15 Me. 429 | Me. | 1839
The opinion of the Court, after advisement, was drawn up by
If the defendants can prove, as the case finds they offered to do- at the trial, that the intestate in his last sickness, when death was near, and as we think must be understood, in contemplation of that event as impending, gave to the donees named the note and mortgage in question, and actually delivered them to a third person for their use, we are of opinion, that it was good, as a donatio causa mortis.
That a chose in action may be the subject matter of such a gift, we regard as settled law at the present day. This question is very
A gift of this description however may be defeated for the benefit of creditors. 2 Kent, 362. And if it should turn out, on a further trial, that the plaintiff is a bona fide creditor of the estate, and has a claim, which he can legally enforce, and that a reclamation of this gift is necessary to satisfy it, he may still be permitted to prosecute this suit, notwithstanding the defence interposed.
Exceptions sustained.