Craig v. Craig , 3 Barb. Ch. 76 ( 1848 )

The Chancellor.

The. first question upon which- the court is asked to'give a judicial construction of the will in this case, is as to the investment for the purpose of raising an income for the support of the lunatic son of the testator. In this question the children of Mrs, Rhoades and Mrs. Hudson, as well as their parents and the lunatic, have an interest. For the capital of this investment is carved out of the general residuary estate of the testator, in which residuary estate the interests of the parties will be different 'from what they are in the capital of the fund thus carved out of the same. For in the general residuary estate Mrs. Rhoades and Mrs. Hudson have but life interests ; and the remainder in fee is limited to their heirs at law. But.the capital of the fund which is to-produce the annuity for the support of the lunatic, is given absolutely o his brothers and sisters, in case he dies'without leaving issue,, and the heirs at law of Mrs. Rhoades and-Mrs. Hudson have, no interest therein as remaindermen. The investment must therefore be made so that no injustice shall be done as between the ultimate owners of the general residuary estate or interests, therein and the ultimate owners of the capital of this particular fund. But the rights of the lunatic, under the will; must at the same time be preserved. And I think his guardian ad litem is. right in supposing that the investment must be so made as to-raise the full sum of $500, annually. The testator, as a man of business, well knew that state stocks bearing an interest.of seven per cent and having any considerable time to run, could not be purchased at par. He also knew that permanent investments upon bonds and mortgages, on such- property as he directed these investments to be made in, could not be made to-produce a clear and'permanent interest of seven per cent. And yet lie uses language, not only in the fifth but also in the fifteenth clauses of his. will', showing clearly his intent to leave an. undiminished income of $500, annually, for the support of his. unfortunate child. He did not, therefore, intend that his executors should invest a capital which, at seven per cent interest, would produce $500 annually; but an amount- sufficient.to produce at least $500 in legal interest or income, at the rates at which such capital could be kept invested during the probable continuance of the life of his. son. The expression “ at least $500,” shows that he intended to allow his executors a-, proper discretion in this respect; so- that the income of $500, should not be diminished in any probable contingency which might happen. In making the investments upon bonds and mortgages, therefore, the executors are to be authorized, to invest such a sum as will, at six per cent, produce $250 annually. That is the rate fixed by the rules of the court, in the compile tation of the value of life annuities, and is as much income as can safely be calculated on from such an investment, which is to be made from time to time for life. As the testator has directed the other half of the investment to be made in public stocks of the state, the executors have no discretion upon that subject so long as there are any such stocks to be purchased at par, whatever may be the amount of the annual income of such stocks. And in making the first investment the executors are authorized to purchase above par, stock enough to produce an income of $250, annually, if they cannot get it at par. After that, however, they will not be authorized to diminish the capital of the fund by purchasing stock at a rate beyond its par value; and they ought not then to diminish the income by purchasing stock bearing a low rate of interest. And if the rights of both parties cannot be protected in continuing the investment in stock, the executors may then invest that half of the fund in such bonds and mortgages as the testator has mentioned in his will. Under the provisions of the new constitution limiting the powers to contract state debts, and state stocks being wanted for the purposes of the general banking law, it is hardly probable that state stocks can be obtained at par or under, at a rate of interest above five per cent. The executors are therefore to be authorized to invest in five per cents which have the longest time to run, sufficient to raise an annual income of $250, for the support of the lunatic; and to keep the capital invested in stocks at the same rate of interest, if they can be procured, during his life.

As the capital of the general residuary estate is to be distributed immediately, no provision can be made to supply any deficiency either in this fund or in that provided for raising the annuity of $1600 for the use of the widow. In making both of these investments, therefore, the executors must see that a sufficient sum is invested to raise the annuity, and to reinvest the capital from time to time without diminishing the capital or the income thereof. In relation to both, the executors, as trustees of those who may ultimately be entitled to the capital of the fund, must see that it is safely invested. But in relation to the last mentioned fund, the widow also, by the terms of the will, has a right to be consulted as to the mode of investment,, so as to render it safe for her. She has no right, however, to diréct a mode of investment which will render the capital unsafe for those to whom it. may ultimately belong.

The "better course for all parties, probably, is to invest upon bond and mortgage a sufficient amount of capital to produce $1600 annually, at the rate of six per cent; as it cannot probably be made to .produce more than at that rate during the whole period of the widow’s life. In case it should produce more, the, surplus will belong to the four children of the testator among whom- the residuary estate is to be divided ; as the persons who are now presumptively entitled to the next eventual estate in the capital of that special fund. The executors, with the assent of Mrs. Craig, are therefore to be authorized to invest the capital necessary to raise her annuity of $1600 in that manner. And if there should be any income from the investment, by reason of a temporary investment at a higher rate of interest than six per cent, the executors are to distribute the same among those who are- then presumptively entitled to the next eventual estate in the capital of the fund.-

The executors are only authorized to use so much of the annual sum of $500 as may be necessary for the support and maintenance of the lunatic. And the court is called upon to decide what- is to be done with the surplus, if the annuity is; more than sufficient for his support. Trusts for accumulation, are prohibited, except for the benefit of minors. (1 R. S. 726, \\ 36, 37. Idem, 773, §§ 3, 4.) A trust to accumulate the rents and profits of real estate, or the interest or income of personal estate cannot, therefore, be created for the benefit of a lunatic. But if this annuity had been given absolutely to the lunatic, the court might have directed the surplus, beyond what was necessary for his support, to be paid over to his committee, and to be invested for his use. For where the income of a lunatic is more than can be properly expended for his use, it must, as a matter of necessity, be, accumulated for him, or those who-may be entitled to his property eventually, as, his next of kin. That, however, is not a trust for accumulation prohibited by the statute. If this annuity was given absolutely to the luna-, tic, therefore, the court would give the proper directions to some óñe to invest the surplus for his benefit. It is evident, howevér, that the testator did not intend to give to the lunatic any more of the annual income of the fund invested than -was necessary for his support and maintenance. For there is a limitation over, not only of the capital of the fund invested, but of so much of tire proceeds thereof as shall remain at the decease of the lunatic. This is an implied direction to accumulate the surplus income of this capital, by the executors, in trust for adults, or for persons not in esse at the time the accumulation is directed to commence; and is void by the provisions of the revised statutes. There is, therefore, a suspense of the absolute ownership of the capital of the fund, for the life of the lunatic, during which time this part of the income of that fund, not wanted for his support, is undisposed of. And no valid direction for its accumulation being given, it belongs to the brothers and sisters of the lunatic, under the provisions of the revised statutes on that subject, as the persons who are presumptively entitled to the next eventual estate in the capital of the fund. (1 R. ¡S. 626, § 40. Idem, 773, § 2.) A mere temporary surplus for a single year, owing to some peculiar circumstances, which may be all expended, in addition to the whole annuity, the succeeding year, would not be deemed an accumulation within the meaning of the statute. But if there is a permanent surplus, or if any surplus is likely to remain permanently on hand because it is not wanted for the support of the lunatic, it must be distributed among those who wore presumptively entitled to the capital of the fund out of which such surplus income arose, when the same accrued.

In reference to the third question raised by the bill, it is only necessary to say there is no trust as to the shares of Mrs. Rhoades and Mrs. Hudson in the annuity fund of their brother, after the death of the lunatic without issue; but upon the happening of that event, they will be entitled to their shares of the fund absolutely, and the executors may pay it over to their husbands with safety. Their interests in the $6000 which their brother James R. is to pay for the farm, are also absolute interests. And upon the facts stated in the bill, and admitted in the answers of the'adult • defendants, no one can doubt that the devise of the homestead to the widow for life,,and the limitations in fee in the same property after her death, embrace not only the dwelling house, but also the whole of the three lots described-in the bill, with the warehouse, office, and other, out-buildings thereon ; as the same lots were occupied together by the testator, in his lifetime.

The next question which I shall consider, .is, whether valid trusts to receive the rents, profits, and income of the shares of Mrs. Rhoades and Mrs. Hudson, for life, are created by the eleventh and twelfth clauses of the will, so far as relates to the real and personal estate embraced in the eighth clause. First, as to the devise and bequest to Mrs. Hudson: If there had been a direct devise and bequest to the executors, of the real and personal .estate embraced in that share, in trust to receive the rents. and profits and income, during her life, and apply the same to her use, with a limitation over of the capital of-the estate to her heirs after her death, there could be no doubt that a valid trust would have been created, vesting the legal title in the executors during the continuance of her life; under the third subdivision of the fifty-fifth section of the article of the revised statutes relative to uses and trusts. (1 R. S. 728.) And in the case of Gott v. Cook, (7 Paige's Rep. 521,) this court decided, that a trust to receive the rents, profits and income of property, and to apply them to the use of the-cestui que trust, by paying the same over to him in money after, they had accrued and been received by the trustee, was applying such rents, profits and income to the use of the cestui que trust, within the intent and meaning of the provision of the revised statutes on this subject. It is said, however, that there- is no devise or bequest to the executors, as trustees of this share of the estate; and therefore that Mrs. Hudson takes the legal estate therein, by a devise to her. of the income and-avails of her share of the property. • This would undoubtedly have, been so, as to the real estate, if there had been nothing else in the will to show that the testator -intended to create a valid trust of the estate for her benefit during her life. For. a devise of the rents and profits of land for life,-without any thing more, is but a different mode of expression to - create a devise of the land itself during the same period. (1 Rob. on Wills, 3d Lond. ed 404.) Here, however, the testator clearly shows that he intends that his daughter Gertrude shall receive the rents and profits of the real estate embraced in that share, as well as the income of the personal estate included therein, through the medium of the executors. The executors therefore take the legal title to her share of the real estate, as trustees, by implication, to enable them to rent the premises, and receive the rents and profits thereof, and.pay them over to her, or apply them to her use.

The same question arose, in England, about one hundred and fifty years since, and, as I understand the different reports of the case, was decided the same way, in South v. Allen, (Comb. Rep. 375; 5 Mod. Rep. 98, and 1 Salk. 228, S. C.) Salkeld, it is true, states the case as having been decided against the executrix, contrary to the opinion of Holt, C. J. But it will be seen by a reference to the record, which is set out at length in the report in 5 Modern, that Mrs. Birch and her husband were the lessors of the plaintiff in that case; and claimed the legal estate in the premises under a clause in the will of her brother, substantially the same as in the present case, devising the rents and profits of the land to her for life, to be paid to her by the executors. Salkeld’s report of the case is very short, and states that C. J. Holt seemed strongly to incline to the opinion that the executors were trustees for the wife. But he says the defendant had judgment by the opinion of Bnkeby and Eyre against C. J. Holt. Comberbach’s report, which is also very short, states what the question was, and that Holt, C. J. at first said, it is a devise to the executors by implication of law, else the will cannot be performed, and the other justices agreed with him; but Holt afterwards said the devise of the rents and profits is a devise of the land to the wife, and then the subsequent words were void and could not exclude the husband. The other judges, however, retained the contrary opinion ; and said that a devise of the rents and profits was not always a devise of the land. For this they referred to the case of Griffith v. Smith, (Moor's Rep. 753,) in which case it was resolved by all thejudges, in the exchequer chamber, that though a devise of the profits is a. devise of the land itself, if there are no other circumstances in the case, yet as the executor was to lease the term and pay-over the rent to the testator’s poor kindred,, to whom such profits were devised, the title to the term was in the executor,.as trustee. The case is twice reported in the 5th of Modern Reports, first at page 63, under the name of Bush v. Allen, and afterwards at page 98, under the same name as in Comberbach and Salkeld. In the report of the case at page 63, C. J. Holt gives a very sensible reason for holding that the legal title was not in the wife, but in the executors as trustees for her. For he says “ to be paid by the executors to her, shows the testator’s intent that the husband should have nothing to do with it. Why should not this be a devise to the executor for her life, upon trust to pay the profits to her? And this is fully to perform the will; the intent of which was to exclude the husband wholly.” He however changed his opinion at the next term. But his associates on the bench adhered to his original common sense exposition of the language of the will, in opposition to the mere technicality upon which his change of opinion was founded. And they accordingly gave judgment for the defendants; thereby sustaining the devise to the executors, by implication, in trust-to receive the rents and profits of the premises and pay them over to her.

I am not aware of any decision, either in England or else- • where, conflicting with the judgment in that case. It is true Cruise says the doctrine laid down by C. J. Holt in, that case was fully established in the subsequent case of Say & Sele v. Jones, (1 Cru. Dig. tit. 12, ch. 1, § 21.) But he has evidently • made a mistake in supposing, from the report of the case of South v. Allen by Salkeld, that the majority of the judges in that case had decided against the trust, and held that the legal estate was in the wife. It may also be proper to remark that the author of the Abridgment of Equity Cases has made the same mistake, in supposing that the decision in South v. Allen ■was against the vesting of the legal estate in the executors, and that Holt’s final opinion was in favor of the trust. (See 1 Eq. Ca. Air. 383.) In the case under consideration there can be no doubt as to the intention of the testator to constitute the executors trustees, to receive the rents, profits and income of Mrs. Hudson’s share of that part of his real and personal estate embraced in the eighth clause of the will, for her use during her life, and to pay them over to her annually. And as that intention can be carried into effect without violating any rule of law, it is the duty of the court to sustain the trust which the testator intended to create. For, by the express direction of the legislature, in the construction of every instrument creating, or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it is the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law. (1 R. S. 748, § 2.) Here the executors are of necessity the trustees of the personal estate and of the proceeds of the real estate which they are directed to sell. For they cannot preserve the capital of the fund for the remainder-men in fee, who are to take it after the death of Mrs. Hudson, in any other way than by keeping the capital in their own hands, and putting it out so as to produce an income for the owner of the life estate therein. And there is no reason to suppose the testator could have intended to create a different interest in the real estate, which he has by his will united with the personalty in the division directed by the eighth clause of the will.

The language of the devise and bequest of Mrs. Rhoades’ share is a little different. But the express direction to the executors to pay the avails and income of that share to her during her natural life, clearly shows that the testator intended that the executors should take the legal estate therein in the mean time, to enable them to lease the real estate and put out the personal estate, and receive the rents and interest, so as to be able to pay them to her. The decree must therefore declare the construction of the will accordingly.

There is no authority given by the will tor sell any of the real estate of the testator, except that which is expressly given as to two lots, by-the thirteenth" clause of the will. The trustees therefore cannot sell any of the real estate;'except those two lots, either for the purposes of division or otherwise. But there is an express power in trust given to the executors, by the thirteenth clause of the will, to divide the'real estate as well as the personal-estate embraced in the eighth article, into four equal parts; and to invest the shares of Elizabeth and Gertrude for their benefit. And this is a valid and imperative power in trust, under the provisions of the revised Statutes, to divide the lands embraced in the eighth clause of the will, other than the two lots directed to be sold, into-four equal parts, by a valid legal instrument, setting off the share of each in severalty, under the will.

As James R. Craig, one of ihe executors and trustees, is also one of the parties interested in the division, the proper course is td divide the real estate embraced in the eighth clause, exclusive of the homestead, devised to the widow for life, into four equal shares, as nearly as practicable, and then by lot to determine to whom each share therein- shall belong, unless the four children interested therein, after the division thereof into four parcels, shall agree among themselves which parcel shall be set off tp each of them. The decree must therefore direct a partition of ‘those lands accordingly; and that the executors execute,-acknowledge and put upon record a proper'instrument, to be approved by a master, or by one of the justices of the supreme court organized under the new constitution, evidencing the making of the said division or partition, under the power in trust for that purpose contained in the will. And the executors, in making investments of the capital of the shares of Mrs. Rhoades and 'Mrs. Hudson respectively, of the personal estate, and of the - proceeds of. the two lots directed to be sold, must take -them in their own names, as executors and trustees under the-will; -specifying in-the securities or certificates to'be-taken as-the evidences of such investments for each, the trusts upon which they are held, and the name of -the person who 'is' enti- ' tied to the bicorne-thereof for life p so - that the same-may be kept separate and distinct from all other funds belonging to the estate.

The pairties by their stipulation have 'made provision for the security of the $8000 for their lunatic brother, in case'of his restoration to reason. It is only necessary, therefore, to direct as to the investment of this fund, so as to protect the rights of all parties therein. And the safer way to do it is, to invest it upon bonds and mortgages or in stocks, in the name of the clerk of the court of appeals, and to make the income thereof payable to those who are presumptively entitled to the fund. The executors may therefore pay over to J. R. Craig his $2000, upon his giving his bond and mortgage upon unincumbered real estate, of double the value, to be approved of by his co-executor, to the clerk of the court of appeals, conditioned to pay the $2000 to John Craig upon his restoration to reason, to be certified in the manner directed in the will. Or he may procure a good bond and mortgage of a third person,'of the same character, to the clerk of the court of appeals, for the $2000, with á condition to pay the interest to J. R. Craig until the restoration of John to his reason, and to pay the principal to the clerk of the court of appeals, for John, upon the happening of that contingency, and to pay the capital to James R. Craig upon the death of John without having been restored to his reason. Or he may have the $2000 invested in- the public slacks of this state or of the United States, at par, and may receive the dividends thereon until it is ascertained who is to be entitled to the capital of the fund. La Rue Craig’s, Mrs. Rhoades’ and Mrs. Hudson’s $2000 may be secured in the same manner; except that in reference to the capital of the fund of the shares of the two latter it must be payable to the clerk of the court of appeals for the benefit "of John if he should be restored to his reason, and for the use of the heirs at law of Mrs. Rhoades or Mrs. Hudson, after the termination of their life estates therein. And the interest or dividends, in the mean time, must be paid to Mrs. Rhoades and Mrs. Hudson, respectively, for their separate use. Mr. Rhoades and-Mi*. Hudson, respectively, are at liberty to give their own bonds and mortgages to the clerk of the court of appeals, with the proper condition to secure the rights of all parties in the $2000 belonging to the shares of their wives, respectively, and to receive that share of the fund from the executors. If either of the four children does not furnish the requisite security within three months after the entry of the decree hereon, the executors themselves may invest the $2000 belonging to his or her share, in the name of the cleric of the court of appeals; or, may pay the same over to him to be invested, in the manner above specified.

In making the investment of the residue of the shares of Mrs. Rhoades and. Mrs. Hudson respectively, the executors should invest them upon bond and mortgage on unincumbered real property in this state, of double the valúe of such investments, or in stocks of this state or of the United States, in such manner as to produce the best income to the owners of the life estates in the fund, and without endangering or diminishing the amount of the capital, by such investments. And in making such investments from time to time, it will be proper for the executors, whenever it is practicable, to consult with each cestui que trust, or her husband; so that the investment may be made in a manner which will be most beneficial to her, without endangering the capital.

The executors having accepted the trusts under this will, and one of them having received a legacy of $500, in addition to his share of the ■ commissions, upon condition of executing the trust, it would be improper to accept their resignation and cast the burthen upon others, without some good and sufficient cause. The trusts, as to Mrs. Hudson’s and Mrs. Rhoades’ shares, however, after the division shall have been made according to the provisions of the will of the testator, will be so far severed from the general trust committed to the executors; as to be capable of being -vested' in different persons; according to the recent decision- of this' court in the Matter of Wads-worth, (2 Barb. Ch. Rep. 381.) Then, upon sufficient cause shown, and úpon procuring proper and responsible persons to accept and execute these particular trusts for the usual commissions, or upon recéiving a proportionate part of the $500" legacy, the court having jurisdiction of the case would probably accept, the resignation of the present trustees as to these particular trusts, and appoint others in their places, upon the giving of proper security to protect the rights of the cestuis que trust.

Upon the happening of the contingency of Mrs. Craig’s dividing the property which she owned at the death of the testator equally between Mrs. Rhoades, Mrs. Hudson, James R. Craig, and La Rue Craig, the ultimate remainder in fee in the homestead, which is devised to the widow for life,'and the capital of the fund appropriated to raise her life annuity of $1600, are only disposed of as a part of the testator’s residuary estate, embraced in the eighth clause of his will. If she should so divide her property, therefore, either during her lifetime or at her death, the remainder in lee in the homestead, and the capital appropriated to raise the annuity of $1600, are wholly unaffected by the provisions of the fourteenth clause of the will. In that event this part of the testator’s property forms a part of the rest and residue of the real and personal estate, mentioned in the eighth clause of the will as not therein before devised, bequeathed and disposed of. And the same is, upon the happening of the contingency contemplated, to be divided into four shares and disposed of according to the ninth, tenth, eleventh and twelfth clausés of the will: That is, one-fourth thereof will belong to James, and one-fourth to La Rue; absolutely. And the executors will take one-fourth thereof in trust for Mrs. Rhoades for life, with remainder in fee to her heirs; and the remaining fourth as trustees for Mrs. Hudson for life, with remainder to her heirs. For a residuary devise of real or personal estate carries with it not only the property of the testator in which no interest is devised or bequeathed by other parts of the will, but also all reversionary and contingent interests in property which, in the events contemplated by the testator, are not otherwise disposed of. (Hopewell v. Ackland, 1 Salk. Rep. 239. Brigham v. Shattuck, 10 Pick. Rep. 309. Goodtitle v. Knott, Cowp. Rep. 43. Willows v. Lydcot, 2 Vent 285. Ridout v. Pain, 3 Atk. 485. Doe v. Weatherby, 11 East's Rep. 322.) It was not the intention of the chancellor to question the correctness of this rule by the decision in James v. James (4 Paige’s Rep.117,) referred to by the counsel on, the argument. That case turned upon the particular language, of the residuary clause; which, it was held, expressly excluded the house and lot which the testator had. previously devised to his wife for life in lieu of dower,. with power in trust to dispose of the same by will, to her children by the testator, at her death. I have since, however, had some reason to doubt the correctness of that decision, upon the ground that the testator must, have contemplated the possibility that his wife might refuse to accept, her devise of the house and lot and the power to appoint the same after her death, as a provision.for her.in lieu of her dower. In the case under consideration it is plain, from the language of the will, that the testator did contemplate the contingency of his wife’s dividing her property equally among the four children. In that event, therefore, the ultimate fee of the homestead, and the capital appropriated for the raising of the $1600 annuity, was not disposed of by any provision of the will previous to the eighth clause; nor by any subsequent provision which was inconsistent with the disposition made of the residuary estate, by the eighth clause of the will.

It is impossible, however, to bring the remainder in fee in the homestead, and the capital of the fund appropriated to raise the $1600 annuity, within the eighth clause of .the will, in the event of the widow’s making no disposition of her. property in her lifetime, or by will, so that Mrs. Rhoades, who is not one of her heirs pr next of kin, will get no part thereof as qn heir or distributee ; or in the event of her making an unequal distribution between Mrs. Rhoades and the other children of the testator except John. In either of those events the testator has, by the fourteenth clause of the will, made a valid and effectual disposition of the remainder in that portion of his property. The title to the real estate will not pass to. the executors as. a trust, although they will, as executors, have the personal fund in their hands to be disposed of, as directed by this clause of the will, in equalizing the shares of the four children, in reference . to the interests which some of them may have received in the property of the widow. But this clause of the will gives to the executors a-valid, power in trust, even as to the real estate, so to divide and apportion the same, in the division thereof which they are directed, to make, as to produce perfect equality between the four, children in reference to what. they get of the estate which Mrs.- Graig owned at the death of the testator, and what, they shall receive of this part of the estate of their father.

The fifty-eighth section of the article of the revised statutes relative to uses and' trusts, (1 R. S'. 729,). provides that where an. express- trust shall be created for any purpose not enumerated in the preceding sections of that article, no.estate shall vest in the trustees; but the. trust, if directing or authorizing the performance of any act which may lawfully be performed under a power, shall be valid as a power in trust; subject to the provisions of the next article relative to powers. The substance and effect of the fourteenth clause of the will, therefore, is, that if there shall be an unequal distribution of the estate of the widow among the four children of the testator, named in that clause as entitled to share in the remainder in. fee in the hornet stead and in the capital of the .fund appropriated to raise the annuity, the amount which shall have been received by any of. them, from the estate.of the widow, shall be brought into hotchpot in distribution. And the ■ executors, under the power in trust given to them,by this clause of the will, and by the section of the revised statu fes referred to, must make distribution accordingly, so as to.pi oduce equality.

The revised statutes require advancements to children to be brought into hotchpot m the division of real as well as of personal estate not disposed of by will. (.1 R. >S. 754, §§ 23,24, 25.) And there is no more difficulty in. making distribution upon that principle hern, than there would be in a case arising under, these provisions of the.revised statutes. The value of the.prqperty which Mrs. Graig had at the death of her. husband must first be ascertained. And if she makes an unequal distribution of the property, or of the proceeds thereof, estimating such value as the capital to be distributed, or if she suffers it to go to her own children as her heirs or distributees, so much of "such cap- - ital of her estate as each child receives, at its then value, must be brought into the account in distribution of the part of the testator’s estate which is to be divided and apportioned by the executors under this fourteenth clause of the will. But in the apportionment and disposition which is thus to be made, Mrs. Rhoades and Mrs. Hudson will take absolute interests in their respective shares of the property thus distributed. For, in the events contemplated, this part of the estate is disposed of by the fourteenth clause of the will among the four children, or their representatives, equally. It, therefore, does not come into the residuary estate embraced in the eighth clause of the will, in which Mrs. Rhoades and Mrs. Hudson are only entitled to life estates. The words legal representatives, mentioned in the four-, teenth clause of the will, mean those who represent the children who may have died before the distribution of this part of the testator’s estate: that is, their personal representatives so far as their distributive shares of the fund consist of personal property, ■ and their heirs at law as respects the part of it which is real estate. The decree must therefore declare the construction of the will in relation to this part of the testator’s property, and the lights and interests of his children therein, accordingly. But as the deatli of some of the children during the life of Mrs." Cra'g, and before she shall have disposed of her property to "any of the children of the testator, may render a further application to the court necessary, the right must be reserved to any of the parties to this suit interested in this part of the testator’s property, or any persons who may hereafter become interested therein, to apply for such farther directions as may be necessary, upon the death of Mrs. Craig.

The stock standing in the name of Mrs. Craig, or in the joint names of herself and her husband, at the time of his death, belongs to her; and is a part of her estate to which the testator refers in the fourteenth clause of his will. But that.clause of the will does not in any way control- or interfere with her right to use and dispose of her property in any manner she maj- think proper. It only provides that in case she thinks proper to give it in unequal proportions to any of the testator’s children except John, the child to whom it is given, or is left by her, shall bring it into hotchpot in the distribution which is to be made of the testator’s property under this clause of his will.

The annuities for the widow and for the support of the testator’s son John are to commence from the testator’s death; so as to give her the $1§00 in semi-annual payments from that time, and to raise $500 for the support of John for the tirst year. (Gibson v. Bolt, 7 Ves. 96. Fearnes v. Young, 9 Idem, 553. Rebecca Owings’ case, 1 Bland’s Ch. Rep. 296.)

The widow is entitled to the arrears of rents due for lands held in trust as her .separate estate; and to the unclaimed dividends upon stocks which formed a part of her separate estate. But the unclaimed dividends, if any there were, upon stocks which stood in the names of the testator and his wife jointly, belong to his estate; although she is entitled to the stock by survivorship, in analogy to a similar interest in lands conveyed to the husband and wife jointly. The executors are also entitled to the moneys refunded for the erroneous assessment upon her lands in the city of Albany; as the legal presumption is that the testator paid the assessment out of his own funds, in the absence of proof that his wife furnished him the funds to pay it out of her separate estate.

The executors are to be at liberty to apply from time to time, if necessary, to pass their accounts in relation to the various trusts. But from the nature of the trusts it does not appear to be necessary to pass their accounts annually; and it would subject the estate to a useless expense. ' They may be permitted, however, to pass their accounts annually in relation to the shares of .Mrs. Rhoades and Mrs. Hudson, with the assent of those cestuis que trust respectively. And either of those cestuis que trust may apply from time to time, to compel the trustees to pass their accounts and pay Over the, balances, if any, in their hands, during the continuance of the trust.

The costs of all parties in this suit are to be paid out of the general personal estate of the testator in the hands of the ex> ecutors. But the-costs of any future applications to the court are to be disposed of hereafter.

A reference having been made to a master, in the-progress, of this cause, to state the accounts of the complainants as executors of the estate of Archibald Craig deceased, J: R. Craig-was authorized, by the order, on such reference, to present his claim, against the estate, for the amount of a note of $4000, dated the 31st of January, 1846, payable on demand, and purporting to be given by the testator to J-..R. Craig his son; so that the master might take testimony and report as to the validity of the claim; with liberty, to the master to make a. separate report on- that subject. The master reported in favor, of the validity of the-claim, against- the estate of: the. testator, in a separate report. Exceptions to the report were taken by. most of the other parties who were interested in. the estate of the testator.

A. G. Paige, for James R. Craig. .The note is a valid note m the hands of James R. Craig, as a donatio mortis causaIt was executed by the testator and. delivered by him to David Tomlinson, in his, the testator’s, last sickness, for the use of James R. Craig, and to be delivered and paid to-him at the decease- of the testator. • This - transaction has all the characteristics of a valid dotiatio-mortis causa. The- gift of the note was made in the last sickness of the donor, and in contemplation of death. It was to-take effect - on the don.or’s.death by his existing disorder, or- in his- existing illness. It was actually delivered to a third person,, (Tomlinson,) for the use of the donee, -James R. Craig, and to-be given to him on the testator’s death. (Story's Eq. Juris. $ 60£, a.,, and cases, cited in notes, last ed. Toller's Executors, 233. 2 <Kent's¡ Com. 444. :1 Williams on Ex'rs, 499.)

Promissory notes may be subjects of a donatio mortis causa(1 Paige's Ch, Rep. 316. 1 Cowen's Rep. 598. Story's Eq, Juris.. § 607, a. 3 Bin. 366. Duffield v. Elves, 1 Bligh’s New P. R. 497.) The only question which can arise on this part of the case is, whether the gift was made in the donor’s last illness. It cannot be .denied th.at.it was made in contemplation of death; that it was to take effect on the donor’s death; and that it was actually delivered to a third person for the use, of the donee. Was then the gift made in the donor’s last illness? We insist that it was. Doctor Vedder says that there was no recovery from his attack in January, 1846, (during which attack the note was given,) and that the same sickness continued until his death. And he says that the constant apprehension and danger of -his death continued from January until he died, in July, 1846.

To make a gift mortis causa void, the donor must recover from his sickness. (2 Kents Com. 444. Swinb. 18. 1 P. Wms. 404. .1 Ves. Jr. 546. 3 Bin. 366.) There was no recovery here. The donor came to his death by his existing disorder, and in his existing illness. (Story’s Eq. Juris. § 607, a, last ed. 1 Williams on Ex’rs, 499,500.) To. make a gift valid as a donatio mortis causa, it is not necessary.that.it should be made in the last extremity. It is. sufficient if it be made in the last sickness of the donor; the sickness immediately preceding his death, without reference to any precise period of the disease; especially if there be a constant apprehension of death, (as there was here.) (1 Williams on Ex’rs, 499, 500. Blount v. Barrow, 1 Ves. Jr. -546. 4 Brown, C. C. 81. Miller v. Miller, 3 P. Wms. 356. 1 Idem, 404, 441. 2 Ves. Jr. 111.) And the apprehension of death may arise from infirmity, pr old age, or from external and anticipated danger. (2 Kent's Com. 444.) It is not necessary that the. donor should be surprised by a sudden and violent sickness, leaving himno opportunity to make, a will.

But even if the delivery of the note, on the 31st January, 1846, to Tomlinson, for the use of James R. Craig, \vas too long previous to the death of the testator to make it a valid donatio mortis causa; this objection is obviated by the testator’s confirmation, very shortly previous to his.death, of.the execution and delivery of the note, as a donatio mvrtis causa. This confirmation is" equivalent to an original donatio, mortis causa of the note, made at the time of the confirmation. It was a renewal of the gift; a revival of it, if the former donation had ceased to be operative. A donatio mortis causa has some of the characteristics of a legacy. It is like a bequest of the testator. (Story’s Eq. Juris. § 607, a.) It is a disposition of his property to take effect after his death; and being such, .the intention of the donor, or testator, should not be defeated. The gift should be allowed to take effect unless the law peremptorily forbids it. The gift should be favored." The testator intended that James It. Craig should have this note over and above the devises and bequests made in his favor "in the will.

Again'; this note maybe sustained, in the hands of James It. Craig, as a note given upon a sufficient consideration. If so, it is a legal claim, in his hands, against the estate of A. Craig, deceased.

J. C. Spencer M. T. Reynolds, for J. Rhoades and wife, and for J. T. Hudson and wife. The statements in the master’s report as to the consideration and motives of the testator in giving the note, are not sustained by the evidence. Judge Tomlinson and Mr. Gibson are the only witnesses who are competent to testify to the transaction, as it occurred in their presence. Subsequent loose remarks are entitled to no weight against their statements; and least of all, to supply material: facts which they do not state. We contend that it is evident from the whole testimony, (particularly the fact stated by Mr. Gibson, that the testator was satisfied with the assurance Mr. Gibson had given him that James R. Craig’s services and expenses would be a proper charge against the testatoils estate,) that there was no pecuniary consideration in the mind of the. testator, but that the note was intended as an alteration of his ■will, and- a mere gift. The same requisites are. necessaiy to constitute a valid gift inter vivas, and a donatio causa mortis: and the only differencé between them is that the latter is revoked by the fact of the recovery of the testator from the sickness m which the donation was made; while, if the former be once completed and executed, it is not revocable by any act of the donor. Walter v. Hodge, (2 Swans. 97,) contains the exact rule on this subject, as above stated. In Irons v. Small-piece, 2 Barn, & Ald. 552,) Ch. Justice Abbott says, “It, (a gift,) differs from a donatio causa mortis, only in this respect, that the latter is subject to this condition, that if the donor lives, the thing shall be restored to him. In James Smith v. George Smith, (7 Carr. & Payne, 401.) the gift of a watch, by a father to his son, completed by delivery, was held to be irrevocable, and that the father could not reclaim it. In Grover v. Grover, (24 Pick. 261,) it was held that the principle of revocation does not apply to a gift inter .vivas.

An essential requisite to the validity of a donation, or gift, is, delivery of the thing given, or such an instrument of conveyance as transfers the right to immediate possession. In Irons v. Smallpiece, (2 Barn, & Ald. 552,) Ch. Justice Abbott says, “ By the law of England, in order to transfer property by gift, there must be either a deed or instrument of gift, or there must be an actual delivery of the thing to the donee.” In Hooper v. Goodwin, (1 Swans. 486,) the master of the rolls -says: “ A gift at law or in equity supposes some act to pass the property, if the subject is capable of delivery; if a chose in action, a release or other equivalent instrument; in either case a transfer of the property is required.”

A promissory note of the donor is not such an instrument as transfers the property in the amount of money specified, or a right to the possession of it. In former times it was held that no chose in action, neither the promissory note of a third person, nor a sealed obligation, could be the subject of a gift. (See Miller v. Miller, 3 P. Wms. 356; Ward v. Turner, 2 Ves. sen. 442.) But this doctrine is now repudiated, and a bond is capable of gift by mere delivery. (Blount v. Blount, 1 Ves. jun. 546. Gardner v. Parker, 3 Mad. 184.) So as to lottery tickets, (Grangiac v. Arden, 10 John. 293;) or, a promissory note of a third person. (Coutant v. Schuyler, 1 Paige, 318. Grover v. Grover, 24 Pick. 261.) But all these, being' executed instruments, and having value in themselves, stand upon a footing entirely "different from the promissory note of the donor It is true, there are some cases where such a promissory note has been held a valid instrument "of gift. (Bowers v. Hurd, 10 Mass. Rep. 428. Wright v. Wright, 1 Cowen, 598. Wood-bridge v. Spooner, 1 Chit. Rep. 661. Seton v. Seton, 2 Bro. Ch. Ca. 610.) But these cases are met and overwhelmed by such a torrent of authority that they cannot be maintained. And the principle on which théy are assailed is so vital, so universal, that these cases must be abandoned,:or the law must be torn up from its foundation. The principle is correctly stated by Blackstone, (2 Comm. ch. 30, p. 445,) “ a consideration of some sort or other is' so absolutely necessary to the forming of a contract, that a nudum pactum^— or agreement to do or pay any thing on one side, without any compensation on the other— is totally void" in law, and a man cannot be compelled to perform it.” It is true, he' afterwards says: “ For if a man enters into a voluntary bond; or gives a promissory note, he shall not be allowed to-aver the want of consideration, in order tó evade the payment; for every note, from the subscription of the drawer. carries with it an internal evidence of good consideration.” That this remark should have been confined to the case of an endorsee, is conclusively shown by Mr. Fonblanque in his note (») at page 355, vol. 1st" of his - treatise. There is literally no ' end to the cases which have "decided that a promissory note cannot' be enforced against the maker by the payee, when it appears that there was no pecuniary consideration. (Buller’s N. P. 274. Rann v. Hughes, 7 T. R. 350.) In'Massachusetts the question underwent a thorough discussion.in the case of Parish v. Stone; (14 Pick. 198;) and most of the authorities are collected in that- case. It is entirely decisive of the law, then, that a 'promissory note of the donor cannot be the subject of a donatio causa mortis, or of any gift. This case disposes of Bowers v. Hard, (10 Mass. Rep, 427,) in which a contrary principle was intimated. 6 New Hampshire Rep. 386, settles the law in that state) in the same way. 10 Conn. Rep. 485, is equally decisive of the "law in that state,' in- the same way. 5 Gill Sg John. 54, shows the same law in Maryland. In England, the last reported case, directly on this point, is Holliday v. Atkinson, (5 Barn, & Cress. 501,) which is also a direct decision that a promissory note cannot be the subject of a gift. In the state of New-York—with the exception of Wright v. Wright, before quoted, and a case in the superior court of New-York—the decisions have been uniform and uninterrupted. Noble v. Smith, (2 John. 52,) was a very full and deliberate examination and discussion of the question. Pearson v. Pearson, (7 John. 26,) was an affirmance of the same doctrine: and it was again repeated directly and distinctly in Fink v. Cox, (18 John. 147.) There are other cases sustain/ ing the same principle. (Thorn v. Deas, 4 John. 84. Schoonmaker v. Roosa, 17 Id. 301.) And what is remarkable is, that none of these cases, were carried to the court for the correction of errors, although some of them, obviously, were severely contested. Does not this furnish satisfactory evidence of the general professional opinion on the subject ? We might have cited an array of cases and given extracts from all the elementary writers, who, without a single exception, as far as known to us, concur in the view here taken—that to render valid and actionable an executory undertaking, there must be a valuable consideration. But the cases already quoted are so decisive, and as they contain references to most of the others, we deem it superfluous to accumulate them. The case in the superior court of New-York, (Parker v. Emerson, 9 Law Rep. 76,) is confessedly founded upon the binding authority of Wright v. Wright, and upon a mistaken view of Coutant v. Schuyler, (1 Paige, 316,) in which Judge Vanderpool supposes that the chancellor held that the promissory note of the testator was a" valid subject of a gift. The case shows that it was the note of David Marsh, and the chancellor expressly, states the question to be, whether the note of a third person is a proper subject of a gift; Although a delivery of a promissory nóte would not, according to our view, render it valid as between payee and maker, or his representatives, yet in this case even that circumstance is wanting. From the testimony, it is evident that this note, although in the hands of Mr. Tomlinson, was there as a mere deposit; and subject at all times to be recalled by the testator. The case of Bunn v. Markham, (7 Taunt. 224,) is a very strong case to show that the delivery must be absolute, and the property put so completely out of the control of the donor that he cannot reclaim it. The judges remark upon the fact that the property was to be delivered upon the decease of the testator, as being evidence that there was n.o delivery by him. Burrough, J. says, the son had no authority to deliver the things to his mother, and it therefore was not a donatio. He must mean that there was no authority to deliver to the mother during the life of the testator—for there was an express direction to deliver after his decease. It is evident from the testimony here, that the note was not to be delivéred until after the testator’s death.

It is true, that in Coutant v. Schuyler, (1 Paige, 316,) the chancellor recognized the decision in Wells v. Tucker, (3 Bin. 366,) that a gift to a third person, for the use of the intended donee, was a valid gift. But it is submitted that the question is still open for consideration, and that upon principle, the gift should be in such a condition that the donee may at once reduce it into his own possession.

J. V. L. Pruyn if D. C. Smith, for the infant defendants. On the part of the infant defendants, rye adopt the argument of the counsel for Mr. and Mrs. Rhoades, and for J. T. Hudson and wife, who have preceded us; and we also submit the following view's in addition. It is essential to the validity of a gift, as well as of a will, that the testator should be of sound mind at the time, and capable of discrimination and the exercise of a proper judgment. In making a will, the term disposing has been used as indicating this state of mind. We say that the testator must be of sound and disposing mind. The revised statutes have used the word competent, which embraces both. It is evident that the testator, Archibald Craig, was in a feeble state of body and mind at the time the note in question was given; although .he rallied afterwards, and lived for several months. In the month of April previously, Mr. Gibson, when advised as to altering the testator’s will, said it could not be done, as he did not consider him in a state of mind competent to do a legal act. At the time the lióte was given, Mr. Gibson again advised against making a codicil to the will, for the reason that its validity might be drawn in question on: account of the testator’s situation. There is, also, intrinsic evidence in the transaction, that the testator could not have' heen in the full possession of his faculties at the time. He was a clear headed business man, admittedly shrewd in money matters. Now what is the case before us ? He had charged his sou $6000, payable at the end of five years, without interest, for a farm of 300 acres, which Mr. Linn testifies is worth $60 per acre, or $18,000. He says he would give $50 per acre for it. Deducting simple interest for five years, it would give James the farm for somewhat less than $4500, at the time of his father’s death; oiy by compounding the interest, which for so long a period would be the true •mode, it would be about $4200. In other words, $4200 invested at the time of his father’s death and accumulated to the end of five years, would amount to the $6000. This last mentioned sum James was then to pay; and in the mean time he would have had the enjoyment and income of a farm worth from $15,000 to $18,000. Now what did the testator wish to do? He spoke o'f the $6000 as a large sum for James to pay, although he was to have five years in which to pay it; with this valuable farm and a very considerable estate in. hand for the purpose, and was in fact to pay but threé-fourths of it; he being entitled tó the one-fourth himself. This circumstance alone Would be evidence of great prostration of the testator’s mental faculties. But he went farther—he desired to relieve him to some extent, as Mr. Gibson says he expressed it, against this charge. He thought he had charged him too much for the farm; and directed the note in question- to be prepared; which note, if valid, would give James $4000 at once, upon the testator’s death, to pay $4200 or $4400, according to the mode of computing iñtérést. Call it the larger sum, and it would leave $400 only as the difference. But as this $4000 would be a charge on the whole estate, before its division, James would receive $4000 to pay three-fourths of $4400 to the three other children; that is $4000 to pay $3300 ; in truth, giving him the farm for nothing, and $700 besides, before any part of the testator’s estate was to be divided among his children. Is it possible that the testator could have intended this 1 Is it not in direct conflict with his declared intentions to the persons present at the'time 1 They evidently did not go into any calculations on this subject. Both Mr. Tomlinson and Mr. Gibson concur in showing that the testator named the amount, and that the subject was not discussed. That he did not mean to give James Craig the amount at once is evident, as he refused to give him stocks or property as was suggested by Mr. Gibson to the testator that he should do instead of executing the note.

The whole transaction evidently shows that the testator, in the weakness of his mind, had forgotten what his will was; and, as Mr. Gibson rightly supposed, he was in a state of mind' in which a question would necessarily have arisen as to his testamentary capacity if he had altered his will. The inevitable .result of his attempted action, if the note should be sustained, would be to defeat his own declared views. He evidently intended that James should give at least some considerable part of the $6000 for the farm. How this intention would be carried out by sustaining the validity of the note in any shape, has already been seen.

It has been said that the note might be sustained as a gift to James R Craig for services. The attempt to prove services to any extent utterly failed. Certainly none were shown which c'uld have induced the testator to give James $4000 in addition to what he had already done for him. But it is a conclusive answer to this branch of the case to say, that the testator declared his reasons to be of an entirely different character, and such as were stated to Mr. Gibson" and Mr. Tomlinson, and have been already adverted to. The attempt to show other declarations of the testator, by the examination of Judge Tomlinson, before the master, entirely failed.

The Chancellor.

The master is clearly wrong in supposing that there was any consideration for the note in question. It is true the complainant had performed some services for his father, both before and after the date of the note. But from the testimony before the master it is evident those services, if they were not paid for by the testator, did not enter into the consideration of this note. I have also great doubts whether the testator, at the time the note was given, was in a situation to make a disposition of his estate, to this extent, with judgment and understanding. He had made his will with great care only six or seven months before, as Mr. Gibson, who drew the will, testifies. The will itself also declares upon its face that it is the intention of the testator that his four children and their descendants shall share equally, not only in the property which he holds in his own right, but also in that which is vested in his wife and subject to her disposition. And the testator made a very special provision to carry that intention into effect, as far as it was possible for him to do so in a testamentary disposition of his property. He had, from the spring of 1844, had several attacks of apoplexy, which affected his nervous system to a considerable extent. But in the latter part of January, 1846, he had a much more serious attack than he had ever before had, which entirely prostrated him; so that his attending physicians gave it as their opinion that he could not survive. It was while he was lying in this situation, as I understand the testimony, that Mr. Gibson, who had prepared the will with so much care, under the testator’s special directions and dictation, was sent for to alter the disposition which the testator had previously made of his property in case of his death. And it is not pretended that any thing had occurred, either in his family or in the situation of his property, to induce a change in the will. Under such circumstances, I think both Judge Tomlinson and Mr. Gibson very wisely urged him not to alter his will at that time. For if he had attempted to alter it under those circumstances, in favor of the children who were then around him, the probability is that the testamentary disposition then made would have been declared invalid. The testimony n relation tó the válue of the fárm devised tó Janies R. Craig, in reference tó the amount charged for the same in the will* shows that the inequality in the will was iñ his fávor and not against hint. After it wás fótind that the testator was not iñ a situation to alter His will with sáféty, some one, who is not named in the testimony, suggested the giving of a nóte for the four thousand dollars. And then the note in question- was drawn by Mr. Gibson, and signed by the testator, and placéd in the envelope with his-will, and delivered to Judge Totolinson. The testimony also shows' that they were tó bé kept together, and not to be delivered to any one-without‘the testator’s asseñt, until his death.’

It is perfectly evident from the testimony óf Júdge Tomlin-son, that the testator never inteñded to place this note beyond his" own control during his lifetime, any more than he did his will; but that it was to be kept with his will, as forming a part of the testamentary disposition of his property. If Tomlinson was thé mér'e agent-of the maker of the note, to keep it for him— with his" will and subject to his control—and not merely as the trustee of the son to hold it for the' use of the latter, in case the disease under which the donor was then laboring should terminate fatally, so as to place it beyond the reach of the maker of the note Unless he should recover—it wanted- one of the essential requisites of a- good donatió mortis Causa-; án absolute delivery, and continued change of possession. (Bunn v. Markham, 7 Taunt. Rep. 224.)

Again; the weight of authority appears to be a'gaiñst the principle that the donor’s own note, merely creating a debt against himself, can1 be the proper subject of a gift-mortis ccmsa.- Most of the cases referred' to for the purpose of showing that- such a gift is valid’, weré casés of gifts inter vivas. For until within about thirty years,- it was supposed tó be' the law, that á prom'isstiry note was riot only prima facie- evidence óf válue,- but that it could1 nót= be" contradicted by paroi evidence' to show that the maker had actually intended to give á vóid note} for which lie knew there was no consideration whatévef; and- that it was only open to him to impeach the note by showing á füilufé óf the consideration upon which it was given or intended to be given, or that the consideration was illegal. Thus, in the case of Seton v. Seton, (2 Bro. Ch. Rep. 610,) where the mother gave her promissory note to a third person, as a trustee of a child of which she was then enciente, Lord Thurlow overruled a demurrer to a bill in behalf of the child, considering it a valid gift to the child. That, however, was not a gift causa mortis, for the bill was filed against the mother herself; and in Tate v. Hilbert, (2 Ves. jun. 112,) which came before Lord Itosslyn four years afterwards, although he held that the note given in that case was not a gift mortis causa, and that the complainant had no right to come into equity for it, he intimated a decided opinion that the payee of the note could recover it at law as a valid gift inter vivas. He indeed says it would be no objection to an action on the note that the payee had given no value for it; and the bill was dismissed without prejudice, that the decision might not be deemed a decision of the court against the right to bring such an action. And in Woodbridge v. Spooner, (1 Chit. Rep. 661,) which came before the court of king’s bench in England in 1819, that court directly decided that such a note was valid as a gift inter vivas ; and that the personal representatives of the maker were not at liberty to avail themselves of the want of consideration. A similar decision was made by the supreme court of Massachusetts in 1813, in the case of Bowers v. Hurd, (10 Mass. Rep. 427.) In both of those cases, however, it was admitted by the court that the promissory note of the donor could not be supported as a donatio mortis causa. It has since, however, been decided in Massachusetts and in England, as well as in this state, that the promissory note ofethe donor is not a good gift inter vivas ; and that the donor, or his representatives, may impeach such a note for want of consideration. (Parish v. Stone, 14 Pick. Rep. 198. Holliday v. Atkinson, 5 Barn. & Cress. 501. Fink v. Cox, 18 John. Rep. 145.)

It was at a very early day decided in England that a draft, by the donor upon his banker, payable after his death, for mourning, accompanied by an actual delivery of the draft to the donee, in the last sickness of the donor, and intended to take effect after his death, was valid as a donatio mortis causa; such draft being accompanied by a written declaration showing that it was only intended to operate in case of the death of the donor. And Sir Joseph Jekyl decreed that it should operate as an appointment, or an appropriation of the amount of the fund for which it was drawn, to the use of the donee. (Lawson v. Lawson, 1 P. Wms. 141.) I am not aware that that decision has ever been overruled. Indeed, Lord Rosslyn, in the case of Tate v. Hilbert, before referred to, after examining the register’s books, said that decision was right; upon the ground that it appeared by the written memorandum that it was not intended to operate immediately. And as that was the law in England previous to our separation from the mother country, it may still be the law here. In the case of Wright v. Wright, (1 Coweris Rep. 598,) the late supreme court of this state decided that the donor’s own note was a good gift mortis causa; and that a suit was properly brought against the representatives of the donor upon the note itself. That decision has recently been overruled by a branch of the new supreme court, in the case of Harris v. Clark, (2 Barb. Sup. Court Rep. 94;) where it was held that an action at law could not be maintained by the donee of a draft against the personal representatives of the drawer. That decision, however, as I understand it, is not in conflict with the decision of Sir Joseph Jekyl in the case of Lawson v. Lawson, that the draft may operate as an appointment of the fund upon which it is drawn. The opinions of the judges in the cases of Woodbridgev. Spooner, and of Bowers v. Hurd, before referred to, are in conflict with the decision in Wright v. Wright, that the promissory note of the donor is a good gift mortis causa. In addition to this, the courts of three or more of our sister states have decided that such a note is not valid. (Parish v. Stone, 14 Pick. Rep. 198. Raymond v. Sellick, 10 Conn. Rep. 480. Copp v. Sawyer, 6 N. Hamp. Rep. 386.)

As I said before, therefore, the weight of authority is against the validity of the donor’s promissory note as a gift moms causa. And when it is seen how easy it is for those who are surrounding the bedside of a dying man to obtain from him, by importunity, gifts of that character, the safer rule is to hold a note of that kind invalid.

The exceptions to the master’s report must be allowed ; and the claim for the amount of the $4000 note, must be rejected as illegal or unfounded. But this is not a case to charge the claimant personally’with costs. The costs of the parties upon the exceptions to the report and upon the reference, as to this claim, must therefore be paid by the executors out of the personal estate of the decedent.