1 Paige Ch. 316 | New York Court of Chancery | 1829
The Chancellor :—The first question which arises in
In Wells v. Tucker, it was also decided that a gift to a third person for the use of the intended donee was a valid gift. The complainant is entitled to the amount due on the note, if it was actually delivered by the intestate to Marsh for her *use, as alleged in the bill, provided Reynolds was of sound disposing mind and memory, and no improper advantage was taken of his situation.
On this question the testimony is not perfectly satisfactory; and claims of this description must always be admitted with the greatest caution. I do not therefore think proper to dispose of this part of the case without giving the parties an opportunity to litigate the question of fact before a jury. I shall direct a feigned issue to be made up between the complainant and the administrators, and tried at the circuit in New York, unless both parties consent to have the trial in the Superior Court of that city, to ascertain whether the testator was of sound and disposing mind and memory, and did freely and voluntarily deliver the note in question to David Marsh, in his last sickness, and in contemplation of death, for the use of the complainant, as a gift to her, to take effect in case of his death; and either party is to be at liberty to examine the defendants Slocum and Marsh as witnesses on the trial of the said issue.
Bond and mortgage will pass by a delivery donatio causa mortis. 1 Bligh, 597; Duffield v. Hicks, 1 Dow. N. S. 1. As to the requisites of a valid donatio causa mortis. See note to Walter v. Hodge, 2 Swanston, 106.
This case is overruled. See Craig v. Craig, 3 Barb. Ch. 78; see Harris v. Clark, 3 Comst. 93. There held that; the executory promise of the donor; i. e., his own draft on a third party, in favor of the donee, intended as a donatio causa mortis, is not valid.
In Connecticut, it has been held, that the promissory note of a third person, though not payable to bearer, nor so indorsed as to transfer the legal title by delivery merely, may be the subject of a donatio causa mortis. Brown v. Brown, 18 Conn. 410; see also Craig v. Craig, 3 Barb. Ch. 78, 117, 118.