79 Miss. 133 | Miss. | 1901
delivered the opinion of the court on the merits.
The evidence shows clearly that it was the intention of the donor that the gifts of property, both real and personal, should take effect immediately and irrevocably, and that the gifts were fully executed by a complete and unconditional delivery at the time. Whenever this is the case, the mere fact that the donor is in extremis, expects to die, and does die of that illness even, does not affect the validity of the gifts, because they were, in such case, gifts inter vimos, and not gifts causa mortis. To hold otherwise would be to declare that no one could make a deed to land when sick of his last illness, no matter how clear the intention to make a deed conveying a present interest absolutely and unconditionally. The test, whether the gift is one inter vivos or one causa mortis, is not the mere fact that the donor is in extremis, and expects to die, and does die of that illness, but whether he intended the gifts to take effect in prm-senti, irrevocably and unconditionally, whether he lives or dies. This is the correct view set out in 14 Am. & Eng. Enc. L., 1014, 1015, par. 6. See, specially, Carty v. Connolly, 91 Cal., 15 (27 Pac. Rep., 599); Hatcher v. Buford, 60 Ark., 169 (29 S. W. Rep., 641, 27 L. R. A., 507); Henschel v. Maurer, 69 Wis., 576 (34 N. W. Rep., 926); McCarty v. Kearnan, 86 Ill., 292. “The absence of any hope of recovery, ’ ’ says J udge Cassoday in the Wisconsin case, ‘ ‘ is persuasive to show the intent that the deed should take effect in prmentij ’ ’ and the same observation may be made where all is conveyed, as here. Conveying all is evidence of absence of hope of recovery, but also evidence that, because of it, the party means the gift to take effect at once, unconditionally and irrevocably.
The fallacy in the argument for appellee and cross appellant is the assumption that, wherever the facts show that the donor is in extremis, expects to die, and does .die of that illness, then, necessarily, without more, and without regard to the real intent and actual delivery of the deed, the gift must be taken
It follows from these views that, on the direct appeal the decree is reversed and a decree will be entered here for appellant, and that, on the cross appeal the decree is affirmed. So ordered.