242, 243, 252, 473 Kilbv r. Godwin, 2 Del. Ch. 61 1, 22, 52, 140 Killinger v. Reidenhauer, 6 S. A R. 531 495 Kilpatrick v. Graves, 51 Miss. 4.32 Ml V. Penrose, etc., Co., 49 Pa. St. 118 56 Kilpin V. Ratley (1892), 12 B.582 5(i2 Kilwick V. ^Maidiuau, 1 Burr. 59 2 Kimball v. Leland, 110 M;us<. ;;25 198, 310 King's Estate. 6 Wliart. 370 562 21 L. K. Q. 27.S 422 King V. Cotton, .More, 259 487, 4S9 V. Johnson, 2 Hill Ch. 624 55 V. O'Brien, 1 J. .t S. (N. Y.) 49 212 r. Thompson, 9 Pet. 204 3S0 r. Woi-sloy, 2 Hay. 366 (.-m9) (i06 Kingdon v. Bridges, 2 Vern. 67 .5V), 570, 571 Kingsbury's Appeal, 44 Pa. St. 4(]0" 552, 590 Kinnaman r. Pylo. 44 Ind. 275 .5.3 Kinsley v. International, ilc.t 'o., 41 111. App. 259 274. 279 Kintz r. Friday, 4 Dem. 540. 543 511. 5(«,.5!)4 Kintzel v. Kintzel, 13;J Pa. St. 71 121, 132 644 Table of Cases Cited. Kirby's Appeal, 109 Pa. St. 41 517 Kircudbright v. Kircudbright, 8 Ves. 51 559, G02 Kirk V. Eddowes, 3 Hare, 509 531, 593 Kirkpatrick v. Davidson, 2 Kelly (Ga.),297 176,182,546 V. Finney, 30 La. Ann. 223 106, 150 V. McDonald, 1 Jour. 387 420 Klein v. Wolfsohn, 1 Abb. N. C. 134 487 Kline v. Kline, 57 Pa. St. 120 458 Kline's Estate, 64 Pa. St. 122 458 Knabb's Estate, 30 Leg. Int. 361 ; S. C. 1 Leg. Chron. 337 575, 594 Knapp V. Hungerford, 7 Hun, 588 377 Knight V. Oliver, 12 Gratt. 33 601, 605 V. Yarborough, 4 Rand. 566 606 Knott V. Hogan,'4 Met, (Kv.) 99 67, 86, 119 Knye v. Moore, 1 Sm. & Stu. 61 415, 426 Kober v. State, 10 Ohio St. 444 7 Kramer v. Kramer, 68 la. 567 91 Krebs v. Krebs, 35 Ala. 293 609 Kreider v. Bayer, 10 Watts, 54 517 Kunkle v. Franklin, 13 Minn. 127 59 Kurtz V. Smithers, 1 Dem. 399 17, 207, 227, 241, 251 Kutz V. Hibner, 55 111. 514 ; S. C. 8 Am. Rep. 665 376 Kyle V. Conrad, 25 W. Va. 760 540, 606, 610, 611 Labbe v. Abat, 2 La. 553 100 Lackman r. Wood, 25 Cal. 147 473 Lade v. Shepard, 2 Str. 1004 373 Ladies' Colletriate Institute v. French,' 16 Gray, 196 274 Lady Cox's Case, lb. 339 271 Lady Gorge's Case, cited Cro. Car. 550 ; 2 Swanst. 600 569 Lady Superior v. McNamara, 3 Barb. Ch. 375; S. C. 49 Am. Dec. 184 71 Lafayette, etc., Co. v. Cheeney, 87 111. 446 57 La Favette Countv v. Magoon, 73 Wis. 627 ' ' 282, 286 Lafleur v. Girard, 2 Low. Can. Jur. 90 86 Lafollett V. Kyle, 51 Ind. 446 376 Lake Superior Iron Co. v. Drexel, 90 N. Y. 87 366 Lalonde v. St. Denis, 3 Leg. News, 415 81 Lamb v. Carroll, 6 Ired. L. 4 606 Lambe v. Orton, 1 Dr. & Sm. 125 428, 429 Lambert v. Overton, 13 W. R. 227; S. C. 11 L. T. (N. S.) 503 351 Lammons v. Allen, 88 Ala. 417 468, 491 Lamplugh v. Lamplugh, 1 P. Wms. Ill 549, 553, 555 Lampi'ey v. Lamprey, 29 Minn. 151 263, 370, 418 Lance v. Norman, 2 Ch. Rep. 79 479 Land v. Jeffries, 5 Rand. 211 480, 493 Landon v. Turner, 11 Leigh, 403 182 Landrum v. Russell, 29 Geo. 405 228 Lane v. Ewing, 31 Mo. 75 420, 428 V. Lane, 76 Me. 521 49, 126, 151 V. Moore, 151 Mass. 87 444 Langdon v. Allen, 1 W. N. Cas. 395 268 V. Astor, 16 N. Y. 140 513 Lange v. Richoux, 6 La. 560 54 Langford v. Nabers, 86 Ga. 449 583 Langlev v. Thomas, 26 L. J. Ch. 609 178 Langston v. Bates, 84 111. 524; S. C. 25 Am. Rep. 466 376, 377, 400, 402 Lansing v. Russell, 13 Barb. 510 447 Lanterman v. Abernathv, 47 111. 437 ■ 423 Largent v. Berrv, 3 Jones L. 531 515 Larimore v. AVells, 29 Ohio St. 13 196 I^ark V. Cunningham, 7 Rich. L. 57 197, 217 Larkin v. Hardenbrook, 90 N. Y. 333 ; S. C. 43 Am. Rep. 176 261 Lansdale's Estate, 29 Pa. St. 407 428 Latham v. Henderson, 47 111. 185 54(5 Latourette v. Williams, 1 Barb. 9 49 Lathrop v. Knapp, 27 Wis. 214 275, 278 Lavender v. Prichard, 2 Hay, 293-337 115 Law V. Carter, 1 Beav. 426 266 V. Henrv, 39 Ind. 414 389 V. Russell, 2 R. I. 244 577 V. Smith, 2 R. I. 244 574, 575, 587, 600, 606 Lawrence ?;. Lindsav, 68 N. Y. 108 " 538 Lawson's Appeal, 23 Pa. St. 85 516 Lawson i\ Lawson, 1 P. Wms. 441 ; S. C. 2 Eq. Cas. Abr. 575, pi. 4 269, 299, 304 V. Richards, 6 Phila. 179 292 Tabic of Cases Cited. G45 Leach v. Duvall, 8 Buah. 201 480, 481, 489, 494 Leblanc v. Bertrant, 16 La. Ann. 294 517 Le Couteaulx v. Buffalo, 33 N. Y. 333 GO Leche v. Kilmorey, Turn. & Russ. 207 78 Lechmere v. Earl of Carlisle, 3 P. Wnis. 222 271 Lee V. Bank of British N. A., 30 C. P. U. C. 255 307, 323 V. Book, 11 Gratt. 182 260, 519 V. Luther, 3 Wood & M. 519 27, 04, 106, 109, 413, 421, 424 V. Magrath, 10 Ir. Rep. (1882) 45, 226, 241, 313 Leeke's Case, L. R. 10 Ch. App. 469 57 Leicester v. Foxcraft, 1 L. C. Eq. 768 403 Leland r. Walker, 23 Mich. 324 52 Lemon v. Wright, 31 Geo. 317 83 Lench v. Lench, 10 Ves. 511 590 Lentz V. Hertzog, 4 Whart. 520 552, 555, 561 Leonard v. "Nve, 125 Maps. 455 2 Lerow v. Wilniarth, 9 Allen, 382 468 Lester v. Lester, 28 Gratt. 737 376 V. Foxcroft, 1 Colle's P. C. 108 ; P. C. 2 Vern. nom. 403 Levering r. Rittenhouse, 4 Whart. 130 hCA, 577 Lewellin v. Cobbold, 1 Sm. & Griff. 376 482, 487 Lewis's Appeal, 127 Pa. St, 127 549, 522 lewis's Est., 139 Pa. St. 640 128 Lewis V. Amer, 44 Tex. 319 171 V. Bolitho, 6 Grav, 137 473 V. Merritt, 113 N. Y. 386 ; S. C. 42 Hun, 161 194 Light r. Scott, 88 111. 239 436 Lightfoot V. Colgin, 5 Munf. 42 496 Liginger v. Field, 78 Wis. 367 541, 543 Limerick Academy v. Davis, 11 Mass. 113 274, 281 Lindell v. Rokes, 60 Mo. 249 ; S. C. 21 Am. Rep. 395 254 Linder v. Carpenter, 62 III. 309 58 Lindsay v. Piatt, 9 Fla. 150 528 530 532 LinelU'. Linell,6C.E.Gr.8i " '539 Lines v. Lines, 142 Pa. St. 149 77,92, 180,474 Linker v. Linker, 32 N. J. Eq. 174 213 V. Smith, 4 Wash. 224 480 LinnendoU v. Doe, 14 Johns. 222 7 Lipscomb v. Nichols, 6 Col. 290 54(; Lishey. v. Lishey, 2 Tenn. Ch. 5 52 Lisloli' V. Hart,' 25 Miss. 245 515, 541J Lister v. Hodgson, L. R. 4 Eq. Cas. 30 ; S. C. 15 W. R. 547 371, 447 V. Sisters, 35 N. J. Eq. 49 197, 199, 213 Little r. Dawson, 4 Dall. Ill 83 r. Willets, 55 Barb. 125 107, 181, lS;j r. AVilletts, 37 How. Pr. 481 52, 151 Littleton v. Littleton, 1 Dev. &. B. 327 496, 601 Livingston v. Livingston, 29 Neb. 167, 178 2 Lobdell t. Lobdell, 36 N. Y. 327 ; S. C. 33 How. Pr. 347 ; 4 Abb. Pr. (N. S.) 56 380 Loader v. Clarke, 2 ^l&c. & G. 382 492 Loan Asi50. r. Stonemetz, 29 Pa. St. 534 5<) Lockard v. Becklev,10 W. Va. 87 541) Lockett r. Meenis, 27 Ga. 207 218, 222 Loffus r. Maw, :5 Giff. 592; S. C. 32 L.J. Ch. 49; 8 Jur. N. S. 607 ; 6 L. T. N. S. 346 ; low. R. 513 4;i2 Logan V. Logan, 13 Ala. 653 6Cil V. Sinunons, 3 Ired. Eq.487 480, 4S6, 489, 4'>1 r. Sinnnons, 1 Dev. & But. L. 13 4>0 Lohff r. Germer, 37 Tex. 578 1 7 1 Lloyd *'. Brooks, 34 Md. 27 422 V. Harvev, 2 R. &M.310,316 5ast. Rep. 697; 6 Atl. Rep. 168 259 646 Table of Cases Cited. Love V. Francis, 63 Mich. 181 68, 69, 114, 177, 185, 193, 199, 225, 265, 399, 418 Low V. Carter, 1 Beav. 426 571 V. Foss, 121 Mass. 531 286 Lowell V. Oliver, 8 Allen, 247 59 Lowry v. McGee, 3 Head. 269 423 Lowther v. Lowther, 30 W. Va. 103 158, 163 Lucas r. Lncas, 1 Atk. 270 49, 50, 740 Lunn r. Thornton, 1 C. B. 379 107 Liintz V. Greve, 102 Ind. 173 53 Lux V. Hoff, 47 111. 425 213 l^vnch r. Hainault, 5 Low. Can. Jur. 306 2 Lvnn v. Asliton, 1 R. & J\L 188 52 V. Bell, 10 Ir. Rep. C. L. 487 291 Lyon's Est., 70 la. 375 519, 531, 538, 594 Lvon V. Green Bay, etc., R. Co., 42 Wis. 538 211 V. Marclay, 1 Watts (Pa.), 171 93 McAfee v. Busby, 69 la. 328 150, 471 V. Ferguson, 9 B. INIon. 475 480,481,489 McAllister v. Butterfield, 31 Ind. 25 593, 594 M'Auley r. Billenser, 20 Johns. 89 ^ 275, 278 McBride v. Thompson, 8 Ala. 650 202 M'Cabe's Estate, 6 Pa. C. C. R. 42 307, 325 McCabe r. Robertson, 18 C. P. U. C. 471 307, 323 McCampbell v. McCampbell, 2 Lea, 661 213 McCarthy v. ]McCarthv, 36 Conn. 177 ' 91 McCartney v. Bostwick, 32 K. Y. 53 546 McCarty v. Koarnan, 86 111. 291 38 ]\TcCarven's Estate, 7 AV. X. C. 261 27 M'Caw V. Blewit, 2 McC. Ch. 90 600,606, 011,612 McClanahan v. McClanahan, 14 S. E. Rep. 419 590 McClintock v. Loisseau, 31 W. Va. 865 549, 552, 554 McCloskey v. McCloskev, 29 La. Ann. 237 86 M'Clunev v. Lockhart, 1 Bail. L. 117 191 V. Lockhart, 4 M'Cord, 251 63, 231 McClure v. Lancaster, 24 S. C. 273 211 V. McClure, 1 Barr (Pa.), 374 387 PACE McClure v. Miller, 1 Bailev Eq. 107 222, 225, 480, 482, 490, 489 V. Wilson, 43 111. 356 278 McCluskey v. Provident Institu- tion, 103 Mass. 300 345 McCord V. iMcCord, 11 Rev. Le0 r. Jane. 2 P.ibb. .32 03, 87 V. Mahan, 7 B. Mon. 579 175, .371,431 V. United States, 10 Wall. 143 ; S. C. 8 Ct. of CI. 137 82 Maiben f. Bobe, 6 Fla. 387 12 Mallett V. Page, 8 Ind. 3(^1 73, 174,2.50,515.549 Malone, In re, 37 Ix-g. Int. 03 ; S. C. 38 Leg. Int. :5(i3 184 Malone, Estate of, 30 Ix-g. Int. t)3 150 Malone's Estate, 37 Leg. Int. QA ; S. C. 38 Leg. Int. 30.3 203 Malone r. Reynolds, 2 Fox & Smith (lr.),59 HO Mallory v. Stodder, 6 Ala. 801 71 Manders v. Manders, 4 Iri^h l^]. 434 -1'-^ Manes v. Durant, 2 Rich. Ya\. 404 4S0. 4.'^9 Manly v. Howlett, 55 Cal. 94 370 Mann r. jNIann. 2 Hich L. 123 227 7'. Mann, 12 Heisk. 245 5(^1 INIannimr r. Thurston, 59 Md. 218 530,009 Mannv i: Rixford, 44 P.l. 129 67 648 Table of Cases Cited. Marcv v. Amazeen, 61 N. H. 131 ; ' S. C. 60 Am. Rep. 320 83, 335, 413 ]^Iarden v. Babcock, 2 Met. 99 468 Markwell v. Markwell, 34 Beav. 12 437 Marling v. Marling, 9 W. Va. 79 ; S. C. 27 Amer. Rep. 535 371 Marsh v. Fuller, 18 N. H. 360 133 V. Gilbert, 2 Redf. 465 609 Marshall v. Berry, 13 Allen, 43 40, 45 V. Crutwell, 20 L. R. Eq. 328 ; S. C. 4 L. J. Ch. 504 572 V. Dossett, 20 S. W. Rep. 810 456 V. Fulgham, 4 How. (Miss.) 216 • 173, 175 V. Jaquith, 1.34 Mass. 138 51 V. Rench, 3 Del. Ch. 239 534, 539, 593, 600 Marston v. Lord, 65 N. H. 4 515, 602, 603, 613 V. Marston, 64 N. H. 146 98, 184 Martin v. Funk, 75 N. Y. 134 ; S. C. 31 Ainer. Rep. 446 105, 106, 134, 140, 180, 333,415, 421, 423, 424, 425, 426, 427 V. McCord, 5 Watts, 493 401 V. Martin, 15 La. Ann. 585 182 V. Ranisev, 5 Humph. 349 370 V. Smith," 25 W. Va. 579 241 Martrick v. Linfield, 21 Pick. 325 164 Marx V. McGlynn, 4 Redf. 455 457 Massey V. Huntington, 118 111. 80 420, 424 V. State, 74 Ind. .368 7 Mason v. Holman, 10 Lea, 315 140, 519, 520, 574, 575, 576 r. Mason, 12 La. 589 524 Mathews v. Rentz, 2 Amer. L. Rec. 371 86 IMather v. City of OttaAva, 114 111. 659 58 Maunsell v. White, 4 H. L. Cas. 10.39 ; S. C. 1 J. & L. 539 ; 7Ir. Eq. R.413 384 Maux, etc., Co. v. Branegan, 40 Ind. 361 ~ 56 Maverick v. Stokes, 2 Bay. (S. C.) 511 54 Maxwell v. Harrison, 8 Geo. 61 182 V. Maxwell, 109 111. 588 549, 570, 590, 591 May V. May, 36 111. App. 77 63, 64, 192 Mayer's Appeal, 77 Pa. St. 482 213 Mavor, Ex parte, 34 L. J. Bkcy. 25 467 JIayo I'. Carrington, 19 Gratt. 74 86 Meach v. Meach, 24 Vt. 591 24, 40, 208, 373 Meadows v. Meadows, 11 I red L. 148 511,533,559,607, 608 Mears v. Bickford, 55 Me. 528 2 Medlock v. Powell, 96 N. C. 499 162 Meek v. Kettlewell, 1 Ph. 342 ; S. C. 1 Hare 464; 13 L. J. N. S. Ch. 28 ; 11 L. J. N. S. Ch. 293, 464 ; 7 Jur. 1120 ; 6 Jur. 550 173, 25.3, 425, 426, 429 V. Perry, 36 Miss. 190 461 Meeker v. Meeker, 16 Conn. 383 84, 519, 553 Meiggs v.Meiggs,15Hun, 453 89, 436 Melvin v. Lamar Ins. Co., 80 111. 446; S. C. 22Am. Rep. 199 365, 519, 614 Mengel's Appeal, 116 Pa. St. 292 582 Merchant v. Merchant, 2 Bradf. 432 27, 41, 98 Merchants* National Bank v. State Bank, 10 Wall. 604 290 Mercer i-. Mercer, 29 la. 557 5, 64 Meredeth v. Watson, 17 Jur. 1063 243 Meredith v. AVatson, 23 E. L. & Eq. 250 ; S. C. 2 Eq. Rep. 5 26 Meriwether t'. Morrison, 78 Kv. 572 105, 140, 147 Merkel's Appeal, 89 Pa. St. 340 520 Merrick v. Peru Coal Co., 61 111. 472 56 Merrill v. Rhodes, 37 Ala. 449 574, 575, 581, 594 r. Rolston, 5 Redf. 220 457 Merrills t'. Swift, 18 Conn. 257 ; S. C. 46 Am. Dec. 315 71 Merriman v. Lacefield, 4 Heisk. 209 553, 577 Merritt v. Smith, 6 Leigh, 486 106 Metcalf 's Case, L. R. 13 Ch. Div. 169 57 Methodist Episcopal Church v. Jacques, 3 Johns. Ch. 77 211 Mevers v. Farquharson, 46 Cal. 190 372 Meyer's Succession, 11 So. Rep. 532 612 Michener v. Dal, 23 Pa. St. 59 22, 41, 43, 45, 46, 140, 148, 473 Michigan, etc., R. R. Co. v. Bacon, 33 Mich. 466 278 Middleton v. Middleton, 31 la. 151 574, 575, 577, 590 Miles V. Bovden, 3 Pick. 213 49 Mill V. Wvman, 3 Pick. 207 268 Miller's Appeal, 31 Pa. St. 337 508, 510, 564, 610 Table of Cases Cited. 649 Miller's Appeal, 40 Pa. St. 57 561, 582, 596 107 Pa. St. 221 553 Miller's Estate, 2 Brewster (Pa.) 355 601 Miller's Will, 73 la. 118 515, 601 Miller v. Anderson, 4 Rich. Eq. 1 172, 176 V. Ballard, 46 111. 377 278 V. Billingsly, 41 Ind. 489 140, 146 V. Chittenden, 2 la. 315 58 V. Clark, 40 Fed. Rep. 15 197, 320 V. Catten, 5 Geo. 341 404 v. Eastman, 11 Ala. 609 217,220 V. Hanover, etc., R. R. Co. 87 Pa. St. 95 ; S. C. 30 Am. Rep. 349 365 V. Jetfrers, 4 Gratt. 472 21, 105, 112, 127 r. LePiere, 136Mass. 20 87, 115, 140, 167 V. Miller, 3 P. Wms. 356 21, 27, 156, 233, 234, 238, 239 V. Neflf, 3 W. Va. 197 117 Millican v. Millican, 24 Tex. 426 93 Million V. Tavlor, 38 Ark. 428 459 Millsv. Von Voorhies, 20 N. Y. 412 495 Millspaugh v. Putnam, 16 Abb. Pr. 380 312 Milner v. Freeman, 40 Ark. 62 547 Milnes v. Rusk, 2 Yes. Jr. 488 211 V. Sherwin, 33 W. R. 927 11 Milroy v. Lord, 8 Jur. N. S. 806 ; S. C. 31 L. J. Ch. 798 ; 7 L. T. N. S. 178 ; 4 De G., F. & J. 264 129, 140, 412, 416, 417, 419, 428 Mims V. Lockett, 33 Geo. 9 387, 410 V. Ross, 42 Geo, 121 3, 395 V. Sturtevant, 18 Ala. 359 170, 175, 184 Minchin v. Merrill, 2 Ed. Ch. 333 2,201 Minor v. Mechanics' Bank, 1 Pet. 46 56 V. Roeers, 40 Conn. 512 ; S. C. 16 Am. Rep. ()9 72, 140, 147, 180, 309, 333, 415, 418 Minturn v. Fisher, 4 Cal. 35 292 V. Seymour, 4 Johns. Ch. 497 422 Miskey's Appeal, 107 Pa. St. 611 99, 448, 451, 459, 460 Mitchell ?'. Homfrav, 8 L. R. Q. B. Div. 587:"S. C. 50 L.J. Q. B. Div. 460 ; 45 L. T. (N. S.) 694 : 29 W. R. 558 450, 457 V. Mitchell, 8 Ala. 414 506, 539, 561, 583, 603 Mitchell V. Pease, 7 Cush. 350 46, 47.3 r. Rvan, 3 Ohio St. 377 71 V. Smith, 33 L. J. Ch. 596 ; S. C. 12 W. R. 941 ; 10 L. T. (N. S.) 801 ; 4 De G. J., & S. 422 38, ISO Mohawk Bank v. Atwator, 2 Paige, 54 46S Mock's Appeal, 68 Pa. St. 231 342 Monck t. Monck, 1 B. & B. 298 514 Mondy v. JoUifle, 5 Myl. (k Cr. 167 403 Money v. Jordan, 2 De G., "SI. &. G. 318 ; S. C. 21 L. J. Ch. 893 ".S4 Monks V. ]\Ionks, 7 Allen, 401 6i() Monroe r. Barclay, 17 Ohio St. 302 4()0 INIontgomery v. Chanev, 13 I-a. Ann. 207 ' 509 V. Miller, 3 Redf. 154 aflirniod 78 N. Y. 282 106, 17(>, 241 Montioy v. Maginnis, 2 Duv. 186 534, 540 Moodv V. Walker, 89 Ala. 619 49, 473 Moore r. Burrow, 89 Tenn. 101 606, 60S, 610 V. Crafton, 3 Jan. ct S. 442 439 V. Darton, 4 De G. cS: Sm. 517 ; S. C. 20 L. J. Ch. (N. S.) 626 ; 7 E. L. &. Eq. 1.34 24, 92, 128, 246, 261, 262 V. Downev, 3 H. & M. (Va.) 127 " 217, 220 r. Moore, 67 IVIo. 192 443, 445 V. :\Ioore, 18 L. R. Ya- 474 ; S. C. 43 L. J. Ch. 617; 22 W. R. 729 ; 30 L. T. (N. S.) 752 243, 307, 351, 352, 423 V. Pierson, 6 la. 279 ; S. C. 71 Am. Dec. 409 6, 376, 3S6 V. Small, 19 Pa. St. 461 37(), .380. .386, 401,408 r. Ulster Bank, 11 Jr. C. L. 512(1877) 307,323 V. Webb, 2 B. iNfon. 282 391 Morgan, In re, 104 N. Y. 74 346, 519, 601 Morgan r. Ball. 81 Cal. 93 4.'< V. :\ralleson, 10 L. H. F-q. 475; S. C. 39 L. J. Ch. 680 : 23 L. T. N. S. 3.36 ; 18 AV. R. 1125 ^ 417 Morisey v. Bunting, 1 Dov. L. 3 Morr's Appeal, SO Pa. St. 427 563 650 Table of Cases Cited, Morrall v. Morrall, L. E. P. D. i)8 213 Morris r. Burroughs, 1 Atk. 390 50G, 561 V. MacCullock, 2 Eden, 190 ; S. C. Ambl. 432 78 V. Morris, 9 Heisk. 814 511 V. Ward, 36 N. Y. 587 4, 5 Morrifon v. Abbott, 27 Minn. 116 472 V. Bailey, 5 Ohio St. 13 292 V. Forbes, 17 C.of S. Cas.958 307 :\rorrow V. Williams, 3 Dev. 263 172 :\Iorse V. iMeston, 152 Mass. 5 62, 350 jMorton v. Sewart, 2 Y.& Coll. N. C. 67 417 Mosely v. Williams, 5 Hare (Miss.), 520 9, 218 ]Moses r. Murgatroyd, 1 Johns. Ch. 119 427 Moultrie v. Jennings, 2 McMull. 508 228 Mowry v. Smith, 5 R. I. 255 539 Mullen V. Mullen, 2 Am. L. Eec. 611 566 MuUick r. Radakissen, 9 Moore, P. C. 46 291 ]\Iulliken v. Greer, 5 Mo. 489 218 Mulock r. Mulock, 31 N. J. Eq. 594 ; S. C. 32 N. J. Eq. 348 370, 447 Mumma v. Mumma, 2 Vern. 19 549, 553 Murless v. Franklin, 1 Swanst. 13 520, 554, 574, 591 Murphy v. Stcll, 43 Tex. 123 376, 387, 400, 402, 470 :Murrav's Estate, 2 Chest. (Pa.) 300 578, 580, 582 2 Pears. (Pa.) 473 601 :Murrav v. Cannon, 41 Md. 466 106, 327 V. Sell, 23 W. Va. 475 546 Murrell v. Murrell,2 Strobh. Eq. 148 .521, 552, 590 ^Mutual Fire Ins. Co. v. Deale, 18 Md. 26 552, 590 Myers r. Peek, 2 Ala. 648 201 V. AVarner, 18 Ohio, 519 539, 614 Naldred r. Gilham, 1 P. Wms. 577 87, 425 Xash V. Nash, 2 Mad. 133 344 Nasse v. Thonian, 39 Mo. App. 178 111 Xearpass v. Newman, 106 N. Y. 47 436 Neale v. Neale, 9 Wall. 1 375, 379, 380, 403 Needles v. Needles, 7 Ohio St. 432 517, 528, 535, 539, 542 PAGE Neely v. Wood, 10 Yerg. 485 533 Neilson v. Blight, 1 Johns. Cas. 205 427 Nelson v. Bush, 9 Dana, 104 580, 603, 605 V. Cartmel, 6 Dana, 8 127, 262 V. Iver.son, 19 Ala. 95 ; S. C. 17 Ala. 216 201 V. Nelson, 7 B. Mon. 672 608, 609 V. Nelson, 90 ]Mo. 4(50 576, 577, 578, 581, 582 V. Sudick, 40 Mo. App. 341 31 r. Wvan, 21 Mo. 347 552 Nesbit ?)."Lockman, 34 N. Y. 167 448 Nesmith v. Dinsmore, 17 N. H. 515 518, 541 Nettleton v. Nettleton, 17 Conn. 542 001 Neufville v. Thompson, 3 Edw. 92 49, 106, 247 Nevin r. Drysdale, L. E. 4 Eq. 517 531 New V. New, 127 Ind. 576 614 Newall r. Newall, 13 Vt. 33 521 Newell's Will, 1 Brown (Pa.), 311 534 Newell V. Newell, 13 Vt. 24 590 Newhouse v. Godwin, 17 Barb. 236 449 Newman v. Wilbourne, 1 Hill (S. C), Eq. 10 106, 534 Newton v. Acken, 11 Beav. 145 436 V. Snyder, 44 Ark. 42 24, 140, 142, 145 New York, etc., Co. v. Ketchum, 27 Conn. 170 57 Nickerson v. English, 142 Mass. 267 365 r. Nickerson, 28 Md. 327 68 Nicholas v. Adams, 2 Whart. (Pa.) 17 27,31,30,45,98,170 Nichols V. Coffin, 4 Allen, 27 538, 610 V. Edwards, 16 Pick. 62 187, 217, 219 Nicholson v. Mulligan, L. E. 3 Ir. Eq. 308 550 r. Mulligan, 17 W. R. 659; S. C. 3 Ir. Eq. 308 592 r. Tliomas, 8 AV. N. Cas. 195 107 Nightingale v. Nightingale, 13 E. I. 113 437 Niver v. Crane, 98 N. Y. 40 547 Nixon's Appeal, 63 Pa. St. 279 546 Noble V. Bines, 72 Ind. 12 468 V. Smith, 2 Johns. 32 5, 105, 107, 167 Noe V. Card, 14 Cal. 576 383 Nolan V. Bolan, 25 Ga. 352 510 Table of Cases Cited. Gol Nolan V. Bolton, 25 Ga. 352 512, 574, 575, 593 Nolen V. Harden, 43 Ark. 307 64, 90 Norris v. Norrip, 3 Ind. App. 500 614 V. Bradford, 4 Ala. 203 217 Northeastern Ry. Co. v. Jackson, 19 W. R. 198 57 Northern Central Mich. R. R. Co. V. Eslow, 40 Mich. 222 279 Northrop v. Hale, 73 Me. 66 63, 342 Northwestern Conference v. My- ers, 36 Ind. 375 275 Norton v. McNutt, 55 Ark. 59 190 r. Relly, 2 Eden, 286 456 Norwood V. Branch, 2 No. Cas. 598 535 Nugent V. Foster, 49 Mich. 434 192 Nye V. Chace, 139 Mass. 379 64 Oakev's Estate, 1 Bradf. 281 Oherthier v. Stroud, 33 Tex. 522 O'Brien, In re, 11 R. I. 419 V. Hilburn, 22 Tex. 616 V. O'Brien, 4 Oiitario, 450 V. Shell, 7 Ir. Eq. 255 213, 518,555,577,582,591, O'Dohertv r. Ontario Bank, 32 C. P. (Can.) 285 1S9, O'Gara, In re, 15 N. Y. St. Repr. 737 Ogden V. Murray. 39 N. Y. 202 Ogsbury v. Ogsburv, 115 N. Y. 290 ■385,386,-395, Oldenberg v. Miller, 82 Mich. 650 187, ( )ldham r. Litchfield, 2 Vern. 506 Oliver V. Moore, 23 Ohio St. 473 368, 369, 370, Oiler V. Boncbrake, 65 Pa. St. 338 574, 575, 581, Olds V. Powell, 7 Ala. ()52 65, 197, 204, O'Neal V. Breecheen, 5 Baxt. 604 534, 576, 60<), O'Neale v. Dunlap, 11 Rich. Eq. -105 O'Neall r. Farr, 1 Rich. 80 r. Oates, 8 La. Ann. 78 O'Neil V. Teague, 8 Ala. :U5 On:^low r. Michell, 8 Yes. 490_ Oremerod's Case, 25 W. R. 765 Orme, In re, 50 L. T. N. S. 51 Orinsbv v. State, 6 Nev. 283 Orr r. Orr, 8 Bush. 156 V. Orr, 21 Gr. Ch. (U. C) 397 V. Orr. 31 Q. B. U. C. 13 381, Osgood V. Breed, 17 Mass. 356 510, 606, V. King, 42 la. 478 528 546 424 12 106 515, 592 210 259 56 403 243 438 408 583 217 608 563 449 ()04 219 512 57 532 512 213 381 391 609 366 PAGE Otis r. Beckwith, 49 111. 121 425 Ouseley v. An.«truther, 10 Bcav. 453 ^ 550 Overholser v. Wright, 17 Ohio St. 157 566 Overby v. Harris, 3 Ired. Eq. 253 217 Overton v. Sawyer, 7 Jones (N. C.) L. 6 ■ 27, 241 Owen V. Kennedy, 20 Gr. Ch. 1(»3 570 V. Tankersley, 12 Tex. -^05 189,217 wine's Case, 1 Bland. Ch. 370 445 Ownes r. Ownes, 23 N. J. Eq. 60 418 Oxlev r. Lee, 1 Atk. 625 87 Oyster v. Oyster, 1 S. & R. 422 mj Packwood v. Dorsev, 6 Rob. (I^.) 329 Padfield v. Padfield, 68 HI. 210 Padmore r. Gunning, 7 Sim. 644 Page r. Hcmie, 11 Beav. 227 V. Kendrick, 10 Mich. 300 r. Page, 8 N. H. 1S7 549, 591, Paine v. Parsons, 14 Pick. 318 531, Painter r. Painter, IS Ohio, 247 Pahner r. Allcock, 3 Mod. 59 V. Culbertson, 20 N. Y. Supp. 391 5.52, V. Sterling, 41 Mich. 218 Parcher r. Saco, etc.. Institution. 78 Me. 470 1<'>.32, Parfitt V. Lawless, L. R. 2 P. I'c D. 4(>4; S. C. 41 L. J. P. 68 ; 27 L. T. 215 ; 21 W. R. 200 ; 4 Moak. 687 441,442.440, Parish r. Stone, 14 Pick. 198; S. C. 25 Am. lUc 378 43, 63, 9S. 250, 2<1S, Parker v. Emerson, i> Law I.'c- porter, 76 ; S. C. 4 N. Y. Leg Ob. 219 V. Hinsnn, 1 Ired. Eq. 381 19.3, r. l-ochmere, 12 Cli. Div. 256 ; S C. 28 W. R. 48 r. Mc(Muer, 36lIow.Pr. .301; S. C. 5 Abb. N. S. 97 ; 3 Keves, 318 r. Marston, 27 Me. 196 98, f. Newitt, 18 Ore. 274 522, 540, r. Parker, 45 N. J. Eq. 224 V. Pliillips, 1 May, 451 r. Proctor, 9 Ma.«9. 390 r. Ricks, 8 Jones L. (N. C.) 447 376 421 262 458 460 5'. "5 584 .594 502 .510 373 127 457 45. 271 271 152 542 241 570 4.M 217 4\ Hornberger, 4 Coldw. 531 Platamore v. Staple, Coop. 250 Piatt V. Blatt, 2 Y. & C. 29 Podmore v. Gunning, 7 Sim. 644 438 Poirier v. Lacroix, 6 Low. Can. Jur. 302 74, 90 Polar Star Lodge v. Polar Star Lodge, 16 La. Ann. 53 56 Pole V. Pole, 1 Ves. Sr. 76 553, 555 V. Simmons, 45 Md. 246 536, 581, 585 Pollock V. Worrall, L. R. 28 Ch. Div. 552 514 Pomeroy v. Pomerov, 54 IIow. Pr. 228 " 495 Pope V. Burlington Savings Bank, 56 Vt. 284 ; S. C. 48 Amer. R. 781 63, 320, 337 V. Dodson, 58 111. 360 382 V. Randolph, 13 Ala. 214 86, 182 Popham V. Brooke, 5 Russ. 8 458 266 275 162 .377 596 456 425 453 Porter v. Allen, 54 Geo. 623 ; S. C. 3 Pa. St. 390 198, 204, 37<1, 386, 387, 400, 405, 577, 596 V. Collins, 7 Conn. 1 601 V. Gardner, 60 Hun, 571 117, 125, 133, 159, 187 V. Porter, 27 Gratt. 599 213 Poston V. Gillespie, 5 Jtjnes, 258 480, 483, 485, 486, 492, 494 Potter V. Gracie, 58 Ala. 303 4.39 7-. Smith, 68 Mich. 212 398 Poullain v. Poullain, 79 Ga. 11 ; S. C. 76 Ga. 420; 72 Ga. 412 107, 115, 167, 19S, 206. 404, 405 Poulson V. Wellington, 2 P. AVni.a. 533 479, 488 Powel V. aeaver, 2 Bro. C. C. 500 238 Pow^ell V. Brown, 1 Bail. L. 100 1S2 V. Hankey, 2 P. Wins. 82 21 1 V. Hellicar, 26 Bt-av. 261 ; S. C. 5 Jur. N. S. 2.32; 28 L. J. Ch. :3.55 13.5, 139, 141 V. Leonard, 9 Fla. 359 115, 117, 170 r. Manson, 22 Gratt. 177 49S V. Olds, 9 Ala. 861 (>5, 197 f. Powell, 9 Dana, 12 612 V. Powell, 5 Dana. 1(>8 574, 5!X), ()02, 603, 604 Power V. Power, 52 N.W. Rop. 61) 51K) Pownall V. Anderson, 4 W. R. 407 422 Powvs V. Mansfield, 3 Mvlne it Cr. 359 ; S. C. 6 Sim. 52S 514, 596 Prather v. Burgess, 5 Crancli. C. C. 376 4.^\ 491 Pratt V. Barker, 1 Sim. 1 ; S. C. 4 Rus.«. 507 4.'>7 V. Pratt, Fitzg. 284 ; S. C. 2 Stra. 9.35 ' 562, C(\'l r. Trustees, etc., 93 111. 475 280 Presbvterian Church of Albany 'v. Cooper 112 N. Y. 517 279, 285 r. Cooper, 45 Hun, 433 ; S. C. 10 N. Y. St. Rop. 142 27S, 282 Presslev v. Konip, 16 S. C. .'i^«4 ; S. C. 42 Am. Rop. 6:i5 442, 4.VI Price V. Price, 5 Ala. 578 182 V. Price. 14 Boa v. W8. af- firmed 1 DoG., M. &. , 577, 603, 604, COO V. Simmons, 11 R. I. 266 ; S. C. 23 Am. Rep. 447; 15 Amer. L. Reg. 701 326, 333 Raymond v. Pritchard, 24 Ind. 318 86, 368 V. Cook, 31 Tex. 373 470 V. SeUick, 10 Conn. 480 14, 16, 27, 45, 193, 268, 271, 272 Raynes v. Lowell, etc., Society, 4 Cush. 343 343 Read v. Robinson, 6 W. & S. 329 423 Reade v. Adams, 5 Ir. C. L. Rep. 426 373 Reech v. Kennegal, 1 Yes. Sr. 123 438 Rector v. Danley, 14 Ark. 304 ; S. C.5Eng. 211 158,160,197 Reddel v. Dobree, 10 Sim. 244 98, 117, 137, 297 Redington v. Redington, 3 Ridgw. 100 546, 549, 550, 553, 554 Reed v. Barnum, 136 111. 388 177, ISO Read v. II utf, 40 N. J. Eq. 229 214 r. Rahm,65 Cal. 343 212 Reed v. Copeland, 50 Conn. 472 ; S. C. 47 Am. Rep. 663 350 V. Reed, 52 N. Y. 651 62 V. Spaulding, 42 X. H. 119 (i6, 106, 114 V. Yannarsdale, 2 Leigh, 569 422, 4.32 Reeder ?-. Flinn, 6 S. C. 216 211 Rees V. Rees, 11 Rich. Eq. 86 521,522,532,565 Reeves v. Brynier, 6 Yes. 516 262 ■V. Capper, 5 Bing. N. C. 56 ; S. C. 6 Scott, 877 ; 2 Jur. 1067 107 Regina v. INIiddleton, 2 L. R. C. C. 38,56; S. C. 42 L. J. M. C. 73: 28 L. T. 777; 12 Cox, C. C. 260, 417 11 Reid V. Butt, 25 Ga. 28 175, 224 Table of Cases Cited. >tj'j Reid V. Colcock, 1 N. & McC. 592 104, 106, 115, 157, 187 Reimensnyder v. Gans, 110 Pa. St. 17 278, 280 Renfer v. Harrison, 10 Mo. 411 71 Reynolds v. Caldwell, 80 Ala. 232 546 V. Reynolds, 13 Kj'. L. Rept. 793 561 V. Reynolds (Kv.), 18 S. W. Rep. 517 ' 152, 563 V. Vance, 1 Heisk. 344 480, 495 Rhodes r. Bate, 35 L. J. Ch. 267 450, 458 V. Child, 64 Pa. St. 18 27, 28, 38, 41 , 209, 215, 296 V. Rhodes, 10 La. 85 6, 66, 394 Rich ?'. Briery, 110 Ind. 444 554 V. Cockell, 9 Ves. 369 52 V. Mobley, 33 Geo. 85 218, 220 Richard v. Svmes, 2 Atk. 319; S. C. 3 Barn. 90 ; 2 Eq. Cas. Abr. 617 231, 237, 260, 261 Richards v. Delbridsje, 43 L. J. Ch.459; S. C. 22 W. R. 584 370, 412, 417, 419 V. Humphreys ,1 5 Pick. 133 518 V. Munro, 30 S. C. 284 1 97, 202 V. Richards, 11 Humph. 428 496, 601 Richardson, In re, 47 L. T. N. S. 514 540 V. Adams, 10 Yerp. 273 132, 241, 271, 438 V. McNulty, 24 Cal. 339 404 V. Rhodus, 14 Rich. L. 95 471 V. Richardson, 3 L. R. Eq. 686 ; S. C. 15 W. R. 690 ; 36 L. J. Ch. 653 238, 257, 417, 428 t'. Seeyers, 84 Ya. 259 119 Richer v. Yoge, 5 Rey. Leg. 591 194 Richmond v. Yanhook, 3 Ired. Eq. 581 •''35 V. Yongue, 5 Strobh. L. 46 217 Richmondyille Union Seminary, etc., V. Brownell, 37 Barb. 535 278 Rickards v. Attorney-General, 12 CI. & F. 44 -167 Kickenbacker v. Zimmerman, 10 S. C. 110 533, 540, 607 Riddle's Est., 19 Pa. St. 431 5(50, 561 Ridden r. Thrall, 125 N. Y. 572 ; S. C. 21 Am. St. 758; 26 N. E. Rep. 627; 55 Hun, 185 22, 28, 31, 32, 36, 317, 320 Rider v. Kidder, 10 Yes. 360 356 Ridley v. McNairy, 2 Humpl^- ■174 377,410 Riegel v. Wooley, 81* Pa. St. 227 77 Rieper v. Rieper, 79 Mo. 352 52 Riggs V. American Tract Society, 84 N. Y. 330 443 Rinker v. Rinker, 20 Ind. 185 72, 140, 183, 207, 227, 2(^4, 2()0 Ritch r. Hawxhurst, 114 N. Y. 512 5:;7 V. Hvatt, 3 ISI'Arthnr, 536 21 1 Putter's Appeal, 59 Pa. St. 9 436 Rivanna Navijiation Co. >: Daw- sons, 3 Gratt. 19 ; S. C. 4(5 Am. Dec. 183 366 Rober-son v. Nail, 85 Tenn. 124 Hid Roberts' Appeal, 85 Pa. Si. 84 3()1 r. Cobb, 103 N. Y. (iOO; S. C. 21 N. Y. St. Rep. 503, 275, 278, 279 V. Coleman, 16 S. E. Rep. 482 519 V. Draper, 18 Bradw. liiS 2 22, 32, (W! V. Llovd, 2 Beav.376 2ol' 42iC'42H V. Ruker, 2 Pa. Le- Gaz. 131 212 V. Roberts, 15 W. R. 117 125 V. Roberts, llJur. N. S. 992 ; 14 W. K. 123: 13L.T.N.S. 492:12 Jur.N.S. 971 48,430 V. Wills, Spencer (N. J.) 591 132 Robertson v. Corbett, 33 Mich. 458 278 r. March, 3 Scam. (111.) 198 278 Robinson v. Buck. 71 Pa. St. 386 481 t;. Cummings, 2 Atk. 40.1 ; 14 Yin. Alir. title (iift, pi. 7: Foiib. Eci. sect. 15; 1 Cum. Dig. 313 SO, 04 V. Denson, 3 Head. .395 438 V. Dunn, 77 Cal. 47.! 54 V. Pittsbun.'h, etc., K. P. Co., 32 Pa. St. 334 ; S. C. 72 Am. Dec. 792 365 r. Ring, 72 :Me. 140; S. C. 39 ^ Amer. Pep. 30S 312 V. Robinson, 4 Humph. 392 531. 5.',9 V. Robinson. Bravt. 59 542, 5«il 7'. Swift, 3 Vt. 283 542 V. AVhitley. 9 Yes. 577 5<>6 Robson V. Jones, 3 Del. Ch. 51 27, 28, 105, 109, 145. 22t;, 415. 418.421,42.; RockafcUow v. Xewcomb. 57 111. 186 , ^ •l'*''^ Rock Island Stove Co. r. A\ alrod, 75 la. 479 '*«'»-'* Rockwood V. Wiggin, 16 Gray, 402 196 Rodo-ersr. Marshall. 17 Yes. 294 440 Roe"r. Wilkins. 4 A. & E. Sd :x) Regan r. "Walker, 1 A\ is. o2< 546 6o6 Table of Cases Cited. Rogers v. Daniell, 8 Allen, 343 530 V. Rogers?, 55 Vt. 73 269 Roland r. Schrack, 29 Pa. St. 125 564, 596 Rolls V. Pcarce, 5 Ch. Div. 730 ; S. C. 46 L. J. Ch. 791 ; 36 L. T. 438 ; 25 W. R. 8f)9 ; 22 Moak. 432 300 Roman Catholic Orphan Asj'lum ('. Strain, 2 Bradf. 34 266, 328 Root V. Blake, 14 Pick. 271 546 Rose V. Wynatt, 7 Yerg. 33 456 Rosenburg v. Rosenburg, 40 Hun, 91 92, 93 Ross's Appeal, 127 Pa. St. 4 208, 242 V. Draper, 55 Vt. 404 117 Rothwell r. Dewees, 2 Back. 613 546 Rowe /'. Merchant, 86 Va. 177 129 Rowland v. Sullivan, 4 Des. Eq. 516 443 Ruch V. Bierv, 110 Ind. 444 511, 552, 593, 595, 601 Rucker v. Abell, 8 B. Mon. 566 377, 382, 397, 410 Ruckman v. Ruckmar, 4 N. J. L. Jr. 134 170, 174 Rumbly v. Stainton, 24 Ala. 712 217, 219 Rumholds v. Parr, 51 Mo. 592 376 RuniboU r. Runiboll, 2 Eden, 16 554 Rummers v. Hare, 1 Ex. Div. 169; S. C. 46 L. J. Ex.30; 34 L. T. 407 ; 24 W. R. 385 248 Rupert V. Johnson, 40 Q.B. (Can.) 11 122 Ruse V. Bromberg, 88 Ala. 619 49, 471, 472 Russ r. George, 45 N. H. 467 51 V. Brown, 45 N. H. 467 51 Russell's Appeal, 25 P. F. Smith, 289 99, 437, 448 Russell V. Svvitzer, 63 Geo. 711 404 Rutledge, Ex parte, Harper Eq. (S. C.) 65 365 Rval V. Rval, 1 Atk. 59 467, 591 Rvburn ?■. Pryor, 14 Ark. 505 86, 200 Rycroft v. Christy, 3_Beav. 238 429 Ryerss r. Presbyterian Congre- gation, 33 "Pa. St. 114 278 Sackett r. Sackett, 8 Pick. 309 508 Salem Bank v. Gloucester Bank, 17 Mass. 1 56 Salmon v. Wilson, 41 Cal. 595 4 Sampson v. Sampson, 67 la. 253 189 Sanborn v. Goodhue, 28 N. H. 48 87 r. Sanborn, 65 N. H. 172 268 Sanderlin v. Sanderlin, 24 Geo. 583 184. 213 Sanford v. Finkle, 112 111. 146 49 V. Noble, 2 Pick. 337 581 V. Sanford, 45 N. Y. 723 ; S. C. T. & C. 641 ; affirmed, 58N. Y. 69; S. C. 17 Am. Rep. 206 266 V. Sanford, 61 Barb. 293 551, 559, 561, 602 Sanilac Co. v. Auditor-General, 68 Mich. 659 64 Saniland v. Willott, 3 MacN. & G. 664 194 Sargent v. Baldwin, 60 Vt. 17 436 V. Cornish, 54 N. H. 18 59, 60 Sasser v. Sasser, 73 Geo. 275 210, 463 Sanfley v. Jackson, 16 Tex. 579 93 Saunders v. Harris, 1 Head. 185 480, 491 Savignv L. 22 de V. O. (25, 1) 1 Whart. Cont. sect. 195 95 Sawyer v. Hoag, 17 Wall. 610 366 Say re v. Hughes, 5 L. R. Eq. 376 ; S. C. 37 L. J. Ch. 401 ; 16 W. R. 662 ; 18 L. T. N. S. 347 532, 550, 569 V. Sayre, 5 Stew. (N. J.) 61 ; S. C. 8 Stew. 563 517 Scales V. Maude, 6 De G. & M. 43; S.C.I Jur. 533, 1147; 25 L. J. Ch. 433 ; 3 W. R. 527 120,129,178,261,417, 419,4.30,434 Scarborough v. Watkins, 9 B. Mon. 540 464 Scawin v. Scawin, 1 Y. & C. Ch. 65 554 Schaffer v. Dumble, 5 Ontario, 716 150 SchafTner v. State, 8 Ohio St. 642 7 Schick V. Grote, 42 N. J. Eq. 352 194, 230, 343 Schollmier v. Scholhnier, 78 la. 426 320 Schooler v. Schooler, 18 Mo. App. 69 49, 150, 152 Schoonmaker v. Plummer, 29 N. E. Rep. 1114 379 Schroder v. Wanzor. 36 Hun, 423 377 Schultze ?). New York Citv, 103 N. Y. 307 ■ 547 SchAvartz's Estate, 17 Phila. 435 ; S. C. 42 Leg. Int. 16 474 Scot r. Haughton, 2 Vern, 560 78 V. Tosbrooke, 18 C. C. (N. S.) 515;S.C.34L.J. C.P.164; 11 Jur. N. S. 202 186 Scott r. Berkshire, etc., Bank, 140 Mass. 157 196, 198, 199, 201, 341 Table of Cases Cited. 657 PAGE Scott r. Harbeck, 49 Hun, 292 333 V. Harris, 127 Ind. 520 522, 552, 614, 615 V. Lauman, 164 Pa. St. 593 307 V. McAlpine, 6 C. P. (Can.) 302 166 V. Reed, 25 Atl. Rep. 604 106, 189 V. Scott, 1 Mass. 526 552 V. Simes, 10 Bosw. 314 266 V. Ward, 13 Cal. 458 100, 383 Scottish Amer. Invest. Co. v. Elora, 6 Ontario A pp. 628 2 Scrope V. Serope, 1 Ch. Cas. 27 550, 555 Seagrist's Appeal, 10 Pa. St. 424 564, 615 Sear v. Ashwell, 3 Swanst. 411 425 Searing v. Searing, 9 Paige, 283 267 Searle v. Law, 15 Sim. 95 ; S. C. 15 L. J. Ch. N. S. 189 ; 10 Jur. 191 248, 250, 420, 427 Sears v. Shafer, 1 Barb. 468 ; affirmed, 6 N. Y. 268 444, 446, 447, 448, 450, 451 Seavey v. Drake, 62 N. H. 393 375 V. Seavey, 30 111. A pp. 625 180 Seawall v. Glidden, 1 Ala. 52 157, 158, 161, 170, 171, 183,201 Sebrell v. Couch, 55 Ind. 122 130 Second Nat. Bank v. Williams, 13 Mich. 282 302 V. Merrill, etc.. Works, 50 N. AV. Rep. 503 141 Selleck v. Selleck, 107 111. 389 6, 7, 83 Seniple v. United States, 24 Ct. of CI. 422 2 Sessions r. Moselv, 4 Cush. 87 27, 91, 94, i40, 145, 146, 148, 240 Seton V. Seton, 2 Bro. Ch. 610 272 Sewall V. Roberts, 115 INIass. 262 436 Sexton r. HoUis, 26 S. C. 231 546 V. Wheaton, 8 Wheat. 229 470 Shackford v. Newington, 46 N. H. 415 59 Shackleford v. Brown, 89 Mo. 546 105, 148 Shales v. Shales, 2 Freem. 252 549 Sharp r. Leach, 31 Beav. 494 451 V. Maxwell, 30 Miss. 589 213 Shaw V. Kent, 11 Ind. 80 520 t;. Shaws6Humph.418 533 V. White, 28 Ala. 637 3 Shawhanw. Shawhan, 10 Bush. 600 521 534,540 Sheedy v. Roach, 124 Mass. 472 ; S. C. 26 Am. Rep. 680 3, 11, 48, 319 Sheegos: v. Perkins, 4 Baxt. 273 27,86,111,134,330 42 Sheldon v. Button, 5 Hun, 110 34 Shellhamnier v. Ashbaugh, 83 Pa. St. 24 ; S. C. 34 Leg. Int. 67 402, 403 Shelly's Case, 1 Coke Rep. p. 101 ; citing 17 E.3, ful. 29 ed., 18 E. J. 59 55 Shenstone v. Brock, 36 Ch. Div. 541 ; S. C. 56 L. J. 923 ; 57 L. T. 249; 35 AV.R.118 426 Shepard i;. Shepard,7 Jolins. Ch. 57 ; S. C. 11 Am. Dec. 396 369 Shepherd v. Bevin, 9 Gill, 32; affirming 4 Md. Ch. 133 376 V. White, 10 Tex. 72; S. C. 11 Tex. 346 54!), 591 Sheppard v. Earle, 25 Hun, 317 258 Sherman v. Hogland, 54 Ind. 578 468 V. Hogland, 73 Ind. 472 473 V. Isew Bedford, etc.. Bank, 138 Mass. 581 338 V. Sherman, 75 la. 136 197 Sheridan v. Slu'ridan, etc., Co., 38 Hun, 396 57 Sherk r. Endress, 3 W. & S. 255 242 Sherwood v. Smith, 23 Conn. 516 S4 V. Wooster, 11 Paige, 441 603 Shirley v. Shirley, 9 Paige Ch. V. Whitehead, 1 Ired. Eq. 130 27, 173,209,224 Shiver v. Brock, 2 Jones E(|. 1;'>7 525, 532, 502, 608 Shobe V. Carr, 3 Munf. 10 37G V. Shobe, 2 Freeui. 252 554 Short V. M. E. Church, 11 La. Ann. 174 401 V. Stotts, 58 Ind. 29 508 Shower v. Pilck, 4 Exch. 478 223 224 Shotwell V. Struble, 21 N. J. Ktj.' 31 5(;s Shuttlf-worth V. Winter, 55 N. Y. 624 49, 62 Sidmouth v. Sidmouth, 2 Boav. 447 ; S. C. 9 L. J. Ch. N. S. 282 553, 555, 574, 575. 577, 57!», 592 Siger V. Evans, 5 E. &. B. 367 22'.» Simar v. Canaday, 53 N. Y. 2!W 4St5 Simmons r. Cincinnati Savings Soc, 31 Ohio St. 457; S.C. affirming 6 Amer. L. R«'c. 441 293, 294 Simpson Centenary College r. Tuttle, 71 la. 5<'6 276, 286 Simpson v. Simpson, 114 111. 603 540,541 658 Table of Cases Cited. Sims V. Rickets, 35 Ind. 181 ; S. C. 9 Am. Rep. 679 49, 369 V. Saunders, Harp. (S. C.) 374 200, 217 V. Sims, 39 Ga. 108 583, 587, 603, 607 V. Sims, 2 Ala. 117 ; S. C. 8 Port. 449 158, 161 V. Walker, 8 Humph. 503 119 132 439 Singleton v. Cotton, 23 Geo. 261 ' 36 Sirow V. Michaud, 2 Low. Can. Rep. 177 100 Skeats v. Skeats, 2 Y. & Coll. C. C. 9; S. C. 12 L. J. Ch. N. S. 22 ; 6 Jur. 942 550 Skidmore v. Bradford, 8 Eq. 134 550 Skinner's Appeal, 1 Mon. (Pa.) 439 543 Skinner v. Skinner, 4 Ired. L. 175 217, 378 Slack V. Slack, 26 Miss. 287 515, 516 Slanning v. Stvle, 3 P. Wms. 333 50 Slaughter v. Tutt, 12 Leigh, 147 194 Sleeper v. Iselin, 62 la. 583 430 Sloan V. Cadogan, Sugd. V. & P. App. 428, 429 Sloper V. Cottrell, 6 El. & Bl. 497 426 Small V. Marvvood, B. & C. 300 229 Smith, Li rr, 95 N. Y. 516 456 Smith's Estate, 8 Pa. C. C. R. 539 419 Smith V. Axtell, Saxt. (N. J.) 494 604 v. Burnet, 34 N. J. Eq. 219 ; S. C. 35 N. J. Eq. 314 190, 193, 204, 205, 230, 360 V. Camel ford, 2 Ves. Jr. 698 211 V. City of Rome, 19 Geo. 89 373 V. Dubose, 78 Geo. 413 96 V. Dorsev, 38 Ind. 451 2, 22, 26, 33, 36, 6f), 76, 86, 118, 226 V. Downev, 3 Ired. Eq. 268 41, 173 V. Ferguson, 90 Ind. 229 42, 91, 94, 140, 147, 173 V. Hardv, 36 Wis. 417 105, 156 V. Henry, 2 Bail. (S. C.) L. 118 160, 166, 471 V. Hines, 10 Fla. 258 474 V. Jones, 8 Ark. 109 8 V. Kav, 7 H. L. Cas. 751 453 V. Kittridge, 21 Vt. 238 27, 268 V. Lee, 2 S. & C. (N. Y.) 591 333 V. Littlejohn, 2 McCord, 362 159, 230, 469 V. Lyne, 2 Y. & Coll. N. C. 345 436 V. Maine, 25 Barb. 33 191, 196, 199, 205, 208, 209 Smith V. Montgomery, 5 T. B. Mon. 503 7, 213, 219, 222 V. Osborn, 33 Mich. 410 52 V. Ossipee Valley Savings Bank, 64 N. H. 228; S. C. 10 Am. St. Rep. 400 180, 321, 324 V. Rumsev, 33 Mich. 183 472 V. Smith, '3 Bing. N. C. 29 199 V. Smith, 7 C. & P. 401 86, 87, 159 V. Smith, 5 Ves. 721 524 V. Smith, 2 Str. 955 134 V. Smith, 21 Ala. 761 539, 594, 614 V. Smith, 12 Cal. 216 496 V. Smith, 59 Me. 214 541 V. Smith, 3 Stew. (N. J.) 564 26'.» V. Smith, 30 N. J. Eq. 564 32 V. Smith, 2 Halst. Eq. 515 480 V. Speer, 34 N. J. Eq. 336 322 V. Strahan, 25 Tex. 103 197 V. Warde, 15 Sim. 56 357, 436 V. Wheeler, 1 Vent. 128 229 V. Wiggins, 8 Stew. (Ala.) 221 162 V. Woodville, etc., Co., 66 Cal. 398 56 V. Yocum, 110 111. 142 377, 39it Smither v. Smither, 30 Hun, 632 302 Smyley v. Reese, 53 Ala. 89 52 Snellgrove v. Bailey, 3 Atk. 214 115, 191, 233, 235 Snelgrove v. Snelgrove, 4 De S. 274 535 Snelling's Case, 5 Co. Rep. 82 b. 502 Snillings v. Norton, Cro. EHz. 409, Com. Dig. Adminis- trata A. 502 Snow V. Copley, 3 La. Ann. 610 474 Snowden v. Pope, Rice Eq. (S. C.) 174 200 Soar V. Foster, 4 Kay & J. 152 : S. C. 4 Jur. N. S. 406 570, 571 Soberanes v. Soberanes, 31 Pac. Rep. 910 443, 445, 449 Sockwell V. Bateman, 1 South. (N. J.) 364 576 Soileau v. Rougeau, 2 La. Ann. 766 (50 Somers v. Overhulser, 67 Cal. 237 546 Somerville's Est., 2 Connelly, 86; S. C. 20 N. Y. Supp. 76 134 Sourwine v. Clavpool, 138 Pa. St. 126 ' 197, 377, 419 Southall r. British, etc., Asso., L. R. () App. 614 58 Southerland v. Southerland, 5 Bush. 591 133, 147, 241, 418, 429 Souverbye v. Arden, 1 Johns. Ch. 240 425 Table of Cases Cited. Gr>9 Sower ?'. Weaver, 84 Pa. St. 262 376 Spaulding v. Blythe, 73 Ind. 93 473 Spear v. Griffith, 86 111. 552 6 Speer v. School Directors, 50 Pa St. 150 159 V. Speer, 1 McCart, 240 520 Spelman r. Aldrich, 126 Mass. 113 51 Spencer v. Spencer, 3 Jones Eq. 404 480, 483, 492, 493 V. Vance, 57 Mo. 427 66 Sperrj^ v. Horr, 32 la. 184 59 Spiers v. Alexander, 1 Hawks, 67 107 Spires v. Willison, 4 Cranch. 398 106 Sprandlin r. Sprandlin, 18 S. W. Rep. 14 392 Spratley v. Wilson, Holt, N. P. 10 106 Spring V. Hisht, 22 Me. 408 213, 570 Springer's Appeal, 29 Pa. St. 208 564 Squire v. Dean, 4 Bro. C. C. 326 211 St. George v. Wake, 1 Mv. & K. 610 479, 482, 488, 490 St. Leger's Appeal, 34 Conn. 434 447, 456 St. Joseph's Orphan Society v. Wolpert, 80 Ky. 86 ; S. C. 3 Kv. L. Rep. 573 86 St. Vrain, In re, 1 Mo. App. 294 603 Stallings v. Finch, 25 Ala. 518 106, 111, 201 V. Stallings, 1 Dev. (N. C.) Eq. 298 216 Standing v. Bowrinff, 31 Ch. Div. 282; S. C.55L.J.Ch.218; 54 L. S. 191 ; 34 W. R. 204, affirming 27 Ch. Div. 341 69, 143, 229, 356, 427 Stanhope's Case, 1 L. R. Ch. 161 365 Staniland r. Willott, 3 MacN. & G. 664 19, 21, 37, 41, 44, 99, 364 Stanley v. Brannon, 6 Blackf. 193 522, 549 V. Stanley, 1 Atk. 457 505 Stanton v. Miller, 58 N. Y. 192, reversing 1 T. & C. 23 376, 400 Stanw^ood v. Stanwood, 17 Mass. 57 49, 344, 354 Staplford, In re, 49 L. J. (Ch.) 253 57 Star V. Star, 9 Ohio St. 74 268 Starr v. Vanderheyden, 9 Johns. 253 456 State V. Atkinson, 24 Vt. 448 GO V. Bethune, 8 Ired. L. 1 :'.9 21 7 V. Campbell, S. U. P. Charl- ton, 166 507 V. Crosslev, 69 Ind. 203 514 V. Decker, 10 W. L. Jr. 328 7 V. Jameson, 3 G. & J. 442 522, 552, 554 State V. Richland Twp., 20 Ohio, 362 50 V. Rickey, 4 Halst. 312 288 V. Stephenson, 12 .Mo. 178 561 V. Tappan, 29 Wis. 6(>1 ; S. C. 9 Am. Rep. 622 59 V. Walker, 36 Kan. 297 497 State Board of Agriculture r. Citizens' St. Ry., 47 Ind. 407 56 State Treasurer r. Cross, 9 \'t. 2s9 275 Staufier v. Morgan, 39 Lii. .\nn. 632 ; S. C. 2 So. Rej). 9S 94 Stayner v. Bower, 42 Ohio St. 314 529 Stebbins v. Morris, 23 Blatchf. 181 ,547 Steedman v. M'Neill, 1 Hill L. (S. C.) 194 7 Steele v. Frierson, 85 Tenn. 430 519, 520, 541, 543, 556, 574, 575, 610 Steere v. Steere, 5 Johns. Cii. 1 547 Stephenson v. King, 81 Kv. 425 117, 139, 142,174,241 Sterling v. Wilkinson, 83 Va. 791 106. 143 Stetson V. Kempton, 13 Mass. 272 59 Stevens, In re, 83 Cal. 322 80 V. Corbitt, 33 Mich. 458 21^ t'. Stevens, 70 -Me. 92 213 V. Stevens, 5 T. , 5.56, 5!>0 r. Stewart, 5 O mn. 317 495 V. Stewart, 3 Watts, 25;; :579. 404 t'. Stewart, 7 J. J. Mar. is;{ 45i» Stileman v. Ashdown, 2 Atk. 4S0 549, 555 Stiles I'. Stiles, 14 Mich. 72 52 Stock r. McAvov, 15 L. R. Eq. 55 ; S C. 42 L. J. Ch. 2;;0; 21 W. R. 520; 27 L. T. 441 574, 575, 592, 594 660 Table of Cases Cited. Stokes V. Oliver, 76 Va. 72 376, 385, 469 Stokesberry v. Reynolds, 57 Ind. 425 " 542 Stone r. Bishop, 4 Clif. 593; S. C. 6 Repr. 706 338, 424 V. Hackett, 12 Gray, 227 86, 140, 147, 180, 362, 415, 420, 436 V. Halley, 1 Dana, 197 602 V. Stone, 18 Mo. 389 496 V. Stone, 3 Jur. N. S. 708 569 V. Stone, L. R. 5 Ch. 74 440 V. Stroud, 6 Rich. L. 306 200 Storey's Appeal, 83 Pa. St. 89 524, 526, 596 Stay V. Stay, 41 N. J. Eq. 370 50, 242 Strathmore •;•. Bowes, 481 Strauss r. Avers, 34 Mo. App. 248 App. 248 468, 474 Strain v. O'Hara, 86 111. 53 468 Strong V. Menzies, 6 Ired. Eq. 544 481 Strother v. Mitchell, 80 Ya. 149 514, 538 Stump V. Roberts, Cooke (Tenn.) 350 217 r. Stump, 26 Ohio St. 169 528, 529 Sturdevant v. Goodrich, 3 Yerg. 95 536, 603 Succession of Cucullu, 9 La. Ann. 96 604 De Pouilly, 22 La. Ann. 97 242, 294 Guillory, 27 La. Ann. 495 612 Hale, 26 La. Ann. 195 185 Hardesty, 22 La. Ann. 332 58 Montamat, 15 La. Ann. 332 561 Maser, 12 Rob. 5&4 54 Tournillon, 15 La Ann. 263 524, 540, 561, 563 Suissse r. Lowther, 2 Hare, 424 509 Summerlin r. Gibson, 15 Ala. 406 ; S. C. 64 Cal. 346 172, 177, 178 Sumner v. IMurphv, 2 Hill L. 487 ' 226 Sutton r. Cole, 3 Pick. 232 59, 60 Swaine v. Perine, 5 Johns. Ch. 482; S. C. 9 Am. Dec. 318 494 Swan r. Frick, 34 Md. 139 422 Swanneck v. Lyford, Co. Litt. 108 n. L. 495 Swartz V. Earls, 53 111. 237 88 V. Hazlett, 8 Cal. 118 222, 228 Sweeney v. Boston, etc., Bank, 1 16 Mass. 384 345 Sweet V. Northrop, 12 Wk. Dig. 337 84 Swihart v. Snaum, 24 Ohio St. 432 78, 568 Switzer v. Switzer, 26 Gratt. 574 213 Syler v. Eckhart, 1 Bin. 378 376 Taber v. Willetts, 44 Hun, 346 ; S. C. 8 N. Y. St. Repr. 825 184, 185, 241 Taft V. Marsily, 120 N. Y. 474 2 Talbot V. Cody, L. R. 10 Ir. Eq. 138 ' 540, 571, 572 Tanner v. Skinner, 11 Bush. 120 420 Tarbell v. Tarbell, 10 Allen, 278 458 Tarlton v. Briscoe, 4 Bibb. 73 12 Tash V. Adams, 10 Cush. 252 58 Tate V. Gilbert, 2 Ves. Jr. Ill ; S. C. Bro. Ch. 286 19. 20, 45, 299 V. Hilbert,4 Brown Ch. 286; S. C. 2 Yes. Jr. Ill 21, 27, 173, 267, 270, 292, 304, 350, 473 V. Leithead, Kay, 658 38, 46, 69, 295, 426 v. Tate, 1 Dev. & B. Eq. 22 487 Tatham v. Yernon, 29 Beav. &40 428 Tavlor v. Fire Department, 1 Ed. Ch. 294 2, 105 V. Henry, 48 Md. 550 ; S. C. 30 Am'. Rep. 486 22, 27, 29, 37, 68, 98, 105, 311, 321, 329, 424 V. Johnson, 113 Ind. 164 468, 469 V. Johnston, L. R. 19 Ch. Div. 403; S. C. 51 L. J. Ch. Div. 879 ; 46 L. T. N. S. 219 ; 30 W. R. 508 462 V. Kelly, 5 Hun, 115 115 V. Lendey, 9 East. 49 87 r. McRa,"3 Rich. Eq. 96 55 V. Miles, 19 Ore. 5.50 549, 570 V. Muller, 19 Ore. 550 522 r. Pugh, 1 Hare, 608 480, 482, 487, 488, 491 V. Reese, 4 Ala. 121 602, 603, 604 r. Rickman, Busbee Eq. 278 490 V. Staples, 8 R. I. 170 268 ^>. Staples, 8 R. 1.170; S. C. 5 Am. Rep. 556 382 V. Tavlor, 1 Atk. 386 549 V. Tavlor, L. R. 20 Eq. 155 ; S. C.44L. J. Ch.718 11,561 r. Tavlor, 5 Humph. 597 378 V. Tavlor, 8 How. 183 461 r. Tavlor, 56 L. J. Ch. 597 134, 307 V. Tavlor, 1 Lea. 83 83 V. Tavlor, 4 Gilm. 303 549, 570 Teague ?•.' Griffin, 2 N. & McC. 93 103, 217 Tenbrook v. Brown, 17 Ind. 410 125, 450, 459 Terry v. Davton, 31 Barb. 519 539, 600 Table of Cases Cited. 6C1 Terry v. Hopkins, 1 Hill Ch. (S. C.) 1 480, 482, 489 V. O'Neal, 71 Tex. 592 4GS, 469 Thacher v. Phinney, 7 Allen, 14(5 470 Tharpe v. Dunlap, 4 Heisk. 674 74 Thayer v. Thayer, 14 Vt. 107; S. C. 39 Am. Dec. 211 495 Thistlewaite v. Thistlewaite, 132 Ind. 355; S. C. 31 N. E. Rep. 946 576, 579, 595 Thomas v. DegrafFenreid, 17 Ala. 602 202, 231, 270, 471 V. Lewis, 15 S. E. Rep. (Va.) 389 41, 104, 114, 139, 195, 312 V. Thomas, 107 Mo. 459 68, 213, 229 V. Williams, More, 177 479, 487, 488, 489 Thompson's Appeal, 42 Pa. St. 345 581, 583 Thompson's Estate, 8 W. N. Gas. 16 611 Thompson v. Carmichael, 3 Sandf. 120 535, 536 V. Doi-sey, 4 Md. Ch. 149 169 V. Ellsworth, 1 Barb. Ch. 624 267 V. Gordon, 3 Strobh. L. 196 229 V. Hefferman, 4 D. & War. (Ir.) 285 21 V. Hefferman, 4 Sug. Dec. (Ir.) 285 192, 194, 456 V. Leach, 2 Vent. 208 71, 229,427 V. Mercer Co., 40 111. 379 278 V. O'SuUivan, 6 Allen, 303 51 V. Page, 1 Met. 565 274 V. Pittson, 59 Md. 545 59 V. Thompson, 1 Yerg. 97 602 V. Thompson, 20 S. W. Rep. 373 392 V. Thompson, 2 How. (Miss.) 737 172, 177 V. Thompson, 12 Tex. 327 27, 29, 41 V. Womack, 9 La. Ann. 555 177, 182 Thornton v. Mulquinne, 12 Iowa, 549 5 Thorpe v. Owen, 5 Beav. 224 ; S. C. 11 L. J. Ch. N. S. 129 415, 418, 433 Thouvenin v. Redrigues, 24 Tex. 498 68, 74, 225 Thrasher v. Anderson, 51 Ga. 542 566 Threlkel v. Scott, 89 Cal. 351 468 Thrupp V. Harman, 3 My. & K. 513 211 Thm-ber v. Sprague, 24 Atl, Rep. 48 215 Tiernan r. Parr, 1 GiU. & J, 216 423 Tifikny v. Clarke, 6 Gr. Ch. (Can.) 474 247 Tillingha-st v. Wheaton, 8 R. I. 5.J6 ; S. C. 5 Am. Rep. 621 .317 Tillman v. Moseley, 14 La. Ann. 710 12 Tinsley v. Tinslev, 52 la. 14 546 Tisdale v. Bailey* 6 I red. Eq. 358 480, 481, 488, 489, 493 Tison c. Tison, 12 Ga. 208 ; S. C. 14 Ga. 167 615 Todd V. Grove, 33 Md. 188 450, 462 V. jNIoorhouse, 19 L. R. Etj. m h?>2 V. Wicklifle, 18 B. :Mon. 866 4(^ Toker r. Toker, 31 Beav. 644 447 Tolar r. Tolar, 1 Dev. (N. C.) E(i. 460 420, 436 Tomlinson v. Ellison, 104 Mo. 105 63, 109, 142, 204 Tomkvns v. Ladbroke, 2 Ves. Sr. '591 15 Tompkinson v. South, etc., Rv., 35 Ch. Div. mo ' 56 Tomyns v. Ladbroke, 2 Ves. Sr. 591 507 Tootle V. Coldwell, 30 Kan. 125 4(iH Toplis V. Hevde, 4 G. & C. 173 20(> Tower v. Detroit, etc., R. R. Co., 34 IMich. 329 278 Towle V. Towle, 114 Mass. 167 2&4, 265 r. Ward, 60 N. H. 434 328 Towles t: Roundtree, 10 Fla. 290 528, 530 Townsend, Li re, 5 Dem. (N. Y.) 147 ItW Townsend r. Toker, 1 Ch. .Ajip. 446 ; 12 Jur. X. S. 477 ; .5.> L. J. Ch. 60S: 14 W. H. 806 ; 14 L. T. N. S. 5:U .•)76 Townsf.n c. Tickell, 3 B. c^ Aid. 31 71 Trammell v. Simmons, 17 Ala. 411 408 Travis r. Travis, 12 Ont. App. 438; S.C. affirming 8 Ont. 516 107, 128, 1.30, 13(5, 143,2tJ3 Treacev v. Liggett, Low. Can. Jur. 181 469 Treadwell v. Cordis, 5 Gray, 341 .5;{8. 609 Tremper r. Barton, 18 Ohio, 418 54!) Trench r. Harrison, 17 Siin. Ill 546 Trenholm v. Morgan, 28 S. C. 2(i8 16,22.23,105,241,2-16 Tresch v. Wirtz, 34 N. J. Eq. 124 ^ Trimmer v. Danbv, 23 L. J. Ch. 979 21 662 Table of Cases Cited. Trimmer v. Darby, 25 L. J. Ch. 424 ; S. C. 4 W. R. 399 112, 137, 176, 428 V. Bayne, 7 Ves. 608 596 Trorlicht v. Weizenecker, 1 Mo. App. 482 45, 140, 418 Trough's Estate, 75 Pa. St. 115 66, 107, 109, 119, 120, 423, 431 Trow V. Shannon, 78 N. Y. 446, affirming 8 Daly, 239 180 Trowbridge v. Holden, 58 Me. 117 189, 230, 241 Trowell v. Carraway, 16 Heisk. 104 86 Trov Conference Academy v. Nelson, 24 Vt. 189 275 Truman r. Truman, 79 la. 506 375, 404 Trustees of Hanson v. Stetson, 5 Pick. 506 274 Trustees of Parsonage Fund v. liiplev, 6 Green!. 442 275 Tucker v. Burrow, 2 H. & M. 515 523 Tryon v. Huntoon, 67 Cal. 325 212 Tucker v. Andrews, 13 Me. 124 480, 493 V. Burrow, 2 H. & M. 515 554 V. Tucker, 29 Mo. 350 ; S. C. 32 Mo. 464 496 Tufnell V. Constable, 8 Sim. 69 262 Tuggle V. Tuggle, 57 Ga. 520 555, 594 Tullis V. Fridley, 9 Minn. 79 49. 241 Turnbridge v. Care, 19 W. R. 1047 ; S. C. 25 L. T. (N. S.) 150 357 Turpin v. Thompson, 2 Met. 420 241 V. Turpin, 88 Mo. 337 535 Turner v. Brown, 6 Hun, 331 214 V. Collins, L. R. 7 Ch. App. Cas. 329 ; S. C. 25 L. T. N. S. 374 371 V. Five Cents Savings Bank, 129 Mass. 425; S. C. 37 Am. Rep. 371 79 )'. Kelly, 67 Ala. 173 606 V. Thurmond, 28 Geo. 174 228 V. Turner, 53 L. T. 379 11, 575 V. Turner, 1 Wash. (Va.) 139 106 Tussaud's Estate, L. R. 9 Ch. Div. 363 380, 515 Twentv-Third Street Church v. Cornell, 117 N. Y. 601; S. C. 24 J. & S. 260 274 Twist V. Babcock, 48 Mich. 513 445, 464 Tyars v. Alsop, 61 L. T. 8 ; S. C. 37 W.R. 339; 53 J. P. 212; 5 T. L. R. 242, affirming 59L.T. 367; S.C.36W. R. 919 456, 464 Tvler V. Gardiner, 35 N. Y. 559 450 Tyndale v. Randall, 154 Mass. 103 77 Tyrrell v. Bank of London, 10 H. L. 26 rw V. York, 57 Hun, 292 49,150, 152 Uhlich V. Muhlke, 61 111. 499 453 Underwood v. Waldron, 12 Mich. 73 275 Unglev V. Unglev, 4 Ch. Div. 73 ; S. C. 46 L. J. Ch. 189 ; 25 W. R. 39 ; 35 L. T. N. S. 619 ; 19 Moak, 678, affirmed, 5 Ch. Div. 887 ; S. C. 46 L. J. Ch. 854 ; 25 W. R. 733 ; 37 L. T. N. S. 52 389, 406 Uniacke v. Giles, 2 Moll, 257 425 Union Mutual Life Ins. Co. v. FreanStoneMfg.Co.,97 111. 537 ; S. C. 37 Am. Rep. 129 366 University of Vermont v. Buell, 2 Vt. 48 277 Upton V. Prince, Cas. t. Talb. 71 538 V. Tribilcock, 91 U. S. 45 366 Urann v. Coates, 109 Mass. 581 425 Uzzle V. Wood, 1 Jones (N. C.) Eq. 226 436 Vachell v. Jeffreys, Pres. Ch. 170 ; S. C. 2 Eq. Cas. Abr. 435, pi. 7 535 Vaden v. Hance. 1 Head, 300 5(i3 Vail V. Vail, 10 Barb. 69 512 Valsain v. Cloutier, 3 La. 176 54 Van Amburgh v. Kramer, 16 Hun, 205 242, 273 Van Arsdale v. Perry, 21 N. Y. Wk. Dig. 116 376 Van Cott V. Prentice, 104 N. Y. 45 437 V. Van Brunt, 2 Abb. N. C. 283 ; S. C. 82 N. Y. 535 366 Van Deusen v. Rowley, 8 N. Y. 358 _ 347, 443 Van Home, In re, 7 Paige, 46 461 Van Rensselaer?;. Aiken, 44 Barb. 547 275, 278, 280 Van Stooten v. Wheeler, 21 N. Y. Supp. 336 27, 227 Vance v. Huling, 2 Yerc. 135 53(), 603 V. Vance, 1 Beav. 605 266, 550, 671 Vandenberg v. Palmer, 4 Kav & J. 204 338,435,436 Vandermark v. Vandermark, 55 How. Pr. 408 310 Vandor v. Roach, 73 Cal. ()14 22 Vansant v. Roberts, 3 Md. 119 58 Vanzant v. Davies, 6 Ohio St. 52 217 Vass V. Hicks, 3 Murphv, 493 177 Table of Cases Cited. G(33 Vaughn v. Guy, 17 Mo. 429 78, 182 Yeagie v. China. 50 Md. 518 59 Yeai u. Veal, 27 Beav. 303, 6 Jur. (N. S.) 527; 29 L. J. Ch. 321 21, 235, 239 Vendor v. Roach, 73 Cal. 614 55 Ventreps v. Brown, 34 La. Ann. 448 89, 91 Vestrv,etc.. r.Barksdale, IStrohh. 'Eq. 197 83 Villiers v. Beaumont, 1 Vern. 100 87,445 Vincent v. Murray, 15 N. B. 375 391, 396 Vinden v. Frazer, 28 Gr. (Can.) 502 189, 210 Viney v. Abbott, 10 Mass. 300 436 Virgin v. Gaither, 42 111. 39 35, 468 Vogel V. Gast, 20 Mo. App. 104 66, 145 Vogle V. Hushes, 2 Sm. & G. 18 ; S. C. i8 Jur. 341 ; 23 L. J. Ch. 328 172, 253 Volois V. Gareau, 2 Rev. Leg. 131 81 Voorhees v. Combs, 33 N. J. L. 494 32, 268 Voyle V. Hughes, 2 Sm. & Gif. 18 ; S. C. 23 L. J. Ch. 238 ; 18 Jur. 341 ; 2 Eq. Rep. 42 ; 2 W. R. 143 429 Vreeland v. Ryno, 26 N. J. Eq. 160; S. C. 27 N. J. Eq. 522 213 Wack V. Sorber, 2 Whart. 387 ; R. C. 30 Am. Dee. 269 Wadd V. Hazleton, 62 Han, 602 125, Wade V. Green, 3 Humph. 547 Wadhams v. Gay, 73 III. 415 AVainwrisht's Estate, 37 Leg. Int. 104 Wakefield r. Gilliland, 13 Ky. L. Rep. 845 V. Gilleland, 18 S. W. Rep. 368 534, Walden v. Dixon, 5 T. B. Mon. 170 ?;. Purvis, 73 Cal. 518 Wales V. Newbould, 9 Mich. 45 Walker v. Brooks, 99 N. C. 207 602, V. Crews, 73 Ala. 412 2, 64, 109, 110, 119, 140, 170, 241, V. ?Iunter, 17 Geo. 'Myi r. Williamson, 25 Ga. 549 Wall V. Provident Institution for Savinirs, 3 Allen, 96 Wallace v. Berdell, 97 N. Y. 13 387 426 217 382 539 611 539 86 199 52 603 105, 424 449 535 343 437 PAGE Wallace v. DuBois, Go Md. 153 515 V. Oven, 71 Ga. 541 11, S4, 516, 517, 518, 574, 577, 582 V. Reddick, 119 111. 151 511, 520, 522, 540, 552, 5.^6 Wallaston v. Tribe, 9 L. R. E(i. 44 437 Waller v. Armit^tead, 2 Leigh, 11 4S0 "Walrond v. Walrond, 4 Jur. N. S. 1099 419 Walsh's Appeal, 122 Pa. St. 177 ; S.C.I L. K.Ani. 5.35; S. C. 9Am. St. 83 127,140,320 Walsh V. Bowery Savings I'ank, 15Dalv,4b3; S.C.26N. Y. St. Rep. 95 ; 28 N. Y. St. Rep. 402 ; 7 N. Y. Siij.p. 97, 669 231, :;20, 231 V. Chambers, 13 Mo. Ai^p. 301 49 V. Kennedy, 9 Phila. 178 ; S. C. 2 W. N. C. 437 ; 31 Lt^g. Int. ()0 32, 140, 2fW V. Mclntire, 68 Md. 402 392 V. Sexton, 55 Barb. 251 241,347,350 V. Studdart, 6 Irish Eq. 161 ; S. C. 4 Sug. Dec. Ir. 139; 2 Con. it I^w (Ir.) 423 195, 4.55 AValts V. BuUas, 1 P. "W lus. 60 523 Walter v. Ford, 74 Mo. 195 10.5, 145, 304 V. Hodge. Wils. Ch. 445 21, 49, 190, 193, 208, 212. 214. 231 Walton V. Walton, 7 Irtd. Eq. 138 «11 r. Walton, 70 111. 142 '^'i r. Walton, 14 Ve.-. 317 322. 5;i5 Wambold v. Vick, 50 Wi.«. 456 150, 473 Wamslev v. Lincicum. <>S la. 550 399 Wandel' In rr, Hi Phila. 230: S. C. 40 Letr. Int. 131 20«"., 20!> AVanmaker r. Van P.uskirk, 1 N. J. Eq. 68.5; S. C. 23 Am. Dec. 748 52S, 609 Ward, Matter of, 2 Rcdf. 251 : S. C. 51 How. Pr. 316 62.6.5,214.266,320 V. Andlord, Ki M. & W. .Mi2 P23 V. Andland. 8 Beav. 201 : S. C. 14 L. J. N. S. Cli. 145; 9 Jur. :IH4 1*^'. '•^' V. Liint. Prec. Ch. 182 42.'> V. Turner, 2 Vos. S<'ii. 431 19, 20, 21, 36. 174, 234, 2(i0. .35/ Wardens', etc., St. James Cluinh. f. Rector, etc., 45 Barb. 3.56 56 664 Table of Cases Cited. Ware r. Hamilton Shoe Co., 92 Ala. 145 473 V. Welsh, 10 Mart. (La.) 430 612 Warfield v. Warfield, 5 H. & J. 459 600 Waring v. Edmonds, 11 Md. 424 123, 125, 147 Warren v. Warren, 105 111. 568 376, 395, 405, 410 Warriner v. Rogers, L. R. 16 Eq. 340; S. C. 42 L. J. Ch. 581 ; 21 W. R. 766 ; 28 L. T. N. S. 863 136, 172, 370, 414, 417, 420 Washburn v. Goodheart, 88 111. 229 472 Watkins v. Eames, 9 Cush. 537 274 V. Young, 31 Gratt. 84 556, 577 AVatson's Estate, 2 W. N. Cas. 113; S. C. 32 Leg. Int. 404 611 Watson V. Bradshaw, 6 Ontario App. 666 184 V. Kennedy, 3 Strobh. Eq. 1 7, 197, 2.30 V. Murray, 54 Ark. 499 532, 569 V. Watson, 6 Watts, 254 538 V. Watson, .33 Beav. 574 538 V. Watson, 14 Ves. 317 535 AVatt V. Grove, 2 Sch. & Lef. 492 446, 455 Watts V. BuUas, 1 P. Wms. 60 440 V. Starr, 86 Geo. 392 86 Waver v. Waver, 15 Hun, 277 230 Way's Trusts, 10 Jur. N. S. 836 ; S. C. 2 De G., J. & Sm. 365; 34 L. J. Ch. 49; 13 W. R. 149 170, 425, 436 Way's Settlement, 10 Jur. (N. S.) 1166; S. C. 34 L. J. Ch. 49; 2 1)e G., J. & Sm.365, reversing 4 New R. 453 428,429 Wayne and Ontario Collegiate Institute v. Smith, 36 Barb. 576 278 V. Greenwood, 40 Barb. 72 281 V. Devinney, 43 Barb. 220 278 Waynesburg College, Appeal of, 111 Pa. St. 1,30; S. C. 32 Pitts. L. Jr. 4.37 303 Weale v. Oliver, 17 Beav. 252 351 Weall V. Rice, 2 R. & M. 251, 263 593 Weatherhead v. Field, 26 V"t. 665 513, 521, 574, 582, 590 Weatherly v. Covington, 3 Strobh. L. 27 12 Weatherslv v. Wheathersly, 36 Miss. 652 213 Weaver's Appeal, 63 Pa. St. 309 550 Webb V. Goodby, 12 Rob. 539 524 PAGE Webb V. Lyon, 5 Ired. Eq. 67 567 V. Roff, 9 Ohio St. 430 470, 472 AVeber v. AVeber, 9 Daily, 211 331 AVeems v. Andrews, 22 Ga. 43 593 AA^eir v. Still, 31 la. 107 487 AVekett v. liiibv, 3 Bro. P. C. 16 262 AVells V. Caldvvell, 9 Humph. 609 83 V. Collins, 74 Wis. 341 143 V. Tucker, 3 Binn. 36 21, 98, 99, 241 AA^elton v, Devine. 20 Barb. 9 570 Welsch V. Belleville Savings Bank, 94 111. 191 ^^86, 33 Welsh, In re, Redf. 238 450 AVertz v. Merritt, 74 la. 683 230, 399 Weslevan Seminary v. Fisher, 4 Mich. 515 275 AA^est V. Bolton, 23 Ga. 531 522, 529, 563, 578, 587 V. Cavins, 74 Ind. 265 250 V. Flannaean, 4 Md. 36 387 V. Jones, 85 Va. 616 533, 612 V. AVest, 9 Ir. L. Rep. 121 (1882) 351, 423 AA'esterlo v. De AVitt, 36 N. Y. 340; S. C. 2 Trans. App. 332 ; 93 Am. Dec. 517 241, 243, 251, 307 Westerman v. AVesterman, 25 Ohio St. 500 493, 498 AA'estminister Bank v. Wheaton, 4 R. I. 30 292 AVeston's Case, L. R. 10 Ch. Div. 579 57 AVeston v. Hight, 17 Me. 287 27, 252 V. Johnson, 48 Ind. 1 513 V. Richardson, 47 L. T. N. S. 514 249 AVetherby v. Dixon, 19 A''es. 407 412, 514 AA^etmore v. Brooks, 18 N. Y. Supp. 852 41, 46, 130 AVeyland v. AVeyland, 2 Atk. 632 540 AATialey v. AVhaley, 71 Ala. 159 547 AVheat'herhead v. Field, 26 Vt. p. 668 516 AVheatley v. Purr, 1 Keen, 551 435 AVheeler v. Glasgow, 11 So. Rep. 758 1S9, 447 V. Laird, 147 Mass. 421 393 r. AVheeler, 43 Conn. 503 153, 154 r. AVheeler, 47 A't. 637 517 AA^helen's Appeal, 70 Pa. St. 410 5r>4, 609 Whipple V. Dow, 2 Mass. 418 82 Whittaker, v. Whittaker, 21 L. R. Ch. Div. 657 ; S. C. 51 L. J.Ch.Div.737;46L. T. (N. S.) 802; 30\V. R. 787 75 Table of Cases Cited. 665 Whitaker. r. Whitaker, 52 N. Y. 386; S. C. 11 Am. Rep. 711 268 White V. Callinau, 19 Ind. 43 241 V. Cannon, 125 111. 412 65, 86 V. Jones, 14 La. Ann. 681 83 V. Moore, 23 S. C. 456 561, 563, 582, 597 V. Wager, 25 N. Y. 328 370 V. White, 52 Ark. 188 549, 613 V. White, 41 Kan. 556 614 V. AVhite, 3 Dana, 374 509 r. White, 16 Wkly. Dig. 45 230 v. Zane, 10 Mich. 333 52 White Mountains R. R. Co. v. EaHtnian, 34 N. H. 124 365 Whiteliead, Ex parte, 14 L. R. Q. B. Div. 419 ; S. C. 54 L. J. Q. B. Div. 88 ; S. C. 52 L. T. (N. S.) 265 ; 33 W. R. 230 314 Whitehorn v. Hinep, 1 IMunf. 559 457 Whitfield V. Whitfield, 40 Mif^s. 352 7, 197, 200, 217, 222 Whitesides v. Poole, 9 Rich. L. 68 189, 217, 220 Whiting V. Barrett, 7 Lans. 106 86,87 Whitley v. Stephenson, 38 Miss. 113 601 Whitman's Appeal, 2 Grant (Pa.), 323 581, 585 Whitman v. Hapgood, 10 Mass. 437 552, 588 Whitnev v. Wheeler, 116 Mass. 490 197 Whiton V. Snyder, 88 N. Y. 299 49 Whitsilt V. Pre-emption Preshy- terian Church, 110 111. 125 278 AVhitten v. Whitten, 3 Cush. 191 368 Whitmell v. Winslow, 132 Mass. 307 107 Wickett V. Raby, 3 Bro. P. Cas. 16 271 Wigle r. Wigle, 6 Watts, 522 98 Wilcocks V. Hannyngton, 5 Ir. Ch. 38 ■ 415, 418, 428, 429 Wilcox V. ]\Iattoson, 5.3 Wis. 23 140 Wilder r. Bmoks, 10 Minn. 50 369 Wildish V. Ft)wler, 6 T. L. R. 422; S. C. 5T. L. R. 113 195 Wilkins v. Wilkins, 43 N. J. Eq. 595 610 Wilkinson r. Thomas, 128 111. 363 586, 587 V. AVilkinson, 4 Jur. N. S. 47 419, 420, 422, 434 Wilks V. Greer, 14 Ala. 437 177, 540, 562, 590, 602, 606, 607, 611 PAGE Willemin v. Dunn, 93 111. 511 2-1, 443, 445 Willetts V. Willetts, 19 Ind. 22 (iUl Wilev V. Backus, 52 Ja. 401 113 Williard v. Williard, 56 Pa. St. 119 ■ 580 Williams v. Barton, 13 La. 409 64 V. Carle, 2 Stark. (N. J.) Ch. 543 480, 482, 489, 492 V. Conrad, 11 Huiuph. 411 1S2 V. Fitch, 18 X. Y. 546 125, 43.S V. Forbes, 114 111. 1()7 26,8 V. Guile, 117 N. Y. 343, af- firming 46 Hun, 645 27, 28, 29, 35, 62 V. Rollings worth, 1 Strobh. Eq. 103 516 V. McDowell. 54 (ia. 222 615 V. Mears, 2 Dis. 604, (U4 ; S. C. 4 West. L. :Mag. 293 5.r> V. Mercier, 9 Q. B. Div. 337 .50 V. Powell, 1 Ired. Eq. 460 ^ 4tiL' V. Vreeland, 32 N. J. Eq. 135 43ti V. Stonestreet, 3 Rand. 559 611 V. AValton, 8 Yerg. 387 ; S. C. 29 Am. Dec. 122 72 v. Western Star Lodge, 38 La. Ann. 620 58 V. AVilliams, 32 Beav. 370 213. 554, 574, 575, 591 V. Williams, 15 Lea, 438 419, 520, 574. 575, 579, (W9, (>10 V. Williams, 3 West. L. Mag. 258 "^91 Williamson r. Colcord, 1 liask. 620 '^ r. Jeffreys, 18 Jur. 1071 5.->4 V. Johnson, 62 Vt. 378; S. C. 20 Atl. Rep. 279 94 Willis r. Matthews, 46 Tex. 478 376 V. Smvth, 91 N. Y. 297 3;W Wills V. Cbwper, 2 Ohio, 124 606 r. Snelling, 6 Rich L. 280 218, 219 Wilson's Appeal, 99 Pa. St. ri45 4.V1 Wilson V. Beauchamp, 44 Miss. 556 ;346, 54.'<, 5«H) V. Bull, 10 Ohio, 250 4<« f. Carpenter, 17 Wis. 512 243 v. Cockrill. 8 Mo. 1 7S V. Daniel, 13 B. Mon. .348 47'>. 480, 4S1,4S'.» r. Kellv, 21 S. C ^35 612 V. Miller, 1 P. & 11. (Va.) 353 ^'^' V. Wilson, 18 Ala. 176 .528, (K12, 6a3, 614 Winans v. Peebles, 32 N. Y. 423 370 666 Table of Cases Cited. PAGE Winchester v. Charter, 12 Allen, 606 468, 470 V. Charter, 102 Mass. 272 468 Wing V. Merchant, 57 Me. 383 118, 125, 241 Winter" r. Winter, 101 E. C. L. 997 ; S. C. 4 L. T. (N. S.) 639 ; 9 W. R. 747 107, 126 Wirt's Estate, 5 Dem. (N. Y.) 179 246 Witbeck v. Witbeck, 25 Mich. 439 52 AVithers v. Weaver, 10 Pa. St. 391 176, 325 Wittingliani r. Lighthij^e, 46 N. J. Eq. 429 420 Witzel V. Chai:)in, 3 Bradf. 386 342 Wolfe V. Kable, 107 Ind. 565 520, 552, 615 Wolft's Appeal, 123 Pa. St. 438 567 Wolford V. Power?, 85 Ind. 294 4, 253 Wood r. Downer, 18 Ves. 127 461 V. Savage, Walker Ch. Mich. 471 469 V. St. Louis, etc., R. W. Co., 20 Mo. App. 601 194 Woodbridge v. Spooner, 1 Chitty, 661 272 Woodbury v. Woodburv, 141 Mass. 329 443, 444, 445, 450, 451, 464 V. Gardner, 68 Me. 167 402 Wooden v. Wooden, 72 IMich. 347 469 Woodford v. Charnlev, 28 Beav. 96 ' 428, 429 Woodman v. Morrel, 2 Freem. 33 554, 569 Woodruff?'. Cook, 25 Barb. 505 199 r. Migeon, 46 Conn. 236 594 Woods c. Whilney, 42 Cal. 358 4, 213 Woodson r. Pearce, 5 Sneed, 415 86 AVoodward v. AVoodwood, 5 Sneed, 49 458 AA^ollaston v. Tribe, L. R. 9 Eq. 44 93, 99, 447, 448, 458 AVoolery v. AVoolery, 29 Ind. 249 197, 549, 574, 575, 576 Wootters v. Hale, 19 S. AV. Rep. 134 377 AA'orcester r. Eaton, 13 Mass. 371 59 AVorniley r. AA'ormley, 98 111. 544 213, 549, 570 AA'orrall v. Jacob, 3 Meriv. 256 437 AVorth r. Case, 42 N. Y. 362; affirniintr 2 Lans. 264 3, 4, 27, 125, 181,254,268,269 r. AVorth, 84 111. 442 400, 402 AVorthington i\ Curtiss, 1 Ch. Div. 519 540 AVrigley v. Swainson, 3 De G. & Sni. 458 483 Wright's Estate, 6 W. N. C. 388 ; S. C. 89 Pa. St. 67 ; 93 Pa. St. 82 594 AVright V. Cartwright, 1 Burr. 282 182 V. Proud, 13 Ves. 138 456 V. A'anderplank, 8 De Gex, M. & G. 133 461 V. AVright, 1 Cow. 598 240,241,270,271 Wvblev. McPheters, 52 Ind. 393 72, 140, 146 AVycke v. Greene, 11 Ga. 159 121, 170 Yale V. Dederer, 22 N. Y. 450 211 Yancev v. Field, 85 A^a. 756 127, 203 V. Stone, 7 Rich. Eq. 16 196 V. Yancey, 5 Heisk. 353 515, 519, 533 Yarborough v. AVest, 10 Geo. 471 176, 423 Yard v. Patton, 13 Pa. St. 278 242 Yates r. Houston, 3 Tex. 433 383 Yeich's Appeal, 1 Mona. (Pa.) 296 597 Yesler v. Hochstettler, 30 Pac. Rep. 398 50 Yonn r. Pittman, 82 Ga. 037 92 Yong's Estate, 3 Md. Ch. 461 542, 553 Young V. Carter, 10 Hun, 194 ; S. C. 1 Abb. N. C. 136; 50 How. Pr. 410 480, 495 V. Derenzy, 26 Gr. (Ch.) 509 136 V. Glendenning, 6 Watts, 509 ; S. C. 31 Am. Dec. 492 386 V. Power, 41 Miss. 197 127, 131, 132, 170, 187, 257, 260, 262, 263 V. Young, 25 Miss. 38 2 V. Young, 80 N. Y. 422 ; S. C. 36 Am. Rep. 634; affirming 5 AVklv. Dig. 109 105, 106, 176, 179, 245, 330, 413, 419 Youngblood v. Norton, 1 Strobh. Eq. 122 595, 610 Yosemite Stage, etc., Co. v. Dunn, 83 Cal. 264 54 Yosti V. Laugh ran, 40 Mo. 594 451 Yundt's Appeal, 13 Pa. St. 575 596, 010 Zimmerman v. Streeper, 75 Pa. St. 147 ; S. C. 5 Leg. Gaz. 126 66 Zinn V. Lnw, 32 W. A'a. 447 52 Zirkel v. .Toilet Opei-a House Co., 79 111. 334 366 Zeiter r. Zeiter, 4 AVatts, 212 536 INDEX. The References are to the Pag^es. ABANDONMENT, donee may abandon gift, 397. ACCEPTANCE, agent making for donee, 70. demand of donee of donor's administrator for delivery of gift, 140, note 2. deposit, 310. disclaimer, effect, 74. donatio mortis causa, 70. effect on title, 228. essential, 64, 68. evidence of, 73. infant's, 70, 72, presumed, 70, 72, 143, note 4. must be intelligently accepted, 69. presumption as to, 2, 71, 225, 314. ratifying agent's acceptance, 70. revocation of acceptance made, 69. stock, 347. subscription to public enterprise, 276, 279. terms of gift, 73. third person may accept for donee, 69, 70. when not made, 68. not presumed, 72. unneces.«(ary, 70. ACCOUNTS, advancement, use of to .show, 581. bank account, 257, note 3. cancellation on account-book, 132, note 2. gift of, 131, 206, 247. ACQUIESCENCE, effect on revoking gift, 96. may amount to assent, 10. ACTS OF PARTIES, may show a gift, 190, 192, note 2. 667 668 Index. The References are to the Pages. ADEMPTION, definition, 513. distinguished from an advancement, 501. ADMINISTRATOR, advancement, has no control over, 613. cannot perfect gift by delivering to donee, 143. collecting amount of note given, 227, note 4, 251. donatio mortis causa does not receive, 23. donee may be, 55. gift, presumption arising from possession by, 224, note 2. has no control over donatio viortis causa, 45. possession of gift, not entitled to, 227. ADMISSIONS, donee's concerning advancement, 580. donor's concerning gift, 204. ADVANCEMENTS, account-books as evidence of, 581. ademption is not, 513. distinguished from, 501. admissions concerning, 580. advances defined, 511. adverse possession of gift, effect, 552, notes, 566, 613. agreement of donees concerning, 575, note 2, 604. amount of donor's estate considered, 594. annuity, 562. assent of donee to advancement, 518. bond of donee, forgiving, 564. burden to overthrow presumption of, 596. changing to debt, 517. to gift, 517. changing gift to advancement, 516. child already provided for, 553. conduct of parties, 580. confusion in use of the terms ademption and advancement, 501. consideration for deed, recitals concerning, 552. contingent interest, 562. conveyance in fraud of creditors, annulling, 552, note, custom of London and York, 504, 506, note 3. daughter, gift to, 569. day-book as evidence of, 561, 581. debt of child, changing to advancement, 517. paid by parent, 563. gift of parent to pay, 559, note 1. distinguished from an advancement, 513. declarations cannot control statute requiring advancement to be in writing, 521, note 2. contemporaneous, 575. Index. 669 The References are to the Pages. ADVA NCEMENTS.— CoTi^mued. other gifts, 580. prior, 576. rationale concerning, 578. subsequent, 576 to 578. deed, parol evidence to show consideration of, 588. definition, 510. double portions, rule against, 509. dying declarations to prove, 577, note 3. education of child may be, 559, 561. English statute, text, 616. history of, 503. common law in America, 507. equality the rule of 508, 575, 595. as declared by will of donor, 594, note 1. estate of donor, is no part of, 613. family book as evidence, 561, 582. " father's estate " construed, 536. furniture, 561, 582. gift, advancement is not, 11. cannot change to advancement, 84, 582, note 3, an advancement must be, 513. must be of donor's own property, 532. to stranger, 532. grandchildren, 522, 526. history of, 501, 506, note 3. horse, 561. hotchpot, applies to all distributees, 602. doctrine of, 598. donee not compelled to account for, 602. improvements, 611. infant accounting under, 602. interest, 609. meaning, 598. property applicable to, 600, 604. refusal of donee to come in, right on second distribution, 605. rents and profits, 611. slaves, 612. title, effect on, 612. value of property, 605, 607, 608. wasting or destroying property, 612. widow, applies to, 601. husband's gift to wife, 570. idiot, purchase for— presumption, 550, note, illegitimate son— purchase in name of, 554. inadequacy of price, 553. inadvertent act, 574. 670 Index. The Beferences are to the Pages. ADVANCEMENTS.— CoH^irawed infant — ^gift to, 553. innocent purchaser, 543. insolvency of ancestor, 553, note 6. intention of donor controls, 519, 573. statute controls, 520. interest, charging an advancement, 609. forgiving on debt, 517, note 3. payment — effect on presumption, 564, note 2, 582, note 3. intestacy of donor, 534, 535. in writing — parol evidence to vary, 592. jury, question for, 596. kinship of donor and donee, 522. life estate, 554. litigation concerning, 614. loan, 575, note 1. memorandum of advancement, 581. parol evidence to vary, 583. required by statute, 585 to 587. subsequent to gift made, 518, note 1. mother's gift to child, 531, 568. note not to be paid, 593, note 2. given by parent, 568. by child to parent, 563, 564. origin of property given, 595, note 1. part gift and part advancement, 553, note 2. partition, 614. perfected in lifetime of donor — must be, 533. portion — gift must be by way of portion, 556. possession retained by parent, 554. power to advance— effect, 694, note 1. presumption— contract of father for purchase in child'B name, 550. conveyance or gift by father to child, 550. purchased in name of child, 547. of stranger, 545. property applicable to, 538. purchase by child with parents' money, 566. by grandparent for grandchild, 569. by parent for child, 567, 568. rebutting, 591. in joint names of donor or donee, 555. real estate as an advancement when gift is void, 533. rebutting presumption of advancement, 591. sufficiency of, 592, note, receipt for debt, 564. relationship to show advancement, 583. release by heir of prospective interest, 540. Index. 071 The References are to the Pages. ADVANCEMENTS— a.7i DELIVERY .— Cordinued. remaining in possession, 132. of donee receiving, 119, 139. residing with donor, 166, note, ambiguous, 122. arbitrary enforcement of rule concerning, 120. bailee ordered to deliver to donee, 145. bailment, 124. bank-book of a savings bank, 126. barge, 125. Baron Pollock's decision on, 123. box and contents, 120, 146. branding animals, 158. carriage given to daughter, 160, note, 165. certifieate of deposit, 306. check, 292. civil law did not require, 105. clock, 115. colts on farm, 117, note 1, 133, note 3, 161, 165, note 2. comments upon presumption arising from delivery by parent to bis child, 220. condition of donor must be considered, 120. conditional, 117. conduct of donor may show a delivery, 107, note, constructive delivery, 116, note 1. conversion by wrong-doer, action by donee, 186. cow on farm, 133, note 3. croi^s, 115, 167. debt, 109. forgiving, 127. forgiving a part, 129. declarations may show, 187, note 1, 202. not sufficient, 106, note, 121. deed in case of a trust, 425. destroyed, 175. insufficient to show a delivery, 173. must be, 370. sufficient to show a delivery, 170. definition of, 104. deposit in joint names of donor and donee, 156. book must be, 105, note 2. certificate must be. 111, note 2, 112. donor receiving interest on, 180, note 2. destruction of bond in order to make a gift of it to obligor, 126, note 1. distinction between gift and testamentary gift, 105. dominion of relinquishing, 110, 116, note 1. donatio mortis causa, strict delivery required, 127. GSO Index. The References are to tbe Pages. DELIVERY.— Conimued. before death of donor, 107, note, deed to show a dehvery, 173. donee in possession at time of gift, 125, 127, note 2. donor and donee residing together, 125. each case rests on its own circumstances, 104. escrow, revocation, 93. essential to validity of gift, 105, 109, note 2. form, property status upon, 133. furniture in house, 112, 141. future delivery is void, 66, 110, note 5, 118. donor believing future act is necessary, 121. by trustee, 144, 145. gift not present when made, 132. guardian, 159. gun, 118. horse retained by husband in his own stable, 154. husband to wife, 154. impossible to make, 129. income of a mill, 167. indorsement of part payment on note, 128, 262. infant, 141, note, 157, 159. instances of imperfect delivery of father to child, 160. intention of donor must be considered, 120. cannot take place of a delivery, 109. when must accompany delivery, 126, note 2. interest on note, forgiving, 129, note 1, 130. jury, delivery a question for, 186. Kent's mistake as to a symbolical delivery, 167, note 2. key to box, 111. for a gift of chest or drawer, 133, 138, 139, note 1. to third person, 140, note 2. lottery ticket, 163. manual, 114. not necessary, 114, 117, note 1. members of family, 148, 166, note, money represented by a note, 168. mortgage to be cancelled when donor dies, 120. name of donee placed on gift, 163. note, 255. payable to husband and wife, 266. parent to child, 157, 164. part of article given, 130, 138. part of note given, 244. piano, 107, 113, 150, note 1, 158, note 1. possession, parting with by donor, 111. by donee not sufficient, 111. Index. 681 The References are to the Pages. DELIVEEY.— Coji/mwed. by donee must be continuous, when, 144, note 5. showing does not show a deUvery, 118, note 4, 127, note 2. presumption as to, 107, note, 147. production of note, effect, 257. promise without deliverj-, insufficient, 259. proof, how made, 186. purchase by child with proceeds of gift, 162. by father for child, 162. by husband for wife, 152. for donee, 152. reason for rule requiring a delivery, 106, 108, note 1. receipt for debt, 127, 128, note 1, 131, 174. recording deed, 140, note 2, 173. re-deUvery of deed of trust, 426. of note, 255. registered bonds, 168. remainder, 172. repossession of gift by donor, 144, 182, 265. reservation of interest in gift, 176, 178, 180. of right to use gift, 182. return of gift if donor desires it, 181. rule requiring a delivery the same in both kinds of gifts, 104. savings bank deposit-book, 320. shifting gift from one draM'er to another, 168. silver buried in ground, 117, note 1. situation of the subject-matter of the gift must be considered, 116. slav-^es, 164, 174. shght delivery, 122. stock shares, 169, 180, note 2. surety to principal of debt, 169. symbolical delivery, 114, 167. test, 109. third person receiving gift for the donee, 139. to retarin until donor's death, 141, note 2. time of delivery, 118. title must pass, 109, 114. transfer of money into name of donor and his wife, 266. of stock, 360. trusts, 426. undivided interest given by deed, 175. unknown to donee, 124. unsealed instrument, 171. use of gift reserved, 176, 178. user distinguished from possession, 112. verdict, when court may direct, 187. wearing apparel, 159, note 2. 682 Index. The Beferences are to the Pages. D'ELIY'ERY .—Continued. weighty articles, 116, 117. when may be dispensed with, 125. writing may serve as a delivery, 119, note 1. on note does not dispense with, 246. on articles given not sufficient for a delivery, 175. on slate, 120. DEPOSIT. See Bank ; Savings Bank. acceptance, 310. presumed, 314. bank-book does not pass deposit, 312. certificate, 306. transfer of, 329. control over by donor, 310, 333. delivery. 111, note 2, 112, 308. by husband to wife, 150. deposit in joint names of donor and donee, 156, 326. gift of book not gift of fund, 323. indorsement limiting power of donee to draw, 307. interest reserved on, 323. knowledge of donee concerning, 310. money deposited in name of donee, 308. presumption of deposit in donee's name, 330. re-delivery of deposit-book, 325. reservation of a part, 176, 178. of income, 180, note 2. revocation, 308, 338. savings bank deposit, 126. special deposit, 329. in particular drawer of bank, 138. trust raised by, 331. wife's money, 312. DEPOSITORY, retaining gift until after donee's death, 146, note 2. DEPOSIT-BOOK, delivery necessary, 105, note 2. DISCLAIMER OF GIFT, efiect, 74. how made, 74. trustees making, 74. DIVORCE, effect on gift by husband to wife, 213. DOMINION, control over stock retained by donor, 363. parting with, 116, note 1. relinquishing, 110, 142. I Index. 68^ The References are to the Fages> DONATIO MORTIS CAUSA, acceptance essential, 70. administrator cannot control, 23, 45. amount of gift, entire estate, 39. bank deposit drawing and donor afterward recovering, 307, note 2. Bracton's definition, 17. check invalid as, 301. of stranger, 304. conditional may be, 37, 79. contribution by donee to legatees, 45. criterion, 31. death — given in view of, 17, 18. debts subject to, 23, 46. deed as is valid, 36. defined, 20. delivery the same as in inter vivos, 104, 105, note 1. deposit certificate may be, 307, note 3. distinction between and inter vivos, 23. donee dying before donor, 42. earliest case, 13, 15. executor has no control over, 23, 45. existing disorder — death from, 28. burden to show, 28. going on journey, 32. Homer's recitation of, 19, note 1. hostility of courts to, 15, 16. how like inter vivos, 1. husband to wife in Bracton's time, 18. "in case of death," 31. in extremis — use of in old authorities, 28. donor need not be, 26. in peril of death, 27. inter vivos may be even when made during last Illness, 38. Justinian's definition, 18. last sickness, 24. legacy, compared with, 19, 20. resembles, 22. mutual gifts, neither donor nor donee surviving the others, 18. necessary attributes of, 21. note, 234. old age, 33. origin, 13, 14, 15. possession must be given at once, 111. posthumous, does it work a revocation of gift, 41. real estate, 373. recovery of donor, 41, 307, note 2, 364. redelivery to donor — effect, 185. G84 Index. The References are to the Pages. DONATIO MORTIS CAUSA.— Confmited. revocation, 41, 98. donor may, 43. by will, 43. soldier's gift on going to war, 33. stock, 348, note 1. recovery from sickness by donor, 364. suflSciency of pi-oof to show, 193. suicide, 32. surgical operation, 32. Swineburne's definition, 19. time of delivery, 118. between gift and death, 21, note 6, 35. title, when passes, 44, 228. trust raised by, 36. unassigned notes, 239, 242. when can be made, 24, 25. wills act does not effect, 24. will insufficiently executed cannot be, 38. DONEE, administrator may be, 55. agent accepting gift, 70. child encientee, 55, 272, note 1. class of persons may be, 226. corporation may be, 56. creditor of estate, efl'ect, 46. dead person cannot be , 55. death of, before donor, effect, 42. executor may be, 55. foreigner may be, 53. gift unknown to until death of donor, 310. husband receiving gift from his wife, 51. illegitimate child, 55. infant, 48. mistress of donor, 55. municipal corporation may be, 59. must be clearly designated, 47. officer of corporation, 57. one or more donees incapable of taking, 55. residing with donor, delivery, 125. slave cannot be, 54. title of donor, cannot deny, 227. wife from her husband, 49. as to third persons, 53. DONO DARE, meaning of, 19, note 1. Index. 685 The References are to the Pages. DONOR, admissions against interest, 197, note 3. age, 444. belief of donor that further act was necessary to complete gift, 121. condition of must be considered, 120. corporation as, 56. of its own stock, 365, 366. disease of, 444. husband to wife, 49. infant, 48. of real estate, 400. legislature, 54. lunatic, 54. married woman as to real estate, 400. municipal corporation, 58. temper of, 444. wife to husband, 51. DRAFT, gift of, 243. acceptance before donor's death, 244. DRUNKEN MAN, gift by, 460. DUE BILL, cancelling as a gift to debtor, 260. EARNINGS, gift to minor by father, 49. husband giving wife her earnings, 50, 212. EASEMENT, may be a gift, 373. EDUCATION, cost of as an advancement, 559, 561. EJECTMENT, improvements erected on land, when a defense to, 176, note. parol gift of lands, 407. EQUALITY, unequal distribution, 595. will fixing, 594, note 1. EQUITY, aiding imperfect gift, 225. ESCROW, deed delivered as revocation, 93. ESTOPPEL, acquiescence, 320. conditional gift, donee cannot deny condition, 80. deed may estop donor, 171. 686 Index. The References are to the Pages. ESTOPPEL.— Continued. denying gift, 91. heir after ratifying gift, 91, note 2. trust, 431. when donor is estopped to claim a return of gift, 61. EVIDENCE. See Presumptions ; Proof of Gift. acceptance, 73. EXECUTOR, cannot perfect gift, 143. collecting amount of gift, 251. donatio mortis causa does not take, 23. donee may be, 55. has no control over gift, 45. possession of gift, not entitled to, 227. EXISTING DISORDER, death must result from, 28. burden to show, 28. EXPECTANCY, gift of, 252. FAILURE OF CONSIDERATION, not a question in an action concerning a gift, 3. FAMILY, delivery by parent to child, 157, 164. gift between members of family, 148, 166, note. presumption as to gift, 152, note. FAMILY BOOK, use in evidence, 561. FARM. See Colts. animals on, 165, note 2. delivery of property on, 133, 164. FATHER, delivery by to child, 157. FATHER-IN-LAW, advancement to son-in-law for daughter, 526. FOAL, when a gift, 7. FOREIGNERS, may be a donee, 53. FORGIVING DEBT. See Account. gift of part, delivery, 129. FRAUD AND UNDUE INFLUENCE, age of donor, 444. amount necessary to avoid gift, 442. ante-nuptial gift, 458. Index. 687 The References are to the Pages. FRAUD AND UNDUE INFLUENCE.— Cbn^mMed. attorney, 441, 450, 453, 456, note 1. avoids gift, 441. brother to sister, 459. burden to show, 449. child to parent, 459, 460. client, 441. clergyman, 456. confidential relations, 441, 450. deed prepared by donee, 446. disease of donor, 444. gift intended to operate as a will, 447. guardian, 441, 450. importuning donor for gift, 448. improvident gift to stranger, 445. inebriate, 460. marriage gift, 458. mental weakness, 443. mistake, 447. mistress, 460. parent to child, 459. partners, 451. persuasion, 448. physician, 457. power to revoke not reserved, 448. principal and agent, 451. revocation, 93. sister to brother, 459. subsequent creditors, 469, 470. suit to annul, 464. temper and disposition of donor, 444. trustee, 450. unequal distribution of property, 446. unsoundness of mind, 443. value of gift, 445. ward's gift to guardian, 441, 460. wife to husband, 462. witness to gift, 448. FRAUDULENT CONVEYANCE, donatio mortis causa, 473. donee liable to donor's creditor, 474. donor retaining control of gift, 470. exemption from execution, 472. father may give child its services, 472. fraud on wife or child, 474. fraudulent purposes, 467. gift to debtor's son by stranger, 474. 688 Index. The References are to the Pages. FRAUDULENT CONVEYANCE.— Conimwed. valid between donor and donee, 473. husband may give his services to his wife, 472. indebtedness of grantor, 468. insignificant gift, 472. intent to defraud subsequent creditors, 470. statutes concerning, 466, 467. subsequent creditoi-s, 471. sudden insolvency, 469. FRENCH LAW. See Code Napoleon. revocation, 100. FUNERAL EXPENSES, check to pay, 269. FURNITURE. See Piano. advancement may, 582. delivery, 112, 141, 148, 150, note 1. gift or advancement, 561. purchase by wife with husband's money, 214, note 2. son's gift to father, 210, note 1, what was a valid gift of, 191, note 6. FUTURE GIFT, belief of donor that Something further was necessary ix> perfect gift, 121. trustee delivering, 144, 145. void, 66, 110, note 5. GENEVA AWARD, not a gift, 2, note 5. GIFT, advancement is a gift, 11, 513. changing to gift, 517. gift changed to advancement, 84. changing to advancement, 516, 517. to contract, 82. to trust, 83. contract changed to gift, 82. distinguished from sale, 6. evidence concerning, 190. " in case of death," 31. indefinite, must not be, 11. lex loci controls, 12, 52. loan is not, 7. part of an article, delivery, 130. by deed, 131, note 2. property not owned by donor, 66. sale, when, 6. sealed up when given, 124. Index. 689 The References are to the Pages. GIYT.—Cmdinued. to a class of individuals, 226. uncertain as to part ; whole void, 12. unknown to donee, 310. GRAND ARMY OF THE REPUBLIC, subscription to encampment meeting, 279, note 2. GRANDCHILDREN, advancement to, 522. only grandchildren surviving grandparent, 526. GRANDPARENT, advancement by, 569. GRATUITOUS GIFT, defined, 2, note 4. GUARDIAN, delivery to, 159. gift to by ward, 441, 460. GUN, delivery, 118. HEIR, innocent purchaser of his expectancy, 543. ratifying incompleted gift, 89, note 3, 91, note 2. release by of expectancy in ancestor's estate, 540. HOMER, description of a donatio mortis causa, 19, note 1. HORSE. See Animals ; Colts. delivery by husband to wife, 149, 154. gift as an advancement, 561. gift of interest in, delivery, 130. by deed, 131, note 2. husband retaining in his stable, 154. HOSTILITY, courts once hostile to donatio mortis causa, 15, 16. HOTCHPOT. See Advancement. HUSBAND, articles in his residence presumed to be in his possession, 125. assents to gift to wife, 53. delivery to wife, 148, 154. deposit in joint names of himself and wife, 320. gift of his services to his wife, 472. may make a gift to his wife, 49. effect, 49, note 3. possession of gift to wife of real estate taken by him, 395. proof of gift by to wife, 211. purchase of gift for wife, delivery, 152. 44 690 Index. The References are to the Pages. HUSBAND— Co'rtimued. retention of money-gift to husband by wife, 184, note 3. stock given to wife, 347, note. placed in his own and wife's name, 356. trustee for wife, 312. wife's gift to, 51. of real estate, 369. IDIOT, purchase in name of, presumption, 550, note. ILLEGITIMATE CHILD. See Bastard. may be a donee of its father, 55. purchase in name of, 554. ILLNESS. See Donatio Mortis Causa ; Sickness. gift made during may be an inter vivos, 38. recovery from, eifect, 41. IMMORAL GIFT, revoking, 95. IMPERFECT GIFT, aiding, 225. statute of limitations rendering valid, 226. IMPORTUNING DONOR, does not render gift void, 448. IMPROVEMENTS. See Advancements ; Real Estate. advancement, charging as, 611. " IN CASE OF DEATH," validity of gift when so made, 31. INDEFINITE, gift must not be, 3, 11. INDORSEMENT, donor not liable on, 251. IN EXTREIMIS, donor need not be, 26. use of in old authorities, 28. INFANT, acceptance by of gift, 72. advancement to, 553. delivery to, 159. by parent, 157. of note, 141, note. of colt on father's farm, 161. donee may be, 48. donor cannot be, 48. earnings as a gift by father, 49. gift to of real estate, 377, note. Index. 691 The References are to the Pages. INFANT— Cmtinued. hotchpot, not applicable to, when, 602. promises to make a gift to, 64, note 6. purchase for by a parent, 162. ratifying agent's acceptance, 70. real estate cannot give away, 400. revoking gift, may, 86, 87, note 2, 89, 436, note 3. INNOCENT PURCHASER, heir selling his expectancy to, 543. IN PERIL OF DEATH, use of term with reference to a gift, 27. I O U, subject of a gift, 243. INSANITY, avoids gift, 54. presumption as to donor's, 225. INSURANCE, advancement, policy may be, 539. gift of policy, 150, note 1, 184, note 3, 248. delivery, 171, note 2. INTENTION OF DONOR. See Promise. advancement, effect on, 519, 573. essential, 519. concealed by donor, 64, 217, note 2, declarations of as res gestse, 62. deliver}^ does not constitute, 109. when must accompany, 126, note 2. desire to make gift not alone .sufficient, 254. donor cannot be asked what his intention was in making purchase in wife's name, 213. doubtful, avoids gift, 62, note 4. essential to validity of gift, 61. expressing in writing not alone sufficient, 67. expressions of as evidence, 62. intent not enough, 63. look may show, 63. must be clearly shown, 65, 205. promise not sufficient, 64. proof of, 65, 205. relationship of donor to donee to show, 65. secretly entertained by donor, 64. to only make a loan, 217, note 2. subsequent to delivery, 62. trust, to create not sufficient, 421. writing on gift may show, 176, 178, 180. not clearly disclosing, 421, note 1. 692 Index. The References are to the Pages. INTEREST, advancement, charging on, 609. distinguished from, 513. gift by parent to pay, 559, note 1. payment, how it affects presumption, 564, 589, note 3. donee hable for — when, 109, note, forgiving ia an advancement, 517, note 3. gift of to maker of note, 129, note 1. reservation of, 177, 178. on deposit made, 323. INTOXICATING LIQUOR, gift or sale, 7. mTER VIVOS, defined, 1. delivery the same as in donatio mortis causa, 104, 105, note 1. distinction between and donatio mortis causa, 23. essentials of a valid gift, 2. future gift void, 66. how like donatio m,ortis causa, 1. illness, gift if made during, 24, 38. revocation, 85. IN VENTRE SA MERE See Enceinte. donee may not be, 55. JOURNEY, going on, 32. JUDGMENT, lien on lands given to donee, 50, note 3, 406. note merged in, 249. JURY, advancement a question for, 562, note 5, 596. delivery a question for, 186. equivocal language, question for, 231. loan or gift is a question for, 7, 9, 217, note 2. question for, 231. trial by in action concerning parol gift of land, 407. when court may direct verdict, 187. KENT, mistake as to symbolical delivery, 167, note 2. KEY, bank deposit key, delivery, 138. delivery, 111. for contents of box or drawer, 129, 133. to third person, 140, note 2. donee already in possession at time of gift, 134, note 1. Index. 693 The References &re to the Pages. KINSHIP. See Relationship. donor to donee to show intention of donor, 65, 522. KNOWLEDGE, donee not having of gift, 310. LABOR. See Services. performing on land given by parol, 379. LAWSON V. LAWSON, comments on, 299. gift of note, 269. LEGACY, resemblance to gift, 19, 20, 22. LEGACY DUTY, gift made to avoid, 250. LEGISLATION. See State. may be a donor, 54. LEND, defined as used in a will, 9, note 3. LEX LOCI, determines validity of gift, 189, 12. wife's gift to husband, 52. LIFE TENANT, possession of is not adverse to remainderman, 177, note 1. LOAN, advancement is not, 575. changed to gift, when not, 9, note 3. evidence evenly balanced between gift and loan, 194, note. misunderstanding of donor and donee, 9. not a gift, 7. presumption as to, 222, 261. question for jury, 7. secret intention to not make a gift, 217, note 2. when usurious, 65, note 4. LOTTERY TICKET, gift of by father to child, 163. LOVE. See Affection. donor for donee may be shown, 65. LUNATIC. See Insanity. cannot be a donor, 54. MARRIAGE, gift to child on marriage, 215. to donee on condition he marry, 80. return of presents on marriage broken ofi", 94. MARRIAGE (GIFT IN FRAUD OF), acquiescence of husband, 491. 694 Index. The Keferences are to the Pages. MARRIAGE (GIFT IN FRAUD Oli).— Continued. action to set aside transfers, 492, 493, 495. actual fraud, 481. concealment, 481. confirmation, 491, note 3. considemtion for conveyance, incumbrance, or debt, 489. conveyance before treaty of marriage entered upon, 482-486. decree, 493. early case, 475. engagement before conveyance, 485, 486. fraudulent representations by wife, 486. general rule, 478. husband secretly conveying his property, 494. ignorance of husband of conveyance, 482. of property owned by wife, 487. incumbering land, 487. innocent purchaser, 490. knowledge of husband of fraud, 482. laches in bringing action, 491. leases by wife, 487. married woman's statute, 496. misrepresentations by husband, 491. pecuniary means of husband, 488. personal property of husband, 496. property need not have brought about the marriage, 487. reasons for rule, 482. release of debt or legacy, 488. seduction of wife, 490. widow with children setthng property on them, 488. wife may sue, 495. MARRIAGE SETTLEMENT, a trust, 440. MARRIED WOMEN. See Husband and Wife. real estate, cannot give away, 400. MEMORANDUM, gift by means of, 246. MEXICAN LAW, revoking gift under, 99. MILL, delivery of income of mill, 167. MINE, gift of claim to, 404, note 3. MINOR. See Infant. MISCONDUCT, wife's does not revoke settlement, 213. Index. 695 The References are to the Pages. MISTAKE, avoids gift, 447. equity will correct, 213, note 4. revoking gift made under mistake, 95. MISTRESS, as donee, 55, 460. illicit relations to donor may be shown, 209. MISUNDERSTANDING, loan or gift, 9. MONEY, in possession of donee at time of gift, 246. MORTGAGE, cancellation after mortgagee's death, 120. donor's to donee as a gift, 272. foreclosure, 177, note 1. gift of a part, delivery, 129. of note secured carries mortgage, 243. of mortgage without note, 129, 243. MUNICIPAL CORPORATION, donee may be, 59. donor cannot be, 58. NAME, right to give to child the subject of contract, 4. writing donee's on gift, 163. NOTE. See Bills of Exchange ; Checks ; Choses in Action. administrator collecting, 227, note 4. advancement, note of donor is not, 568. when presumed child's is not, 563, 564. bank notes subject of gift, 238, note, cancelling maker's note as a gift to him, 128, 261. consideration for note given, 253. delivery essential, 255. re-delivery, 255. donor collecting after gift made, 141, note, donor's payable to donee, 270, 267. enjoining collection of, 132. equalizing distribution of estate, 250. indorsement, donor not liable on, 251. indorsed to donee, presumption, 224, note 1. intention to make a gift of not sufficient, 254. interest due on, gift to maker, 129, note 1, 130. i. o. u., 243. Lawson v. Lawson, 269. memorandum on note does not dispense with a deliver}', 246. merged in judgment, 249. 696 Index. The References are to the Pages. l!iOT^.— Continued. money represented by, 168. mortgage goes with gift of note, 243. non-transferable note, 247. part of note as a gift, 244, 262, note 4. payable to third persons, 264. to order of payee, 234. to husband and wife, 266. payment, to whom made, 251. possession, when evidence of delivery, 127, note 2, 257. receipt for and in place of a delivery of, 247. redelivery to donor, effect, 184. repossession by donee, 265. sealed, 242. survivor of two payees, 266. unassigned, 238. wife to husband as a donatio mortis causa, 186. NOTICE, trust, 331. OFFICER, gift to by corporation, 57. OLD AGE, gift by reason of, validity, 33. OPERA BOX, when not valid as a gift, 362. ORDER, trust created by, 432. PARAPHERNALIA, gift by husband to wife, 50. PART, gift must be of the whole, 3, 130, 138, 244. PARENT, comments on presumption arising from delivery of property to child, 220. delivery by to child, 157. possession by for child, 159. proof of gift to child, 215. PARTNER, gift to by copartner, 451. PARTITION, advancement determined in action for, 614. PASS-BOOK, delivery, 168. entries in in name of donee, 398. Index. 697 The References are to the Pages. PAYMENT, presumption as to, 225. PENSION, is a gift, 2. revocation, 86. PERIL OF DEATH, use of term, 27. PERSONAL ORNAMENTS, wife's, 152, note 2. PERVERSION, does not avoid gift, 445. PHYSICIAN, gift to by patient, 457. PIANO. See Furniture. delivery, 75, 107, note, 113, 150, note 1, 158, note 1. PIN MONEY, gift of by husband to wife, 50. PLEADING, sufficiency, 2.31. POLLOCK, BARON, decision respecting sufficiency of delivery, 123. POPE. gift by the poet Pope, 15, note 7. POSSESSION. See Delivery. must be clear in gift of real estate, 394. when donee may maintain action against trespassers, 371. POWER OF ATTORNEY, gift of stock by, 357. PRESUMPTION. See Proof. acceptance, 225. by adult, 71. by infant, 143, note 4. of deposit, 314. when not presumed, 72. advancement or gift, 550. purchase for child, 547, 550, note. for stranger, 545. comments upon presumption arising from delivery of property to child by parent, 220. conveyance to wife, 212, note 2. declarations accompanied by gift, 190. delivery, 107, note, deposit in donee's name, 330. donee's access to donor's papers, 224. 698 Index. The References are to the Pages. PRESUMPTION.— Con« 'J r J-:'