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; McWillie 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 merely 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 meantime 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

Affirmed.1

1 On gifts mortis cau a of certificates of deposit payable to donor's order and unindorsed by him, see Lowe v. Hart, 93 Ark. 548; Conner v. Root, 11 Col. 183; In re Morse's Estate, 170 Mich. 114; Westerlo v. DeWitt, 36 N. Y. 340; Christensen v. Christopher, 157 Wis. 525; Amis v. Witt, 33 Beav. 619. Compare Philpot v. Temple Banking Co., 3 Ga. App. 742; State Bank v. Johnson, 151 Mich. 538; In re Dillon, 44 Ch. D. 76.

There can be no gift mortis causa of real estate. Wentworth v. Shibles, 89 Me. 167,
171; Houghton v. Houghton, 34 Hun 212; In re Heiser's Estate, 147 N. Y. Supp.
558 (semble); Meach v. Meach, 24 Vt. 591. But see Curtiss v. Barrus, 38 Hun 165.
The gift may extend to all the personal property of the donor. Meach v. Meach,
24 Vt. 591. Headley v. Kirby, 18 Pa. 326, contra.

There can be a gift mortis causa although the donee is already in possession of the
property. Caylor v. Caylor, 22 Ind. App. 666; Davis v. Kuck, 93 Minn. 262; Cain
v. Moon, [1896] 2 Q. B. 283. Drew v. Hagerty, 81 Me. 231; McCord v. McCord,
77 Mo. 166; Cutting v. Gilman, 41 N. H. 147, contra.

A written declaration of gift made by donor and delivered to donee, without the
delivery of the subject matter, is ineffectual as a gift mortis causa. McGrath v. Reyn-
olds, 116 Mass. 566; Trenholm v. Morgan, 28 S. C. 268. And see Knight v. Tripp,
121 Cal. 674; Smith v. Downey, 3 Ired. Eq. 268. But compare Ellis v. Secor, 31
Mich. 185; Kenistons v. Sceva, 54 N. H. 24.

Delivery by decedent of the key of his safe-deposit box may be sufficient delivery
of the contents to satisfy the requirements of a gift mortis causa. Harrison v. Foley,
206 F. R. 57; Foley v. Harrison, 233 Mo. 460. And see Stephenson v. King, 81 Ky.
425; Debinson v. Emmons, 158 Mass. 592; Scott v. Union Bank, 123 Tenn. 258;
Thomas v. Lewis, 89 Va. 1. Compare Hatch v. Atkinson, 56 Me. 324, 329; Keepers
v. Fidelity Co., 56 N. J. L. 302; Apache State Bank v. Daniels, 32 Okl. 121; Newsome
v. Allen, 86 Wash. 678. The authorities are collected in 1914 A Am. & Eng. Ann.
Cas. 529 note.

On delivery of only part of the property where a gift mortis causa of the whole
was intended, see Knight v. Tripp, 121 Cal. 674; McGrath v. Reynolds, 116 Mass.
566. On delivery of more than was intended, see Crippen v. Adams, 92 N. W. (Mich.)
496.

On delivery in general, see 2 Am. & Eng. Ann. Cas. 1003 note; 18 L. R. A. 170
note; 10 Prob. Rep. Ann., 385 note.

The gift must be made when the donor is under the apprehension of death from
some existing disease or infirmity; but the donor need not be in extremis. Taylor
v. Harmison, 79 Ill. App. 380; Williams v. Guile, 117 N. Y. 343; Ridden v. Thrall,
125 N. Y. 572; Nicholas v. Adams, 2 Whart. 17; Sheehog v. Perkins, 4 Baxt. 273.
On the effect of temporary recovery, see Castle v. Parsons, 117 F. R. 835; Weston v.
Hight, 17 Me. 287. A gift by soldier about to start for the war was held invalid as
a gift mortis causa in Smith v. Dorsey, 38 Ind. 451; Gourley v. Linsenbigler, 51 Pa.
345. But see Baker v. Williams, 34 Ind. 547; Gass v. Simpson, 4 Cold. 288. And so
a gift in contemplation of suicide. Agnew v. Belfast Banking Co., [1896] 2 Ir. R.
204. See Bainbridge v. Hoes, 149 N. Y. Supp. 20.

The same degree of mental capacity is required to make a gift mortis causa as is
required to make a will. Sass v. McCormack, 62 Minn. 234. On the burden of
proof of fraud or undue influence of the donee, see Vandor v. Roach, 73 Cal. 614;
Gilmore v. Lee, 237 Ill. 402.

A gift mortis causa may be revoked by the recovery of the donor from his disorder.
1 Woerner, Am. Law Adm. (2d ed.), §§ 60, 62; 1 Williams, Exec. (10th ed.), pp.
592, 600. Or by his act during his life. Adams v. Atherton, 132 Cal. 164; Merchant
v. Merchant, 2 Bradf. Sur. 432; O'Gorman v. Jolley, 34 S. D. 26, 34. Or by the death
of the donee before the donor. Lisle v. Tribble, 92 Ky. 304 (semble). But a subse-
quent will of the donor which disposes of the subject matter of the gift in favor of
another does not necessarily amount to a revocation. Brunson v. Henry, 140 Ind.
455 (semble); Hoehn v. Struttman, 71 Mo. App. 399; Nicholas v. Adams, 2 Whart.
17; Hudson v. Spencer, [1910] 2 Ch. 285. Compare California, Civ. Code (1915), §
1152; Jones v. Selby, Prec. Ch. 300, 304. Jayne v. Murphy, 31 Ill. App. 28, contra.
On the revocation of a gift mortis causa by the birth of a child of the donor, see
Bloomer v. Bloomer, 2 Bradf. Sur. 339.

The law of the place where a gift mortis causa is made, not the law of the domicil
of the donor, determines its validity. O'Neil v. O'Neil, 43 Mont. 505; Emery v.
Clough, 63 N. H. 552.

TO THE HONORABLE MORTON FIELD, JUDGE OF SAID COURT:

The undersigned, Stanley Weeks and Arthur B. Royce, executors of the estate of Joseph N. Weeks, deceased, respectfully state to the court that the following is a full, true and perfect inventory of all the estate, both real, personal and mixed, situated in the State of Illinois and belonging to said Joseph N. Weeks, deceased, at the time of his death which has come to the possession, knowledge or control of the undersigned:

1. Goods and Chattels as per appraisement1.

2. Open account with Floyd Weeks & Company, considered good..

$10,000.40 90,457.05

1 The practice in Illinois is for the appraisers only to appraise the tangible chattels of the deceased. The form of the appraisement is sufficiently indicated by the following:

A Bill of Appraisement of the estate of JOSEPH N. WEEKS, late of the County of Cook and State of Illinois, deceased.

We, the undersigned, appraisers of the estate of Joseph N. Weeks, deceased, do hereby certify that the above and foregoing is a full, just and impartial appraisement of the personal estate of said deceased, subject to appraisement, so far as the same has come to our sight and knowledge. Witness our hands and seals this 20th day of April, 1914.

WILLIAM ROBINSON (Seal)
STRAFFORD KING
LUCIUS O'BRIEN

(Seal) APPRAISERS. (Seal)

(The appraisers have already taken an oath to perform their duty)

200

Ctf. No. 427 for subscription for 200 shares of new stock, at par, which has been fully paid for and to be issued August 1st.

20,000

146,000