11 Gratt. 182 | Va. | 1854
after stating the case, proceeded:
The appellant has no cause to complain, and does not complain, of the decree of the court below directing the issues. No exception having been taken to the verdict, and the court having rendered a decree thereon, the facts found therein must be regarded as the established facts of the case. Whether the testator stood in loco parentis, in relation to his nephew Boak; and whether the legacy was a portion, and the donation of the bonds, receipts and other evidences of debt was of such a nature as that, standing by itself, it would have been considered an advancement in satisfaction of the legacy; are questions which need not be answered in this case. For assuming them to be answered in favor of the appellant, that is in the affirmative, I am still of opinion that, according to the facts found by the jury, the case is in favor of the appellee. If from the mere fact of the donation of the bonds, receipts, &c., an intention on the part of the testator to satisfy the legacy to Boak would have been presumed, certainly the presumption would have been repelled by proof of a contrary intention. This is admitted by the counsel for the appellant. The question is one of intention, on all the facts of the case. The verdict expressly finds a contra^intention *in this case. It finds not only the fact of the donation of the bonds, &c., but that they were given for the purpose of discharging Boak from all accountability for the same as one of the legatees in his future settlement with the executor. The will had directed that Boak should be charged with the bonds, &c., in the settlement of his legacy. The established purpose of the donation was to discharge him from all accountability for the bonds, &c., in such settlement. The necessary consequence is that he is entitled to the legacy without any deduction on account of the bonds, &c. : just as if the debt had been paid by Boak, instead of given up to him; or as if the testator had made a codicil, releasing the debt and saying it was not to be deducted in the settlement of the legacy. The testator, by giving the legacy subject to a deduction of the debt, did not deprive himself of the power of afterwards receiving the debt; or giving it to the debtor, by a donation inter vivos, or mortis causa, or by a codicil: And if so received or given, the debt 'would be discharged, that part of the will directing a deduction of the debt from the legacy would be revoked, and the debtor would be entitled to the legacy without such deduction: Unless indeed the debt were given in satisfaction of the legacy; in which case the legacy itself would be revoked. I do not see how this matter can be made plainer by argument or by authority: And I do not think there can be any room for doubt as to the right of Boak to the legacy without any deduction for the debt if the donation to the debt was a valid donation. That question I will now proceed briefly to consider.
Whether the donation was valid or not, depends upon whether there was a sufficient delivery of possession to perfect the gift. All gifts, except by will, must be attended by delivery of possession to make them
In the case of Ewing v. Ewing, 2 Leigh 333, a gift of a bond to the obligor was held to be invalid for want of delivei'y: If the bond had been delivered the gift would have been sustained. This is obvious from the opinions of Judges Carr and Green. The former said, “Here it is expressly proved that the bond never was delivered nor any written transfer made.” The latter said, “In the case before us neither the bond in question, nor the money due upon it, could be effectually given or forgiven, or released to the obligor, but by the obligee’s canceling or destroying it with that avowed intention, or surrendering it to the obligor, or to some other for him, or by some instrument in writing to that effect.” See also the case of Dunbar’s ex’ors v. Woodcock’s ex’or, 10 Leigh 628, decided by a Special court of appeals.
A donation of a debt to the debtor himself is entitled to at least as much favor as a donation of the debt to a third person: and a delivery of the evidence of the debt is at least as valid delivery of the debt itself in the former as in the latter case. The delivery of the evidence of the debt to a stranger donee, merely enables him to obtain possession of the subject of the gift; while such a delivery to a debtor donee, ipso facto puts him in possession of the subject; or converts to his own use the possession, which he had hitherto held for the use of his creditor. Indeed, a dona
I think there, was a valid donation of the debt in this case ; and it follows that I am for affirming the decree.
The other judges concurred in the opinion of Moncure, J.
Decree affirmed.