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Exchequer, by Ahinger, C. B.,
Parke, B., Alclerson, B., and
Rolfe, B., that it was a good dona-
tio mortis causa, although coupled
with a trust. " I cannot see," said
Mr. Baron Rolfe, " how the annex-
ation of a trust to the gift can
make any difference. If it be law-
ful so to give the property out and
out to the party for his own use,
I cannot see that it makes any
difference, that with it he is to pay



1006



WARD V. TURNER.



for a particular thing. If a man
on his cleath-hed gives another
lOOOL, is it any addition to the
evils attending this mode of be-
stowing propert}^ that he attaches
a condition to it ; as, for instance,
that he stipulates, that his brother
shall receive an outfit to India?
The case of Blount v. Burroiv is
expressly in point, and disposes of
the question ; and I have no doubt
that other cases might be found."
These decisions rightly follow
the civil law, according to which it
is clear, that a donatio mortis causa
might be made the subject of a
trust or condition. " Eorum qui-
bus mortis causa donatum est, fide
committi quoquo tempore potest ;
quod fidei commissum, hseredes,
Salva Falcidiae ratione, quam in
his quoque donationibus exemplo
legatorum, locum habere placuit,
prsestabunt. Si pars donationis
fidei commisso teneatur, fidei com-
missum quoque munere Falcidise
fungetur. Si tamen alimenta prse-
stari voluit, collationis totum onus
in residuo donationis esse respon-
dendum erit ex defuncti voluntate,
qui de majore pecunia prsestari
non dubie voluit integi'a." Dig.
lib. 31, tit. 1, 1. 77, s. 1, cited 4
Ptuss. 27, 2 Coll. 356. "Ab eo,
qui neque legatiun neque fidei
commissum, neque hfereditatem
vel mortis causa donationem ac-
cepit nihn per fidei commissum
relinqui potest." Cod. lib. 6, tit.
42, 1. 9, cited 4 Russ. 27. Sed
vide Bihhy v. Coulter, lUdg. Ca.
t. Hard. 206 n.



A delivery in order to be effec-
tual must be made either to the
donee himself or to some one for
him. A mere delivery to an agent,
in the character of agent for the
giver, will not be sufficient (Far-
quharson v. Cave, 2 Coll. 356,
367) ; the deliver}- also, when there
are any declarations made by the
donor relative to the subject-matter
of the gift, should be contemjjora-
neous with them {Thompson v.
Heffcrnan, 4 D. & War. 285;
Hawkins v. Blewitt, 2 Esq. 664 ;
Dunne v. Boyd, 8 I. R. Eq. 609) ;
and even if there be a delivery to
the donee or to some one for him,
it will not be good, unless the
donor (subject of course to the
ordinary condition making void
the gift, which is always either
expressed or implied in case
of his recover}') parts with the
dominion over the thing given.
Thus in Hawkins v. Blewitt (2
Esp. 663), in an action of trover
for a box contammg money and
wearing apparel, by an adminis-
trator, the case on the part of
the plamtifi" was, that the intestate
in his last illness ordered the box
to be carried to the house of the
defendant, who was his amit, and
to be delivered to her ; but he
gave no otlier directions respecting
it, nor said anything about giving
it to her. It was, however, further
given in evidence, that on the next
day, the key was brought to the
intestate, who desired it to be
taken back, saying that he should
want some articles of clothinij out



WARD V. TURNEE.



1007



of it. The plaintiff had a verdict.
Lord Kenyon, C. J., said, " In the
case of a donatio mortis causa,
possession must be immediately
given ; that has been done here :
a dehvery has taken place, but it
is also necessary that by 'parting
with the possession, the deceased
shoidd 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 contamed in it, are
sufficient to show that he had no
intention of making any gift or
disposition of the box. It seems
rather to have been left in the
defendant's care for safe custody,
and was so considered by her-
self." See also Eeddel v. Dohree,
10 Sim. 244; Tapley y. Kent, 1
Robert. 400 ; Warriner v. Rogers,
16 L. R. Eq. 340.

A delivery of a thing by way of
symbol, according to the opinion
of Lord Hardivicke, in the prin-
cipal case, is not a sufficient deli-
very. Thus, he held that the
delivery of the receipts for South
Sea Stock was not a sufficient
delivery to constitute a donatio
mortis causa, but he said that
an actual transfer, or something
amounting to that, would have
been necessary, ante, p. 1000. The
same conclusion has been arrived
at with regard to scrip-certificates
of railway stock. Moore v. Moore,
18 L. R. Eq. 474.

And it has been held that the



deliver}' of the book of a depositor
in a savings-bank, is not a suffi-
cient delivery to constitute a do-
nation of the money deposited :
M'Gonnell v. Murray, 3 I. R. Eq.
460. Nor wiU the delivery of a
note not payable to the bearer
{Miller v. Miller, 3 P. Wms. 356) ;
nor in general of a cheque upon a
banker {Tate Y.Hilbert, 2 Ves.jun.
Ill ; 4 Bro. C. C. 286), unless it
were presented or negotiated {Bolls
V. Pearce, W. N. April 28, 1877,
p. 98 ; Hewitt v. Kaye, 6 L. R.
Eq. 198) before the donor's
death, although the pass-book be
delivered up with the cheque
{Beak v. Beak, 13 L. R. Eq. 489),
be a sufficient delivery. See, also,
Bromley v. Brunton, 6 L. R. Eq.
275, where the gift was inter vivos.
The ground of these decisions is
this, that a cheque has no relation
to the donor's death : it is a gift
to take place immediately, and,
being merely an authority to re-
ceive a sum of money, it is effec-
tually revoked by the death of the
donor. However, in Laioson v.
Lawson, 1 P. Wms. 41, where A.,
during his last illness, drew a bill
upon a goldsmith for the pa3^ment
of 1001. to his wife, with a written
indorsement that the money was
"to buy her mourning," and A.
delivered the note to his wife, it
was held that she was entitled to
the money. And Lord Bosslyn,
in I'ate v. Hilhert, 2 Ves. jun. Ill,
notwithstanding Lord Ilardicickc,
in tlie principal case, throws some
doubt upon it, considered the case



1008



WARD V. TURNER.



perfectly well decided. " For,"
he observed, "taking the whole
bill together, it is an api^ointment
of the money in the banker's
hands to the extent of lOOL, for
the particular purpose expressed
in a written appointment; which
is a purpose that necessarily sup-
poses his death."

In Jones v. Selhy, Prec. Ch.
300, where it was held by Sir
John Trevor, M. R., that the deli-
very of the key of a trunk, with
words of gift of the trunk and its
contents, was a good delivery of
a tally upon government for 500/.
contained in the trunk, Lord
Hardwicke observes, that the
transaction "amoimted to the
same thing as a delivery of pos-
session of the tally, provided it
was in the trunk at the time."

In Boutts V. Ellis, 4 De G. M.
& G. 249, a person four days
before his death said to his wife :
*' I am a dying man, you will
want money before my afiairs are
wound up." On the following
day he signed and delivered to her
a crossed cheque upon his bankers
for lOOOL, and on the next day
but one, remembering that the
cheque was crossed, he asked a
friend who visited him to take it ;
and give the wife another for it ;
which the friend did, but his
cheque was post-dated. The do-
nor's cheque was paid before his
death to his friend, who, after that
event, gave to the widow a cheque
not post-dated fox- the other. It
was held by the Lords Justices,



affirming the decision of Sir J.
Romilly, M. R. (reported 17 Beav.
121), that the transaction consti-
tuted a good donatio mortis causa.
The case of Snellgrove v. Baily
(3 Atk. 214, Ridg. Ca. t. Hardw.
202) has established, that there
may be a donatio mortis causa of
a bond, though not of a mere
simple contract debt, nor by the
delivery of a mere sjinbol. — Per
Sir John Leach V. C, in Gardner
V. Parker, 3 Madd. 185 ; and see
Blount V. Burroxo, 4 Bro. C. C.
71 ; Hirst v. Beach, 4 Madd. 351,
356; Clavering v. Yorke, 2 Coll.
363, n. So, likewise, of bank-
notes {Shanley v. Harvey, 2 Ed-
Rep. 125 ; Ashton v. Dawson, Sel.
Ch. Cas. 14); of a deposit-note
given by a bank to the donor
{Witt V. Amis, 1 Best k Sm. 109 ;
Moore v. Moore, 18 L. R. Eq.
474; Dunne v. Boyd, 8 I. R.
Eq. 609) ; and, it seems, also, of
all other notes, or bUls jiayable to
the bearer {Miller v. Miller, 3 P.
"VVms. 356 ; Hill v. Chapman, 2
Bro. C. C. 612 ; and see Jones v.
Selhy, Prec. Ch. 300; Bihhy v.
Coulter, Ridg. Ca. t. Hard. 206,
n.), or to order, though not in-
dorsed b}' the donor {Bankin v.
Wcguelin, 27 Beav. 309 ; Veal v.
Veal, lb. 303). And the delivery
of a bond is still sufficient as a
donatio mortis causa of the debt
for which it is a security, although
an action ma}', in certain cases,
be maintained at law without pro-
fert of the bond: Dujficld v.
Elwes, 1 BHgh, N. S. 543.



WARD V. TURNER.



1009



So likewise a policy of insurance
on the life of the donor will pass
by deliveiy as a donatio mortis
causa : Witt v. Amis, 1 Best &
Sm. 109 ; Amis v. Witt, 33 Beav.
619.

A delivery of the mortgage
deeds of real estate will constitute
a valid donatio mortis causa. This
was decided in the case of Diif-
field y. Elives, 1 BUgh, N. S. 497 ;
1 Dow & C. 1, in the House of
Lords (reversing the decision of
Sir Johii Leach, V. C, reported
1 S. & S. 239). In that case, a
man, in contemplation of speedily
approaching death, wishing to
make a larger provision for his
daughter than he had done by
will, delivered, or caused to be de-
livered, to her, certain deeds, which
consisted of, 1. A conveyance in
fee of lands to secure 2927^., with
the usual covenant for payment of
the money lent, and a bond, by
way of collateral security. 2. An
assignment of a mortgage debt of
30,000L, and of a judgment for
that sum recovered on a bond,
with the conveyance of the land,
and the usual covenant for the
payment of the money. Sir John
Leach, V. C, in deciding that the
gift did not constitute a good
donatio mortis causa even of
the bond, which accompanied one
of the mortgages, observed, that
where delivery would not consti-
tute a complete gift inter vivos, it
could not create a donatio mortis
causa, because it would not pre-
vent the property from vesting in



the executors ; and, as a court of
equity would not inter vivos com-
pel a party to complete his gift,
so it would not compel the execu-
tor to complete the gift of his
testator. The delivery of a mort-
gage deed could not pass tlie pro-
perty inter vivos : first, because
the action for the money must still
be in the name of the donor ; and,
secondly, because the mortgagor is
not compellable to pay the money
without having back the mort-
gaged estate, which could only pass
by the deed of the mortgagee ; and
no court would compel the donor
to complete his gift by executing
such a deed. As to the case where
the bond accompanied the mort-
gage, he came to the same con-
clusion, as he thought that the
delivery of the bond, where there
is also a mortgage, cannot be con-
sidered as a gift completed, as the
mortgagor had a right to resist
the payment of the bond, without
a reconveyance of the estate ; and
it could not be maintained, that
the donor of the bond would be
compelled to complete his gift by
such reconvej-ance. It was held,
however, by the House of Lords,
that there was a good donatio
mortis causa, and that the daughter
was entitled to the benefit of
the securities. *' If," said Lord
Eldon, " the delivery of a bond
would, as it is admitted — (not-
withstanding any change in the
doctrine about profert) — if the
delivery of a bcmd would give the
debt in that bond, so as to secure

3 T



]010



WARD V. TURNER.



to the donee of that bond the debt
so given by the delivery of the
bond, the question is, whether, the
person having got, by the delivery
of that bond, a right to call upon
the executor to make his title by
suing or giving him authority to
sue upon the bond, what are we to
do with the other securities if they
are not given up ? But there is
another question, to which an an-
swer is to be given : What are we
to do with respect to the other
securities, if they are delivered?
In the one case, the bond and
mortgage are delivered ; in the
other the judgment, which is
to be considered on the same
ground as a specialty, is delivered;
with that, the evidences of the
debts are all dehvered. The in-
strument containing the covenant
to pay is delivered. They are all
delivered in such a way that the
donor could never have got the
deeds back again. Then the
question is, whether, regard being
had to what is the nature of a
mortgage, contra- distinguishing it
from an estate in land, those cir-
cumstances do not as effectually
give the property in the debt as
if the debt was secured by a bond
only?

"The opinion which I have
formed is, that this is a good
donatio 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." See



also Meredith v. Watson, 17 Jur.
1063 ; Re Patterson, 10 Jur. N. S.
(V. C. S.) 578.

The delivery by a creditor to
the debtor or his agent of that
which is essential to the recovery
of the debt is, it seems, sufficient.
Thus, in Moore v. Darton, 4 De
G. & Sm. 517, where, upon a
loan, the borrower had given the
lender a receipt in the following
form : " Received of Miss Darton
500L, to bear interest at 4Z. per
cent, per annum," it was held by
Lord Justice Knight Bruce (then
V.-C) that a delivery of the re-
ceipt to an agent of the borrower
by the creditor on her death-bed
stating that she wished the debt
to be cancelled, was a good do-
natio mortis causa. "It is true,"
said his Lordship, " that the de-
livery of a bond is not the delivery
of the mere evidence of a debt,
for it is the delivery of that with-
out which the debt would not
have been a specialt}-. Its con-
tinuance in existence is not now
material, however that might have
been considered formerl}'. The
delivery of an instrument creating
a specialty debt, without which it
would not have been a specialt}'
debt, as in the case of a bond,
would be sufficient for the pur-
pose of a donatio mortis causa ;
and so Lord Eldon decided as to
a mortgage. That, however, I
agree, does not go the length of
deciding that the deliverj'^ of the
mere evidence of a debt would be
sufficient. In this case there was



WARD ?;. TURNER.



1011



something more. The document
here has been called a receipt, and
is a receipt in a sense, but it is
not a receipt in the ordinary ac-
ceptation of that term. It was
a document contemporaneous, I
take it, with the creation of the
debt. It was delivered to the
agent of the debtor himself. The
debt was a debt carrying interest.
A mere debt of 5001., would have
arisen from a loan, without any
wi-iting. But it would not have
been a debt carrying interest,
without a contract to that effect
beyond the advance. That par-
ticular contract I agree might
have been entered into without
writing : but as it was created by
writing, proof of the writing, if
possible, was essential to recovery
upon the contract. This writing
was, therefore, essential to the
proof of the contract ; and it is
this writing which was in sub-
stance dehvered mortis causa to
the person owing the money. In
my opinion it is consistent with
what was said by Lord Harduicke,
Lord Ilosslyn, and Lord Eldon,
with the civil law, and our own,
to hold as I do, that this was a
sufficient delivery to constitute a
donatio mortis causa, which, in
my judgment, it was intended to
be."

It is clear that a donatio mortis
causa cannot be made merely by
parol, Avithout delivery, as in the
case of the alleged gift of the
household goods and plate in the
principal case : see Tate v. Tlilhcrt,



2 Ves. jun. 120; Smith v. Smith,
2 Stra. 955 ; Warriner v. Rogers,
16 L. R. Eq. 340.

In Spratley v. Wilson, 1 Holt,
10, Gihbs, C. J., held that it was a
sufficient delivery where a person
in extremis said, " I have left my
watch at Mr. R.'s, at Charing
Cross : fetch it away, and I will
make you a present of it ; " but,
upon this case being cited in
Bunn v. Markham, 7 Taunt. 227,
Gibhs, C. J., desired that it might
be laid out of the consideration of
counsel, for that, immediately after
that trial, he perceived that what
he had somewhat unprovidently
thrown out could not be main-
tained, because a delivery was
wanting, and he had accordingly
written a remark to that effect at
the end of his own note of the
case.

In Bunn v. Markham, 7 Taunt,

224, a person, supposing himself

in extremis, caused Indian bonds,

bank notes, and guineas, to be

brought out of his iron chest, and

laid on his bed ; he then caused

them to be sealed up in three

parcels, and the amount of the

contents to be written on them,

with the words, " For Mrs. and

Miss C," the plaintiffs; he tlien

directed the brother to replace

them in the iron chest, to be

locked up, the keys to be sealed

up, and directed " to be delivered

to J." (his solicitor), and one of

his executors, after his decease,

and replaced in his own custodj^

near his bed; and afterwards spoke
■6 T 2



1012



WARD r. TURNER.



of this propert}' as given to the
l)laintiifs. It was held not to be
a donatio mortis causa, for want
of a sufficient delivery, and on
account of the donor continuing
in possession. See, also, Farqu-
harson v. Cave, 2 Coll. 356; Walsh
V. Studdart, 4 D. & W. 159 ;
Thompson v. Heffeman, 4 D. &
W. 285 ; Powell v. Hellicar, 27
Beav. 261 ; Maguire v. Dodd, 9
Tr. Ch. Rep. 452.

In the principal case, Lord
Hardwicke says, *' that a gift
luoi-tis causa may be made in
writing as well as otherwise, and
that so it might by the Roman
and civil law," And see his ob-
servations in Johnson v. Smith, 1
Ves. 314 ; and Ijord Rosshjn, in
Tate V. H'dbert, 2 Ves. jun. 120,
says, that " perhaps it might not
be difficult to conceive that it
might be by deed or by writmg."

But a gift in writing, without
delivery, would probably be con-
sidered as testamentary : Bidden
V. Vallier, 2 Ves. 258 ; Tapley v.
Kent, 1 Robert. 400.

Evidence to estahlish a donatio
mortis causa.] — The evidence to
establish a donatio mortis causa
should be clear and satisfactory,
especially in those cases where the
relation between the donor and
donee is such as to give rise to
suspicion that undue influence
may have been used, as in the
case of an alleged donation from
a client to his solicitor {Walsh v.
Studdart, 4 D. & W. 159), or



from a person in extremis to a
priest attending him to administer
the last offices of religion (T/iomj?-
S071 V. Heffeman, lb. 285).

There is no absolute rule of the
Court that a gift of this kind may
not be established by the evidence
of the claimant alone : M'Gonnell
V. Murray, 3 I. R. Eq. 465, but
there is no class of questions in
which it is more important that
corroborating testimony should
be insisted on. lb. " The civil
law," says the Master of the
Rolls of Ireland, " required five
witnesses to establish such a gift ;
a will requires two with us. It is
difficult to suppose that it was
not by an oversight that the legis-
lature made no provision respect-
ing gifts of this sort ; but, though
our law does not define the num-
ber of witnesses requii-ed, it is
laid down in all the cases where
judges have commented on the
evidence necessary to support a
donatio mortis causd, that it
must be established by clear
evidence. The proof must be
more than is required merely to
turn the scale in favour of one
of two equally probable conclu-
sions. It must establish to the
satisfaction of the Court that the
claimant's case is not only pro-
bable, but reasonably free from
doubt. In the case of Cosnahan
V. Grice (15 ]\[oo. P. C. C), some
observations are made as to the
danger of the Court acting on the
evidence of the claimant alone.
AN'ithout any intention to commit



WARD V. TURXEK.



1013



perjury there is a natural ten-
dency in the human mind to be-
lieve what we wish. Quod vo-
hunus facile credimus. A very
slight change — perhaps of a single
word — may make a very material
difference in the meaning of the
language deposed to. There is
great danger of its being misre-
presented by any witness from
being originally misunderstood or
inaccurately remembered; but a
claimant, j^roving his own case,
has to guard himself against an
additional tendency to both
sources of error. There is, of
course, all the suspicion always
attachmg to an interested witness
as regards candour and truthful-
ness : " M'Gonnell v. Murray, 3
I. R. Eq. 465.

Where there is any doubt, whe-
ther, in point of fact, there was
that which would constitute a good
donatio mortis causa, if in point
of law the subject of it can be made
the subject of a donatio mortis
causa, it is a very familiar thing to
direct an issue or issues to try that
fact. — Per Lord Eldon, in Diif-
fieldy.Elives, 1 Bligli, N. S. 531 ;
and see Blount v. Burroio, 4 Brb.
C. C. 71 ; Gillespie v. Croker, 16
I. Ch. Rep. 182.

Distinction hetiveen a donatio
mortis causa, and a donation inter
vivos and legacies.^ — A donatio
mortis causa resembles a legacy,
inasmuch as it is ambulatory and
incomplete during the life of the
donor, and may be revoked by



him at any time before death, and
is liable to his debts on a defi-
ciency of assets {Smith v. Cascn,
1 P.Wms.406); is subject to legacy
duty (36 Geo. 3, c. 52, s. 7 ; 8 &
9 Vict. c. 76) ; and may be made
to the wife of the donor : Jones v.
Selhy, Prec. Ch. 300 ; Johnson v.
Smith, 1 Ves. 314 ; Tate v. Leit-
head, Kay, 658, 659. And in
these respects (except as to a gift
to a wife, ante, p. 535) it differs
from a gift inter vivos.

A donatio mortis causa differs
in another important respect from
a gift inter vivos, inasmuch as a
gift mortis causa must be accom-
panied by a dehvery, whereas a
gift inter vivos is complete if made
by deed ; or if, made by parol, it is
accepted by the donee. See notes to
Ellison V. Ellison, ante, p. 290. The
notes of Mr. Serjeant Manning, to
Lumi V. Thornton, 1 C. B. 381 ;
and The London and BrigJiton Eail-
way Company v. Fairclough, 2
Man. & Gr. 691 ; and the note to
David. Conveyancing, vol. 2. p.
695, 3rd ed.

But a donatio mortis causa differs
from a legacy, inasmuch as it does
not require probate, and is taken
against, and not from, the execu-
tor, whose assent to its enjoyment
is not necessary. Thus, in Thomp-
son V. Hodgson, 2 Stra. 777, where
an executor proceeded in the spi-
ritual court against a person for
taking, without his consent, a
tankard, which the testator gave
to him, if he died of his then
sickness, a court of common law



1011



WARD V. TURNER.



granted a prohibition, as it was
not a legac}^ but a donatio mortis
causa, the validity whereof might
be tried in an action of trover.

Where the property in a thing
made the subject of a donatio
mortis causa does not pass by
dehvery, as, for instance, in the
case of a bond, the donee may,
upon indemnifying the personal
representatives of the donor, sue
in their names for the debt secured
by such bond : Gardner v. Parker,
3 Madd. 184.

If the donor recover of his ill-
ness, or if he resume the posses-
sion of the gift, it will be defeated.
" All the cases," says Gibbs, C. J.,
" agree, that if the donor resumes
the possession, it ends the gift.
Lord Hardivicke expressly so
holds, in Ward v. Turner, where
it suited the pm'pose of .the coun-
sel to argue, that, if the donor,
after making a complete dehvery,
receives back the article, the do-
nation remains perfect. Lord
Hardivicke immediately denied
that proposition, and held, that
if the possession of the donee do
not continue, the gift is at an
end : " Bunn v. Markham, 7 Taunt.
231.

But if the donor does not re-
sume the gift, he cannot revoke it
by will, for upon his death the
gift becomes complete. See Jones
V. Selby, Prec. Ch. 300 ; it was,



however, decided in that case, that
a donatio mortis causa may be
satisfied by a legacy.

It is clear that the donee ma}'
be put to his election, if the sub-
ject of the donation is bequeathed
to another person, and some be-
nefit is conferred by the will upon
the donee. See Johnson v. Smith,
1 Ves. 314.

The WiUs Act (1 Vict. c. 26)
has not aboHshed donations mor-



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