9 Fla. 359 | Fla. | 1861
delivered the opinion of the Court.
This cause was instituted on the equity side of the Circuit Court of the Middle Circuit, and was heard and determined by the Hon. J. "Wayles Baker, the Judge of said Court. The bill was filed by the appellant against the appellee, and the cause coming on to be heard upon demurrer, a decree was pronounced ordering the bill to be dismissed. From that decree this appeal has been taken.
The only question submitted for our adjudication, which it is material to consider, is whether the conveyance of the property as set forth in the bill can be sustained as a voluntary “ gift,” either “inter vivos” or “ causa mortis” The question of delivery being the only one contested in this investigation, we are relieved from a discussion of the attributes of a voluntary gift, and the numerous perplexing questions which are found in the reported cases touching the rights of creditors and the claims of legatees. In this case it is admitted that there are no creditors to contest, and the decedent dying intestate, there arises no question of conflict as to legacies.
It is insisted for the appellant that whether the conveyance be considered in the light of a gift “inter vimos” or “ canosa mortis ” the intention of the donor was never consummated; actual delivery of the property being essential and indispensable to the perfection of the title. In this respect we know of no difference between the two kinds of gifts, and the position assumed must be taken as admitted law. Blackstone says ;• “ A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately, as if A gives to B £100 or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor’s
In speaking of a donation “ causa mortis,” the same author says — “ that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods, to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor; yet it shall not prevail against creditors ; and is accompanied with this implied trust, that if the donor live, the property thereof shall revert to himself, being only given in contemplation of death, or £ causa mortis?”-Ib. 514.
It will thus be seen that whether the gift be considered as “mter vwos” or “causa mortis” a delivery of the possession constitutes the chief element of title, and is indispensable to the perfection thereof. What shall constitute a good delivery is a question of much greater difficulty, and is often attended with ranch perplexity. Its proper solution can only be arrived at by considering, not only the locality of the property, but also its nature and kind. As to the locality of the thing donated, it is not always practicable to make an actual tradition of the thing itself, and hence the delivery of a written conveyance, as in the case of vessels at sea, or of the keys, as in the case of goods in a warehouse, or trunk, are sometimes resorted to as a proper mode of transfer, and have ever been held to be a sufficient delivery.
A distinction has been made in some of the reported cases
Again, in considering what acts will constitute a sufficient delivery, reference ought to be had to the nature of the property or thing intended to be donated, for it is quite obvious that what might be esteemed a good delivery in the case of wild cattle or horses in the range, which might never be recovered by the donee, for the want of ability to control and reduce them to actual possession, might not be deemed sufficient in the case of inanimate articles, such as boxes or bales of merchandize or other articles.
And here again by analogy, there would seem to be a very wide difference between the acts which will constitute a delivery of animals as property, which have no volition or understanding, and such as possess these attributes. If a man in extremes were to declare to his dog or his favorite horse that he had given him to his intimate friend, and thereupon simply ordered him to repair to the residence of the intended donee, it would scarcely be seriously contended that these
Applying these principles to the case at bar, I now pro-1 ceed to consider the facts as set forth in the bill, and which are admitted by the demurrer. The essential details so set forth are as folloAvs, to wit:
“ That the said Simon Partridge,” (the intestate of the appellant) “ being in his last illness, Avas attended by the said Leonard (the appellee) as his physician ; that a few hours before the death of the said Partridge, the slave Ann above mentioned came into the room where he was, and in the presence of witnesses, told her master that she had selected Dr. Leonard for her future master; that thereupon said Partridge, who was fully aAvare of approaching death, directed a bill of sale or conveyance of said slaves, (Ann and the others above mentioned,) to be drawn up, which was accordingly done by the said Leonard, and the said Partridge.being too feeble to write his signature, one of the witnesses present guided his hand so as to affix his mark to said conveyance.” “ That the said slaves above specified were not present so as to be identified by any of the Avitnesses present at the above transaction.” “ That the said slaves remained*364 on the place until sometime after the death of Partridge, when Leonard came and wrongfully took them away.”
The bill also gives the following description of the slaves enumerated in the deed, and above referred to', viz : “ A woman named Ann, a mulatto about thirty years of age; Arthur, son of Ann, a boy about three years old, a mulatto ; a yellow girl, child of Ann, about one year old, name unknown ; a negro girl named Milly, about ten years old, a daughter of Ann; and yellow Harriet, a girl about eight years old, daughter of Ann.”
From this description it will be noted that the slaves constituted one family, embracing the mother and her children, ranging in age from ten years to one.
Adverting to the incidents of the transaction, so circumstantially detailed, the impression is at once made that these slaves constituted a family of favorite servants, for whose welfare and happiness it was the earnest desire <jf their master to provide, as the last act of his life. The conclusion is •also irresistible, that this desire had been previously communicated to these beneficiaries, and that the transfer to Hr. Leonard was only in execution of that design. We here behold the master in extremis, and perfectly conscious of his approaching dissolution: he is accosted by the mother of these children, all of whom are of tender age, and in the presence of witnesses, she informs him that she had selected Hr. Leonard for her future master. A deed of conveyance is drawn up, embracing the mother and her four children, and is duly signed by the donor, who dies in the space of a few hours afterwards. No fraud is alleged — no undue influence is intimated, but the transaction takes place in the light of day, and in the presence of unimpeached witnesses. The motive and design of the donor were certainly highly commendable, and his benevolent intention ought not to be defeated, if it- can be consummated without doing violence
But it was further insisted for the appellant, that the remaining of the slaves on the plantation of the donor, after his decease, was sufficient to negative the fact of a sufficient delivery. Whatever influence this circumstance might have had upon a gift inter vivos, in the circumstances of this case, we are disposed to attribute to it very little importance. The statement of the bill upon this point is, “ that the said slaves remained on the place until sometime after the death of Partridge.” ITow long a time they so remained, we have no information — it might have been a day or a year. And taking into consideration the fact, that the donor died within a few hours after signing the deed, and that there was consequently no space allowed for the locus penetmtice, we deem the circumstance wholly immaterial.
The argument was also pressed with much force, that in sustaining this transaction as a donatio oausa mortis, the
Upon full consideration of all the facts of this case, and the law bearing thereon, we are of the opinion that the decree of the Court below should stand.
It is therefore ordered and adjudged that the decree of the Chancellor, ordering the bill filed in this case to be dismissed, be and the same is hereby affirmed, with costs.