Camp's Appeal from Probate

36 Conn. 88

• Court: Supreme Court of Connecticut
• Decided: August 15, 1869
• Status: Published

Opinion

Carpenter, J.

The facts agreed upon in this case indicate an unmistakeable intention on the part of Nathan H. Camp to give these bank books to the appellant. He attempted to carry that intention into immediate effect by delivering the books to the donee, but without any order for the payment of the money, or other writing indicative of such gift. It is not claimed that this is a donation causa mortis. The question is whether the transaction can operate as a. gift inter vivos. A gift inter vivos is complete when there is an intention to give, accompanied by a delivery of the thing given, and an acceptance by the donee. There can be no doubt as to the intention to give, and the acceptance. The only question is, was there a legal delivery ?

dioses in action the title to which passes by delivery, may be the subject of a gift as well as any other species of property. The authorities pretty uniformly sustain this position. If, therefore, the statute, (Gen. Statutes, title 1, sec. 64,) authorizing the equitable assignee of a chose in action not negotiable to maintain an action at law thereon in his own name, is applicable to these bank books, and is to be regarded as vesting the legal title in the equitable owner, the case is clearly within that principle. ■ No reason occurs to us at present why these books should not be held to be within the operation of that statute. ■ Nor is it easy to see why such .assignee, when authorized to maintain an action at law upon such an instrument in his own name,. should not be regarded as the legal owner for all purposes whatsoever.

But if we are wrong in this, still we should come to the same result. Whatever may be said or thought of the propriety of the law, it is well settled by the modern authorities that choses in action not negotiable, and negotiable paper not indorsed, may.be the subject of a gift, and that a delivery which vests in the donee the equitable title is sufficient-without a complete transfer of the legal title. In this respect a title by gift is not distinguishable from a title by purchase for a valuable consideration, and, when the claims of creditors do not interfere to affect its validity, such a title will be .recognized and protected in the same manner and to the same extent as a title by sale. Grover v. Grover, 24 Pick., 261 ; Parish v. Stone, 14 Pick., 198; Champney v. Blanchard, 39 N. York, 111; Penfield v. Thayer, 2 E. D. Smith, 305. Other authorities might be cited but it is unnecessary. The last case cited is almost identical with this, and if law,— and we see no reason why it is not,—it is conclusive. But this question was virtually determined by this court in Brown, Exr., v. Brown, 18 Conn., 410. It is true that was a donation causa mortis ; but the principle involved is the same in both cases, as there is no difference in respect to the requisites of a delivery between the two classes of gifts. Irons v. Smallpiece, 2 Barn. & Ald., 551; Carpenter v. Dodge, 20 Verm., 595; Sessions v. Moseley, 4 Cush., 87; Westerlo v. DeWitt, 36 N. York, 340.

For these reasons we are satisfied that the appellant had a good title to the property in question, and that the decree of the court of probate should be disaffirmed, and we so advise the Superior Court.

In this opinion the other judges concurred.