| Ill. App. Ct. | Feb 28, 1901
delivered the opinion of the court.
The court below rightfully held that Milo Galloway was an incompetent witness to testify to matters occurring before the death of his father. He is directly interested as donee and is disqualified by section two of chapter fifty-one of the Revised Statutes.
Mrs. Galloway was incompetent to testify to matters or conversations occurring during her marriage with A. L. Galloway. Sec. 5, Ch. 51, Rev. Stat.; Reeves v. Herr, 59 Ill. 81" date_filed="1871-06-15" court="Ill." case_name="Reeves v. Herr">59 Ill. 81; Goelz v. Goelz, 157 Ill. 33" date_filed="1895-04-01" court="Ill." case_name="Goelz v. Goelz">157 Ill. 33; Gillespie v. Gillespie, 159 Ill. 84" date_filed="1895-11-22" court="Ill." case_name="Gillespie v. Gillespie">159 Ill. 84.
Without their testimony there was not sufficient proof of the delivery of the Hemphill note to make the gift a valid one. The administrator found it in a note case with other notes belonging to the deceased. There is no competent evidence whatever to show'that the deceased ever parted with his dominion over it. The indorsement made to Mrs. Galloway for the use and benefit of Milo and Mayo furnished strong evidence of A. L. Galloway’s intention, but not evidence of delivery. The case of Taylor v. Harmison, 179 Ill. 137" date_filed="1899-04-17" court="Ill." case_name="Taylor v. Harmison">179 Ill. 137, is in point.
The Barber note rests upon an entirely different footing. In that case Galloway constituted himself a trustee of the gift and by his declaration and act changed his relation to it from that of owner to that of trustee. 'There is no rule of law that prohibits the donor from constituting himself a trustee for the donee, and in such case no further delivery is necessary, provided the trust be expressed.
We are of the opinion that the testimony of Hicks was admissible. Independent of his office as administrator he had no interest whatever in the subject-matter of the litigation. His testimony did not relate to matters growing out of his administration, but to an affair which occurred between G-alloway and a third party. What difference could it make to him whether the court should hold that the note belonged to the estate or to the boys % The boys were the parties that were concerned in showing, if possible, that the gift intended by their father was complete, and if proof of that fact rested.with Hicks they should not be deprived of it by reason of his accepting the office of administrator.
The testimony of Hicks, Lovell, Barber and Zerinburg clearly shows the intention of Galloway and that he supposed he had made the gift to the boys complete. Coupled with the language employed in the note we have no hesitancy in saying that here was proof of an executed and express trust. An executed trust is one where the estate passes to the trustee at its creation.
An express trust is one which is declared in the instrument creating it. A trust is created where no act is necessary to be done to give it effect. Galloway having the right, as we have held, to make himself trustee for his donees, had the right to retain manual possession of the note. Ho act was lacking, then, to make the trust a complete one.
The order of the court below will be affirmed.