3 Del. Ch. 51 | New York Court of Chancery | 1866
The complainant, John Robson, was indebted to his father, Michael Robson in two judgment bonds, one dated March 25, 1856, for $1000. and the other dated April 30, 1857, for $500. After the father’s death these bonds came into the possession of his administrator, the defendant, who caused judgments to be entered and executions to be issued. This bill is filed to restrain the collection
I. It is insisted that there was a gift inter vivos of the principal of these bonds to John Robson. To this position there are two fatal objections :
1st. The benefit which Michael Robson intended for John was testamentary. In each indorsement the “gift” so called, is declared to take effect “at my death” not before; and this as to all that the gift embraces, — that is, the bonds, the whole, both principal and interest, not the former as contra-distinguished from the latter. There is nothing in these indorsements which,by the most strained construction can, in the donor’s lifetime, carry to John, Robson any benefit, or take from the donor any right, in these bonds or control over them i. e. to collect the whole, principal and interest, or to make any disposal of them whatever. So clear is this construction that had either of these indorsements been signed and attested, according to the statute of wills, it would have been valid as a testamentary disposition of the debt. Nor can there be the least doubt as to Michael Robson’s power, at pleasure, to strike off these indorsements and revoke whatever effect could be ascribed to them, I mean so long as the bonds themselves should remain under his control, uncancelled or unsurrendered. Now, if a discharge of John Robson at his death, directed by a will executed with all legal solemnity, would have been revocable, how much more so, an indorsement of such a nature that it may well be denominated an informal will. Indeed, the real and only difference between the two is that the indorsements need no revocation, as would a will, to defeat their effect; for, taken alone, they have no legal operation, being the mere
In thus construing these indorsements upon their face we are relieved from any apprehension that Michael Robson’s inartificial language may have failed to express all that he meant. For the frequent declarations he made of his purpose respecting these bonds shew that he intended John Robson to be discharged from the bonds only at his (Michael’s) death, and that meantime they were to remain in full force and subject to his absolute control. In all his conversations on the subject his language is such as this. To'Mrs. Senior he said “the money John owes ’ (this means the principal) “is a free gift to him at my decease “the bonds are to be given up at my death.” To Wm. Surgen hé said with a difference of mere phraseology, that “he would have them fixed so that they could not be collected after his death!' And in similar style were his declarations to David Senior, Mary Bennett, John P. Hudson and Hannah Surgen. With respect to the condition of the bonds in his lifetime, no expressions by him indicate that John was to take any benefit or that the force and effect of the bonds or his own control over them were to be at all impaired. On the contray, after the indorsements were made and while he no doubt considered them as giving legal effect to his wishes he held John bound for the interest, collected it in part and charged him with the unpaid interest in an account kept up to Sept. 1864; and on this very ground, that is the necessity of keeping the bonds in force in order to secure him the interest, he declined the suggestion of friends that he should surrender or destroy them; a suggestion made once by Wm. W. Nelson and at another time by Mrs. Surgen. His notion was in accordance with the legal effect of any present discharge of the principal; for this would necessarily discharge the interest. The interest is but an incident or consequence of the obligation to pay the principal and must stand or fall with it. Again, to several
I cannot then accept Mr. Rodney's proposition that the gift, intended in these indorsements, and insisted to have been effectuated by delivery of the bonds to Mrs. Surgen, was an 'immediate discharge of the principal, operating, that far, inter vivos, with a reservation of the interest during his lifetime. On the contrary, his intention was to hold both principal and interest in force during his lifetime : indeed, their separation would have been legally impracticable. If this view of the testamentary nature of the benefit intended for John Robson is correct, then, it cannot be the subject of a gift inter vivos. The two things are incompatible ; the one being intended to operate after the donor’s death and subject in the meantime to his control and revocation ; the other, as its name imports, “gift inter vivos,” being a gift to operate, if at all, in the donor’s lifetime, immediately and irrevocably. It is a gift executed. No further act of parties,no contingency of death or otherwise, is needed to give it effect. Says Kent, 2 Comm. 354; “Gifts inter vivos have no reference to the future and go into immediate and absolute effect.” It is true, as the complainant’s counsel suggested, that under a gift inter vivos a party may take a benefit to accrue at a future day — it may be at the donor’s death. But this can be only through the instrumentality of a trust created either in a third person or in the donor. The effect of creating the trust is to divest at once the former property of the donor in the thing so given. Such a gift is no less immediate than in the ordinary case. No such trust was created with respect to these bonds.
2d. In this view of the case it becomes unnecessary— perhaps inappropriate — to consider under this head the question of the delivery of these bonds to Mrs. Surgen.
II. Was there then a gift causa mortis ?
A gift causa mortis has some properties in common with gifts inter vivos and some in common with legacies ; but in its essential properties it is testamentary ; being made in consideration of the donor’s death ; and being in the meantime revocable. It is in fact one of the exceptions (nuncupative wills being the other) to the policy of the statute of wills, which requires dispositions of property intended to take effect after death to be made in writing, signed by the party making them, and attested by two witnesses, — an exception originally allowed as a concession to those who through sickness or some impending danger were disabled from making a formal will. Hence, the validity of such a gift is subject to these conditions. 1st. It must be made “in peril of death.” 2d. To guard against fraud and supply an equivalent to the written evidence of intention, an actual delivery of the property is required. 3d. Upon the recovery of the donor and his consequent ability to comply with the statute, the dispénsation from its requirements ceases and the gift causa mortis though valid when made becomes of no further force. No express condition to this effect is necessary.
The case before us presents two questions which were thoroughly and ably argued.
1. Was Michael Robson in “peril of death” at the time of the supposed gift causa mortis?
1 have labored to obtain from the authorities a clear view of what is implied in these terms, “peril of death ”— in other words, what is that precise condition of disability jn consideration of which it is that the law gives effect to a gift causa mortis. Thus much is certain, that the gift to be valid in the first instance must be made under apprehension of death, as likely to result from some present peril, usually that of sickness. It is further certain that
One would naturally suppose that- as this class of gifts was introduced into the common law manifestly as an exception to the policy of the statute of wills — a policy deemed of great importance as the cautious provisions respecting nuncupative wills shew — it would have been from the beginning confined to cases of actual disability, or at least of embarrassment, on the part of the donor, caused by a sense of the presence or near approach of dissolutions a condition in which a compliance with the formalities of the statute could not reasonably be required. It is altogether probable that originally gifts causa mortis were allowed to be made only, by persons in extremis. In the first reported case of a gift causa mortis, Hedges vs. Hedges, Prec. in Cha. 269, Lord Ch. Cowper, a learned and accurate judge, defines a gift causa mortis to be “where a man lies in extremis, or being surprised with sickness and not having an opportunity of making his will, but lest he should die before he could made it, he gives with his own hand his goods to his friends about him. This, if he dies, shall operate as a legacy, but if he recovers then does the property thereof revert to him ? This decision in 1708, announced a rule clear and easily applied; but the whole course of decisions since has had the effect to obscure it; and it- is impossible to derive from them any Certain rule on the subject. Cases have occurred of gifts
The question is uncontrolled by any decisions known to me in our own Courts ; and as between the English cases I confess a strong preference for the narrower construction of these terms “peril of death,” the one which seems to have been at first held. It is consistent with the original object of admitting these gifts into the English laws ; it guards the policy of the statute of wills; and prevents frauds and uncertainties of title. It is worthy of remark that the two most eminent of English Equity Judges, Lord Hardwicke in Ward vs. Turner, 2 Ves. Sr. 437; and Lord Eldon in Duffield vs. Elwees, 1 Bligh 533, have expressed, as the result of their judicial experience, strong regret that gifts causa mortis had not been wholly abolished.
The views here expressed are founded upon the consideration that gifts causa mortis are testamentary in their nature and should be dealt with as exceptions to the policy of the statute of wills. Judge Gibson, in Nicholas vs. Adams, 2 Wharton 17, holds to the contrary, that these “gifts are not testamentary but, as he describes them, “ are gifts executed in the first instance by delivery of the “thing, though defeasible by reclamation, the contingency “ of survivorship or deliverance from the peril.” He treats a gift causa mortis as but a conditional gift inter vivos, and not as being testamentary in its nature nor within the policy of the statute of wills; and hence he naturally attaches the less importance to the donor’s condition of peril as one of the pre-requisites to a gift causa mortis.
This presents to the counsel the exact result of an examination of the question what is the legal sense of the terms “peril of death,” as expressing the donor’s condition at the time of the gift — whether to sustain the gift it must appear that he was, when making it in extremis. Though with a strong inclination in favor of such a conclusion, yet not finding any rule satisfactorily settled, I leave the
The inquiry goes to the time of the transaction with Mrs. Surgen. This she states occured in the latter part of the fall of 1864. In this an examination of the whole testimony shews she is mistaken ; it was in the middle or latter part of January 186$. She further states that when he handed her these bonds “he was in usual health;” “it was,” she said, “not during his last sickness” ; by this I do not understand her to mean that he was in good health, but only that he had not taken to his bed with the last sickness. Other witnesses describing his condition from the middle of January tothemiddle of February, at which last date he took to bed, say that he was “poorly,” that his health was bad,’’that he “had the chills, sometimes feeling pretty well, at others quite sick.” Speaking particularly with reference to the conversation with Mrs. Surgen and his handing her the bonds, the witnesses all agree that he'was not then confined to his bed ; that a few minutes after the transaction he walked out into the yard. It is also proved that a short time after this he walked to Kenton, one mile distant, also to Wm. Surgen’s, two miles distant. The whole testimony fixes the time of his first confinement to bed as the middle of February, and he died early in April. .
After carefully weighing all the circumstances I am unable to say that at the time of the conversation with Mrs. Surgen, Michael Robson was in his last sickness, or laboring under an existing disorder then threatening and which terminated in his death. Undoubtedly there had set in a decay of his natural powers, which rendered him less able to resist the effect of exposure, and there was a connection between this and the sickness of which he
And such, it may be added, was the spirit of his remarks to Mrs. Senior, when speaking of his affairs, he said to her: “Ann, I am going to die, let there be no quarreling ; the few things that I have shall be equally divided amongst you all, &c.” Further, as to the actual condition of his health there was certainly nothing in it to disable him from making a testamentary disposition of his property according to the statute. Were I to rest my conclusion on this subject upon the narrower sense of the terms “perils of death,” I should say, beyond all doubt, that Michael Robson was not in the condition contemplated by them; and, on the other hand, applying these words in their largest sense, as raising only the question
We may now take up the other question material in considering whether there was a gift causa mortis of these bonds. Was there a sufficient delivery of them to Mrs. Surgen for John's use ?
Before the great case of Ward vs. Turner 2 Ves. Sr. 443, the question of delivery, whether it was necessary at all, and if so how to be made, rested in uncertainty. This resulted from the fact that under the Civil Law, from which these gifts were taken, there were several distinct classes of gifts causa mortis, to some of which delivery was essential, to others not so ; and, prior to the case referred to, it had not been clearly determined how far and under what limitation these gifts were adopted into the common law of England. Lord Hardwicke, in an elaborate and historically interesting opinion, defines the very limited extent to which the English law had borrowed from the civil law system of gifts causa mortis, taking, as it did, only one out of the three classes which were recognized by the civil law ; and he shows that, to the class adopted, delivery in the donor’s lifetime was essential under the civil law, and that, with much more reason, it should be required under the common law in order to protect the policy of the Statute of Wills. He decided in that case that, in England, delivery was in all cases essential; that the delivery must not be merely symbolical but by actual tradition of the thing itself, or of that which gives control of it, as the key of a chest or warehouse, holding that a delivery of receipts for money paid for South Sea annuities was not sufficient without an actual transfer of the annuities in the appropriate legal mode. These two points were never afterwards controverted ; but there remained to be.settled another question entering into the subject of delivery, which was afterwards much discussed in a series of leading cases;
The latter is the established doctrine. The leading cases are Bunn vs. Markham, 7 Faunt 231: Hawkins vs. Blewitt 2, Esp. 663: Reddell vs. Dobree 10 Sim. 245 and Farquahrson vs. Cave, 2 Collyer, 356. To two of these cases it is worth while to refer, that we may observe the rigor of the rule as settled by them. In Bunn vs. MarkJzam the decedent took from a chest certain India bonds and bank notes, sealed them up in two parcels, wrote on the parcels the name of the intended donees, charged his natural son to deliver them to the parties after his death, and then put them back into the chest. A few days after he delivered the keys to one of the parties, a woman who lived with him as his wife, charging her to keep them and telling her that the contents of the chest were to be her’s and her daughter’s, and many times afterwards he declared that the contents were for these parties ; .yet he did not part with the iron chest nor with the controlo/ the keys-, and on that ground the Court held that there was no sufficient delivery.
One of the other cases cited, Reddell vs. Dobree, is even stronger. There the decedent delivered to the plaintiff a locked cash box and told her to go at his death to his son for the key, that the box contained money for herself and entirely at her disposal after he was gone, but that he should want it every three months whilst he lived. The box was twice brought to the decedent at his desire and he redelivered it to the plaintiff and it was in her possession at his death. Attached to the key was a piece of bone with the plaintiff’s name engraved upon it, and in
This language of the Vice Chancellor of course means control over the box, the possession of it — a control over the gift, in one sense, the donor of a gift causa mortis in all cases retains, that is, the power to revoke it.
The severity of the doctrine of • these cases is not without a sound reason. A gift causa mortis being a parol gift a delivery of the subject of the gift stands as an equivalent for the written testament required by the statute of wills in order to guard testamentary dispositions of property. To be such the delivery must amount to an actual, unequivocal, complete tradition of the thing, wholly divesting the donor’s previous possession and control of it. In short, it must be such a delivery as would make the transaction a gift inter vivos if that was in the contemplation of the donor. Such is the scope of Lord Hardwicke’s reasoning in Ward vs. Turner. The principles settled in that case, have governed the subsequent course of decisions.
Let us now apply the rule established by the cases on this question of delivery. Suppose we concede to the transaction between Michael Robson and Mrs. Surgen, on which it is that the whole question of delivery rests, the utmost effect in favor of John that can be claimed, viz; that Michael Robson’s purpose in it was that Mrs. Surgen should hold the bonds till his death and then, pursuant to the indorsements, deliver them to John. More than this
But to decide this question of delivery upon what in point of fact is the true ground, it must be said that, in the transaction with Mrs. Surgen,Michael Robson had no reference whatever to the indorsements on the bonds ; that the bonds were handed to Mrs. Surgen not with any purpose of their being held by her for John’s use ; that in short the transaction was not in any sense a delivery of the bonds, but'a mere deposit of them with her, as her father’s custodian, for safe keeping and subject to his own exclusive control and dominion, with no other legal effect than would have attended a change from one chest to another or a deposit with a banker.
III. We next consider the third ground of equity insisted upon, which is, that the transactions inquired about are such as a court of equity may give effect as an equitable assignment or release.
A striking feature of this case, which renders inapplicable the doctrine of equitable aid to imperfect assignment or releases, is the testamentary character of the benefit intended for John Robson. In order to effectuate
It will be found on careful examination that the power of equity to enforce instruments or acts imperfect and void at law has been applied only to such instruments or acts as operate between parties, inter vivos, such as contracts, covenants, and settlements, the execution of powers &c. With respect to these no statute' interposes to restrain the court from enforcing the obligations of parties or carrying into effect their intentions. But with testamentary dispositions the statute deals exclusively ; over’these the Court has no control.
I do not say that a case may not be put in which relief would be given against the consequences of an imperfectly executed' will; as if a father, upon the marriage of a daughter, should agree to leave to her by will a certain portion, or as if a person should agree to compensate, by a legacy, service rendered. An obligation may thus be incurred, upon the failure to fulfil which, equity, after the decease of the contracting party, might decree an equivalent out of his estate ; but it would do this, not by way of setting up or giving effect to an imperfectly executed will, but, by decreeing compensation for the breach of the agreement. Its action would be not to enforce the instrument but the obligation of the party. In the present case it is not any obligation of Michael Robson that the Court is called upon to enforce, nor, under this head, is it to fulfill his mere intention, irrespective of any attempt made by him to execute it ; but the aid of the Court is invoked to give effect to these indorsements as an imperfect execution of what he intended to do, and such effect can be given only by treating them as if they were a duly executed will.
The case is urged as one of what are termed “imperfect gifts,” which are cases of an attempt made to dispose of property by way of gift, assignment or release, but which fails at law through defect of some legal requisite. Equity, in such cases, is invoked to interpose and supply the defect or, which is the same thing, to enforce the gift notwithstanding the defects. Such a power this Court does exercise, and, properly applied, it is a most beneficent one. For it is applied, (subject to some exceptions to be. presently noted,) only in order to enforce obligations and to protect rights already existing, but which through mistake, accident or neglect, lack the requisites necessary to give effect to them at law. In such cases equity intervenes ; but it does so to enforce an obligation, to protect a right, to prevent wrong and injustice, not, I may add, merely to carry into effect an unexecuted intention out of which no legal obligation has arisen. The power exercised is of the same nature with that by which equity enforces a specific performance, compelling a conveyance of title where the party has not conveyed it at law, but has brought himself under a legal obligation to do so. Hence it is laid down as a general rule that equity will enforce an imperfect gift or contract, or aid a defective conveyance or settlement only for a party claiming upon a consideration and not for a volunteer. This rule as a general one is so well established that authorities 'for it need not be cited. Now with respect to another question, viz ; what is a sufficient consideration to induce the Court to interpose in these cases ? There whs at one time much doubt whether a mere meritorious consideration (such as the payment of existing debts or a provision for a wife or child) as contra-distinguished from a valuable considera
I need hardly stop here to say that John Robson is a volunteer; that his claim does not rest upon a valuable consideration. He did indeed, after he came of age, render his father service; but this was while he was living with him and supported by him, and not under circumstances which could create any legal obligation- on the part of the father. A valuable consideration must be such as creates a legal obligation. I cannot even say that it would be a case of meritorious consideration,if that were sufficient. For this also presupposes an obligation, though a natural or moral one, arising out of the dependent condition of the person to be provided for ; as a wife or a minor child. Mere relationship by blood of a person of age and capable of self-support does not impose that natural obligation from which springs a meritorious consideration.
There are, however, two classes of decisions under which equity has,even in favor of volunteers, enforced what at law would be imperfect gifts or assignments. We should,
Lord Cranworth, in a very late case, Jones vs. Locke, decided in 1865, L. R. 1 Ch. Ap. 28, speaks of these last decisions as “unfortunate” ; and their soundness may well be questioned.
But, accepting this doctrine of voluntary trusts to the full extent to which it has been carried, still it does not reach the case before us. For all the decisions on this subject proceed upon the principle that the donor, in order to create effectually a trust, whether in himself or in a third person,must have intended to put the subject of it wholly out of his own dominion, that is, as the owner of it. To constitute himself the trustee of property remaining in his possession and not transferred at law, it must appear from his acts or declarations that he intended to part with his former ownership of the thing and to retain only the legal title and control which belongs to a trustee, precisely such as would pass to a third person taking as a trustee in the first instance.
The necessity of a clear intention on the part of the donor to part with the entire control of the subject of the gift, in order to create a trust of it, is well illustrated by Hughes vs. Stubbs 1 Hare 476, a much stronger case in favor of a trust than is the present one. A testatrix drew a check on her bankers for ^150 in favor of Mrs. Gelding, and verbally directed her to apply that sum or so much of it as might be necessary to make up to a legatee the difference in value between a legacy of ^xoo which she had by will given to the legatee and the price of a ;£ioo share in a certain railway; the testatrix informing Mrs. Gelding that she had intended to give the share instead of the legacy, but she did not think it necessary to alter her will; and the banker gave credit to Mrs. Gelding for the ^150. In a suit for administration of the testatrix’s estate, it was held that there was no trust
The other class of exceptional cases referred to, in which equity will, for a volunteer, aid a gift incomplete at law, are those in which it has been held that the delivery by a donor in his lifetime, by way of gift causa mortis, of a chose in action not passing at law by delivery only, entitled the donee after the donor’s death to call on his executors or administrators to make an assignment at law
This doctrine was first announced by Lord Hardwicke in Snellgrove vs. Bailey, 3 Atk 214, which was the case of a bond delivered as a gift causa mortis to a third person, not being the debtor. The Court there held that, inasmuch as the bond could not be collected without profert (such was then the law) and the collection of the debt was inseparable from the possession of the instrument, the delivery of the bond might be considered to pass an equitable interest in the debt and on the donor’s death without revocation to raise a trust between the executor or administrator and the donee which equity would enforce. And besides there being, at that period, no legal form for assigning a specialty debt, the delivery of the instrument was all that could be done by the donor towards completing such a gift.
Following this decision of Lord Hardwicke was a long struggle as to the application of the same doctrine to mortgages, which finally ended in the case of Duffield vs. Elwees, in the House of Lords, 1 Bligh's New Rep. 497, in which, in an opinion by Lord Eldon, it was held that the mere delivery of a mortgage i. e. of the investment, as a gift causa mortis passed on the donor’s decease without revocation an equitable title, and that equity would compel a conveyance by the heir on the footing of a trust. Since the last case, by an easy extension, the same principle has been applied to all choses in action not passing by mere delivery, to unindorsed notes, bills, &c. In some of the States, as in Maryland, the doctrine of these decisions is rejected. If it stood merely upon the technical ground on which Lord Hardwicke applied it to a bond it could not now be sustained ; for forfeit of a bond is no longer essential to a recovery; and, it may be added, the statutory provision for assigning specialties enables the donor in his lifetime to make the gift effectual at law. But the doctrine, in the later cases, rests upon and is well'
But it concerns us, for the purposes of the case before us, to note that, in applying this doctrine, equity never aids thé gift by supplying the want of a sufficient delivery. The doctrine proceeds on the ground that the gift is already complete ; that it was completed by the delivery of the instrument in the donor’s lifetime. Equity interposes, not to perfect the gift by supplying what the donor has omitted, but only to make the gift fruitful, to enforce what it treats as an incident or consequence of the gift, i.j. in the case of a bond, the use of the executor’s or administrator’s name to collect it; or, in the case of a mortgage, the conveyance of the land in execution of the- trust resulting from the delivery of the mortgage.
In the present case there was no delivery of the bonds by Michael Robson to John Robson or to his use ; no completion of the gift by Michael Robson. There is wanting the basis of fact on which the doctrine of the cases referred to rests.
We must then treat the case before us as within the general rule that equity will not, for a volunteer, aid a gift, imperfect at law. And now it will be interesting and pertinent to observe how rigorously, in the course of decisions, this rule has been applied to cases similar in general features to the present one, i. e. cases of gifts attempted to be made in contemplation of death but failing, as gifts causa mortis, for the want of a sufficient delivery.
In Tuffnell vs. Constable, 8 Sim. 69, a creditor of the complainant, Tuffnell, held his bond for £12,00. He signed an indorsement on the bond formally releasing £700 of the debt, stating that in consequence he had that day revoked a legacy to Tuffnell of the like amount; which was the fact. The bond remained in his possession until his death and his executors proceeded to collect it. The V. C., Sir L. Shadwell, refused to interfere, stating that the gomplainant “gave no consideration for the alleged “release, and that as he was a volunteer he had no right “to come into equity for relief.”
In Dillon vs. Coppin 4, M. & C. 647, a father attempted by a deed poll, which at law was inoperative for the purpose, to settle certain stocks on a married daughter, a Mrs. Coppin, for whom at marriage he had made no provision. To other daughters he had made advances at their marriage ; and his object was to place all his daughters on an equal footing. The deed poll was prepared by a solicitor and formally executed, but was never delivered to Mrs. Coppin or her husband and was found in the father’s possession at his death, sealed in an envelope, on which in his handwriting was indorsed “ Papers concerning Mr. and Mrs. Coppin and their chil- “ dren in regard of their being no settlement made on them “at the marriage. To be given up to Mrs. Coppin at my “death, and immediately. Drawn by Mr. Evans, Solicitor,
In this case the power of the Court to aid imperfect gifts was thoroughly discussed, including the question how far a meritorious consideration would avail, it being an attempt to provide for a daughter; also, whether the father had not done enough to make himself a trustee for the daughter. But Lord Chancellor Cottenham, held that the deed was inoperative at law, that no trust was created, and that equity could not relieve. With respect to this case of Dillon vs. Coppin, the editor of Redfield’s Edition of 1 Story’s Eq. fur. Sec. 793 c. states that in Kekewich vs. Manning, 1 De Gex. M. & G. 176, Lord Justice Knight Bruce in ah able review of all the cases on this subject had considered Dillon vs. Coppin as “ not “ being in accordance with the course of decisions.” This remark is inaccurate, as appears from an examination of the opinion of Ld. Justice Knight Bruce. He cites Dillon vs. Coppin as among the class of cases ih which attempts at a gift or settlement have been held insufficient to create a trust, and without impeaching any of those cases he concluded that other decisions under which trusts were held to arise were more applicable to the circumstances of the case before him. And in this connection it should be noted that, among the great number of cases on this subject, any apparent conflict of decisions has ■ turned only upon the question whether in the particular case the gift was or was not imperfect, whether what had been done was or was not sufficient to pass an interest at law, or to create a trust in equity. There has never been any difference of opinion as to the rule that if the gift is imperfect, equity will not interfere except to protect rights springing from a consideration, or unless sufficient has
The complainant’s counsel took the position that although an imperfect gift or conveyance will not be enforced against the donor in his lifetime, yet that, after his death, equity, in consideration of his intention, will enforce the gift or conveyance as against his representatives. To this 1 Sto. Eq. Jur. Sec. 433 note, was cited. The position does not seem to be sustained by the reference, nor by any authorities elsewhere-; and it is in conflict with the whole course of decisions. There is but one instance in which a gift revocable by the donor in his lifetime can be enforced against his representatives ; and that is the ordinary case of a gift causa mortis, which from its nature is revocable by the donor while he lives, but if not revoked passes an absolute interest at his death. The conclusion upon the ground of relief now under examination is, that,there being no delivery of John Robson’s bonds to him or for his use in Michael Robson’s lifetime, the only act by him to aid which a court of equity can be invoked is the making of the indorsements on the bonds, that effect cannot be given to these by way of assignment or release operating presently or as a gift inter vivos, for, irrespective of John’s being a volunteer, such was not the purpose or intent of the indorsements, but the very contrary; and equity where it gives effect to an imperfect instrument can do so only according to the intent of the party making it; that these indorsements were intended to discharge John at Michael Robson’s death; that for such a purpose they are inoperative at law as a will, for want of the statutory requisites, or as a gift causa mortis, for want of a delivery; that neither of these defects can a court of equity supply; — further, that no trust has been
IV. The fourth and last ground of relief insisted upon at the bar is that Michael Robson, having in his lifetime treated these bonds as functus officio or discharged, (and whether this were by payment or voluntary forgiveness it matters .not, )a court of equity, in consideration of his intention, and even without any act of release sufficient in law or which equity could give effect to as a release operating in his lifetime, will after his death treat them as he himself did, i. e. as discharged or not obligatory..
The principle invoked under this ground of relief is suggested as one pectiliar to the relation of debtor and creditor, and as giving effect to the mere intention of the creditor, even without any specific act of release or attempted release, — the intention being gathered from his course of dealing with the debt and being open to proof by any mode of evidence, parol or otherwise. Now to the application to this case of such a principle, were it ever so well established, two objections arise out of the proof.
1. Michael Robson did not in his lifetime treat these bonds as being then discharged or forgiven. His intention was directly the contrary, i. e. to hold them in force while he lived. All that the case presents at the best is an intention, ineffectually executed, that they should be forgiven at his death. Such an intention, as mere tmfulfilled intention, the Court has no power to execute short of making a will for him ; and this is a proposition not to-be entertained. Nor can the Court, as has been already fully discussed, aid'the imperfect attempt made by Michael Robson to execute his intention. On this point the case s similar in principle though not so strong in its circumstances, to Tuffnell vs. Constable, before cited, in which a deceased creditor had indorsed and executed on the bond a formal release, but without delivery, directing that it should be delivered at his death. Here was, beyond all
2. On another point of fact the principle relied on, even if tenable, would fail to reach this case. If in any case the Court can hold as discharged a debt due to a decedent on the ground that he himself so treated it, giving effect not to any specific act of release but to his intention that it should not be collected, there must at the least appear to have been a fixed, abiding intention, continuing until death, to forgive the debt. But Michael Robson’s intention to forgive this debt, though it was quite settled at the date of the indorsements and for some time after, became before his death fluctuating and doubtful. The evidence on this point has already been stated. It is true, he did not cancel the indorsements; and if they had of themselves any legal operation this would have remained unaffected by the unsettling of his purpose ; but the ground of equity, now considered, proceeds upon the concession that these indorsements in themselves were ineffectual, and that it is the intention unfulfilled at law which equity, under the circumstances, may execute. In this view any change of Michael Robson’s purpose becomes material.
3. But further, after much reflection, the doctrine seems to me unsound and not supported by authority, that a court of equity will, under any circumstances, hold the debt due to a deceased person discharged on the mere ground of his intention not to enforce it, or of his treating it as not obligatory, even in his life time. There are appropriate and suitable modes for the legal discharge of the debt ; as by a formal release, cancellation, or surrender ; and where through mistake or inadvertence an attempted discharge fails at law and a consideration exists, creating a right to the discharge which equity ought to protect, then a court of equity can enforce the defective attempt to discharge the debt. But where no effectual attempt has been made, or none which equity, on the principles before stated, can aid, then to give effect to an
The exercise of such a power by the Court does not, upon careful examination, seem warranted by the four cases cited to support it. One is Wickett vs. Raby 2, Bro. Parl. Cas. 386. This was a claim by one Raby to be discharged from a bond debt due to Walter Piggott, deceased, and to have the bond surrendered by the executor. The Court sustained the claim — on what ground does not certainly appear, no reasons for the decision being reported. But the argument for the debtor claimed that certain declarations and directions of the creditor respecting the bond in his lifetime, together with an acknowledgment by the executrix after his death and her express promise to to deliver up the bond, were evidence sufficient of a trust created in her for that purpose, and it was in execution of a trust, not of a mere intention to forgive, that the interposition of the Court was sought. It is reasonable to presume that the decision rested upon the grounds argued ; and, if so, it does not establish the principle now under consideration or any principle applicable to the case before us. One cannot but observe that the facts as reported in Wickett vs. Raby do not afford sufficient evidence of a trust. The report of the proof may be imperfect ; but at all events it is only with the principle decided by the case, and not with the correctness of the construction given to the facts, that we are concerned. '
Another of these cases is Eden vs Smyth, 5 Ves. 341, That arose on a bill filed by Eden against the executors of Smyth, his father-in-law, for payment of a legacy of 7T000, under Smyth’s will. The residue was given to
Now, the great question in that case was as to the construction and effect of the will; whether the legacy was meant to be actually paid, as it was in fact expressly directed to be within twelve months ; and whether in the “residue” given to Eden’s children the testator meant to include these claims against the father. It was held by the Lord Chancellor, Loughborough, that on the face of the will prima facie the legacy was to be paid clear of any deduction, which was all the bill sought ; that the only doubt as to this arose from collateral papers found in possession of the testator, i. e. Eden’s bond to the testator for ^1000, and his bond to a third person for £500, which testator had paid off; and that the doubts arising from his possession of these papers might be and were rebutted by other collateral papers, letters, memoranda &c., of a very conclusive character, shewing that his intention was to have the legacy paid clear of any claim on the part of his executors. The effect given to the evidence was to sustain the prima facie construction of the bequest; and the -bequest thus construed, not the collateral proof, operated as a discharge.
This general view of the effect of the proof in Eden vs. Smith was sufficient to dispose of that whole case. But the Lord Chancellor in his examination of the evidence found to his satisfaction that each of the claims against Eden had been discharged upon special grounds in no way applicable to the case before us. He held (1) that as to the ^1000, bond given to the testator there was evidence sufficient of an actual release pleadable at law. Further, he held that as to Eden’s bond given to a third person and paid off by the testator, the testator’s omitting to take an assignment was evidence that the money was applied to this bond as a gift to. Eden. The same view he took of the £200, advanced by the testator to Eden without the taking of any bond. Consequently as to these two sums no liability on the part of Eden to the testator ever occurred — and lastly, as to their joint obligation to Boucher for ^1000, in which testator was surety, the Lord Chancellor held that it being unpaid at the testator’s death and no liability having as yet accrued on the part of Eden to the testator, the evidence was admissible and sufficient to shew that the testator considered this bond as his own debt, and to be paid by his executors in relief of Eden.
This case, therefore, of Eden vs. Smith, affords no authority for the doctrine involved in the complainant’s ground of relief now under consideration.
The last of the cases referred to by complainant’s counsel is Aston vs. Pye, cited in 5 Ves. 354, by Lord Loughborough from his note book. It is very briefly stated. It was a suit in the court of common pleas directed by the Master of Rolls on Pye’s note by the executors of the creditor. The defense was a release, of which the evidence was claimed to be an entry in the testator’s books made thus, “Pye pays no interest nor shall I ever take the “ principal except greatly distressed.” At first the Court held this entry not to be a release but a testamentary paper, to be proved in the ecclesiastical court, and adjourned the case that probate might be made. But the ecclesiastical court refused probate. Then the court of common pleas, considering that the entry must of necessity operate as a discharge in some way, and that under the decision of the ecclesiastical court it could not operate as a testament, gave effect to it as a release at law. Lord Loughborough, who sat in this case, owned that he did not concur in the decision, but acquiesced because it was just under the circumstances, the testator being in affluent circumstances, and having never demanded interest.
It must be admitted that Aston vs. Pye in its facts was no stronger for a discharge of the debt than is the present case. But Aston vs. Pye is a slender authority ; it is meagerly stated from a judge’s note book, disapproved by the Chief Justice who sat in it, decided without deliberation, and carrying the effect of the entry made by the creditor to what we must pronounce an absurd conclusion,
Upon the whole case, the conclusion is that the bonds of John Robson remain in full force for the amount of principal and of interest unpaid ; and that the injunction so far as it restrains the collection of this amount must be dissolved.