The following facts were agreed on and submitted for the judgment of the court:
Jesse Eason, the plaintiff's testator, in his last illness, placed in the hands of the defendant a sealed note or bond for $600, on one Malachi Sawyer, with a special request that if he died it was to be divided between said Malachi and Josiah Eason. The said instrument was delivered to the defendant after the donor had made his will, and at the time of doing so he mentioned the fact that he had made his will, and the bond was not specially alluded to therein. It was without endorsement.
The plaintiff demanded the paper before bringing suit, and the defendant, at the instance of Eason and M. Sawyer, refused to give it up, whereupon this suit was brought.
His Honor, upon consideration of the case agreed, gave judgment for the plaintiff, and the defendant appealed.
We are unable to distinguish this case, in principle, from those of Fairly v. McLean, 33 N.C. 158" court="N.C." date_filed="1850-06-05" href="https://app.midpage.ai/document/fairly-v--mclean-3642922?utm_source=webapp" opinion_id="3642922">33 N.C. 158, and Brickhouse v. Brickhouse,Ibid., 404. The principle is, that if negotiable securities be given, either absolutely or upon condition, by the person to whom they are payable, to another, without endorsement, the executor or administrator of the donor may recover their value in an action of trover at law. The only ground of distinction between those cases and the present, which has been, or can be, suggested is that the latter is the case of a donatio causamortis, in which it is insisted that the law transfers the legal title to the donee immediately upon the death of the donor. (7) Why should that make a difference? A donatio causa mortis
is not a legacy which requires the assent of the executor to vest the legal title in the donee, but it is a gift, made in contemplation of death, which, upon delivery, passes the legal title at once to the donee, upon condition to be void if the donor do not die. If the attempted donation be of something which cannot pass at law by delivery merely, it follows that the legal title still remains in the donor, and upon his death must devolve
upon his personal representative. Hence, we find it expressly stated that bills of exchange and promissory notes, not payable to bearer, are incapable of being the subjects of a donatio causa mortis; see 1 Wms. on Executors, 504, and the cases there cited. The note in the present case, it is true, is under seal, but it is an instrument which by our statute law is made negotiable by endorsement, like bills of exchange, and must, in this respect, be governed by the same rules. This conclusion is not at all opposed by the decision of Lord Hardwick in Bailey v. Snelgrove, 3 Atk., 214, that a bond for the payment of money may be the subject of a donatiocausa mortis. That was a case in chancery, and it was held that the equitable interest in the bond passed to the donee, which does not militate at all with the position that the personal representative of the donor could, at law, recover the value of the bond in an action of trover.
PER CURIAM. Affirmed.
Overruled: Kiff v. Weaver, 94 N.C. 276.
Cited: Egerton v. Carr, 94 N.C. 651.