Gourley v. Linsenbigler , 51 Pa. 345 ( 1867 )

The opinion of the court was delivered, by

Read, J.

— These two cases were reargued together upon a single point, upon which alone our opinion will be delivered.

The two promissory notes drawn by the two defendants in favour of B. F. Grourley, the decedent, but not endorsed by him, may be the subject of a donatio mortis causd according to the latest authorities.

A bond is a proper subject of a donatio mortis causd: Wells v. Tucker, 3 Binn. 370.

So is a mortgage, also bills of exchange or promissory notes payable to order and unendorsed, and a policy of life assurance, and a banker’s deposit note: Witt v. Amis, 1 B. & S. 109 (101 E. C. L.) ; Amis v. Witt, 33 Beav. 619; Veal v. Veal, 27 Beav. 303; Rankin v. Weginlin, Id. 309; Sessions v. Mosely, 4 Cush. 87; 1 Story’s Eq. 8th ed. 607. So giving an evidence of debt to a servant for the debtor, saying she wished the debt cancelled: Moore v. Darton, 7 Eng. L. & Eq. 134. So a oheck on a banker: Boutts v. Ellis, 31 Eng. L. & Eq. 174; see Harris v. Clark, 3 Comstock (N. Y.) 114. “ Besides formal legacies given by will, there is also permitted a death-bed disposition of property, called a donatio mortis causd. That is when a person in his sickness, apprehending his dissolution near, delivers or causes to be delivered any personal goods or chattels to another, or puts the physical means of dominion over them into his power, to keep them for himself, or for some one else in case of the donor’s decease. The subject of the gift must be personal property in possession or in action. Bonds and mortgage-deeds so delivered, are effectual to pass the debt;' bills or checks drawn by the deceased on his banker, to pass the money. The delivery of a key has been deemed to amount to a delivery of the trunk and its contents. In the event of the donor recovering, the property reverts to him. If the donor die, the property belongs to the donee without the assent of the executor, though not as against creditors :” 1 Spence’s Equitable Jurisdiction 196. “ A claim to property on the ground of its having been a donatio mortis causd must fail, if it appear to be a transaction of present gift. A party making a donatio mortis causd does not part with the whole interest save only in a certain event; and it is of the essence of such a gift that it shall not otherwise take effect; hut words of absolute gift, if accompanied by expressions showing that the intention was, that the property should be enjoyed only in the event of the death of the donor, will be sufficient to constitute a donatio mortis causd:” 2 Id. 912. Judge Story in his Commentaries, vol. 1, § 607 a, says: “We have already seen that by our law there can be no valid donation mortis causd, 1st, unless the gift be with a view to the donor’s death; 2d, unless it be conditioned to take effect only on the donor’s death by his existing disorder, or in his existing illness:” 3 Story’s R. 763.

It is evident that the language used by the authorities in speaking of — in contemplation of death — in expectation of death or in apprehension of death — applies to the cases of illness .ending in death, the last illness which makes it a death-bed disposition. If the donee dies before the donor, or the donor revokes the gift, there is no donatio mortis causd.

In Michener v. Dale, 11 Harris 59, the present chief justice gave a definition which I think accurate, and sustained by the authorities in England and America. “ Donatio mortis causd is a gift of a chattel, made by a person in his last illness, or in periculo mortis, subject to the implied conditions, that if the donor recover, or if the donee die first, the gift shall be void.”

To apply these authorities to the case before us, — B. E. G-ourley enlisted in the army in Captain Beck’s company, on Saturday, 27th July 1861, and on the same day gave to Mr. Patterson two notes which are the subjects of the present suits, in an envelope directed to the plaintiff, “ and told him to give it to her, and said if he never came back he wanted her to get it, as he would rather she would get it than any other person, that he wanted her to have these notes, and would rather she should have them than any other person. He said to give it to her the first time I saw her, the first time she would be in the village. I got the envelope on Saturday and delivered it to her on the following Monday (29th July), sealed up just as I received it.”

He said he would rather she should have them than anybody else. B. E. Gourley was in good health at the time of the delivery of the notes, joined the army, and remained in the service until he died of quinsy on Tuesday, 26th November 1861, four months after the gift.above stated. He was engaged to the plaintiff, and no doubt desired her to have these notes in case of his death; but it was not a donatio mortis causd, being made in full health and not in his last illness, or in periculo mortis, nor in contemplation or expectation or apprehension of death.

Judgments in both cases reversed, and venire de novo awarded in both.