44 Tenn. 288 | Tenn. | 1867
Lead Opinion
delivered the opinion of the Court.
This cause was heard upon bill and answer, in the Chancery' Court at Greeneville. A decree was pronounced, dismissing complainant’s bill; from which, he has appealed to this Court.
The bill charges, that some time in the month of August, 1862, one George Carter was forced to leave his home, to avoid the operations of the rebel conscription laws, then being enforced in East Tennessee, and went to the State of Kentucky, where he joined the Union army, and from whence he never returned, having died at Louisville, in that State, in 1863.
Daniel Simpson and his wife, Mary, and Myers, as guardian of George M. Simpson, were made parties defendant, and the prayer of the bill is, that they may be. required to answer all the material allegations contained in the bill, acording to the practice of a Court of Chancery, “and that they show cause, wherefore they, or any of them, detains the same from complainant’s control and disposal, as administrator as aforesaid,” and that the same be surrendered to complainant, etc.
The answers of Simpson and wife, state, that said Carter left his home, or the house of respondents, on the 12th of August, 1862, to go to the State of Kentucky, for the purpose of joining the Pederal army, which he did, as they are informed and believed, and died at Louisville, on the 2d day of January, 1868, intestate, leaving neither wife or children.
Respondents say, they procured the appointment of Myers as guardian for their son, and admit they delivered said money, notes, etc., to said guardian, and deny the right of complainant to any portion of the same.
The defendant, Myers, answers, and says he had been appointed guardian for George M. Simpson, at the instance of his parents, who delivered to him said money, notes, etc., and represented to him, the same had been left in their hands by George Carter, deceased, for their son, George M., and that he now holds the same, as guardian.
The bill was filed September 16th, 1865. The answers were filed 25th November, 1865. At the following May Term of the Court, 1866, the cause was set for hearing by the Master, and by consent was continued “and left open on both sides,” as appears from the record. And at the following September Term, nearly one year 'after the answers were filed, the cause was finally heard, and the bill dismissed.
Two questions are presented in argument. It is insisted, the matters stated in the answers of Simpson and
It is insisted in argument, by the solicitor for the defendants, that the facts thus established, constitute a. valid donatio causa mortis of the money, notes, etc., to G-eorge M. Simpson, the nephew of the intestate, and consequently defeat the rights of the complainant.
The subject is one of unusual interest, and one, the investigation of which, furnishes a wide field for the display of legal learning; but we will be content with the simple effort to ascertain, if we can, from the many authorities to which we have been referred, what is necessary to constitute a valid gift of this character.
It will be remembered, in the outset of this investi
1st, Where a person, not terrified by the apprehension of any present peril, but moved by the general consideration of man’s mortality, makes a gift.
2d, Where a person, moved by imminent danger, gives in such a manner, that the subject is immediately made his to whom it is given.
3d, When a person, being in peril of death, gives something, though not so that it should be presently his who received it, but in case only the giver dies.
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, taking effect only at the death of the donor.
At the termination of this contest, it seems to have been settled, that a gift mortis causa, 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
We mention this contest, and the results attending it, for the purpose of showing, as we will hereafter attempt to do, that much of the apparent conflict of authority, touching the question now under discussion, has grown out of the different opinions formerly entertained by able jurists, as to the real nature of a donatio causa mortis; and that the opinions of those who insisted the gift only took effect at the death of the donor, and was, consequently, in the nature of a legacy, and to be valid, must be made under such circumstances as would render valid a nuncupation, have now no force or application, whatever.
In treating of the several kinds of gifts causa mortis,
Lord Chancellor Hardwicke, in speaking of this third kind of gift, in the case of Ward vs. Turner, thus defines it: “Where a person, though he was moved with the danger, yet not thinking it so immediate as to vest the property immediately in the person, but put it in the possession of the person, as an inchoate gift, to take effect in case he should die.”
Mr. Roper, in his treatise on Legacies, vol. 1, p. 3, says: “ The circumstances required for the constitution of a donatio mortis causa, are, as before appears: 1st, That the gift be made by the donor in peril of death, or during his last illness, and to take effect in case only the giver die.”
In commenting upon this definition, Chief Justice Gibson, in a very learned and able opinion, in the case of Nicholas vs. Adams, 2 Whart., 17, 22, says: “ This would be critically correct, were it not redundant in one particular, and too narrow in another. Redundant, because it is indifferent whether the peril of death be induced by sickness, or any other cause — thus, the peril of death passed, the gift of a soldier or malefactor, might be retracted, though made in perfect health, when going to execution or to battle. But this position is, also, too narrow in one particular; for a groundless apprehensien of death is, necessarily, as operative to make a gift conditional, as if the danger were real.”
Now, in case of a conditional gift, when death is not expected, the condition must be expressed, and the contingency upon which it is to take effect, specified. But, in case of a gift causa mortis, both the condition and the contingency are implied from the occasion, and need not he expressed or specified. Hence, if the danger or peril he passed, or if made in sickness, the donor recover from his illness, or if he resume the possession of the gift, it will he defeated. The Judge, in the before mentioned case of Nicholas vs. Adams, after reviewing the authorities upon the subject, says: “I would, therefore, briefly define a donatio causa mortis, to be a conditional gift, dependent upon the contingency of expected death.”
Mr. Kent, vol. 2, p. 444, says, in discussing this question : “ Such gifts are conditional like legacies, and it is essential to them, that the donor make them in his last illness, or in contemplation and expectation of death, and with reference to their effect after his death; and if he recovers, the gift becomes void. The apprehension of death may arise from infirmity or old age, or from external and anticipated danger.”
These donations in effect, amount to a revocation pro tanto of written Wills; and not being subject to the forms prescribed for nuncupative Wills, they are certainly of a dangerous character, and too much care cannot he taken in insisting upon the most convincing evidence of the gift; hence, all the authorities agree that
It is, however, not necessary that the delivery be to the donee. It is sufficient if it be to another for him.
After a review and careful analysis of all the authorities to which we have had access, we conclude that upon principle and in accordance with what seems to' be the weight of authority, the essential requisites of a donatio causa mortis, are, that it be made during the sickness of the donor, or whilst under the belief that he is in peril of death, or surrounded by threatened dangers from which he has an immediate existing apprehension of death, and in contemplation of death from such sickness, peril or danger, is thereby moved to make the donation.
But we do not mean by this, that the donor must be in extremis, or moved by the apprehension of immediate death, but the apprehension itself must be immediate. A general apprehension of death from the mortality of man will not be sufficient, but it must be an apprehension arising from the particular sickness, peril or danger.
Now let us apply these principles to the facts of this case, and see how the rights of the parties stand.
The donor was compelled to leave his home in consequence of the rebel conscription, then being enforced in East Tennessee, in order to avoid giving service to the rebellion, then being waged against the Government
The decree of the Chancellor dismissing the hill will he affirmed.
Dissenting Opinion
dissenting.
I regret that I am unable, altogether, to concur in the foregoing opinion. To the general exposition of the rule of law, governing in such cases, I do not object; but I do not think the rule applicable to the state of facts disclosed in this record.