bill alleging mental incompetency, etc. This court held that the discharge of this mortgage, and the execution of another at his request, was not testamentary in character; that it disposed of the absolute title to the mortgage to his son, the defendant, whom he was willing to trust to carry out his wishes in dividing it among certain children. This court held that he might have assigned direct to the son, and the same result would have followed, or he might have converted it into money, giving that to the defendant, either absolutely, or in trust for others, and that the transaction constituted a complete gift inter vivos and was valid.

In Hagerman v. Wigent it was held that the delivery of a mortgage by its owner to one person, with instructions to deliver the same to another after the owner's death, was a sufficient delivery to meet the requirements of a valid gift inter vivos.

In Holmes v. McDonald, Alexander McDonald took a purchase-money mortgage from his sons John and Donald for $3,000, with annual interest to be paid to the mortgagee during his lifetime, and after his death the sum of $500 to their sister, Jennie, "then these presents shall cease and be null and void." This mortgage was duly recorded. Later a new arrangement was made, and this mortgage discharged, and a new mortgage made cutting out Jennie. During the lifetime of Alexander his sons continued to pay him the interest specified in the mortgage. After his death the daughter, Jennie, filed her bill to foreclose the first mortgage, claiming that there was due her thereunder $500, and that Alexander McDonald had no power to discharge this mortgage and cut off the payment secured to her thereunder. The court below entered a decree of foreclosure in her favor, holding that the case was ruled by Love v. Francis, 63 Mich. 181 (29 N. W. 843, 6 Am. St. Rep. 290), and that the recording of the mortgage providing for the payment to Jennie of $500

was a gift inter vivos. That decree was affirmed in this court. This court said:

"To consummate such gift, there must be such a delivery from the donor to the donee as will place the property within the dominion and control of the latter, with intent to transfer the title to him"

And held that a gift beneficial to the donee will be presumed to have been accepted.

It may be said that there are two answers to the claim of complainant with reference to this last-quoted paper, either of which it seems to us is conclusive:

It may be said that the gift had really been made to John and accepted by him; and, under the rule stated in Holmes v. McDonald, nothing remained to be disposed of by William, and that the instrument last above quoted is a mere expression of a wish as stated by him in the instrument. It says, "It is my wish that you make these gifts," etc., thus leaving it optional with the defendant John.

(2) Although the paper bears date December 18th, and may have been written even at a later date, yet according to the testimony of James McConville, and that of defendant John McConville, not objected to, it seems to have expressed in substance what had been written upon the margin of a newspaper, either by William, or in his presence, at the time of the execution of the papers of December 14th and 15th, and may be said to be a part of the same transaction. In our opinion this is the true interpretation that should be placed upon the instrument.

It is conceded by complainant's counsel, in his supplemental brief, that where a gift is made to one, and at the time of delivery and passage of title a condition is imposed upon the donee with respect to his use of all or a part of the donation, a trust is created, and the donee takes the property subject to the condition so expressed. But he contends that no trust is created

unless the condition upon which it is based is clearly expressed at the time title to the property passes. This is true probably.

As to the relief prayed for in defendant John McConville's cross-bill.-Before his death William had loaned to Harry M. Baxter and A. William Baxter a sum of money. For security therefor he had taken a deed of certain real estate from them, and had given back the land contract referred to. Under the repeated decisions of this court, in such a transaction, the deed and contract together constituted a mortgage. It was mere security held by William. Clearly, under our decisions, such an instrument was personal property and would pass by an assignment. This court said in Clay v. Layton, 134 Mich. 317 (96 N. W. 458), speaking of decedent's disposition of property:

"Had he seen fit during his life to deliver the deeds and assignments to those for whom they were intended, the title would have passed, and they would have become valid gifts."

We are inclined to think, however, that this question as to the nature of this instrument is not controlling in this case, and that the decree granting relief on the cross-bill was proper. The witness Monfort, who drew all of the instruments above referred to, except the first and last, and who witnessed them, testified, after a lengthy cross-examination, that it was his best recollection and belief that he drew another paper, to wit, a deed from William to John of the property covered by the land contract. It is true he is not very definite or positive in his testimony upon this subject, but there is no evidnce to the contrary. It also appears by the testimony of the witness Harry M. Baxter that in the month of December, when he went to pay William some money upon the land contract, while William was in his sick room, the latter said to him that he had transferred this property to his brother John, and that the money should be paid to John.

It is a well-settled doctrine that subsequent declarations of the donor, in the nature of admissions against interest, are admissible in evidence as tending to show that he had given the property in question to the donee. 20 Cyc. p. 1247, and note; Darland v. Taylor, 52 Iowa, 503 (3 N. W. 510, 35 Am. Rep. 285); Smith v. Maine, 25 Barb. (N. Y.) 33; Garrison v. Trust Co., 164 Mich. 345 (129 N. W. 691, 32 L. R. A. [N. S.] 219).

We have so recently passed upon the subjects of gifts inter vivos and gifts causa mortis that we do not deem it necessary to review all of the authorities cited by counsel. Union Trust & Savings Bank v. Tyler, 161 Mich. 561 (126 N. W. 713, 137 Am. St. Rep. 523); Shepard v. Shepard, 164 Mich. 183 (129 N. W. 201); In re Morse's Estate, 170 Mich. 114 (135 N. W. 1057); Price v. Hagle, 171 Mich. 455 (137 N. W. 253).

In the last-cited case this court held that the mere fact that a decedent so disposed of his property by deed as to do an apparent injustice to one of his relatives will not nullify the transaction. Courts are not permitted to make equitable distribution of estates, but are concerned only in giving effect to the legal acts of decedents.

Perhaps it may seem hard and unnatural that the mother was not provided for more generously by William, but a careful study of the record in this case discloses the reason why. Not only William, but his brothers, considered that their mother had been an unnatural mother, and had not been fair with them, and this estrangement was of long standing. That the entire property of William, of the value of about $10,000, should have been given by him to his brother John, his best friend and partner, seems natural under the circumstances. They had made their money together. He was unmarried and without issue. The defendant John and his wife had provided him a home,

and, it is conceded, had cared for him properly and affectionately during their residence together, and down to the date of his death.

We are satisfied that the circuit judge reached the right conclusion, and the decree of the circuit court is affirmed, with costs to defendants.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, OSTRANDER, and BIRD, JJ., concurred.

PREGER v. BARNETT.

1. SALES-ACCEPTANCE-FRAUDS, STATUTE of.

Where a retail dealer of clothing gave an unsigned order for goods of the value of $500 or upwards, and the buyer afterwards wrote that instead of shipping goods as ordered he wished the sellers to ship a month later, and the sellers wrote that they would ship the goods when ready, dating the bill as of the time referred to in defendant's request, i. e., April 1st, defendant replying that if they 'did so they would ship at their own risk and expense, and where a drayman having general instructions to receive freight for defendant, delivered the goods at his shop before either date specified in the correspondence, and the goods were destroyed by fire, without fault of the purchaser, and before examination or acceptance, but after he had ordered them placed in his basement for protection, there was no delivery and acceptance sufficient to satisfy the statute of frauds. If it can be said that a completed contract of sale existed the express terms of the agreement left the risk and expense on plaintiffs, the vendors.

2. EVIDENCE-SALES-WAIVER.

Testimony of defendant, in an action for goods sold and