Bradley v. Hunt , 5 G. & J. 54 ( 1832 )

Buchanan, Ch. J.,

delivered the opinion of the court.

We are relieved from an examination of the question of fact, whether there was or not, a sufficient delivery by William. Jack, the deceased, to the wife of the complainant, John Bradley, of the instrument of writing which forms the subject of the bill, that question being waived by the counsel on the part of the appellee; and the only inquiry to which our attention is directed, is, whether a promissory note to the payee or order, is the subject of a donatio mortis causa, by the payee. It is a settled rule by law, that such-a gift cannot be by mere parol, but that a delivery of the thing intended to be given, is essential to the perfection of the gift; and it was so held by this court, in Pennington adm’r of Patterson vs. Exec'r of Gittings, 2 Gill and Johns. 218, which was the case of a delivery by á father to his daughter, of a certificate of shares in the capital stock of a bank; and the object of the bill was to compel the executor of the father to transfer the stock to the daughter, to whom, it was the intention of the father to have given it. But as the delivery of the certificate was not a transfer and delivery of the stock, the thing intended to be given, and which could only be transferred on the books of the bank, it was held, not to be a donation mortis causa, for want of such transfer, that being the only mode in which the shares of stock were susceptible of being delivered.

' To constitute a donatio mortis causa, the gift, should be full and complete at the time, passing from the donor the legal power, and dominion over the thing intended to be given, ancf leaving nothing to be donéffiy him, or his ex-écutor, to perfect it., Hence bank notes are the subjects of such gifts, they bein'g Considered ás money, and the prbperty in them, passing by delivery. Miller vs. Miller, 3 P. Wms. 335—and so as to promissory notes payable to bearer,, which pns5~by "delivery, and the property, and legal dominion over the thing intended to be givén, passing with the possession from the donor to the donee, they do not require to be sued in the name of the executor, and nothing is necessary to be done by him to perfect the gift of the money.

But not so with the delivery of a promissory- note payable to order, which has been held to be insufficient to pass to the donee, the money, the thing intended to be given; upon the ground that no property in it passes by delivery, and being a mere chose in action, it must notwithstanding the delivery, be sued in the name of the executor. So that the gift of money is not complete at the time, the legal dominion over it, remaining in the donor, and on his death, passing to his executor, without the use of whose name it cannot be perfected.

This may seem to be technical; but if the rule is admitted, that a delivery of the thing intended to be given, is essential to the perfection of the gift, it must follow, that a promissory note payable to order, is not capable of being the subject of a donatio mortis causa. And if we were at liberty to do so, we should not be disposed to relax the rule, which would be to open still wider, the door already sufficiently wide, to frauds and perjuries, and the exercise of undue influence by the artful and designing, upon the wejpk and unwary,

There has been an exception to the rule, in the case of a bond. In Snellgrove vs. Baily, 3 Atk. 214, the delivery of a bond was held by Lord Ilardioicke, to be a good donatio mortis causa. And in Ward and Turner, 2 Ves. Sr. 431, he assigns as reasons for that decision, “that he who has possession of a bond, may destroy it, the consequence of which is, that it puts it in his power to destroy the obligee’s power to bring an action, because no one can bring an action on a bond without a proferí in curia,” and “that the law allows it a locality, and therefore that it is bona nolabilia,” and adds, “that this is conclusive.” And in Gardner vs. Parker et al., 3 Mad. Ck. R. 102, the Vice Chancellor, relying upon Snellgrove vs. Baily, made a similar de - cision.

In Duffield vs. Elwes, 1 Sim. and Stewart, 239, the Vice Chancellor said, he considered “the case of a bond to be an exception, and not a rule.” The reasons assigned by Lord Hardwicke for his decision, that a bond is the subject of a donatio moi'tis causa, do not exist here, and whether the distinction prevailing in England, between the case of a bond, and a promissory note to order, (the force of which is not now perceived,) should be adopted here, it will be time enough to dertermine when the question shall be brought before us.

DECREE AFFIRMED.