85 Va. 756 | Va. | 1889
(after stating the case), delivered the opinion of,the court.
The decree appealed from is clearly erroneous. This conclusion, however, has heen reached not without reluctance. Had we the authority to execute the alleged gift, or, in other words, to give effect to the' manifest intention of the ^decedent to aid this worthy lady, the female appellee, the court svithout hesitation would affirm the decree. But we have no such authority. Our province is not to make law, but to administer it, and we must, therefore, decide this case according to the settled law as • it is written, and not permit a hard case to make' bad law.
The appellees themselves admit in the petition filed by them in the court below that there was no delivery by the decedent of the bonds in question, and this of itself is decisivp against them, whether the case he viewed as an intended gift inter vivos or mortis causa. The authorities uniformly hold that to render a gift effectual, the thing given, or the means of obtaining it, must be delivered to the donee or to his agent, and accepted by him. The donor must divest himself of all dominion and control over it, and in this respect there is no distinction between the two
Thus, in a case where the donor told her servant to take the keys of her dressing case and deliver her watch and trinkets which it contained to the plaintiff, and the servant took the keys, but kept them in her possession until the death of her mistress, it was held by Sir John Eomilly, master of the rolls, that this was not a good gift mortis causa for want of a sufficient delivery. Powell v. Hellicar, 26 Beavan, 261.
In another case the would-he donor, shortly.before her death, spoke to her son of her bank-book, which at the time was in her daughter’s possession at another place, and in which was entered a credit of several hundred dollars, and told him to get it and to settle the bills, and if anything was left to divide it among her three children. It was held that this was not a sufficient delivery to sustain the gift, notwithstanding the book was out of the reach of the decedent, and for that reason could not be actually delivered at the time of the conversation in question, and notwithstanding it was in the possession of one of the intended donees.
Blackstone says a true and proper gift is always accompanied with delivery of possession, and takes effect immediately. 2 Comm. 441. Indeed, this principle, which was derived from the Eoman civil law, has never been questioned as a part of the common law since Lord Hardwieke’s decision in the leading case of Ward v. Turner, 2 Ves. Sen. 431. And the only difference between a gift inter vivos and a donatio mortis causa is that the latter is made under apprehension of death, and to it certain implied conditions subsequent are annexed, upon the happening of any one of which the donation is defeated; that is to say, it is defeasible (1) by actual revocation by the donor in his lifetime; (2) by the donor’s surviving the apprehended peril; (3)
Indeed, we have a statute which expressly enacts that no gift of any goods or chattels shall be valid, unless by deed or will, or unless accompanied by actual possession, and that if the donor and donee reside together, possession at their residence will not suffice. Code, sec. 2414.
As to what constitutes a sufficient delivery of possession, there is some conflict of authority. The question generally depends upon the nature and situation of the thing to be delivered, and is therefore to be determined upon the particular circumstances of each case. There may, however, be a constructive delivery. Thus, the contents of a trunk, even when they consist of bonds or other dioses in action, may be given by delivery of the key of the trunk, or goods in transitu by delivery of the bill of lading, if the donor’s intention to make the gift clearly appears. And the gift of a bond may be effected not only by a delivery of the bond itself, but by a delivery out of the donor’s control of an instrument without which he could not recover the fund from his debtor or agent. 1 Lead. Cas. Eq. 905, notes to Ward v. Turner.
This is illustrated by the case of Elam v. Keen, 4 Leigh, 333. In that case the donor, holding an attorney’s receipt for a bond
It is manifest, however, that but for the delivery of the receipt the gift would not have beeu sustained, although the bond itself could not be delivered; for in Ewing v. Ewing, 2 Leigh, 337, it had been previously decided that the alleged gift of the bond in question in that case was not valid, because, in the language of Judge Carr, it “was expressly proved that the bond never was delivered nor any written transfer made.” And Judge Green, in bis opinion, said that “ if the subject of the gift be incapable of delivery, it cannot be given by parol, but must be transferred by some writing and a delivery of that writing.” Nor are we aware of any authority for holding that a mere verbal declaration of a gift, unaccompanied by any act or circumstance clearly showing a surrender and acceptance of dominion over the article, constitute a valid gift under any circumstances.
A strong case upon this subject is Miller v. Jeffress, 4 Gratt. 472. There the decedent, in his life-time, assigned to the firm of E. T. Jeffress & Co. certain bonds for collection, and after-wards, in contemplation of death, declared his wish, which was taken down in writing by several witnesses present at the time,
In Lee’s Ex’or v. Boak, 11 Gratt. 182, the gift, was held good, because there the bonds and other evidences of the debts forgiven in that case were actually delivered by the donor to the donee; and so in Morrison’s Ex’ors v. Grubb, 23 Gratt. 342, where the donor delivered to the donee a pocket-book containing the bonds in question, saying, “Here, Joe, take this, take it home with you and keep it ”; these words being construed as importing a gift, although the word “ give” was-not used.
Pomeroy says the cases upon the subject of:a constructive delivery, many of which he cites, establish this criterion; that the donor parts with all control and power of exercising dominion, while the donee obtains the exclusive power of taking physical possession and custody of the article, so that it is in fact placed under his sole dominion. 3 Pom. Eq.- sec. 1149.
Viewed in the light of these principles, it is yery clear that , the gift asserted in the present case cannot be sustained. Here there has been no delivery either of the bonds themselves or of the means of obtaining them, and the case,' as presented by the record, is simply that of an incomplete gift, which can be
The case of Scott’s Ex’or v. Scott, 83 Va. 251, was referred to in the argument as an authority in support of the position of the appellees; but there is no conflict between that case and the views expressed in this opinion. In that case a father made several payments on a debt for which he was surety for his son • the evidence showing that he made them, as he declared, “ as a gift and aid to his son.” He died without ever having made any claim against the son, and took no evidence of indebtedness from him; and in a subsequent contest between the executrix and the son, it was held that there was no liability on the latter for the payments so made. In other words the money was paid for the avowed purpose of aiding the son, and with no intention of charging him with it. Hence there was no indebtedness to he given or forgiven, and nothing of which delivery could he made. The money was not given to the son, hut was paid to the creditor, and having been paid under the circumstances mentioned, there was never an instant of time when the son was liable for it. That the case, therefore, is no authority for the decree of the circuit court in this case, or, in other words, for the proposition that a verbal gift of a bond or other chattel is good with.out delivery, is too obvious to require discussion.
Nor is the case affected by the declaration of the decedent to the witness, Wood, that he had given a bond against the estate of Judge Field to his niece, Mrs. Field. That the donor’s declaration that he has given the article in question will not perfect a gift incomplete for want of a delivery is well settled. Rockwood v. Wiggin, 16 Gray (Mass.) 402. Or, to quote the apposite language of Judge Carr in Ewing v. Ewing: “If a host of wit
And equally without avail is the alleged subsequent recognition of the gift by the administrator. As was well said by the learned counsel for the appellant, the administrator had no-more power to perfect the gift than he would have had to revoke-it, if it had been completed by the decedent in his life-time. And as to the question of estoppel, alluded to in the argument at the bar, it is sufficient to say that no such case is made by the pleadings in the court below, and consequently the point is not a subject for consideration here.
The decree must be reversed, and an order entered dismissing the petition filed in the circuit court.
Decree reversed.