24 S.C.L. 310 | S.C. Ct. App. | 1839
Although the evidence is not satisfactory on the point, we must assume from the finding of the jury, properly instructed, that the note on which this action is brought, was duly delivered to the plaintiff by the intestate, in his life time; which does not, however, preclude the main question, whether it imposes any obligation on the defendants to pay it. The note contains no condition, that the alleged gift of it, was defeasible on the recovery of the donor. It is absolute in its terms, and but for the evidence, which explained the circumstances under which it was given, it would be regarded as any other note for the payment of money. It appeared however, very clearly, that the intestate entered into a voluntary obligation, that his administrators, after his death, should pay plaintiff #500. It was a bona fide attempt to give the plaintiff that much money, without making a will And these questions arise — is it valid as a promissory note, for good consideration? or as a gift of so much money causa mortis? Regarding it in the first point of view, the authorities are entirely satisfactory that it cannot be sustained as a good note. It is without valid consideration: a naked revocable promise. In the case of Pearson v. Pearson, 7 Johns. R. 26, it was held that a parol promise to pay money, as a gift, was no more a ground of action, than a promise to deliver a chattel as a gift. Upon the authority of this case, the case of Fink v. Cox, 18 J., 145, was decided. The last
Can it be placed on a better footing, by considering it a donatio causa mortis? On the contrary, I think this view of it would put it in a worse situation. Courts have been jealously distrustful of such gifts. They are too frequently extorted by fraud, from the infirmities 'of dying men; or aftér their death, sustained by combination and perjury. They have been sometimes established, upon full proof, in derogation of a valid will. Our law is different from that of England and other States of the Union, so far as I am informed, as it requires three witnesses to a will of personal property. Its provisions are founded on the presumption, that the facility of a sick bed may be taken advantage of. In Consulting the spirit of the law, we are well warranted in discountenancing all donations causa mortis. I do not undertake to say that such gifts may not be made, provided the thing intended to be given is capable of delivery, and has been delivered either by actual tradition or by
From the views which I have taken, the defendant must have a new trial, which in effect will authorize the succeeding judge to grant a nonsuit.