Opinion by
Mr. Chief Justice McBride.
1. At the outset it may be stated that it is clearly established that Manser intended that Baker should be his beneficiary to the extent of the drafts claimed by him. This fact is established by the testimony of the plaintiff and is corroborated by the testimony of McRae, who testifies that Baker showed him the drafts in Manser’s presence and told him that Manser had given them to him, to which statement Manser made no objection. It is true that the witness would not say positively that Manser heard the conversation, but the evidence shows that it took place in the room in which Manser was lying and under circumstances that rendered it improbable that he failed to hear what was said. At all events, this testimony dispels any doubt which might be raised that Baker was acting [391] secretly or in an underhand manner in respect to the alleged gift of the drafts. Had such been his intention, he would not have stated that Manser had given him the drafts when Manser was in a position where he was likely to hear the declaration and, if false, deny it. The evidence also discloses such an intimacy between the two men as renders such a disposition of the property reasonable. There can be no doubt that this friendship was remarkably close. Witnesses at Baker City testify as to their close friendly relations there; one witness saying that they were as intimate with each other as men could be, not to be twin brothers. They had planned the trip to California for the mutual benefit of their health, and, when the Noble Brand of the Odd Fellows Lodge suggested a nurse, Manser stated that he had a very dear friend named Baker, whom he desired to take care of him. And later, when the same witness asked if the lodge at San Diego should pay for nursing him in his sickness and send the bill to Manser’s lodge, he stated that he would pay Baker fully himself. Again, in conversing with this witness about his property, he said: “His relatives never treated him very good, and he did not think they were entitled to very much of his money, but he said that outsiders were kinder to him than even his own relatives, and he said that he ought to reward those that were good to him in his illness rather than his relatives.” This expression could refer to no one but plaintiff, who had been more than a brother to Manser, waiting upon him in his sickness, answering every demand upon his strength, and ministering to his every want. As before remarked, the intent of Manser to give Baker these drafts is beyond peradventure; and, unless there is some technical objection to the manner of the gift that renders that intention fruitless, we ought to effectuate it.
[392] 2. Let us now consider the language used by Manser in making the gift, as told by Baker: “He thought a few minutes longer and then he pulled out the two drafts and handed them to me and said: ‘Whatever we do — whatever may happen, they are for you to use for yourself. They are for you. I want you to have them to use for your own use. They are yours. I want you to have these anyway.’ ” Standing alone here is the language of a complete gift,' and, coupled with a delivery of possession, it passed the present title as a gift inter vivos. Taken in connection with other circumstances it was sufficient to constitute a complete gift causa mortis. So for the purposes of this case the distinction would seem immaterial. After the drafts were so delivered, Baker suggested an indorsement, but Manser told him it was unnecessary; that if anyone should steal them without an indorsement they would be unable to cash them; and that he would write a letter and have it fixed so that Baker could get the money. The failure of Manser to indorse the drafts is the principal argument urged by defendants’ counsel in favor of the theory that there was no intention to make an absolute gift of the drafts to the plaintiff, but that the delivery was conditional in character and therefore testamentary in its nature, and, not being executed in a manner sufficient to constitute a valid will, it is void. As before stated, the language used was sufficient to constitute a gift either inter vivos or causa mortis, but taken in connection with all the circumstances, it is fair to assume that it was a gift causa mortis, and that if by any miracle Manser had recovered from his illness he would have expected and demanded the return of the drafts, the contingency upon which they were given having failed to come to pass. It is therefore proper to consider what constitutes a valid gift causa mortis.
[393] “A gift causa mortis is defined to be a gift of personal property made by a person in expectation of death then imminent and upon an essential condition that the property shall belong fully to the donee, in case the donor dies as anticipated, leaving the donee surviving him, and the gift is not in the meantime revoked, but not otherwise”: 20 Cyc. 1228.
"A donation mortis causa is that which is made to meet the case of death, as when anything is given upon condition that, if any final accident befalls the donor, the person to whom it is given shall have it as his own; but if the donor should survive, or.if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor should receive back the thing given”: Just. Inst., lib. 2, tit. 7, quoted in 20 Cyc., supra.
From these definitions it appears that, to constitute a valid gift causa mortis, three things must concur: (1) The gift must be made with a view to the donor’s death; (2) it must be conditioned to take effect only on the owner’s death or by reason of an existing illness; (3) there must be an actual delivery of the possession of the thing given to the donee. The only difference between a gift causa mortis and a gift inter vivos is that in the first the donor retains the power of revocation, and the death of the donee occurring before that of the donor works revocation, while in the latter the whole title passes irrevocably with delivery of possession.
Now let us apply these elementary propositions to the case at bar. The words of the gift were absolute: “Whatever happens I want you to have these anyway. These are yours to use for your own use.” The delivery was complete, and Manser’s declining to indorse them was not put upon the ground that he wished to retain any further dominion over them, but because such indorsement was unnecessary and because he [394] thought a letter to the bank would be safer and avoid the danger of an indorsed draft falling into wrong hands.
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Opinion by
Mr. Chief Justice McBride.
1. At the outset it may be stated that it is clearly established that Manser intended that Baker should be his beneficiary to the extent of the drafts claimed by him. This fact is established by the testimony of the plaintiff and is corroborated by the testimony of McRae, who testifies that Baker showed him the drafts in Manser’s presence and told him that Manser had given them to him, to which statement Manser made no objection. It is true that the witness would not say positively that Manser heard the conversation, but the evidence shows that it took place in the room in which Manser was lying and under circumstances that rendered it improbable that he failed to hear what was said. At all events, this testimony dispels any doubt which might be raised that Baker was acting [391] secretly or in an underhand manner in respect to the alleged gift of the drafts. Had such been his intention, he would not have stated that Manser had given him the drafts when Manser was in a position where he was likely to hear the declaration and, if false, deny it. The evidence also discloses such an intimacy between the two men as renders such a disposition of the property reasonable. There can be no doubt that this friendship was remarkably close. Witnesses at Baker City testify as to their close friendly relations there; one witness saying that they were as intimate with each other as men could be, not to be twin brothers. They had planned the trip to California for the mutual benefit of their health, and, when the Noble Brand of the Odd Fellows Lodge suggested a nurse, Manser stated that he had a very dear friend named Baker, whom he desired to take care of him. And later, when the same witness asked if the lodge at San Diego should pay for nursing him in his sickness and send the bill to Manser’s lodge, he stated that he would pay Baker fully himself. Again, in conversing with this witness about his property, he said: “His relatives never treated him very good, and he did not think they were entitled to very much of his money, but he said that outsiders were kinder to him than even his own relatives, and he said that he ought to reward those that were good to him in his illness rather than his relatives.” This expression could refer to no one but plaintiff, who had been more than a brother to Manser, waiting upon him in his sickness, answering every demand upon his strength, and ministering to his every want. As before remarked, the intent of Manser to give Baker these drafts is beyond peradventure; and, unless there is some technical objection to the manner of the gift that renders that intention fruitless, we ought to effectuate it.
[392] 2. Let us now consider the language used by Manser in making the gift, as told by Baker: “He thought a few minutes longer and then he pulled out the two drafts and handed them to me and said: ‘Whatever we do — whatever may happen, they are for you to use for yourself. They are for you. I want you to have them to use for your own use. They are yours. I want you to have these anyway.’ ” Standing alone here is the language of a complete gift,' and, coupled with a delivery of possession, it passed the present title as a gift inter vivos. Taken in connection with other circumstances it was sufficient to constitute a complete gift causa mortis. So for the purposes of this case the distinction would seem immaterial. After the drafts were so delivered, Baker suggested an indorsement, but Manser told him it was unnecessary; that if anyone should steal them without an indorsement they would be unable to cash them; and that he would write a letter and have it fixed so that Baker could get the money. The failure of Manser to indorse the drafts is the principal argument urged by defendants’ counsel in favor of the theory that there was no intention to make an absolute gift of the drafts to the plaintiff, but that the delivery was conditional in character and therefore testamentary in its nature, and, not being executed in a manner sufficient to constitute a valid will, it is void. As before stated, the language used was sufficient to constitute a gift either inter vivos or causa mortis, but taken in connection with all the circumstances, it is fair to assume that it was a gift causa mortis, and that if by any miracle Manser had recovered from his illness he would have expected and demanded the return of the drafts, the contingency upon which they were given having failed to come to pass. It is therefore proper to consider what constitutes a valid gift causa mortis.
[393] “A gift causa mortis is defined to be a gift of personal property made by a person in expectation of death then imminent and upon an essential condition that the property shall belong fully to the donee, in case the donor dies as anticipated, leaving the donee surviving him, and the gift is not in the meantime revoked, but not otherwise”: 20 Cyc. 1228.
"A donation mortis causa is that which is made to meet the case of death, as when anything is given upon condition that, if any final accident befalls the donor, the person to whom it is given shall have it as his own; but if the donor should survive, or.if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor should receive back the thing given”: Just. Inst., lib. 2, tit. 7, quoted in 20 Cyc., supra.
From these definitions it appears that, to constitute a valid gift causa mortis, three things must concur: (1) The gift must be made with a view to the donor’s death; (2) it must be conditioned to take effect only on the owner’s death or by reason of an existing illness; (3) there must be an actual delivery of the possession of the thing given to the donee. The only difference between a gift causa mortis and a gift inter vivos is that in the first the donor retains the power of revocation, and the death of the donee occurring before that of the donor works revocation, while in the latter the whole title passes irrevocably with delivery of possession.
Now let us apply these elementary propositions to the case at bar. The words of the gift were absolute: “Whatever happens I want you to have these anyway. These are yours to use for your own use.” The delivery was complete, and Manser’s declining to indorse them was not put upon the ground that he wished to retain any further dominion over them, but because such indorsement was unnecessary and because he [394] thought a letter to the bank would be safer and avoid the danger of an indorsed draft falling into wrong hands.
3. There is nothing to indicate that he used the pretext of writing a letter to defeat or defer the gift, but rather to effectuate and render more convenient and safe the execution of it. He was right in saying that the indorsement was unnecessary, for it has frequently been held that the gift or sale of a negotiable instrument accompanied by an actual transfer of possession passes the title: 1 Woerner, Am. Law of Adm., § 59; First Nat. Bank v. McCullough, 50 Or. 508 (93 Pac. 366, 126 Am. St. Rep. 758, 17 L. R. A. (N. S.) 1105;, Bates v. Kempton, 73 Mass. (7 Gray) 382; Turpin v. Thompson, 2 Met. (Ky.) 420; Westerlo v. De Witt, 36 N. Y. 340 (93 Am. Dec. 517); Brown v. Brown, 18 Conn. 410 (46 Am. Dec. 328). The case of Basket v. Hassell, 107 U. S. 602 (27 L. Ed. 500, 2 Sup. Ct. Rep. 415), is much relied upon by defendants and contains an exhaustive review of the authorities, but it is not in point as applied to the case at bar. In that case one Chaney, being ill and under apprehension of death, made the following indorsement upon a certificate of deposit and at the same time delivered it to Basket: “Pay to Martin Basket, of Henderson, Kentucky; no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. H. M. Chaney. ’ ’ It does not appear that there was any evidence of an intent on the part of Chaney to make a gift of the money to Basket beyond the fact that he made the indorsement quoted and delivered the certificate. The indorsement was restrictive and ambiguous. The nature of the possession was interpreted in the light of the indorsement, which prevented his having control of the fund during the donor’s life. It amounted to a mere order or check [395] on the hank to the extent of the fund, evidenced by the certificates, and indicated an intent on the part of the assignor to retain control of the money during his life. The case carries the doctrine of judicial hostility to gifts causa mortis to the very extreme, and no court should go beyond it.
It” is impractical to discuss at length all the authorities upon this branch of the subject. In our judgment the true criteria by which to judge the validity of a gift causa mortis is to be found in the case of Leyson v. Davis, 17 Mont. 220 (42 Pac. 775, 31 L. R. A. 429), which is a most exhaustive and learned review of the whole subject, and in the case of Johnson v. Colley, 101 Va. 414 (99 Am. St. Rep. 884, 44 S. E. 721.)
4, 5. The fact that after making his will the deceased caused the letter quoted to be written, and that he kept it in his possession with the intent that it should be forwarded after his death, in our judgment does not in any way bear upon his intent in delivering the drafts to plaintiff. It is to be remembered that Manser had other money in the bank besides that represented by these drafts, and this seems to have been the principal matter referred to in the letter. It is probable that he intended to include in its terms the money due on the drafts, but, if so, that intention is very imperfectly expressed. There is nothing in the letter or in the fact of his retaining possession of it that indicates an intention of limiting the rights conveyed by the delivery of the drafts or the words accompanying their delivery. It is true that claims of gifts causa mortis should be closely scrutinized with a view to preventing fraud; but, when the intention of the donor is clear, mere formal and technical objections should not be allowed to defeat such intent.
The decree of the Circuit Court is affirmed.
Affirmed.