46 N.H. 57 | N.H. | 1865
Unless the transaction between Esther Kittredge and the defendant amounted to a valid gift of the note, the plaintiff must recover; Shirley v. Healds, 34 N. H. 411; Gilman v. Cutting, 41 N. H. 147; for any mere agency was revoked by her death. Davis v. Lane, 10 N. H. 156; Wilson v. Edmonds, 24 N. H. 547; Story’s Agency sec. 488 et seq. It was not valid as a gift inter vivos, for that goes into absolute and immediate effect, the donor parting not only with the possession but with the dominion of the property; 2 Kent 438; Sanborn v. Goodhue, 28 N. H. 56; Reed v. Spaulding, 42 N. H. 119; Allen v. Polereczky 31 Me. 338; nor as a donatio causa mortis, for it does not appear that the note was delivered by Esther in her last sickness, or when in any particular peril of death, or under any special apprehension of such peril. 2 Blk. 514; 2 Kent 444; 1 Story Eq. sec. 606 and n.; Smith v. Kittredge, 21 Vt. 238; Grattan v. Appleton, 3 Story 763; Weston v. Hight, 5 Shepl. 290; Dole v. Sinclair, 31 Me. 429; Raymond v. Sellick, 10 Conn. 484.
There must be judgment for the plaintiff unless the defendant elects a jury trial.
