causa. Thus in Ward v. Turner (p), Lord Hardwicke held that the delivery of receipts for South Sea annuities was not such but not of receipt a delivery of the annuities themselves as to support the for stock: gift of them as a donatio mortis causa: but he intimated that an actual transfer of the stock would have been sufficient to effectuate the intended donation (2). Notes drawn by the deceased in his last illness; not the subject of donatio mortis A promissory note made by a man in his last illness, cannot operate as a donatio mortis causa to the payee (r), for it has not that reference to the death of the donor which is essential to such a gift (s). The same has been decided as to a check on a banker; which is an order for the payment of money, that may take effect immediately, and in the lifetime of the donor; so that is (generally speaking) altogether inconsistent with the nature of a donation mortis causa (t). delivery of this receipt to an agent of the borrower by the lender on his deathbed stating that he wished the debt to be canceled was a sufficient donatio mortis causa, on the ground, semble that the document was essential to the proof of the contract of loan. (p) 2 Ves. Sen. 431. (2) Railway stock cannot be the subject of donatio mortis causa. Moore . Moore, L. R. 18 Eq. 474. (r) Tate v. Hilbert, 2 Ves. 111. Holliday v. Atkinson, 5 B. & C. 501. In the latter of these cases Lord Tenterden expressed his opinion that the intention to avoid the legacy duty would not be a sufficient consideration for a promissory note; for then the note would not be payable till after the donor's death: ib. 503. (8) See ante, pp. *681, *682. (t) Tate v. Hilbert, 2 Ves. 120. See also Tate v. Leithead, Kay, 658. Ante, p. *682. However, a check under some circumstances has been considered the subject of a donatio mortis causa: as where the testator in his illness drew a bill on a goldsmith for the payment of a sum to A. the wife of B., and delivered it to A. with a written indorsement to causa nor (generally speaking) checks on bank ers: buy her mourning: Lawson v. Lawson, 1 P. Wms. 441. (But see the remarks of Lord Loughborough in 2 Ves. 121.) So in Bouts v. Ellis, 17 Beav. 121 (affirmed on appeal, 4 De G. M. & G. 249), a testator, four days before his death, said to his wife, "I am a dying man; you will want money before my affairs are wound up: " On the following day he gave his wife a crossed check, and on the next day but one, remembering that it was crossed, he asked a friend who visited him to take it and give the wife another for it, which the friend did: The testator's check was paid before, and the other check after his death: And it was held by Romilly, M. R., and by the Lords Justices, that the transaction constituted a good donatio mortis causa. But the delivery of the donor's check on his banker, which was not presented before the donor's death, was held not a good donatio mortis causa: Hewitt v. Kaye, L. R. 6 Eq. 198. Where the delivery by a donor, in his last illness, of a check on his bankers was accompanied by a delivery of his banker's passbook, and the check was not presented until after the donor's death, it was held by Bacon, V.-C., that the gift was not a good donatio *It may now be expedient to examine in what respects a donatio How a donatio mortis causa differs from a legacy, and from a gift inter fers from a legacy. vivos; whence it will appear how important the distinction is between these three kinds of donations. mortis causa dif 1. Probate unnecessary: A donatio mortis causa differs from a legacy in these respects : 1. Probate of it is unnecessary, for such a gift takes effect from delivery; so the donee claims the subject of it as a gift from the donor in his lifetime, and not under a testamentary act (u). 2. For the reason just given, no assent or other act on the part of the executor or administrator is necessary sent unnecessary. to perfect the title of the donee (x). In fact the distinction between a donatio mortis causa, and a legacy under a nuncu 2, Executor's as mortis causa: Re Beak's Estate, L. R. 13 Eq. 734. Re Mead, 15 C. D. 651. Where a check was given by A. to B., and presented without delay, and the bankers had sufficient assets of A., but refused payment because they doubted the signature, and the next day A. died, the check not having been paid, it was held to be a complete gift inter vivos of the amount of the check: Bromley v. Brunton, L. R. 6 Eq. 275. See also Rolls v. Pearce, 5 C. D. 730, where a check drawn by a testator payable to his wife or her order, and indorsed by her and paid into a foreign bank against the amount of which she drew, was held to be a good donatio mortis causa, although it was not presented for payment at the bank on which it was drawn until after the testator's death. The result of the cases on the question how far the gift of a check of the donor can be the subject of a donatio mortis causa would seem to be that the mere delivery of a check which is not paid in the donor's lifetime does not constitute a donatio mortis causa, for it is payment which constitutes the necessary delivery Hewitt v. Kaye, L. R. 6 Eq. 198. Re Beak's Estate, L. R. 13 Eq. 734. Whereas in the case of a bill, promissory note, bond, I O U, or check of a third person, it is the delivery of the instrument itself which operates as a delivery of the money secured by it. It is to be observed in the case of Bouts v. Ellis (ubi sup.), that the check was paid before the death of the donor, and in Lawson v. Lawson (ubi sup.), the gift by delivery of the bill was in the nature of an appointment. Generally the giving of a check will not operate as an appropriation inter vivos in favor of the donee (Hopkinson v. Forster, L. R. 19 Eq. 74), although in Bromley v. Brunton (ubi sup.), it was held on the facts of that case that there was a complete gift inter vivos of the amount of the check. There seem, however, to be some cases in which the delivery of a check which is not paid in the donor's lifetime is allowed to operate as a donatio mortis causa. One of them would seem to be the case where the check is in the lifetime of the donor negotiated or paid away by the donee for valuable consideration: Rolls . Pearce, 5 C. D. 730, or where the money is received immediately after the death of the testator before the banker was apprised of it: Tate v. Hilbert, 2 Ves. 111. But the gift would in these cases seem to be validated rather as a mere donation than as a donatio mortis causa. (u) 1 Rop. Leg. 12, 3rd edition. Rigden v. Vallier, 2 Ves. Sen. 258. (x) Tate v. Hilbert, 2 Ves. 120. pative will is, that the former is claimed against the executor, and the other, from the executor (y). A donatio mortis causa differs from a gift inter vivos in these vivos: 1. It is revocable: respects (y), in which it resembles a legacy: 1. It is How it differs *ambulatory, incomplete and revocable during the tes- from a gift inter tator's life. The revocation may either be affected by the recovery of the donor from his disorder (z), or by resumption of the possession of the subject (a). But he cannot revoke the donation by a subsequent will: for, on the death of the donor, the title of the donee becomes, by relation, complete and absolute from the time of delivery (b). It may, however, be satisfied by a legacy given to the donee (c). 2. It is liable to the duties imposed on legacies, by the express provisions of acy duty the stat. 8 & 9 Vict. c. 76, s. 4, which enacts that every gift which shall have effect as a donation mortis causa shall be deemed a legacy within the meaning of those acts (d). 3. It is liable to the debts of the testator upon deficiency of assets (e). 2. Liable to leg Stat. 8 & 9 Vict. c. 76, 8. 4. 3. To debts. causa. In Hayslep v. Gymer (ƒ), an action of debt was brought for money had and received to the use of the plaintiff: It appeared Evidence of a that the defendant was executor of a Mrs. Wilkinson, donatio mortis and the plaintiff lived in Mrs. Wilkinson's house till the time of her death: On the reading of Mrs. Wilkinson's will, the defendant asked the plaintiff whether she had not possession of something given to her by Mrs. Wilkinson, and how she had obtained it: She produced a parcel, which contained banknotes of the value of (b) Jones v. Selby, Prec. Chanc. 300. (y) There was formerly another point in which a donatio mortis causa differed from a gift inter vivos, viz., that it might be made to the wife of the donor. This difference no longer exists, as since the M. W. P. Act, 1882, a married woman can receive and hold as her separate property any gift made to her, whether by her husband or any other person. As to former law, see Lawson v. Lawson, 3 P. Wms. 356. Tate v. Leithead, Kay, 658. (z) Ante, p. *682. (a) Ward v. Turner, 2 Ves. Sen. 433. Bunn v. Markham, 7 Taunt. 232, by Gibbs, C. J. (c) Jones v. Selby, Prec. Chanc. 300. See Johnson v. Smith, 1 Ves. Sen. 314. (d) And by 44 Vict. c. 12, § 38 (2), amongst the personal property to be included in the account on which probate duty is payable is "any property taken as a donatio mortis causa made by any person dying on or after 1 June, 1881." (e) Smith v. Casen, mentioned in Drury v. Smith, 1 P. Wms. 406. Ward v. Turner, 2 Ves. Sen. 434. (f) 1 Adol. & Ell. 162. 2207., and said that Mrs. Wilkinson had given them to her a fortnight before her death, telling her they would be useful to her, after her (Mrs. Wilkinson's) death; and that no one was present at the time: *According to one witness, the defendant then said that he should keep the parcel till the plaintiff required it: according to another, simply that he should keep it: The plaintiff had Mrs. Wilkinson's keys during her illness, and superintended the economy of the house: other property of Mrs. Wilkinson's to a considerable amount was shown to have been in the power of the plaintiff, which was found by the executors undisturbed: Mrs. Wilkinson did not take to her bed more than a week before her death: During that week the plaintiff showed the notes, in her own possession, to a witness The action was brought to recover back these notes: The defendant's counsel objected that there was not evidence to go to the jury, of the property of the notes being in the plaintiff : The judge having left the whole evidence to the jury, they found a verdict for the plaintiff A motion was afterward made to enter a nonsuit, because there was no evidence at all of property in the notes, except the plaintiff's own account of the matter: But the Court of K. B. refused to disturb the verdict, on the ground that there was some evidence to go to the jury, though slight, and that the declaration made by the plaintiff herself was admissible evidence in her favor by reason of acquiescence (though of trifling weight) in its truth by the defendant, and also as being part of the res gesta, on the occasion of the defendant's obtaining the notes (g). Donatio mortis causa not abol It may be added in conclusion that the Wills Act ished by Wills (1 Vict. c. 26) has not, either in words or in effect, abolished such donations (h). Act. (g) In this case Littledale and Parke, JJ., expressed their opinion that it made no difference whether the de +"Sound policy requires that the laws regulating gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged." Ridden v. Thrall, 125 N. Y. 572, 581. Such gifts are not favored by the courts. Delmotte v. Taylor, 1 Redf. 417; Rockwood v. Wiggin, 16 Gray 402; Michenor v. Dale, 23 Pa. St. 59; Hatch v. Atkinson, 56 Me. 326. But where the livery of the notes was a gift absolutely or a donatio mortis causa. (h) Moore v. Darton, 4 De G. & Sm. 517. question arises between the next of kin on a distribution, the validity of a donatio mortis causa to one of them will not be so rigorously inquired into as where the interests of creditors are involved. Fowler. Lockwood, 3 Redf. 465. It is indispensable to the validity of such a gift that it be made in contemplation of the death of the donor. Parish Kirk v. McCusker, 3 N. Y. Misc. 277; Blanchard v. Sheldon, 43 Vt. 512. This may, however, be inferred and need not be expressed. Virgin v. Gaither, 42 Ill. 39; Baker v. Williams, 34 Ind. 547. But it is not necessary that the donor should die immediately after the gift is made. Wells v. Tucker, 3 Binn. 366. "Such gifts are inchoate and not perfected until the death of the donor." Parker v. Marston, 27 Me. 196, 203. "Such a gift does not become perfect until the death of the donor." v. Stone, 14 Pick. 198, 203. "A donatio mortis causa does not pass a title immediately, but it is only to take effect on the death of the donor." Grover v. Grover, 24 Pick. 261, 266. On his recovery the gift fails, although he afterward die from the cause then threatening. Weston v. Hight, 17 Me. 287. And he may revoke it before his death. Merchant v. Merchant, 2 Bradf. 432. And it will be revoked by whatever would revoke a will, e. g., in Connecticut, by the subsequent birth of a child of the donor. Bloomer v. Bloomer, 2 Bradf. 339. On the other hand, such gift is not necessarily defeated by a will subsequently made, Nicholas v. Adams, 2 Whart. 17; and still less by an order of the Probate Court requiring the administrator to account for the subject of the gift as property of the intestate estate. Lewis v. Bolitho, 6 Gray 137. Delivery by the donor is essential to the gift. Kirk v. McCusker, 3 N. Y. Misc. 277; Ridden v. Thrall, 125 N. Y. 572; Harris v. Clark, 3 Id. 93, 113; Conklin v. Conklin, 20 Hun 278; Turner v. Brown, 6 Id. 331; Basket v. Hassell, 107 U. S. 602; Gescheidt v. Drier, 47 N. Y. St. Rep. 410; Parish v. Stone, 14 Pick. 204; Case v. Dennison, 9 R. I. 88; Murray v. Cannon, 41 Md. 466; McKenzie v. Downing, 25 Ga. 669; Estate of Trough, 75 Pa. St. 115; Zimmerman v. Streeter, Id. 147; Egerton v. Egerton, 2 C. E. Gr. 418. And the 57 donee's subsequent possession is not sufficient proof of such delivery. Kenny v. Public Administrator, 2 Bradf. 319. But a good delivery may be made without actual manual transmission, Wing v. Merchant, 57 Me. 383; e. g., of a debt due from the donee by executing a receipt for it, Gray v. Barton, 55 N. Y. 68; or destroying the bond or other evidence of it, Gardner v. Gardner, 22 Wend, 520; as well as by surrender or delivery to the donee of such evidence. Lee v. Boak, 11 Gratt. 182. So, it may be by symbol, e. g., by delivery of the memorandum or certificate of a deposit, Champney v. Blanchard, 39 N. Y. 111; or of a key to the trunk containing the gift, Coleman v. Parker, 114 Mass. 30; Jones v. Brown, 34 N. H. 439; or to a third person for the donee. Marshall v. Berry, 13 Allen 45; Coutant v. Schuyler, 1 Paige 316; Southerland v. Southerland, 5 Bush 591. Delivery is a question of fact, Hunt v. Hunt, 119 Mass. 474; not requiring legal formalities, such as the indorsement of a negoti able note. Wing v. Merchant, 57 Me. 383. See, however, Bradley v. Hunt, 5 Gill & J. 54. But no delivery is sufficient if the intention to make a gift is wanting. Shurtleff v. Francis, 118 Mass. 154. And where the alleged gift was certain bank books, over which the donor exercised control after the gift and prior to her death, the gift was not sustained as donatio causa mortis. Kirk v. McCusker, 3 N. Y. Misc. 277. To constitute such a gift, it is essential that possession should be retained by the donee until the donor's death. Dunbar v. Dunbar, 80 Me. 152; Craig v. Craig, 3 Barb. Ch. 78; Champney v. Blanchard, 39 N. Y. 111, 116. The subject of the gift may be the note of a third person, Grover v. Grover, 24 Pick. 261; with a collateral mortgage duly assigned, Chase v. Redding, 13 Gray 418; or merely delivered. Hackney v. Vrooman, 62 Barb. 650. So, |