47 Barb. 370 | N.Y. Sup. Ct. | 1867
This is an action of replevin, to recover the possession of three promissory notes, amounting in all to some $185. These notes were originally the property of one Charles H. Gardner, a brother of the plaintiff: In August, 1862, Gardner enlisted in the volunteer service of the United States, and on the 17th day of that month was at the plaintiff's house on a furlough. This was before he had entered on actual service, but in the expectation of soon being ordered to the seat of war. On this occasion he delivered these three notes to the plaintiff, saying, in the language of one witness, “ I give you these notes; if I never return they are yours or, in that of another, “ Take them, and if I never return' they are yoursif I do return I shall want themor, in the words of still another, i( I give these notes to you—I may never return, and if I do not, they are yours.” It is stated in the finding of facts by the court, that the gift was made by Gardner on the eve of his going into the service as a soldier, and in apprehension of his dying in
On the argument, some attempt was made to sustain the transaction as an executed absolute gift inter vivos, founded on the. consideration of the services theretofore rendered to Gardner by the plaintiff, in the care of his clothing and providing him board. But it clearly can not be sustained as such a gift, for the obvious reason that it was coupled with ■ a condition upon the happening of which the owner was to resume possession. An absolute gift, which divests the donor’s title, requires the renunciation on his part, and the acquisition on the part, of the donee, of "all the title to, and interest jn, the subject of "the gift. It is very clear, upon.all the testimony, that there was no .intention on the part of Gardner, to part with the absolute title to the notes, but he contemplated and provided for a future contingency, on the occurrence of which he should resume it, making the plaintiff in the meantime the custodian. A valid gift inter vivos has
The precise distinction between a gift inter vivos and mortis causa, as is correctly said in Bedell v. Caryl, (33 N. Y. Rep. 584,) is that in the one case the title passes immediately to the donee on delivery, and the donor has no more right to the property than any other 'person; in the other the title does not pass immediately, but it is a conditional gift, to take effect only on the death of the donor, who, in the meantime, has the power of revocation, and may resume and annul the gift.
• But it is unnecessary further to discuss this point, since the court put the case upon' the ground, and only sustained the gift as a good one mortis causa, and it remains to be considered whether this can be upheld. On reflection and a careful review of the authorities, I am satisfied that the learned judge, before whom the cause was tried, fell into an error which requires us to reverse the judgment rendered by him.
It is justly said by Chancellor Kent, that the English law on the subject of these gifts is derived wholly from the civil law; and yet it is certain that in the course, and as the result of many adjudications, both in England and this country, the rules of the civil law on this subject have been very considerably modified, and this as well in the direction of relaxing as of restricting the Roman law. Thus by the code of Justinian, such a gift was required to be executed in the presence of five witnesses. We demand no such strictness, for the testimony of a single witness, unchallenged and uncontroverted, will establish it. On the other hand, it is said by Yinnius that it is not necessary that the donor should be in imminent danger of death, but it is enough if he be moved by the general apprehension of death as the common lot of humanity. As a result of this principle, it is said by the civil law to be a good donatio mortis causa -if a man, about to set forth on a long journey, and contemplating the
I do not think it would be profitable to go through with a discussion of all the authorities both in England and in this country, where gifts of this description have been the subject of adjudication. After an examination of most of "those that have been cited by the counsel for the respective parties, and some that had escaped their attention, I find as the result, that although circumstantially differing, they concur in establishing the general principle I have stated above, in respect to the imminency of the foreseen peril, or the apprehended approach of death from an existing sickness, which at least proximately proves fatal. The case most strongly relied on by the counsel for the plaintiff, to uphold this gift, (Nicholas v. Adams, 2 Whart. 17,) is not in conflict with the general current of authority. The gift there was by one on his sick bed, laboring under an illness from which death
I am of opinion that the judgment should he reversed, and a new trial granted, with costs to abide the result.
Bacon, Mullin and Foster, Justices.]