Wing v. Merchant

Barrows, J.

The circumstances which oblige us in some cases to look with suspicion upon a defense which asserts that property claimed by an executor or administrator in his representative capacity, has passed by a gift from the deceased to one of his heirs, are not found in the case at bar. The defendant,^with the consent of his wife to whom it is claimed the property was given, has appropriated it already for the benefit and support of an insane sister of the wife, a daughter of the deceased, and he is indemnified against ultimate liability in this suit. The testimony comes free from selfish bias; and the naked question is, whether enough was said and done by Timothy Woodward, the plaintiff’s testator, to constitute a valid gift. The money and notes, amounting to about $200, had been placed by the testator, several years before his death, in the hands of the defendant for safe-keeping; and for some time subsequently he was accustomed to call on the defendant and his wife for such little sums as he wanted on account of them, and the defendant kept an account of what was thus repaid. The wife personally had the charge of the notes and kept them in a box, which was placed in a chest in her sleeping-room, and she seems to have made most of the small ¡)ayments to her father which he called for. While the matter stood thus, three or four years before the testator’s death, as Mrs. Merchant, the defendant’s wife testifies, he said, in conversation with her about the money represented by these notes, that she had done more for him than all the rest of his children ; had staid with him longer ; and that he gave it to her. The notes wei’e then in the box in her sleeping-room; they were not indorsed; they were payable to her father. She says, “ I do not know as father did any thing at the time any more than to tell me that he gave them to me for my labor and what I had done for him. . . . After he gave me the notes he never called on me for any money.”

*386 It would seem that there was no selfish solicitation for the gift, but, on the contrary, that Mrs. Merchant, in this conversation, and the defendant in another talk with the testator about the same time, suggested to him that it ought to be appropriated for the support of the insane sister, and that when he gave the notes to Mrs. Merchant, he said, apparently in reply to these suggestions, that he “ did not think this would be any help to her if he should save it for her support.”

Now it is insisted, on the part of the plaintiff, that here was no indorsement of the notes, and no delivery of them to Mrs. Merchant at the time of the conversation, and consequently no valid gift.

But it has been settled, that a valid gift of a negotiable promissory note may be made, either inter vivos or causa mortis, without indorsement or other writing. Grow v. Grow, 24 Pick. 261 . Borneman v. Sidlinger, 15 Marne, 429.

To perfect the gift in either case, delivery to the donee or to some person for him is necessary; such delivery as the subject of the gift is capable of. But, in case of a gift, inter vivos, where the property has passed into the possession of the donee, and has been held by him in a manner indicating a change of the title to the property, and a recognition of the donee’s title by the donor, proof of actual manual tradition at the time of making the gift may well be dispensed with.'

No particular ceremony is necessary to constitute a delivery when there is actual possession by the donee, accompanied by satisfactory evidence that the donor has relinquished all control of, and claim to the subject of the gift, in her favor. I borrow a book of my friend, and, while it is in my possession, he says, “ I make you a present of it,” and I hold it thereafterwards as mine ; it cannot be essential to the validity of the gift that I should first put it into his hands in order that it may be returned to mine. Lex own cogit ad vana seu inutilia.

The actual transfer of possession to the donee whenever and however accomplished, if supplemented by plenary evidence of an intenti onal release to the donee, on the part of the donor, per verba de *387 prmsenti, of any and all right or claim ever to resume the possession, or to deprive the donee of it, will make a complete gift inter vivos. It matters not whether the change of possession takes place before or after, or at the time of the utterance of the worcls importing a gift, if there is a manifest design on the part of the donor that the donee should thereafterwards hold such possession absolutely, as of his own property. Thenceforward, the possession and the right are concurrent in the same person, and the gift is perfect and irrevocable.

These elements we find in the case at bar. The notes were already in the possession of Mrs. Merchant, when the testator, in conversation with her respecting them, used language importing a present, absolute, unconditional gift, and a making over of all his interest in them to her. From that time during the remaining three or four years of his life, ho never called upon her or her husband for small sums on account of them, as he had before been accustomed to do. The defendant exchanged the notes for others, and paid, not to the testator, but to Mrs. Merchant, such sums on account of them as she called for.

There is an essential difference between this case and that of Shower v. Pilck, 4 Excheq. Rep., relied on for the plaintiff.

There, though the silver plate was in the possession of the allegeddonee, the language of the testator implied nothing beyond a promise to give in the future. Judgment for the defendant.

Kent, Walton, Daneorth, and Taplet, JJ., concurred.