The opinion of the court was delivered by
Mr. Justice McGowan.
James Hughey becoming old and infirm, and finding himself alone and without any one of his immediate family to take care of him, sold his little tract of land and went to live with the defendant, who had married his adopted daughter, to whom he Avas attached. Upon the occasion of his removal, he seems to have carried with him a horse, about sixty bushels of corn, a gun, a few pieces of old furniture, and some notes, amounting in value, as alleged, to about $800. He was received and treated kindly by the defendant and his wife. They nursed him in his last illness, employed and paid for what medical attention he Avanted, and in about six months thereafter he died intestate, leaving his property in their possession.
Soon after the death of the intestate, the plaintiff, who had mar[360]*360ried a daughter of the deceased, applied for letters of administration upon the estate, and before the time had elapsed for obtaining full letters, he received some authority, in the nature of letters ad colligendum bona, to gather up the goods of the deceased, and sued the defendant for the aforesaid property. The defendant answered, claiming title to the property which remained by parol gift from the intestate in his life-time, the inducing cause or consideration being the love and affection to his wife, the adopted daughter of the deceased, and the services rendered the intestate in his old age and helpless condition by the defendant and his wife.
It was referred to a referee to take the testimony, much of which consisted of the “declarations” of the intestate that he “had given” or “intended to give” the property to Cook and wife, and was taken subject to exception. It is all printed in the Brief. The cause came on to be heard by Judge Hudson, who ruled that all the testimony of both the plaintiff and defendant, touching transactions and communications of -the witnesses with the deceased, must be stricken out under section 400 of the Code; and that all the testimony of other witnesses in behalf of the plaintiff as to declarations of the deceased in support of his title and against the gift, must also be stricken out. The judge in his decree says, “After eliminating from the case all this incompetent and irrelevant testimony, and after considering the other testimony, I find that the great weight of the evidence is in favor of the title of the defendant and wife, and is against the claim of the plaintiff. * * * I find as matter of fact that the intestate at the time of his death did not own the property in dispute, having given the same to the defendant and his wife, and hence the plaintiff cannot recover,” and dismissed the complaint.
From this decree the plaintiff appeals upon exceptions: I. Because, it is respectfully submitted, that .his honor erred in ruling that all the testimony of witnesses in behalf of the plaintiff as 'to declarations of deceased in support of his title and against the gift must be stricken out, testimony of like nature in support of the gift having been previously introduced by defendant. II. Because his honor erred in finding that the great weight of the evidence is in favor of the title of the defendant [361]*361and wife, and is against the claim of the plaintiff. III. Because his honor erred in finding that this case is similar in the character of the proof of the gift, to the case of Blake v. Jones (Bail. Eq., 142), it being respectfully submitted that there is no parallel between the two cases. IV. Because his honor erred in finding that the delivery was made, as far as is usual under like circumstances, and that the defendant and wife had possession of the property, sufficient to amount to a delivery. V. Because his honor erred in finding that the plaintiff gave the horse to defendant and wife, for immediate use as their horse. VI. Because his honor erred in finding that the plaintiff had no right to any of the property traced to defendant’s possession, and named in the complaint. VII. Because his honor erred in finding that defendant had only one dollar and fifty cents in his possession of the money of the intestate, and that he had offered to turn over the same to plaintiff. VIII. Because his honor erred in deciding that the intestate did not, at the time of his death, own the property in dispute; that he had given the same to defendant and wife; and adjudging that the complaint should be dismissed.
There are no rights of creditors in the case. The intestate seems to have been punctual in paying his debts, and the only contest is between the heirs at law and the defendant.
The general rule of evidence certainly is, that declarations are admissible against the interest of the party, but not in his favor. “There is, perhaps, no principle better settled than that, when one has entered into a contract, made a gift, or done any other act, by which he is bound, he cannot by any subsequent act- or declaration of his own avoid or discharge himself from it. If, then, the gift by the testatrix to the defendant’s wife was proved, her subsequent declarations w'ere, upon general principles, inadmissible, for the obvious reason that they were irrelevant. They were therefore properly rejected. Cases do sometimes arise, in which proof of the gift is made up of repeated declarations of the donor, running through several years, where such declarations are brought in by the party claiming under it in support of doubtful evidence of the gift. In these and such like cases, such declarations are admissible, in reply to such evidence. The case [362]*362of Sims v. Saunders, Harp., 374, is an illustration of this.” McKane v. Bonner, 1 Bail., 116.
It seems that in respect to alleged parol gifts, proof of declarations of the donor is only allowable in doubtful cases upon the question of gift or no gift, and the evidence on both sides consists of declarations of the. alleged donor. The doctrine is clearly exceptional in character, and as it trenches closely on forbidden ground, it should not be allowed to go beyond the necessity of the case, and then be received with great caution. “Where there has been plenary proof of the gift, subsequent declaration of the donor that a gift was not intended, is inadmissible.” McKane v. Bonner, supra. It seems that the Circuit Judge was entirely satisfied, “from the great weight of the evidence,” that “plenary proof of the gift” had been made. And according to the well established, rule of this court, that finding of fact will not be disturbed, unless it is against the weight of the evidence, which we have read and considered. We cannot say there was error of law in excluding the subsequent declarations of the intestate tending to controvert the gift previously made.
But it is strongly urged upon us that there was no sufficient proof of gift perfected by a delivery — that the whole evidence, taken together, showed, at the most, an intention to give at the death of the donor, which was testamentary in character, and void as being in conflict with the law as to wills. The question whether there was a delivery was also a question of fact, which the Circuit Judge has decided. It is said, however, that his view of what, under such circumstances, would constitute a legal delivery, was error of law. There is no doubt that a parol gift of chattels cannot be made to take effect in futuro. To constitute a legal gift there must be an actual or constructive delivery of possession so as to confer the right of enjoyment in presentí.
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The opinion of the court was delivered by
Mr. Justice McGowan.
James Hughey becoming old and infirm, and finding himself alone and without any one of his immediate family to take care of him, sold his little tract of land and went to live with the defendant, who had married his adopted daughter, to whom he Avas attached. Upon the occasion of his removal, he seems to have carried with him a horse, about sixty bushels of corn, a gun, a few pieces of old furniture, and some notes, amounting in value, as alleged, to about $800. He was received and treated kindly by the defendant and his wife. They nursed him in his last illness, employed and paid for what medical attention he Avanted, and in about six months thereafter he died intestate, leaving his property in their possession.
Soon after the death of the intestate, the plaintiff, who had mar[360]*360ried a daughter of the deceased, applied for letters of administration upon the estate, and before the time had elapsed for obtaining full letters, he received some authority, in the nature of letters ad colligendum bona, to gather up the goods of the deceased, and sued the defendant for the aforesaid property. The defendant answered, claiming title to the property which remained by parol gift from the intestate in his life-time, the inducing cause or consideration being the love and affection to his wife, the adopted daughter of the deceased, and the services rendered the intestate in his old age and helpless condition by the defendant and his wife.
It was referred to a referee to take the testimony, much of which consisted of the “declarations” of the intestate that he “had given” or “intended to give” the property to Cook and wife, and was taken subject to exception. It is all printed in the Brief. The cause came on to be heard by Judge Hudson, who ruled that all the testimony of both the plaintiff and defendant, touching transactions and communications of -the witnesses with the deceased, must be stricken out under section 400 of the Code; and that all the testimony of other witnesses in behalf of the plaintiff as to declarations of the deceased in support of his title and against the gift, must also be stricken out. The judge in his decree says, “After eliminating from the case all this incompetent and irrelevant testimony, and after considering the other testimony, I find that the great weight of the evidence is in favor of the title of the defendant and wife, and is against the claim of the plaintiff. * * * I find as matter of fact that the intestate at the time of his death did not own the property in dispute, having given the same to the defendant and his wife, and hence the plaintiff cannot recover,” and dismissed the complaint.
From this decree the plaintiff appeals upon exceptions: I. Because, it is respectfully submitted, that .his honor erred in ruling that all the testimony of witnesses in behalf of the plaintiff as 'to declarations of deceased in support of his title and against the gift must be stricken out, testimony of like nature in support of the gift having been previously introduced by defendant. II. Because his honor erred in finding that the great weight of the evidence is in favor of the title of the defendant [361]*361and wife, and is against the claim of the plaintiff. III. Because his honor erred in finding that this case is similar in the character of the proof of the gift, to the case of Blake v. Jones (Bail. Eq., 142), it being respectfully submitted that there is no parallel between the two cases. IV. Because his honor erred in finding that the delivery was made, as far as is usual under like circumstances, and that the defendant and wife had possession of the property, sufficient to amount to a delivery. V. Because his honor erred in finding that the plaintiff gave the horse to defendant and wife, for immediate use as their horse. VI. Because his honor erred in finding that the plaintiff had no right to any of the property traced to defendant’s possession, and named in the complaint. VII. Because his honor erred in finding that defendant had only one dollar and fifty cents in his possession of the money of the intestate, and that he had offered to turn over the same to plaintiff. VIII. Because his honor erred in deciding that the intestate did not, at the time of his death, own the property in dispute; that he had given the same to defendant and wife; and adjudging that the complaint should be dismissed.
There are no rights of creditors in the case. The intestate seems to have been punctual in paying his debts, and the only contest is between the heirs at law and the defendant.
The general rule of evidence certainly is, that declarations are admissible against the interest of the party, but not in his favor. “There is, perhaps, no principle better settled than that, when one has entered into a contract, made a gift, or done any other act, by which he is bound, he cannot by any subsequent act- or declaration of his own avoid or discharge himself from it. If, then, the gift by the testatrix to the defendant’s wife was proved, her subsequent declarations w'ere, upon general principles, inadmissible, for the obvious reason that they were irrelevant. They were therefore properly rejected. Cases do sometimes arise, in which proof of the gift is made up of repeated declarations of the donor, running through several years, where such declarations are brought in by the party claiming under it in support of doubtful evidence of the gift. In these and such like cases, such declarations are admissible, in reply to such evidence. The case [362]*362of Sims v. Saunders, Harp., 374, is an illustration of this.” McKane v. Bonner, 1 Bail., 116.
It seems that in respect to alleged parol gifts, proof of declarations of the donor is only allowable in doubtful cases upon the question of gift or no gift, and the evidence on both sides consists of declarations of the. alleged donor. The doctrine is clearly exceptional in character, and as it trenches closely on forbidden ground, it should not be allowed to go beyond the necessity of the case, and then be received with great caution. “Where there has been plenary proof of the gift, subsequent declaration of the donor that a gift was not intended, is inadmissible.” McKane v. Bonner, supra. It seems that the Circuit Judge was entirely satisfied, “from the great weight of the evidence,” that “plenary proof of the gift” had been made. And according to the well established, rule of this court, that finding of fact will not be disturbed, unless it is against the weight of the evidence, which we have read and considered. We cannot say there was error of law in excluding the subsequent declarations of the intestate tending to controvert the gift previously made.
But it is strongly urged upon us that there was no sufficient proof of gift perfected by a delivery — that the whole evidence, taken together, showed, at the most, an intention to give at the death of the donor, which was testamentary in character, and void as being in conflict with the law as to wills. The question whether there was a delivery was also a question of fact, which the Circuit Judge has decided. It is said, however, that his view of what, under such circumstances, would constitute a legal delivery, was error of law. There is no doubt that a parol gift of chattels cannot be made to take effect in futuro. To constitute a legal gift there must be an actual or constructive delivery of possession so as to confer the right of enjoyment in presentí. The rule seems very plain; but there are so many kinds of personal property, and circumstances are so various, there is often no little difficulty in applying it properly.
It has been settled that it is not necessary that there should be in all cases an actual manual delivery. The principle is stated thus : “Property in a chattel cannot be transfered by a parol gift without delivery; but by delivery is not meant an actual manual [363]*363delivery in all cases, but any circumstances amounting to a clear demonstration of the intention of the one to transfer, and of the other to accept, and whieh puts it into his power, or gives him authority to take possession, is all that is necessary, and is a fact that is left to the jury.” Reid v. Colcock, 1 Nott & McC., 592; Hatton v. Banks, Ibid., 221; Blake v. Jones, admr., Bail. Eq., 141. The latter case, as remarked by the Circuit Judge, “is very similar in the character of the proof” to this. In that case it was held that “when a donor has repeatedly declared his intention to give, his subsequent admissions that ‘he had given’ are sufficient evidence of an actual delivery to complete the title of the donee, when it does not appear that the declarations were loose and playful, and particularly when the donor was under a moral obligation to make the gift.”
Indeed, upon the point of delivery, this case is stronger than that of Blake v. Jones, for there the slaves recovered by a daughter from the administrator of her father were never in the actual possession of the donee. The father had said: “When you get a plantation I will send them to you, and in the meantime I might as well pay you hire as any one else.” W’hile here the property, at the time of the death of the alleged donor,.was already in the possession of the person claiming as donee. It may be said that this arose from the accidental circumstance that the intestate, at the time of his death, was living with the defendant ; but it seems to us it is a circumstance entitled to some consideration, at least in this, that at the time of the alleged gift there was no occasion to make a visible transfer of the possession (the usual evidence of such a gift), for the defendant was already in possession in a general sense.
We see no reason to except the “cream horse” from the other property. It appeared from the testimony of Weekly, Searson, Shaffer, and others, that the intestate, three or four weeks before his death, said : “I have moved to Joe Cook’s for some time — I don’t intend to live by .myself any more. All I’ve got I have carried to Joe Cook’s, and there is where I expect to stay until I die, and this horse I have given to Joe Cook, on condition that when I want to ride he is my horse, and when I have no use for the horse, it’s Joe Cook’s, and all that I haye.” Where the gift [364]*364of a slave was absolute in its terms, and accompanied with delivery of possession — held, that the reservation of a right “to borrow” under certain circumstances, or to receive “something like hire,” if the donor should stand in need, was a “condition subsequent, and did not invalidate the gift, although made by parol,” &c. McKane v. Bonner, supra.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.