In re Campbell's Estate

7 Pa. 100 | Pa. | 1847

Gibson, C. J.

The notes in question could have been discharged only by a sealed release, or a parol gift of them; the disposition of them insisted on by the accountant was neither. A gift is a contract executed; and, as the act of execution is delivery of possession, it is of the essence of the title. It is the consummation of the contract which, without it, would be no more than a contract to give, and without efficacy for the want of a consideration. If made on sufficient consideration, it would be a binding agreement; but then the nature of the contract would be changed, and there would still be no gift. The gift of a bond, note, or any other chattel, therefore, cannot be made by words in futuro, or by words in prcesenti, unaccompanied by such delivery of the possession as makes the disposal of the thing irrevocable. Even the revocation of a will before the statute of frauds, could not be effected by words in futuro; as was held in Benton v. Gowell, Cro. Eliz. 306. Possibly the destruction of a security might be equivalent to a delivery of it; but no mere intent to destroy it' would be so. Nothing discharges it while it remains in the creditor’s possession and power. The cases all agree, not excepting even Wentz v. Dehaven, 1 Serg. & Rawle, 317, that the parol discharge of a debt without consideration, or delivery up of the security, is inoperative. The gift in the latter was sustained on the baseless argument that the discharge, though unsealed, was in writing; the futility of which was shown in Whitehill v. Wilson, 3 Penna. Rep. 412, on the authority of the great case of Rann v. Hughes, 7 Term Rep. 346, in note; in which it was decided by all the judges in the House of Lords, that all contracts which are not by specialty, are alike by parol; and that unsealed contracts by writing do not form an intermediate class. Nor is the consideration of blood, or natural affection, sufficient to support a promise to give; as was shown in Kennedy’s Executors v. Ware, 1 Barr, 450, sustained by Lyon v. Marclay, 1 Watts, 271, and Fink v. Cox, 18 Johns. 145, and many other cases. What, then, is the transaction before us ? Duncan Campbell, a married, but childless old man, intending to die intestate, is disposing of parts of his property, in contemplation of death. He calls for his notes and bonds, in order to distribute them among particular objects of his bounty ; and when they are transferred, he asks his wife whether they are all he has, and is told that they are all,* except the notes of Duncan Campbell, his nephew. She inquires what is to be done with them; and swears that he told her to destroy them. Freeman, who wrote the assignments of the other notes, testifies that he told her to burn them, or give them to Duncan Campbell, the nephew; and Ewart, who was there to witness the assignments, says he told her, that if he were likely to drop off, or any thing should happen to him before he should see the nephew, she .should then burn them. If the case stood upon the testimony of this last witness, it would clearly be that of an intent to give in futuro, reserving the control over the ownership in the mean time. But all agree that the possession was not parted with; and it cannot be disputed that his intention to have them destroyed or delivered up might have been abandoned, and his directions countermanded. They were his property while he lived; and as the direction was not a testamentary one, it became inoperative at his death. It was a mere authority, which expired with him. To say the least, the case is not stronger than Plum-stead’s Appeal, 4 Serg. & Rawle, 545, in ayMcIi the words, “for the heirs of Gr. P.,” endorsed on an envelope containing securities, was held not to be a testamentary gift; and had it been thought to be a gift inter vivos, there would not have been an attempt to have the papers admitted to probate. The accountant, therefore, ought to have been charged with the notes in question.

Decree reversed in part, with direction to charge the accountant with his own notes; and affirmed for the residue.