| Me. | May 15, 1847
The opinion of the Court was drawn up by
The Judge instructed the jury, that if the note was given and delivered to Mary Ann Parker, because the donor expected soon to die of the disorder then upon her, it was revocable at any time during the donor’s life, and the same could be afterwards given to the plaintiff, or to any other. This instruction was undoubtedly correct. It is laid down by elementary writers of the present day, that such gifts are inchoate, and are not perfected till the death of the donor ; they are revocable by the donor during his life. “ They are
A promissory note, made by a third person, is a proper subject of such a gift. Borneman v. Sidlinger, 15 Maine R. 429, and 21 Maine R. 185.
It appears from the case, that the plaintiff relied upon a gift and delivery of the note to her two days before the death of the donor. The defendant introduced evidence of a gift to Mary Ann, seven days before the death, accompanied with delivery. The jury have found a gift to Mary Ann, at the time stated, causa mortis; and a revocation of that gift and a subsequent one to the plaintiff, inter vivos. The plaintiff was permitted to introduce the declarations of the donor, made during a space of two months preceding her death, to show her intention to give the note to the plaintiff. This was objected to, and it is now insisted that the evidence was inadmissible.
The ruling of the Judge upon this point is attempted to be sustained on several grounds.— 1. That as the defendant claimed title to the note under a previous gift, and relied upon the acts and declarations of the donor at the time, these previous declarations were competent to repel the force of those relied upon by the defendant. An intention on the part of the donor, at an earlier period of her sickness, to give the note to the plaintiff, imposed upon her no obligation to do so; she had a right to change that intention at any time, and for reasons satisfactory to herself alone ; and in making the change she did no more than what is believed to be common in like circumstances. The declarations did not tend in the least, to show that she did not subsequently express different intentions ;
2. Again, it is contended, that these declarations are admissible on the ground, that they were made by the person, under whom both parties claim, while she was the owner of the note, and her situation is regarded similar to that of the payee of a note, transferred after its maturity, whose declarations are admissible, in an action between the indorsee and the maker, made while he was the owner ; or to that of the vendor, in a sale of property alleged to be fraudulent, whose declarations are also competent. In both the cases put by way of illustration, the declarations are in the nature of the confession of facts, the existence of which at the time are supposed to be adverse to the interest of the party making them. In the case at bar the declarations cannot be so treated; the note was hers; she could dispose of it as she pleased, without being subject to the complaint of any one; no person had by virtue of those declarations, even an inchoate right or interest in it; the intention alone, to do one thing or another in reference to the note, however fully and clearly expressed, was entirely nugatory.
3. But the ground mostly relied upon for their admissibility is, that the declarations were a part of the res gestae, that they were connected with, and gave character to, the act of gift to the plaintiff. Surrounding circumstances may always be shown to a jury, with the principal fact, “ and their admissibility is to be determined by the Judge, according to the degree of their relation to that fact and in the exercise of his sound discretion.” “ The principal points of attention are, whether the circumstances and declarations offered in proof, were co-temporaneous with the main fact under consideration, and whether they were so connected wdth it, as to illustrate its character.” 1 Greenl. Ev. § 108. Declarations, to become a part of the res gestae, “ must have been made at the time of the act done, which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize
It is often a nice question to determine satisfactorily, what declarations do make a part of the res gestae; and how near in point of time they must be to the principal act, to reader them a part of it. It may be, that statements are made anterior to the transaction, which are clearly connected therewith, and give it character ; but something must be presented to show the connection ; if not, declarations made a considerable time before, are inadmissible.
No question is made, that if nothing had taken place after the gift causa mortis, to Mary Ann, it would have been perfected in her by the death of the donor. But the plaintiff relied upon evidence of a revocation of that gift, and a subsequent one to her. By the last transaction, her title arises. The declarations of the donor, made in January and February, were accompanied with no act; and we have seen created no obligation on her part. All they show is, that the act two days before her death, was in harmony with the intention expressed long before; but that alone is not sufficient to make them a part of the act, which was performed at that time. There was evidence, which satisfied the jury, that when she gave the note to Mary Ann, which was between the time when the declarations were made, and that when the note is claimed to have been given to the plaintiff, the intention to make the gift to the latter was abandoned entirely ; she could not have entertained those intentions, when she was actually making the gift of the same note to another. These declarations could not be evidence of a revocation of a gift which had not been made, and it is difficult to conceive how they could give character to the act, relied upon by the plaintiff as establishing her title, when they were severed from that act by a transaction, which clearly showed that those intentions had ceased to have any influence. Exceptions sustained.