Coutant v. Schuyler

1 Paige Ch. 316, 1829 N.Y. LEXIS 336, 1829 N.Y. Misc. LEXIS 60

Opinion

The Chancellor :—The first question which arises in this case is, whether the note of a third person is a proper subject of a gift causet mortis. Without taking the trouble to go through all the English cases on the question, whether a chose in action is the proper subject of such a gift, it is sufficient to say it has been decided there, that a promissory note was not a proper subject for such a gift, and that abondwas;

[1] (Miller v. Miller, 1 Pr. Wms. 358; Snellgrove v. Bailey, 3 Atk. 214; Gardner v. Parker, 3 Mad. Rep. 184.) In the case of Wells v. Tucker, (3 Binney, 366,) the Supreme Court of Pennsylvania held the gift of a bond valid. And in onr own state, in the case of Wright v. Wright, (1 Cowen, 598,)[2] it was held, that the testator’s own note was a valid gift causa mortis.[3] Notwithstanding the attempts which have been made in England to distinguish between a promissory note and a bond, in relation to the validity of the gift of a chose in action, there cannot, in reason, be any difference. A gift of either is valid as a symbolical delivery of the debt due on the note or bond, and all the delivery of which the subject is capable.

In Wells v. Tucker, it was also decided that a gift to a third person for the use of the intended donee was a valid gift. The complainant is entitled to the amount due on the note, if it was actually delivered by the intestate to Marsh for her *use, as alleged in the bill, provided Reynolds was of sound disposing mind and memory, and no improper advantage was taken of his situation.

On this question the testimony is not perfectly satisfactory; and claims of this description must always be admitted with the greatest caution. I do not therefore think proper to dispose of this part of the case without giving the parties an opportunity to litigate the question of fact before a jury. I shall direct a feigned issue to be made up between the complainant and the administrators, and tried at the circuit in New York, unless both parties consent to have the trial in the Superior Court of that city, to ascertain whether the testator was of sound and disposing mind and memory, and did freely and voluntarily deliver the note in question to David Marsh, in his last sickness, and in contemplation of death, for the use of the complainant, as a gift to her, to take effect in case of his death; and either party is to be at liberty to examine the defendants Slocum and Marsh as witnesses on the trial of the said issue.

Bond and mortgage will pass by a delivery donatio causa mortis. 1 Bligh, 597; Duffield v. Hicks, 1 Dow. N. S. 1. As to the requisites of a valid donatio causa mortis. See note to Walter v. Hodge, 2 Swanston, 106.

This case is overruled. See Craig v. Craig, 3 Barb. Ch. 78; see Harris v. Clark, 3 Comst. 93. There held that; the executory promise of the donor; i. e., his own draft on a third party, in favor of the donee, intended as a donatio causa mortis, is not valid.

In Connecticut, it has been held, that the promissory note of a third person, though not payable to bearer, nor so indorsed as to transfer the legal title by delivery merely, may be the subject of a donatio causa mortis. Brown v. Brown, 18 Conn. 410; see also Craig v. Craig, 3 Barb. Ch. 78, 117, 118.