8 S.E. 721
Va.
1889
Lewis, P.

(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 tо 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 аuthority. 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 *759classes of gifts above mentioned. In either case actual delivery, or its equivalent, is indispensable. Without a delivery the transaction is not valid as an executed gift, and being without consideration, it is not a contract to be executed. In short, it is a mere nullity.

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 оf 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 thе 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 truе 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 cоmmon 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) *760by bis outliving the donee; and (4) by the occurrence of a deficiency of assеts necessaiy to pay the debts of the donor after his death. In all other respects the two classes of gifts stand upon the same footing; and the reason why a delivery in either case is required is because the change of рossession strengthens the evidence of the gift, and is essential for the prevention of fraud and perjury. And because of the opening which this mode of transfer affords to fraud, the law watches it with jealousy, and does not permit it, with its attendant uncertainties, to take the place of wills. Therefore any gift which does not take complete effect by the transfer to, and acceptance by, the donee of the possession and title of the donor in the lifetime of the latter, is testamentary in its character, and good only if made by will. Basket v. Hassell, 107 U. S. 602.

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 aсtual 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 quеstion 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 constructivе 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 dеlivery 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 *761in suit, which was filed with the papers in court, told the plaintiff he could have it, and delivered him the receipt, and this was held a sufficient delivery to constitute a valid gift. The court said there are many things of which actual, manual tradition cannot he made, either from their nature оr their situation at the time, and that the law does not intend to take from the owner the power of disposing of these, hut merely requires that he shall do what, under the circumstances, will in reason be considered equivalent to an actual delivery. Accordingly, said Judge Carr, “I am of opinion (though certainly not without doubts) that the delivery of the receipt accompanying the gift made it a valid gift. The bond itself could not be delivered; it was in court—in the custody of the law. The reсeipt was its representative.” It was “ the true and effectual way of obtaining the use of the subject.”

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 Judgе 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, *762that his friend, E. T. Jeffress, a member of thе said firm, should have all the bonds of his in his possession. It was held, however, that the gift was void for want of a sufficient delivery, although the bonds were in the possession of the intended donee at the time. “It is not the possession of the donee,” said thе court, “ but the delivery to him by the donor, which is material in a donatio mortis causa. The delivery stands in the place of nuncupation, and must accompany and form part of the gift. An after-acquired possession of the donee is nothing, and a previous and continuing possession, though by the authority of the donor, is no better.” And as additional authorities for the proposition that a verbal gift, without delivery, cannot be sustained, even where the subject of the gift is in the possession of the donee. Sеe Shower v. Pilch, 4 Exch. 477; S. C., 19 L. J. (Ex.) 113; Case v. Dennison, 9 R. I. 88; Cutting v. Gilman, 41 N. H. 147.

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 сonstructive 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 еither 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 *763enforced neither at law nor in equity. 1 Pars. Oont. (6th ed.) 234 et seq. Any comment upon the еvidence or discrepancies in the statements of the witnesses in describing the subject of the alleged gift, is therefore unnecessary. We will remark, however, that these discrepancies illustrate the propriety and wisdom of the rule which makes delivery essential to the validity of a verbal gift.

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 expressеd 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 creditоr, 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 wоrds, 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*764nesses had proved thаt the decedent declared he had given the bond in question it would have been of no avail without some proof of delivery.”

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.