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on a banker, given by the drawer mortis causa, who died before it was possible to present it, and which was held not to be valid. Lord Romilly, M. R., said: “When a man on his death-bed gives to another an instrument, such as a bond, or promissory note, or an I O U, he gives a chose in action, and the delivery of the instrument confers upon the donee all the rights to the chose in action arising out of the instrument. That is the principle upon which Amis v. Witt, 33 Beavan, 619, was decided, where the donor gave the donee a document by which the bankers acknowledged that they held so much money belonging to the donor at his disposal, and it was held that the delivery of that document conferred upon the donee the right to receive the money. But a cheque is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the inoney is at a banker's or anywhere else. It is an order to deliver the money, and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing."
Accordingly the Vice-Chancellor, In re Beak's Estate, Law Rep. 13 Eq. 489, refused to sustain as valid the gift of a check upon a banker, even although its delivery was accompanied by that of the donor's pass-book.
The same rule, as to an unpaid and unaccepted check, was followed in The Second National Bank of Detroit v. Williams, 13 Mich. 282. The principle is that a check upon a bank accourt, is not of itself an equitable assignment of the fund. Bank of the Republic v. Millard, 10 Wall. 152; but if the banker accepts the check, or otherwise subjects himself to liability as a trustee, prior to the death of the donor, the gift is complete and valid. Bromley v. Brunton, Law Rep. 6 Eq. 275.
Contrary deeisions have been made in respect to donations mortis causa of savings-bank books, some courts holding that the book itself is a document of title, the delivery of which, with that intent, is an equitable assignment of the fund. Pierce v. Boston Savings Bank, 129 Mass. 425; Hill v. Stevenson, 63 Me. 364;. Tillinghast v. Wheaton, 8 R. I. 536. The contrary was held in Ashbrook v. Ryon, 2 Bush (Ky.), 228, and in McGonnell v. Murray, Irish Rep. 3 Eq. 460.
That a delivery of a certificate of deposit, such as that de
scribed in the record in this case, might constitute a valid donatio mortis causa, does not admit of doubt. It was so decided in Amis v. Witt, 33 Beav. 619; Moore v. Moore, Law Rep. 18 Eq. 474; Hewitt v. Kaye, 6 id. 198; Westerlo v. De Witt, 36 N. Y. 340. A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equitable assignment of the money for which it calls.
The point, which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in case of a gift mortis causa ; and that a delivery which does not confer upon the donee' the present right to reduce the fund into possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift. Further illustrations and applications of the principle may be found in the following cases : Powell v. Hellicar, 26 Beav. 261; Reddel v. Dobree, 10 Sim. 244; Farquharson v. Cave, 2 Colly. C. C. 356; Hatch v. Atkinson, 56 Me. 324 ; Bunn v. Markham, 7 Taunt. 224 ; Coleman v. Parker, 114 Mass. 30; Wing v. Merchant, 57 Me. 383; Mc Willie v. Van Vacter, 35 Miss. 428; Egerton v. Egerton, 17 N. J. Eq. 419; Michener v. Dale, 23 Pa. St. 59.
The application of these principles to the circumstances of the present case requires the conclusion that the appellant acquired no title to the fund in controversy, by the indorsement and delivery of the certificate of deposit. The certificate was payable on demand; and it is unquestionable that a delivery of it to the donee, with an indorsement in blank, or a special indorsement to the donee, or without indorsement, would have transferred the whole title and interest of the donor in the fund
represented by it, and might have been valid as a donatio mortis causa.
That transaction would have enabled the donee to reduce the fund into actual possession, by enforcing payment according to the terms of the certificate. The donee might have forborne to do so, but that would not have affected his right. It cannot be said that obtaining payment in the lifetime of the donor would have been an unauthorized use of the instrument, inconsistent with the nature of the gift; for the gift is of the money, and of the certificate of deposit, merely as a means of obtaining it. And if the donee had drawn the money, upon the surrender of the certificate, and the gift had been subsequently revoked, either by the act of the donor or by operation of law, the donee would be only under the same obligation to return the money, that would have existed to return the certificate, if he had continued to hold it, uncollected.
But the actual transaction was entirely different. The indorsement, which accompanied the delivery, qualified it, and limited and restrained the authority of the donee in the collection of the money, so as to forbid its payment until the donor's death. The property in the fund did not presently pass, but remained in the donor, and the donee was excluded from its possession and control during the life of the donor.
That qualification of the right, which would have belonged to him if he had become the present owner of the fund, establishes that there was no delivery of possession, according to the terms of the instrument, and that as the gift was to take effect only upon the death of the donor, it was not a present executed gift mortis causa, but a testamentary disposition. The right conferred upon the donee was that expressed in the indorsement; and that, instead of being a transfer of the donor's title and interest in the fund, as established by the terms of the certificate of deposit, was inerely an order upon the bank to pay to the donee the money called for by the certificate, upon the death of the donor. It was, in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in presenti, unless paid or accepted
while the donor is alive; how much less so, when, as in the present case, it is made payable only upon his death.
The case is not distinguishable from Mitchell v. Smith, 4 De G., J. & S. 422, where the indorsement upon promissory notes, claimed as a gift, was, “ I bequeath — pay the within contents to Simon Smith, or his order, at my death." Lord Justice Turner said: "In order to render the indorsement and delivery of a promissory note effectual they must be such as to enable the indorsee himself to indorse and negotiate the note. That the respondent, Simon Smith, could not have done here during the testator's life.” It was accordingly held that the disposition of the notes was testamentary and invalid.
It cannot be said that the condition in the indorsement, which forbade payment until the donor's death, was merely the condition attached by the law to every such gift. Because the condition, which inheres in the gift mortis causa, is a subsequent condition, that the subject of the gift shall be returned if the gift fails by revocation ; in the mean time the gift is executed, the title has vested, the dominion and control of the donor has passed to the donee. While here, the condition annexed by the donor to his gift is a condition precedent, which must happen before it becomes a gift, and, as the contingency contemplated is the donor's death, the gift cannot be executed in his lifetime, and, consequently, can never take effect.
This view of the law was the one taken by the Circuit Court as the basis of its decree, in which we accordingly find no error. It is, accordingly,
MR. JUSTICE MILLER did not sit in this case, nor take any part in deciding it.
BARBER v. SCHELL.
SCHELL v. BARBER.
1. By schedule D of the act of July 30, 1846, c. 74, a duty of twenty-five per cent
ad valorem was imposed on cotton laces, cotton insertings," and "manufactures composed wholly of cotton, not otherwise provided for.” By sect. 1 of the act of March 3, 1857, c. 98, the duties on the articles enumerated in schedules C and D of the act of 1846 were fixed at twenty-four and nineteen per cent, respectively, “with such exceptions as are hereinafter made.” By sect. 2 of the act of 1857, “all manufactures composed wholly of cotton, which are bleached, printed, painted, or dyed, and delaines,” were transferred to schedule C. Held, that laces and insertings composed wholly of cotton, and bleached or dyed, were dutiable at twenty-four per cent, under
the act of 1857. 2. The designations qualified by the word “cotton,” in the act of 1846, are
designations of articles by special description, as contradistinguished from designations by a commercial name or a name of trade, and are designa.
tions of quality and material. 3. Under the act of March 2, 1799, c. 23, the collector of customs is not entitled
to a fee for putting on an invoice a stamp or certificate as to the presentation of the invoice, or for an oath to an entry or for a jurat to such oath, or for his order to the storekeeper to deliver examined packages.
ERROR to the Circuit Court of the United States for the Southern District of New York.
The facts are stated in the opinion of the court.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a suit commenced in 1863, by the members of the firm of S. Cochran & Co., against the collector of the port of New York. As tried in the Circuit Court it involved the recovery back of duties paid on cotton laces and cotton insertings imported from abroad in 1857, 1858, 1859, 1860, and 1861, and of fees paid at the custom-house. The laces and insertings were composed wholly of cotton, and were “ either bleached or dyed.” The collector charged a duty on them of twenty-four per cent ad valorem, the importers claiming that the proper duty was nineteen per cent ad valorem. At the trial the court