2 Barb. 94 | N.Y. Sup. Ct. | 1848
The most important question presented for our consideration in this case is, whether this draft is a valid claim against the executors of the drawer as a donatio mortis causa. To render a gift of this description valid, several requisites are indispensable. (1.) It must be made with a view to the donor’s death. (2.) It must be conditioned to take effect only on the death of the donor, of his existing disease, or during his existing illness. (3.) There must also be a delivery of the subject of the donation. There are some striking distinctions between a donatio mortis causa and a gift inter vivos. The former is ambulatory, incomplete, and revocable during the life of the donor; it is liable to the debts of the donor, upon a deficiency of assets ; and it may be made to the donor’s wife. (1 Story's Eq. Jur. 665, §? 606 a, 607 a. 1 Will, on Ex. 544, 552.)
It is apparent that all the requisites to constitute a valid donatio mortis causa exist and are proved in this cause. The letter of the deceased clearly shows that it was his intention that this draft should be collected, and the proceeds of it invested as a provision for the donee, in the event of his death before he should reach her residence. It is equally certain that he intended it to be used only in the event of his death from his then existing disease. He was in feeble health, and was suffering under a protracted pulmonary complaint, from which a residence in Italy, whence he had just returned, had brought him no relief. When he wrote the letter in question he had just arrived in the city of New-York, and was preparing to visit his sister, the donee, at her house, in the county of Chenango, where he intended to alter his will so as to make its provisions more favorable to her. And it was for fear (as he declares in the letter,) “ that he should not live to reach home" that he sent her the munificent gift which has become the subject of the present litigation. The draft accompanied the letter, and was received by the donee ; rendering the delivery absolute and perfect, so far as such an instrument is capable of delivery. It is precisely such a delivery as has been held sufficient in the case of a bond, or the promissory
It is obvious from what has already been said, that the difficulty in this case does not arise from the want of an actual delivery of the instrument which was the subject of the donation; nor from the nature of the draft, so far as it represents a debt, or demand, against a third person. It arises from the character of the instrument as representing and constituting an obligation against the donor himself; conditional indeed during his life, and therefore not to be enforced against him ; but becoming absolute at his death, and therefore a legal claim, against his executors, The proposition to be maintained by the plaintiff is, that the gift of this draft embraced, not only such claim against the drawees as the donee might be able to enforce against them, but also a promise of the donor that the drawers should accept and pay. This action is brought for the breach of this very promise, against the executors of the donor. It therefore stands upon the same principle, in this respect, with the voluntary gift of the donor’s own promissory note. And the question is, whether the ex-ecutory promise of the donor, made without consideration, can be made the subject of a gift mortis causa. Such a gift inter
We do not think that it would be useful to go into a particular examination of the numerous and conflicting cases that have been decided in England and this country, in relation to this species of gift. It is impossible to reconcile the decisions in many of the earlier cases with those of a more recent date, upon any consistent or intelligible principle. Learned judges have exhausted their ingenuity in discussions upon the kind of delivery which the law requires in this class of cases; whether the delivery should be actual, or merely •potential, or symbolical; what was necessary to constitute the delivery actual, as distinguished from the symbolical ;■ and as to the question what species of property was susceptible of such a delivery as the law had pronounced indispensable to constitute it a proper subject of a donatio mortis causa. It is true, however, that a far more liberal rule obtains at the present day than'existed at any former period; and many gifts have been held to be legal and valid, which would once have been declared void, under the application of the more artificial doctrines which then prevailed. It is now settled by adjudged cases that promissory notes, and bills of exchange, whether payable to order or not, and whether endorsed or not, bonds and mortgages, and all instruments in writing by which any debt against a third person is secured, may be the subjects of a donatio causa mortis. (See 1 Paige, 316. 1 Dow. N. S. 1. 1 Bligh, N. S. 497, 530, 534, 535, 536, 541, 542. 3 Mad. 184. 24 Pick, 261.) In the case of Duffield v. Elwes, (1 Bligh, N. S. 497,) Lord Eldon, in a very elaborate judgment, in which he reviewed all the previous cases, came to the conclusion that a mortgage deed was the subject of transfer by mere delivery, as a donatio 'mortis causa ; reversing the decree of the master of the rolls, who had held the contrary doctrine. The principle established in this case is, that in the case of the gift of a bond, or mortgage, there is a trust raised which a court of equity will enforce, by compelling the executors to allow the
We are now called upon to go one step farther, and to hold that the executors are bound, not only to permit the use of their names to enforce the collection of the demand against the debtor, but to pay the demand if the debtor does not; not merely to complete the gift of the donor, but to make that gift available out of his estate. Although the application of this principle to the draft, under consideration might not disappoint the general intention of the donor, to convert the proceeds of it into a provision for his sister, yet it is quite obvious that if the drawees had been insolvent, and had failed to accept and pay the draft for that cause, the collection of the sum out of the residue of his estate, would be a consequence never foreseen or intended by the deceased. This action, however, is not sought to be maintained upon any such distinction existing in favor of the plaintiff in this particular case. On the contrary, it is manifest that if the suit can be sustained at all, it must be upon the general principle of a breach of contract, applicable to all cases wherein there is a failure to accept and pay, irrespective of the cause which may have produced a refusal on the part of the drawee of the bill. In this respect, therefore, the case at bar stands upon grounds less favorable to the donee than the gift of the donor’s own promissory note. By such a gift it may be argued, that the donor makes an absolute disposition of the amount of the note, to be paid out of his estate generally; whereas, in the former case, he intends merely to devote a particular fund, and if that fund fail, nothing beyond it. In the one case the gift may be said to enhance the obligation imposed by an express promise, while the donor actually
The question to be determined is, as we have seen, whether the donor’s executory promise, without a consideration to support it, can be made the subject of a donatio causa mortis. We are not aware that any English or American authority, prior to the case of Wright v. Wright, (1 Cowen’s Rep. 598,) ever held such a gift valid. The case of Lawson v. Lawson, (1 Peere Williams, 441,) has been cited by counsel in support of this principle. And Lord Hardwicke, in a subsequent case, seemed to regard it as having been decided upon the doctrine of gifts causa mortis. The court in that case, however, did not place its decision upon any such ground. The master of the rolls did, indeed, hold, the gift of the donor’s £100 check, for the purpose of buying mourning, &c. to be good, by way of appointment and direction to his executors, but not as a donatio mortis causa. On the contrary, there is a series of English and American adjudications directly opposed to the principle of the decision in Wright v. Wright. We will only refer to the following: Tate v. Hilbert, (2 Vesey, 112.) Holliday v. Atkinson, (5 Barn. & Cress. 501.) Bunn v. Markham,(7 Taunton, 224.) Ward v. Trim, (2 Vesey, 431.) Snellgrove v. Bailey, (3 Atkyns, 214.) Parish v. Stone, (14 Pick. 199.) Raymond v. Sellick, (10 Conn. Rep. 485.) 6 N. Hamp. Rep. 386, 2 Gill & John. 217. Holly v. Adams, (16 Vermont Rep. 206,) It is doubtless a fair objection to the authority of some of these cases, that the decisions in them are placed upon grounds which have been disapproved, and are no longer tenable ; while others have met the very point, and decided it upon principles which have not been drawn in question, and that are equally applicable to the case at bar. Of this class is the case of Parish v. Stone, (14 Pick. 199,) in which one of the points was, that the donor’s own promissory note, payable to the donee, cannot be the subject of a donatio causa mortis. In the course of a very able opinion, pronounced by Chief Justice Shaw, the court hold this language: “ But we think the
We have been brought to this conclusion upon a full consideration of the authorities, and upon what we believe to be established principles applicable to this class of cases. In opposition to this doctrine, however, the case of Wright v. Wright is pressed upon us as an authoritative adjudication, which we are bound to follow. We believe in a rigid adherence to the doctrine of stare decisis. We regard it as necessary to pre
For these reasons we consider ourselves at liberty to dispose' of this interesting and important question, unembarrassed by the authority of the decision in Wright v. Wright. We may also add, that that case has been reviewed, and its conclusions disapproved by the courts of Massachusetts, Connecticut, and Vermont. (See the cases of Parish v. Stone, Raymond v. Sellick, and Holly v. Adams, before cited.) The questions involved in this cause, both on account of their importance in
Whether the plaintiff may not have a remedy in equity, on a bill properly framed, upon a principle analogous to that which has been acted upon in several cases already alluded to, by which the plaintiff may, in a certain sense, be subrogated to the rights of the executors of the deceased, against the depositaries of the fund upon which the bill was drawn, we are not called on to decide. But believing that the present suit cannot be sustained, for the reasons already assigned, we direct the verdict in this cause to be set aside ; and, in pursuance of the stipulation appended to the case, the same will be turned into a bill of exceptions, and a nonsuit entered, with an exception to that ruling of the circuit judge,
See Craig & Strong v. Craig and others, (3 Barb. Chancery Rep.,) where the same question is examined by the chancellor, and is decided in the same manner.