Cutting v. Gilman , 41 N.H. 147 ( 1860 )

SaRGENT, J.

It is now well settled that, under certain limitations, a gift may be made, by one in present contemplation of death, of money or other property capable of passing by delivery; that to give effect to such a donation there must be a clear and manifest intention of the owner to give; a subject capable of passing by delivery, and an actual delivery at the time, in contemplation of death; that such a gift is inchoate, and does not become perfect till the death of the donor, being, in that respect, like a legacy; that it is revocable by the donor during his life; and if he recover from the sickness or other cause of apprehended death, under which the donation is made, the gift is void. But where there is such a gift and actual delivery at the time, and the expected death of the donor ensues, the gift is complete, and vests the property in the donee presently, without its vesting in or passing through the executor or administrator, arid is liable to be divested only in favor of the creditors of the donor. 2 Kent Com. 444, 445 and 446; Parish v. Stone, 14 Pick. 198; Sanborn v. Goodhue, 28 N. H. 48; Jones v. Brown, 34 N. H. 439. In the case before us, it would seem that all the conditions were complied with to make it a good donatio causa mortis, except the delivery. But there was no delivery at the time of the alleged gift. The watch was hanging whei'e it had been placed by the father of the deceased at the time when the deceased first took his bed, and though the sister, the defendant, had the key at the time of the alleged gift, yet she had received it before, as the agent of her brother, in order to wind the watch and take care of it for him and by his direction ; and at the time of the alleged gift there was no act whatever that could operate as a delivery of the watch. The defendant had wound it for the deceased before the gift, and she did the same afterward but there was no change of possession — nothing that could be construed into a delivery at the time, either to the donee or to any other person for her.

In such eases there must be an actual delivery in order to perfect the gift, though the delivery is good if made to a third person for the donee, if such third person hold such possession until the death of the donor. Borneham v. Sidlinger, 3 Shep. 429; Grattan v. Appleton, 3 Story 755; Carpenter v. Dodge, 20 Vt. 595; Sessions v. Masely, 4 Cush. 87; Dale v. Sinclair, 31 Me. 422; Raymond v. Sellick, 10 Conn. 480. An absolute delivery and a continued change of possession, are essential requisites of a donatio causa mortis. Craig v. Craig, 3 Barb. Ch. 76.

A delivery is indispensable to tbe validity of a gift causa mortis. It must be an actual delivery of tbe thing itself, or of tbe means of getting possession and enjoyment of tbe thing, and there must be something amounting to delivery at tbe time of tbe gift; for it is not tbe possession of tbe donee, but tbe delivery to him by the donor that is material. An after-acquired possession, or a previous and continuing possession of tbe donee, though by authority of tbe donor, is insufficient. Miller v. Jeffreys, 4 Gratt. 472; Kennedy v. Public Administrator, 2 Bradf. (N. Y.) 319. Tbe case of Smith v. Smith, 2 Str. 955, is cited by the defendant as opposed to this last position. But tbe authority of that case is questioned in Bunn v. Markham, 7 Taunt. 224, and substantially overruled in that, case, which was decided by tbe full bench, and in tbe same case, before Gibbs, C. J., at nisi prius, as reported, 1 Holt N. P. 352. So, also, tbe case of Sprattle v. Wilson, 1 Holt N. P. 10, would seem to be opposed to this doctrine, where Gibbs, C. J., inquires whether if A, on his deathbed, desire B to call at a certain place and fetch away a watch, adding, “ that be will then make her a present of it,” but no possession is resumed by A, and no delivery made to B; this would not be good as a donatio causa mortis. But in tbe case of Bunn v. Markham, 1 Holt 352, and note, and in tbe same case before tbe full bench (7 Haunt. ante), Gibbs, O. J., corrects the erroneous views taken in Sprattle v. Wilson, and bolds that an actual delivery by the donor must accompany tbe gift to make it effectual in such a case.

Nor will a symbolical delivery answer. To constitute a title of this kind, under a gift causa mortis, tlie donor must not only give, but be must deliver, and that delivery must be actual where the subject matter of the gift is capable of actual transfer. Shargold v. Shargold, 2 Ves. 431; Bunn v. Markham, 1 Holt, ante.

In the case before us, the watch was not in the possession of the defendant before or after the alleged gift, any more than it was in that of her father; .but even if it had been, there must have been some act at the time of the gift which would amount to a delivery. A mere intention to give, or a naked promise to give, without some act of delivery to pass the property, is not a gift. The ruling of the court was correct, and there must be

Judgment upon the verdict.