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The single question in the case was, whether a certain fund, represented by a certificate of deposit, issued by the bank to Chaney in his lifetime, belonged to Basket, who claimed it as a gift from Chaney, and had possession of the certificate, or to Hassell, as Chaney's administrator. Basket asserted his title not only by answer, but by a cross-bill. The final decree ordered that the certificate of deposit be surrendered to Hassell, and that the bank pay to him, as its holder, the amount due thereon. The money was then tendered by the bank, in open court, and the certificate was deposited with the clerk. It was thereupon ordered, Basket having prayed an appeal, that until the expiration of the time allowed for filing a bond on appeal the bank should hold the money as a deposit at four per cent interest, but if a bond be given, that the same be paid to the clerk, and by him loaned to the bank on the same terms. Basket failed to give the bond required for a supersedeas, but afterwards prayed another appeal, which he perfected by giving bond for costs alone. To this appeal Basket and Hassell are the parties respectively, the co-defendants not having appealed, or been cited after severance. On the ground that they are necessary parties, Hassell moves to dismiss the appeal.

The fund which gave rise to the controversy was represented by a certificate of deposit, as follows:


“EVANSVILLE, IND., Sept. 8, 1875. “H. M. Chaney has deposited in this bank twenty-three thousand five hundred and fourteen 10% dollars, payable in current funds, to the order of himself, on surrender of this certificate properly indorsed, with interest at the rate of 6 per cent. per annum, if left for six months. "$23,514.70.

HENRY Reis, Cashier." Chaney, being in possession of this certificate at his home in the county of Sumner, State of Tennessee, during his last sickness and in apprehension of death, wrote on the back thereof the following indorsement:

“Pay to Martin Basket, of Henderson, Ky. ; no one else ; then not till my death. My life seems to be uncertain. I


live through this spell. Then I will attend to it myself.

“ H. M. CHANEY."

Chaney then delivered the certificate to Basket, and died, without recovering from that sickness, in January, 1876.

Mr. Philip Phillips and Mr. W. Hallett Phillips for the appellant.

Chaney undoubtedly intended, by the indorsement and delivery of the certificate, that Basket should receive the money evidenced by it. The inquiry then is, whether the words used by him are to be construed by some rigorous rule of law so as to defeat his intention.

This subject of donations causa mortis was at an early period considered by Lord Hardwicke in Ward v. Turner, 2 Ves. Sen. 431, in which he held that an actual delivery was indispensable, and that a delivery to the donee, of receipts for South Sea annuities, was not sufficient to pass the property, though it was strong evidence of the intent. The delivery of the receipt was not a delivery of the thing.

After referring to the ruling, that a promissory note or bill of exchange not payable to bearer or indorsed in blank cannot so take effect, inasmuch as no property therein can pass by the delivery of the instrument, and to the like ruling for like reason, as to receipts for South Sea annuities, Story says: may

admit of doubt whether the doctrine can now, upon principle, be sustained; for the ground vion which courts of equity now support donationes mortis causa is not that a complete property in the thing must pass by the delivery, but that it must so far pass by the delivery of the instrument as to give a title to the donee to the assistance of a court of equity to make the donation complete. The doctrine no longer prevails, that where a delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causa, because it would not prevent the property from vesting in the executor; and that as a court of equity will not, inter vivos, compel a party to complete his gift, so it will not compel the executor to complete the gift of his testator. On the contrary, the doctrine now established by the highest authorities is, that courts of equity do not consider the interest as completely vested in the donee, but treat the delivery of the instrument as executing a trust for the donee to be enforced in equity.” Story's Eq: Jur., sect. 607, p. 618.

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In Duffield v. Elwes, Sir John Leach made the declaration that where delivery would not execute a complete gift inter vivos it could not create a donatio mortis causa. This proposition was directly overruled by Lord Eldon in the House of Lords on appeal. 1 Bligh, N. s. 497.

He held that it was only essential to constitute a donatio causa mortis that the delivery should be sufficient to raise a trust, and that equity would compel the representatives of the donor to complete that which was incomplete.

In Veal v. Veal, the gift was resisted on the ground that the note was payable to order, and not indorsed. Romilly, M. K., after reviewing previous decisions, refers to the fact that Sir John Leach's decision in Duffield v. Elwes had been overruled in the House of Lords, and says: “I also think it a much more bealthy state of the law, that the validity of such a gift should not depend on whether the testator had written his name on the back of the bill or not, if it be the clear intent that he intended to give it.” 27 Beav. 303.

In Grymes v. Hone, 49 N. Y. 17, the owner of certain bank stock made an assignment of the same to his granddaughter, and appointed her his attorney to transfer or sell the same for her use. This paper, after being kept by him for some time, he delivered to his wife, saying: “ I intend this for Nelly; if I die, don't give it to the executor.” She asked, “ Why not give it to her now?“Well,” said he, “better keep it for the present. I don't know how much longer I may last, or what will happen, or whether we may need it."

The action was, by the donee, against the executor for the recovery of the bank stock or its value. Judgment was rendered for plaintiff and affirmed in the court of appeals.

There it was said the transaction as to such a gift is : The donor says, “I am ill, and fear I shall die of this illness, wherefore I wish you to take these things and hand them to my granddaughter after my death ; but do not hand them to her now, as I may need them.' A good donatio mortis causa always implies all this. If delivered absolutely to the donee in person, the law holds it void in case the donor recovers, and he may then reclaim it. To make a valid gift mortis causa, it is not necessary there should be any express qualifieation in the


transfer of delivery. It may be found to be such a gift from the attending circumstances, though the written transfer may be absolute."

It was urged that the gift was not completed, inasmuch as the stock was not transferred on the book of the bank, and could not be until the certificate was surrendered ; that equity would not aid a volunteer to perfect an imperfect title. But the court held that, by the modern authorities, the gift was valid, notwithstanding these objections, that the equitable title passed by the assignment, and it was not necessary to hand over the certificate ; that a court of equity will compel the donor's representative to produce the certificate, that the legal title may be perfected.

The doctrine as we have announced it is fully sustained by the decisions in Tennessee, where the gift was made.

In Gass v. Simpson, decided in 1867, Gass, as administrator of Carter, filed his bill, in which he alleged that when Carter left home, in 1862, to join the Union army in Kentucky, from whence he never returned (having died in 1863), he placed in Simpson's hands for safe keeping certain moneys, notes of hand, and receipts, with other valuable papers, all of which complainant was entitled to as admninistrator.

Simpson answered that when Carter made this deposit with him, he said, if he never returned, he wanted it all to belong to his son, George Simpson, then a youth of six years.

The case was heard on bill and answer, and this was decreed as a good gift causa mortis. 4 Cold. (Tenn.) 288.

The certificate of deposit held by. Chaney was in all respects the negotiable promissory note of the bank, and, on well-settled decisions, its delivery, with or without an indorsement, would confer a good title.

The learned district judge, in his opinion, admits that it is “now settled that choses in action, wliether negotiable or not, may be the subject of gifts causa mortis," and that money on deposit may be delivered by delivery of the certificate of deposit.

Nevertheless, he holds that in this case there was no gift, inasmuch as by the indorsement of the certificate Basket " could

not have compelled the delivery of the money to him during the lifetime of the donor."

But if our preceding citations correctly define the principles governing such gifts, the delivery of a note payable to order and not indorsed, or the delivery of the bank-book without assignment, constitutes a good gift, though the money could not be collected in the lifetime of the donor.

The certificate was delivered. It represented the money which Chaney had loaned to the bank. The wording of the indorsement does not affect the question of delivery of the paper, but expresses the condition on the happening of which Basket's title to the money due by the bank should be complete.

Similar language is found in many of the cases which have been sustained as gifts causa mortis. Thus, in Snelgrove v. Bailey, decided by Lord Hardwicke, there was a delivery of a bond with the declaration, “ In case I die, it is yours.” 3 Atk. 214. “ I want to deal with it in my lifetime.” Meridith v. Watson, 17 Jur. 1063. In Sessions v. Moseley, decided by Chief Justice Shaw, notes were handed by payee to another to be given by him to a third after the donor's death. 4 Cush. (Mass.) 87. Mitchell v. Smith, much relied on by the other side, does not touch the question. The indorsement was not made in contemplation of death. There was no evidence to show that the testator was not in perfect health at the time of the gift. The court below held that the indorsement was sufficient to found a recovery at law. This was reversed on appeal. The same donor subsequently, in contemplation of death, and in extremis, handed to the defendant some mortgage deeds, saying: “I want to leave something for Christiana.” “Give them to Christiana.” This was held good as a gift causa mortis, and the report is particular to say, " that it was not sought to disturb the ViceChancellor's decision upon the point relating to the gift of the title-deeds." 10 L. T. N. S. 520, 801.

The condition expressed in the indorsement of the certificate is one which the law would enforce under the circnmstances, if the indorsement had been absolute. Grymes v. Hone, above cited.

The rule as to checks and notes of the donor himself stands on different grounds ; unless presented in the lifetime of the

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