Shankle v. Spahr , 121 Va. 598 ( 1917 )

Sims, J.,

(after making the foregoing statement) delivered the opinion of the court.

In the view we take of the case it will be necessary for us to decide only one question raised by the assignments of error, namely:

1. Was there such delivery of possession of the subject of the gift in the instant case as to make a valid gift causa mortis ?

The rules of law on the subject of gifts causa mortis are now well settled by the authorities. If such a gift falls within those rules, it is the duty of the courts to sustain it, but, for reasons of public policy which have been too often stated to need restatement here, such rules should not be extended or relaxed.

Only executed parol gifts, whether inter vivos or causa mortis, are valid. Such gifts, if executory, being without consideration to support them, are invalid.

Delivery of possession of the subject of the gift by the donor, in his lifetime, is essential to the execution of a gift causa mortis.

As said by Judge Baldwin in delivering his opinion in the case of Miller v. Jeffries, 4 Gratt. (45 Va.) 472: “A donatio mortis causa is of a mixed character, being partly testamentary and partly donative from an indulgence to the nature of the emergency the law dispenses with the solemnities of a testament; and for that very reason requires the essentials of a gift. A delivery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, as of a watch or ring, or of the means of getting possession and enjoyment of the thing, as of the key of a trunk, or of a warehouse where the subject of the gift is deposited; or, if the thing be in action, of the instrument by using which the chose is to be reduced into possession, as a bond, or. a receipt or the like. * * *

“It is not the possession of the donee, but the delivery to him by the donor, which is material in a donatio mortis causa; the delivery stands in the place of nuncupation, and must accompany and form a part of the gift; an after-acquired possession of the donee is nothing; and a previous and continuing possession, though by the authority of the donor, is no better.”

See also, to same effect, and also as bearing on the propositions of law hereinafter stated, the learned and able article of Prof. Graves on the subject of “Gifts of Personalty,” 1 Va. Law Reg. 871, et seq; Ward v. Turner, 2 Ves. Sr. 481, 1 Lead. Cas. in Eq., p. 1205 and note; Seabright v. Seabright, 28 W. Va. 471; Ewing v. Ewing, 2 Leigh (29 Va.) 343, Hatch v. Atkinson, 56 Me. 324, 96 Am. Dec. 464; Gano v. Fisk, 43 Ohio St. 462, 3 N. E. 532, 54 Am. Rep. 819; 2 Gratt. Va. Rep. Ann., note on “Gifts,” bottom pp. 393, 400; Thomas v. Lewis, 89 Va. 1, 15 S. E. 389, 18 L. R. A. 170, 37 Am. St. Rep. 848; Cutting v. Gilman, 41 N. H. 147; Bunn v. Markham, 7 Taunt. 224; note to Spratley v. Wilson, 1 Holt 10, at pp. 12 and 13; McCord’s Adm’r v. McCord, 77 Mo. 166, 46 Am. Rep. 9; Case v. Dennison, 9 R. I. 88, 11 Am. Rep. 222; Basket v. Hassel, 107 U. S. 610, 2 Sup. Ct. 415, 27 L. Ed. 500.

The subject of the alleged gift in the instant case was gold coin — tangible personal property. It was not too ponderous for manual delivery and hence such delivery could not be dispensed with under the rule established by the decisions applicable to personal property of that character. There was no delivery of the means of getting possession and enjoyment of the thing, hence there was no constructive delivery in the instant case. The information given by the donor to the donee of the secret place of hiding of the gold does not come within the rule established by the decisions defining what amounts to constructive delivery. To constitute constructive delivery- it is essential that there should be a physical delivery of some tangible object which may serve as the means of getting possession and enjoyment of the subject of the gift.

Therefore, the delivery of possession relied on by the defendant in the instant case, to be valid, must have been an actual delivery of possession of the subject of the gift to the donee by the donor in her lifetime.

As we have seen from the statement of facts above, the alleged donor did not herself complete the act of making such delivery of possession in her lifetime. Moreover, as stated by Judge Burks in his learned and able brief in the case of Thomas v. Lewis, supra (which by general consent has come to have the force of authority on this subject) “All gifts, whether inter vivos or causa, mortis, are gifts in praesenti. There must be words of present gift as well as delivery. The one without the other is insufficient. Though there be actual delivery, yet if the words of gift accompanying the delivery indicate an intention on the part of the donor not to confer on the donee the power of taking physical possession of the thing until the donor’s death, then the proceeding is an abortive testamentary act and not a gift. Basket v. Hassel, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500, is an illustration and authority in point.”

The case of Basket v. Hassel sustains this position, certainly with respect to gifts causa mortis.

As we have seen from the above statement of facts, in the instant case, the words of donation — “the words of gift” — expressed the intention on the part of the alleged donor not to confer on the alleged donee the power of taking physical possession of the thing until the donor’s death. The proceeding was, therefore, “an abortive testamentary act and not a gift.”

The acquiescence of the alleged donor in the instant case in the possession of the defendant, acquired by authority of the former, it is true, but under a mistake as to the time of donation having arrived, without other words of donation giving the donee the power to take physical possession, of the thing as donee, until the donor’s death, was but an acquiescence in a possession acquired previous to the time fixed therefor by the words of gift, and was, in principle, “a previous and continuing possession * * * by the authority of the donor,” which, as firmly established by the authorities, is insufficient to validate a gift causa m<ortis.

It is true that in gifts inter vivos acquiescence of a donor, after words of donation, in a previously acquired possession of the donee, has been held to be sufficient evidence from which to imply a delivery of the possession by the donor to the donee as such; but this relaxation of the rule with respect to delivery of possession in cases of gift inter vivos has never been extended to gifts causa mortis in Virginia, nor, by the great weight of authority, elsewhere. In this particular, and in some others not necessary to refer to here, the rule, stated generally, that the same delivery oi: possession of the subject of the gift which suffices to validate gifts inter vivos will suffice to validate gifts causa mortis, is subject to qualification. In the instant case, however, there was no possession of the subject of the gift acquired before the words of donation, and none acquired after such words in accordance therewith.

The proof in the instant case amply 'establishes the intent of the alleged donor to make the gift, and we wish to say of the foregoing conclusions, as was said by Lewis, P., in the case of Yancy v. Field, 85 Va., at p. 758, 8 S. E. at p. 721: They have “been reached not without reluctance. Had we the authority to execute the alleged gift, or, in other words, to give effect to the manifest intention of the decedent to aid” (the defendant), “the court would without hesitation affirm” (the judgment). “But we have no such authority. Our province is not to make law, but to administer it, and we must, therefore, decide this case according to the settled law as it is written, and not permit a hard case to make bad law.”

For the foregoing reasons, we are constrained to the opinion that there was error in the action of the trial court and judgment complained of, and hence such judgment must be set aside and annulled and a new trial granted, to be had, if the plaintiff is so advised, not in conflict with this opinion.

Reversed.