62 Barb. 650 | N.Y. Sup. Ct. | 1862
By the Court,
The testator, in his lifetime, loaned John S. Vrooman, on the 26th of-June, 1843, the sum of $450, payable at the expiration of five years, with interest. To secure the payment of this money, John S. Vrooman made and delivered to the testator, his bond dated the day and year above mentioned, in the penal sum of $900, payable as aforesaid. Said Vrooman and wife also executed and delivered to the testator, a mortgage on the premises described in the complaint, and the same was duly acknowledged and recorded June 29th, 1843, in the clerk’s office of Oswego county, where said premises - wére situated. The wife of the mortgagor was a daughter of the testator. When the loan was made and the papers executed, the testator resided at Minden, in' Montgomei-y county, Vrooman and wife at Hastings, Oswego county. The testator was on a visit to his daughter, at Hastings, when the papers were executed. At some time after, the date, he returned to Minden, where he died June 13,1846. The will was admitted to probate in April 1857.. By his last will the testator, after providing for the payment of his debts, bequeathed all his personal estate to his four
In almost all the cases in which gifts have been the subject of litigation, the declarations of the donor have been received in evidence, without objection, or any question that they were not competent. If the donor were living, and suing for the property, it is quite clear that his declarations in reference to a gift to the donee, would'be admissible on the most elementary, principles of the law of evidence. When the contest, as to the gift, is between the donee and the representatives of the donor, the declarations of the donor are undoubtedly admissible, being against his interest when made ; and the admissions of the testator or intestate, as a universal rule, are admissible against the representatives. (1 Cowen & Hill’s Notes, 646, 656. Paige v. Cagwin, 7 Hill, 361. 1 Grreenl. Ev., § 189.) The evidence was competent.
The scrivener who drew the bond and mortgage testified that at the time the bond and mortgage were executed, the testator said that he had let Vrooman have money to pay for some land, the title of which was in Vrooman, but as he (Vrooman) had lost his only child, if his (Vrooman’s) wife outlived him, the property would go to Vrooman’s family, gnd she would have no interest in it, and by the mortgage then taken he (the testator) could hold it, so it could not be taken from her. He calculated eventually to
It was further argued by the plaintiff’s counsel, as I understand him, that the gift, being of a bond and mortgage, was incomplete, there being upon them no assignment to Mrs. Vrooman, and that equity could not aid the donee in perfecting it by compelling the .donor, or his '
In lsi Story’s Equity, (§ 607, a,) it is said: “ The doctrine now established is, that not only negotiable notes and bills of exchange, payable to bearer or indorsed in blank, but exchequer notes and bank notes, may be the subjects of donatio mortis causa, because they may, and do, in the ordinary course of business, pass by delivery ; but that bonds and mortgages may also be the subject of a donatio causa mortis, and pass by a delivery of the deeds and instruments by which they are created. * * * Mortgage deeds, when delivered, are treated but as securities for debts, and would, in the hands of the donee, be governed by the same rules. The delivery, in the case of a mortgage, is therefore treated, not as a complete act passing
Mullin, Morgan and Bacon, Justices.]
It seems to me that whether, the gift be inter vivas or c«ms« mortis, the donee acquires a legal as well as equitable title to the bond and mortgage which are the subject of the gift, by mere delivery without writing. It was not .the intention of the donor in giving the securities to his daughter, to discharge the debt. He designed that it should be her separate property, so that she could assert an interest in the premises covered by the mortgage, in the event of Vrooman’s death without heirs by her. On her death before foreclosure, the securities bebame the property of the husband, and thus the legal and equitable estates meeting in him, the latter became merged in the former.
On this ground, alone, without going over those elaborately examined by Justice Morgan, I am of the opinion that the judgment of the special term ought to be affirmed.
Judgment affirmed.