after stating the case, delivered the opinion of the court.
It is apparent that the sole controversy is between Basket and Hassell, the present parties to the appeal. By the delivery of the certificate of deposit to the clerk the attorneys of Basket-are exonerated from all responsibility ; and the payment of the money by the bank to Hassell equally relieves it and’its officers; for, not being parties to the appeal, and the execution of the decree not having been superseded, the decree will always furnish them protection, whether affirmed or reversed, because, if reversed, it would only be so as between the parties to the appeal. So that the omitted parties have no legal interest, either in maintaining or reversing the decree, and, consequently, are not necessary parties to the appeal.
Forgay
v. Conrad,
It is claimed on behalf of the appellant that the delivery of the certificate under the circumstances mentioned in the statement of the case constitutes a valid donatio mortis causa, which entitles him to the fund; and whether it be so, is the sole question for our determination.
The general doctrine of the common law as to gifts of this character is fully recognized by the Supreme Court of Tennessee as part of the law of -that State.
Richardson
v.
Adams,
In the case last mentioned, that court had occasion to consider the nature of such a disposition of property, and the several elements that enter into its proper definition.
Among other'things, it said: —
. “A question seems to have arisen, at an early day, over which there was much contest, as to the real nature of gifts causa mortis. Were they gifts inter vivos, to take effect before the death of the donor, or were they in the.nature of a legacy, *609 taking effect only at the death of the donor. At the termination of this contest, it seems to have been settled, that a. gift causa mortis is ambulatory and' incomplete during the-donor’s life, and is therefore revocable by him and subject to his debts, upon a deficiency of assets, not because the gift is testamentary or in the nature of a legacy, but because such is the condition annexed to it, and because it would otherwise be fraudulent as to creditors ; for no man may give his property who is unable to pay his debts; and all now agree that it has no other property in common with a legacy. The property must pass at the time and not be intended to pass at the giver’s death; yet, the party making the gift does not part with the whole interest, save only in a certain event; and until the event occurs which is to divest him, the title remains in the donor. The donee is vested with an inchoate title, and the intermediate ownership is in him; but his title is defeasible, uiitil the happening of the event necessary to render it absolute. It differs from a legacy in this, that it does, not require probate, does not pass to the executor or ^administrator, but is taken against and not from him. Upon the happening of the event upon which the gift is dependent, the title of the donee, becomes, by relation, complete and absolute from the time of the delivery, and that without any consent or other act on the part of the executor or administrator; consequently, the gift is inter vivos.” In another part of the opinion (p. 297) it is said: “ All the authorities agree that delivery is essential to the validity of the gift, and that, it is said, is a wise principle of our laws, because delivery strengthens the evidence of the gift; and is certainly a very powerful fact for the prevention of frauds and perjury.”
In the first of these extracts there is an inaccuracy of expression, which seems to-have introduced some confusion, if not an apparent contradiction, when, after having stated that “ the property must pass at the time and not be intended to pass at the giver’s death,” it is added, that “ until the event occurs which is to divest him, the title remains in the donor.” But a view of the entire passage leaves no room to doubt its meaning; that a donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the con *610 ditions subsequent, that is, upon actual revocation by tbe donor, or by tbe donor’s surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are. the only qualifications that distinguish gifts mortis causa and inter vivos. On the' other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will.
This statement of the law is, we think, correctly deduced from the judgments of the highest courts in England and in this country; although, as might well have been expected, since the early introduction of the doctrine into the common law from the Roman civil law, it has developed, .by new and successive applications, not without fluctuating and inconsistent decisions.
“ As to the character of the thing given,*’ says Shaw, C. J., in
Chase
v. Redding,
In the case last mentioned — Parish v. Stone — the same distinguished jxxdge, speaking of the cases which had extended the doctrine of gifts mortis causa to include choses in action, delivered so as to operate only as a transfer by equitable assignment or a declaration of trust, says further, that “ these cases all go on the assumption that a bond, note, or other *611 security is a valid subsisting obligation for tbe payment of a sum of money, and the gift is, in effect, a gift of the money by a gift and delivery of tbe instrument that shows its existence and affords the means of reducing it to possession.” He had, in a previous part of the same opinion, stated that “ the necessity of an actual delivery has been uniformly insisted upon in the application of the rules of the English law to this species of gift.” p. 204.
In
Camp’s
Appeal,
In respect to the opinion in this case, it is to be observed, that it cites with approval the case of
Wright
v. Wright, 1 Cow. (N. Y.) 598, in which it was decided that the promissory note, of which the donor himself was maker, might be the subject of a valid gift
mortis
causa, though the concurrence was not
*612
upon that point. That case, however, has never been followed. It was expressly disapproved and disregarded by the Supreme Court of Errors of Connecticut in
Raymond
v. Sellick,
The case from which this extract is taken was very thoroughly argued by Mr. John C. Spencer for the plaintiff, and Mr. Charles O’Connor for the defendant, and the judgment of the court states and reviews the doctrine on the subject with much learning and ability. It was held that a written order upon a third person, for the payment of money, made by the donor, was not the subject of a valid gift, either inter vivos or mortis causa; and the rule applicable in such cases, as conceded by Mr. O’Connor, was stated by him, as follows: “ ‘Delivery to the donee of such an instrument as will enable him, by force of the instrument itself, to reduce the fund into possession, will suffice,’ is the plaintiff’s doctrine. This might safely be conceded. It might even be conceded that a delivery out of the donor’s control of an instrument, without which he could not recover the fund from his debtor or agent, would also suffice.”
The same view, in substance, was taken in deciding Hewitt v. Kaye, Law Rep. 6 Eq. 198, which was the case of a check *613 on a banker, given by the drawer mortis causa, who died before it was possible to present it, and which was held not to be valid. Lord Romilly, M. R., said: “ When a man on his death-bed gives to another an instrument, such as a bond, or promissory note, or an I O U, he gives a chose in action, and the delivery of the instrument confers upon the donee all the rights to the chose in action arising out of the instrument. That is the principle upon which Amis v. Witt, 33 Beavan, 619, was decided, where the donor gave the donee a document by which the bankers acknowledged that they held so much money belonging to the donor at his disposal, and it was held that the delivery of that document conferred upon the donee the right to receive the money. But a cheque is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is at a banker’s or anywhere else. It is an order to deliver the money, and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing.”
Accordingly the Vice-Chancellor, In re Beak's Estate, Law Rep. 13 Eq. 489, refused to sustain as valid the gift of a check upon a banker, even although its delivery was accompanied by that of the donor’s pass-book.
The same rule, as to an unpaid and unaccepted check, was followed in
The Second National Bank of Detroit
v.
Williams,
Contrary decisions have been made in respect to donations
mortis causa
of savings-bank books, some courts holding that the book itself is a document of title, the delivery of which, with that intent, is an equitable assignment of the fund.
Pierce
v.
Boston Savings Bank,
That a delivery of a certificate of deposit, such as that de
*614
scribed in the record in this case, might constitute a valid
donar tio mortis
causa, does not admit of doubt. It was so decided in
Amis
v.
Witt,
33 Beav. 619;
Moore
v.
Moore,
Law Rep. 18 Eq. 474;
Hewitt
v. Kaye, 6 id. 198 ;
Westerlo
v.
De Witt,
The point, which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in áction, is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift
inter vivos,
but upon the recognized conditions subsequent, in case of a gift
mortis causa;
and that a delivery which does not confer upon the donee' the present right to reduce the fund into possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers 'upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift. Further illustrations and applications of the principle may be found in the following cases:
Powell
v.
Hellicar,
26 Beav. 261;
Reddel
v.
Dobree,
10 Sim. 244;
Farquharson
v.
Cave,
2 Colly. C. C. 356;
Hatch
v.
Atkinson,
The application of these principles to the circumstances of the present case requires the conclusion that the appellant acquired no title to the fund in controversy, by the indorsement and delivery of the certificate of deposit. The certificate was payable on demand; and it is unquestionable that a delivery of it to the donee, with an indorsement in blank, or a special indorsement to the donee, or without indorsement, would have transferred the whole title and interest of the donor in the fund *615 represented by it, and might have been valid as a donatio mortis causa. That transaction would have enabled the. donee to reduce the fund into actual possession, by enforcing payment according to the terms of the certificate. The donee might have forborne to do so, but that would not have affected-his right. It cannot be said that obtaining payment in the lifetime of the donor would have been an unauthorized use of the instrument, inconsistent with the nature of the gift; for the gift is of the money, and of the certificate of deposit, merely as a means of obtaining it. And if the donee had drawn the money,' upon the surrender of the certificate, and the gift had been subsequently revoked, either by the act of the donor or by operation of law, the donee would be only under the same obligation to return the money, that would have existed to return the certificate, if he had continued to hold it, uncollected.
But the' actual transaction was entirely different. The indorsement, which accompanied the delivery, qualified it, and limited and restrained the authority of the donee in the collection of the money, so as to forbid its payment until the donor’s death. The property in the fund did not presently pass, but remained in the donor, and the donee was excluded from its possession and control during the life of the donor. That qualification of the right, which would have belonged to him if he had become the present owner of' the fund, establishes that there was no delivery of possession, according to the terms of the instrument, and that as the gift was to take effect only upon the death of the donor, it was not a present executed gift mortis causa, but a testamentary disposition. The right conferred upon the donee was that. expressed in the indorsement; and that, instead of being a transfer of the donor’s title and interest in the fund, as established by the terms of the certificate of deposit, was merely an order upon the bank to pay to the donee the money called for by the certificate, upon the death of the donor. It was, in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities and upon the ' nature of the case, cannot be valid as á donatio mortis causa, even where it is payable in presentí, unless paid or accepted *616 while the donor is alive; how much less so, when, as in the present case, it is made payable only upon his death.
The case is not distinguishable from Mitchell v. Smith, 4 De G., J. & S. 422, where the indorsement upon promissory notes, claimed as a gift, was, “ I bequeath — pay the within contents to Simon Smith, or his order, at my death.” Lord Justice Turner said: “ In order to render the indorsement and delivery of a promissory note effectual they must be such as to enable the ■indorsee himself to indorse and negotiate the note. That the respondent, Simon Smith, could not have done here during the-testator’s life.” It was accordingly held that the disposition of the notes was testamentary and invalid.
It cannot be said that the condition in the indorsement, which forbade payment until the donor’s death, was merely the condition attached by the law to every such gift. Because the condition, which inheres in the gift mortis causa, is a subsequent condition, that the subject of the gift shall be returned if the gift fails by revocation-; in the mean time the gift is executed, the title has vested, the dominion and control of the donor has passed to the donee. While here, the condition annexed by the donor to his gift is a condition precedent, which must happen before it becomes a gift, and, as the contingency contemplated is the donor’s death, the gift cannot be executed in his lifetime, and, consequently, can never take effect.
This view of the law was the one taken by the Circuit Court as the basis of its decree, in which we accordingly find no error. It is, accordingly,
Affirmed.