Singleton v. Cotton

23 Ga. 261 | Ga. | 1857

By the Court. —

Lumpkin, J.

delivering the opinion.

The testator, Cotton, is alleged in the bill, to have left upwards of $6000, in cash and notes, to Mrs. Cotton, during her Ufe. Two days after the will was made, the widow claims that the whole of this was absolutely given to her by her husband, in contemplation of death. She swears that “he gave and delivered this cash and these notes to her, in fee, in the presence of sundry persons.” When an inventory was taken of the estate, these effects, after some hesitation, were exhibited by her to be appraised; the executor immediately thereafter, returning them to her.

It appears from the evidence of Mr. Jones, who was the only person present, when this alleged gift was made, that the testator was taken sick in Macon; that he sent for his wife, to Monroe county, the place of his residence, and disclosed to her and Mr. Jones, that the cash and notes were secreted in a bolt of cotton bagging, in his house in Monroe, and admonished her to take care of them, for that she might need them before she died. She came into the possession of them some five days afterwards.

We see no material discrepancy between the answer of Mrs. Cotton and the testimony of Mr. Jones. She manifestly, did not intend to say, that the cash and notes were actually delivered in Macon. Mrs. Cotton, we apprehend, would not have so sworn. But the solicitor who drew her answer, used this language as the conclusion of the law, upon the facts, as they existed.' Mr. Cotton, not having it in his power to make an actual delivery, the solicitor supposed that he had done all that the law required, under the circumstances. But, in this, he was mistaken. It is well settled, that a donation causa mortis, is not good without a delivery; and if an actual delivery cannot be made, as of a ship at sea, a negro not present, it should be manifested by writing. And this Mr. Cotton could have done; but this he did not do, nor attempt to do. And even this is a relaxation of the old rule, to which the modern decisions are returning. 2 Ves. 120.

As a donatio causa mortis, then, the gift was bad for want of delivery. Indeed, the terms employed did not amount to a gift. And the key to the remarks of the deceased, is, that it was intended,simply, to apprize his wife and friend, Mr. Jones, of the place where his treasure was concealed, a life esta te in which he has just given to Mrs. Cotton, by his will. And under this view of the case, we think the Court should not have disturbed the several concurring verdicts in favor of the hill filed by the executor to secure this property against waste.

Judgment reversed.