16 Ala. 221 | Ala. | 1849
When a gift of personal property is made by deed, the delivery of the deed is sufficient though the donor does not part with the possession of the property. McRae, adm’r v. Pegues, adm’r, 4 Ala. Rep. 158; Newman v. James and Newman, 12 Ala. Rep. 29. A valid gift may be made inter vivos of a promissory note payable to the order of the donor by delivery merely, without endorsement or other writing. Grover v. Grover, 24 Pick. Rep. 261: In Elam v. Keen, 4 Leigh’s 333, the owner of a bond which was in suit, and for which he held the attorney’s receipt, told plaintiff that he might have the bond, and delivered him the attorney’s receipt for it, instead of the bond itself, which was then filed in the suit in court. No consideration was given by the plaintiff for the bond: Held, that this was- a valid gift, and that the plaintiff was entitled to the money collected on the bond.
So it is essential to a gift causa mortis, that 'there should be an actual delivery, but it may be made tó a third person for the use of the donee, if the third person retain the possession up to the time of the donor’s death. Borneman v. Sidlinger, 3 Shep. Rep. 429: See Holley v. Adams, 16 Verm. Rep. 206; Windows v. Mitchell, 1 Murph. Rep. 127; McDowell v. Murdock, 1 N. & McC. Rep. 237; Raymond v. Sellick, 10 Conn. Rep. 480; Nicholas v. Adams, 2 Whart. Rep. 17. Where one person made a note and delivered it to a third, to be delivered to the payee after the maker’s death, it was held that it was not a good donatio causa mortis, because there was no delivery. Bowers v. Hurd, 10 Mass. Rep. 427. In Parish v. Stone, 14 Pick. Rep. 198, it was decided that the donor’s own promissory note could not be the subject of a donatio causa mortis. But in Wright v. Wright, 1 Cow. Rep. 598, the testator in his last illness, and in expectation of death, made and delivered his note without consideration intending it as a gift: Held, that it was valid as a donatio causa mortis, and the payee might
Conceding that Dr. Wliitloek in. taking the note of Mrs. Jordan payable to- the plaintiff in error, and in endorsing a credit on. the note of her testator to a corresponding amount, acted by the intestate’s directions, and still there is an absence of evidence to show a delivery of the note to. tire plaintiff, or any one for him.. So-that whether we consider the change of security by the new note, and extinguishment pro-tanto of the old one, as a pme gift, or donatio causa mortis, it is alike incomplete and ineffectual — ‘the transaction wants the indispensable element of delivery. It may be that the intestate under the influence oí grateful feelings, intended to make the plaintiff the beneficiary of his bounty, or under, a sense of moral duty he may have desired to. make the plaintiff the dispenser of his bounty to others (of which there is some intimation in the record.), However this may be, it is unnecessary even to conjecture, as he consummated neither of tire purposes,, nor did any act which invested the plaintiff in Ms individual right with a title to the note of Mrs. Jordan, or its proceeds.. The beneficial interest in that note uvas- vested in the administrator as such, and if necessary he could sue in the payee’s name-generally, or for the use of himself, as administrator, but no matter by what form of proceeding he collected the money, he would hold it as assets of' the estate be represented. This is so clear a sequence from the citations we have made and the evidence recited in- the reedrd, that it. is needless to add more upon, the point.
It is needless to consider the effect of the arbitration between Mrs. Jordan and the administrator, for the purpose of adjusting the intestate’s compensation ;• or whether as the' interest of both of them required the smallest sum to be agreed on, the aAvard is not invalid — there being no real controversy. As a general rule, it is clearly competent for an executor or admin--istrator to submit to arbitration any controversy concerning the estate, whether, the claim be for or against it. 1 Lomax, on. Ex’rs, 356.
In civil actions the successful party in this State, is entitled to full costs, except -where it is otherwise directed by law. Clay’s Digest, 316 § 20. In a court of equity, the costs shall be paid by either party at the discretion of the court. Id. 350 § 26. The estate of a deceased person is made chargeable with the costs and expenses of settling the same, Id. 191 § 1.
It must be admitted that the citations from the English law and our statutes are neither directly in point, yet they furnish analogies, more pertinent perhaps, than any that have fallen under our notice. In respect to Mrs. Jordan’s note for twelve hundred dollars, it was not returned in the account of the administrator as part of the assets of his intestate’s estate,- and upon exception to the account in this particular, he denied that it belonged to the estate, but insisted that it was his individual property under a gift from his intestate. The controversy which grew out of this exception, so far from being beneficial to the estate, if the administrator was successful, was directly the reverse; it was in. fact a litigation in which the administrator and legatee were personally and individually interested. If the former succeeded he would gain the amount of the note and interest, and thus far the estate would be diminished, but if the latter recovered, she would charge the, administrator to the extent of her recovery. The result was to falsify the administrator’s account and to determine
The costs consequent upon the exception to the debit of two hundred and fifty dollars, as the amount of the annual wages of the intestate should be charged to the legatee, if for no other reason, because the exception was not sustained by evidence.
We know of no other mode of adjusting the costs of the proceedings in the Orphans’ Court, so equitable as that we have stated. True, it may be difficult to ascertain with exactness which of the witnesses should be paid by the one party or the other; but this difficulty grows out of the case, and must be settled by the primary court, subject to revision to some extent by an appellate court. That a decree may be ' rendered according to the principles we have laid down, the decree is reversed, and the cause remanded.