McGlade's Appeal

Mr. Justice Gordon

delivered the opinion of the court, January 23d 1882.

Had Mary B. Daly, the decedent, within one month, or, for that matter, within one day, before her death, handed over to the representative of any one or more of the charities mentioned in her will, any sum of money or piece of personal property, intending to pass it to it or them as an immediate gift, I suppose it would not be contended that such gift would come within the prohibition of the eleventh section of the Act of April 26th 1855. Such present donation, thus fully executed and completed during the life of the donor, cannot fairly be called either a bequest, devise or conveyance, within the meaning of the statute.

Following out, then, this thought, as the one upon which the case turns, our inquiry is naturally directed to the intention of this donor, and to that which she actually did. But to this inquiry the answer is straightforward and clear; about it there is neither obscurity nor ambiguity. She intended to make an immediate donation of a certain amount of money to the charities which she had already indicated. There was to be no intervening trust about it, excepting only so far as she must of necessity, in consequence of her sickness, have an intervening hand to pay it over. That she had to execute a power of attorney on her city bond, in order to raise the money, is of no kind of consequence. Had she, when in sound health, sold this bond, or for that matter, her real estate, if any she had, and of the money so raised made her intended donations, will any one pretend to say that, had she died within thirty days after the execution of such donations her beneficiaries would have bad to repay the moneys thus given to them ? Yet this is substantially what we have in the case as now presented to us. The testatrix, being unable to attend to her qwn business, ordered her city bond to be handed to the Rev. Mr. Mulholland, to he by him sold, at the same time directing the proceeds to he passed to Archbishop Wood for distribution, before her death, among the charities indicated. Accordingly, Mr. Mulholland did effect a sale of the bond, through Drexel & Co., and passed the proceeds to the Archbishop in the shape of Drexel & Co.’s check, to his, the Archbishop’s, order. All this was done under the direction of the donor and in her lifetime. The check was dated December 9th 1879, and she died on the 20th of the same month.

Now then, the question is, how do these donees take? — By what title do they hold the moneys intended for their use ?— Under a bequest, devise or conveyance ? — No, under neither; hut by virtue of a gift fully executed in the donor’s lifetime.

Such then being the conclusion to which the facts of the case bring us, if nevertheless, the case is within our Act of 1855, as the court below seemed to think, the result is just this, there is a period of one calendar month in every person’s life, in which, by no possibility, can such person make a present, executed gift of any part of his or her money, or other personal assets, to a religious use or other charity. To a doctrine such as this we cannot assent. Were we in doubt as to the intent of the statute we would, nevertheless, incline to that construction of it which would impinge the least on the right of persons so to dispose of their own property as to them may seem proper. We are not among those persons who regard this act as of doubtful utility; on the other hand we esteem it of great public value, and are, therefore, the less disposed so to construe it as to make it the object of public odium.

The decree of the court below, as to the surcharge of $2718, proceeds of sale of city loan, is now reversed and set aside, and as to the balance of the account a redistribution is ordered. The costs of this appeal to be paid by the appellees.