Borneman v. Sidlinger , 15 Me. 429 ( 1839 )

The opinion of the Court, after advisement, was drawn up by

Weston C. J.

If the defendants can prove, as the case finds they offered to do- at the trial, that the intestate in his last sickness, when death was near, and as we think must be understood, in contemplation of that event as impending, gave to the donees named the note and mortgage in question, and actually delivered them to a third person for their use, we are of opinion, that it was good, as a donatio causa mortis.

That a chose in action may be the subject matter of such a gift, we regard as settled law at the present day. This question is very satisfactorily examined in the case of Parish & al. v. Stone, 14 Pick. 198, to which we refer, without deeming it necessary to go over the same ground. 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 third person retain possession up to the time of the deatli of the donor. Drury v. Smith, 1 P. Williams, 404. The equitable interest passes to the donee, and if there be a mortgage as collateral security, it is held in trust for his benefit, and may be enforced in the name of the representative of the deceased, as the principle debt may be also, if necessary. We are of opinion, therefore, that the evidence offered, ought to have been received. And if thereupon, it should be made to appear, that the donees are the real party in interest, the plaintiff will not bo permitted to prosecute this suit against their will, and still less for the benefit of the estate.

A gift of this description however may be defeated for the benefit of creditors. 2 Kent, 362. And if it should turn out, on a further trial, that the plaintiff is a bona fide creditor of the estate, and has a claim, which he can legally enforce, and that a reclamation of this gift is necessary to satisfy it, he may still be permitted to prosecute this suit, notwithstanding the defence interposed.

Exceptions sustained.