Bates v. Kempton
73 Mass. 382
| Mass. | 1856
Metcalf, J.

The verdict has found that Zilpha Bowen received the notes in suit as a gift causa mortis. And by the law of Massachusetts a negotiable note is a proper subject of such gift, without indorsement; and the donee may maintain an action on it, in the name of the executor or administrator of the donor, without his consent. Grover v. Grover, 24 Pick. 261. Sessions v. Moseley, 4 Cush. 87. See also Borneman v. Sidlinger, 15 Maine, 429 ; Brown v. Brown, 18 Conn. 410 ; 2 Kent Com. (6th ed.) 447. Whether the court, on early application of an administrator in whose name such action is thus brought, would require the donee to indemnify him against liability for costs, is a question which does not now arise.

*384It is contended for the defendant, that this action is barred by the statute of limitations, (Rev. Sts. c. 120,) and is not saved by § 10 of that chapter. That section provides that.if any “ person, entitled to bring any of the actions ” mentioned in the preceding sections, shall die before the expiration of the time therein limited therefor, the action may be commenced by his executor or administrator at any time within two years after the grant of letters testamentary or of administration. The argument for the defendant is, that Darling, the donor, was not “ entitled ” to bring an action on these notes after he had given them away. We think otherwise. Certainly no one else was entitled to bring an action on them during his life, and would not have been, even if he had indorsed them to the donee. A. gift causa mortis is not only conditional, but is also revocable; and the lonee’s title is not absolute until after the donor’s death. 24 Pick. 266. 4 Cush. 92. Hence Darling might have brought an action on these notes at the last hour of his life, and therefore he died “ entitled ” so to do.

The donee was a competent witness on the trial, according to the decision in Palmer v. White, 10 Cush. 321.

Exceptions overruled