Tilghman C. J.
This is an action of trover for two bonds which were the property of A. Craig the plaintiff’s intestate. The defendants claim them as a donatio causa mortis made by Andrezv Craig in his last illness to the children of the defendants. Andrew Craig died intestate, and without issue, and the gift was proved by Theodosia Craig, his widow, who is intitled by law to one half of her husband’s personal estate. She swore, that the gift was made by her husband about three days before his death, and the bonds delivered to her, to be by her delivered over, and that she kept them locked up in her trunk till after the death of her husband, when she gave them to the defendants for the use of their children.
The first reason offered for a new trial, is that the verdict [370]*370was against evidence. But this does not appear to have been by any means the case; for the witness who proved the gift was of irreproachable character, and swearing against her own interest. Her credibility was submitted to the jury, and I cannot say that they were wrong in believing her.
The second reason for a new trial is, that there was no delivery of the bonds, which is essential to a gift of this kind; that a delivery to the wife, was, in point of law, no delivery at all, and that the judge who tried the cause erred in not charging the jury accordingly. This is the only point for consideration.
A donatio causa mortis is a gift of a personal chattel, made by a person in his last illness, subject to an implied condition, that if the donor recovers, the gift' shall be void. So also it shall be void, if the donee dies before the donor. In this and some other circumstances (being subject to the debts of the donor See.) it is in nature of a legacy. It was introduced into the common law from the Roman civil law, but not in the full extent in which it is recognised in the latter. The civil law takes notice of three different kinds of donationes mortis causa, to some of which delivery is essential, but not to all. It is unnecessary to inquire minutely into the civil law, because I consider it as settled, that to gifts of this kind, as incorporated into the common law, delivery is necessary. The whole law on this subject, is fully laid down by lord Hardwicke in Ward v. Turner, 2 Ves. 431. It was formerly doubted, but is now established, (as conceded by the plaintiff’s counsel) that a bond is a proper subject of this kind of gift. It is a wise principle of our law, that delivery is essential, because delivery strengthens the evidence of the gift. Too much care cannot be taken, in insisting on the most convincing evidence in cases of this kind; for these donations do in effect amount to a revocation pro tanto, of written wills; and not being subject to the forms prescribed for nuncupative wills, they are certainly of a dangerous nature. Now let us consider the delivery which was made in this case. In the first place it was not to the donee, but to the donor’s wife to be by her delivered over. There is no objection to this mode of deliveiy. Whether made to the donee immediately, or to another for his use, is immaterial. It was so decided in Drury v. Smith, 1 P. Wms. 404. [371]*371The circumstance relied on by the plaintiff’s counsel, is, that the delivery to the wife was in fact no change of possession, because the possession of the wife is the possession of the husband, and the wife being in the husband’s power, he may at any time take back the possession, and thus avoid the gift. To give this observation its full force, it is contended on the part of the plaintiff, that a gift of this kind passes the property immediately, and is not subject to revocation by the donor. Without absolutely committing myself, I incline to the opinion, that in this as in several other particulars, it partakes of the nature of a legacy, and is revocable. No case has been cited exactly in point; but it is laid down in Ay tiff's Pand. 331., that it may be revoked by the donor’s repenting thereof; and in Free, in Chan. 300., the Lord Chancellor, in delivering his opinion, said to the counsel, “ you agree “ that a donatio causa mortis is revocable by the testator.” It is true that in the arguments of the counsel, as reported, no such concession appears. One would hardly suppose however, that the chancellor would have used those expressions unless the fact had been so. But the case of Miller v. Miller, 3 P. Wins. 356., is strong to the point of delivery. Indeed the argument from that case is a fortiori; for there the donation was to the wife, and the delivery to the wife, and held good. There is no weight in the remark, that in that case the testator delivered the chattel in the first instance to a servant, to be by him delivered to the wife; for she was present, and the delivery over to her was made in a short time and in the testator’s presence. There can be no reason why a delivery to the wife for her own use should be good, and yet not good if for the use of another. Upon the whole then this donation was perfect; it was made in the testator’s last illness, and accompanied with the delivery of the bonds, which is all that the nature of the case admits of. I am therefore of opinion that the plaintiff’s rule should be discharged.
Yeates J.
There seems to me no ground whatever for asserting that the present verdict was contrary to evidence. It rested solely on the credibility of Theodosia Craig, the widow of the intestate, of which the jurors were the sole [372]*372judges. They were instructed to deliberate calmly upon her testimony, and on the one hand to consider the danger of such evidence, the necessary consequences of parol evidence in such cases in general, and the particular prepossessions of the witness in this case towards her niece; on the other hand, they were told to recollect, that she testified against her own interest as to one half of the demand, that the impulse of her husband’s mind was favourably directed towards Mrs. Tucker his adopted child from early infancy, which was confirmed by the unfinished wills wherein he marks her husband and children as objects of his bounty, that the probability of her story, her character and manner of giving testimony, should also be taken into view, and a temperate decision formed on the whole. The jury have affirmed the credibility of the witness by their verdict, with which I am perfectly satisfied. As to the conduct of Tucker in cancelling the bonds, and prevailing on Stephen Sicard to acknowledge satisfaction on the record of the mortgage, after he had assigned it over to the intestate, the jury were told that it was highly improper and reprehensible; but if the children independently of these acts were intitled to the benefit of these bonds, such acts would not defeat their interest therein.
I think the evidence would have warranted the jury to pronounce the gift to the defendant’s children to be absolute in the first instance, and to take effect immediately, and therefore irrevocable in its nature. Nothing was said or hinted at, of its being a conditional gift in case of his death; but he gave the bonds to Tucker’s children equally to be divided betzucen them; arid such might be a good present donatio hita vivos.
Supposing however that the act was done in contemplation of death,and that it could only take effect as a donatio causa
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Tilghman C. J.
This is an action of trover for two bonds which were the property of A. Craig the plaintiff’s intestate. The defendants claim them as a donatio causa mortis made by Andrezv Craig in his last illness to the children of the defendants. Andrew Craig died intestate, and without issue, and the gift was proved by Theodosia Craig, his widow, who is intitled by law to one half of her husband’s personal estate. She swore, that the gift was made by her husband about three days before his death, and the bonds delivered to her, to be by her delivered over, and that she kept them locked up in her trunk till after the death of her husband, when she gave them to the defendants for the use of their children.
The first reason offered for a new trial, is that the verdict [370]*370was against evidence. But this does not appear to have been by any means the case; for the witness who proved the gift was of irreproachable character, and swearing against her own interest. Her credibility was submitted to the jury, and I cannot say that they were wrong in believing her.
The second reason for a new trial is, that there was no delivery of the bonds, which is essential to a gift of this kind; that a delivery to the wife, was, in point of law, no delivery at all, and that the judge who tried the cause erred in not charging the jury accordingly. This is the only point for consideration.
A donatio causa mortis is a gift of a personal chattel, made by a person in his last illness, subject to an implied condition, that if the donor recovers, the gift' shall be void. So also it shall be void, if the donee dies before the donor. In this and some other circumstances (being subject to the debts of the donor See.) it is in nature of a legacy. It was introduced into the common law from the Roman civil law, but not in the full extent in which it is recognised in the latter. The civil law takes notice of three different kinds of donationes mortis causa, to some of which delivery is essential, but not to all. It is unnecessary to inquire minutely into the civil law, because I consider it as settled, that to gifts of this kind, as incorporated into the common law, delivery is necessary. The whole law on this subject, is fully laid down by lord Hardwicke in Ward v. Turner, 2 Ves. 431. It was formerly doubted, but is now established, (as conceded by the plaintiff’s counsel) that a bond is a proper subject of this kind of gift. It is a wise principle of our law, that delivery is essential, because delivery strengthens the evidence of the gift. Too much care cannot be taken, in insisting on the most convincing evidence in cases of this kind; for these donations do in effect amount to a revocation pro tanto, of written wills; and not being subject to the forms prescribed for nuncupative wills, they are certainly of a dangerous nature. Now let us consider the delivery which was made in this case. In the first place it was not to the donee, but to the donor’s wife to be by her delivered over. There is no objection to this mode of deliveiy. Whether made to the donee immediately, or to another for his use, is immaterial. It was so decided in Drury v. Smith, 1 P. Wms. 404. [371]*371The circumstance relied on by the plaintiff’s counsel, is, that the delivery to the wife was in fact no change of possession, because the possession of the wife is the possession of the husband, and the wife being in the husband’s power, he may at any time take back the possession, and thus avoid the gift. To give this observation its full force, it is contended on the part of the plaintiff, that a gift of this kind passes the property immediately, and is not subject to revocation by the donor. Without absolutely committing myself, I incline to the opinion, that in this as in several other particulars, it partakes of the nature of a legacy, and is revocable. No case has been cited exactly in point; but it is laid down in Ay tiff's Pand. 331., that it may be revoked by the donor’s repenting thereof; and in Free, in Chan. 300., the Lord Chancellor, in delivering his opinion, said to the counsel, “ you agree “ that a donatio causa mortis is revocable by the testator.” It is true that in the arguments of the counsel, as reported, no such concession appears. One would hardly suppose however, that the chancellor would have used those expressions unless the fact had been so. But the case of Miller v. Miller, 3 P. Wins. 356., is strong to the point of delivery. Indeed the argument from that case is a fortiori; for there the donation was to the wife, and the delivery to the wife, and held good. There is no weight in the remark, that in that case the testator delivered the chattel in the first instance to a servant, to be by him delivered to the wife; for she was present, and the delivery over to her was made in a short time and in the testator’s presence. There can be no reason why a delivery to the wife for her own use should be good, and yet not good if for the use of another. Upon the whole then this donation was perfect; it was made in the testator’s last illness, and accompanied with the delivery of the bonds, which is all that the nature of the case admits of. I am therefore of opinion that the plaintiff’s rule should be discharged.
Yeates J.
There seems to me no ground whatever for asserting that the present verdict was contrary to evidence. It rested solely on the credibility of Theodosia Craig, the widow of the intestate, of which the jurors were the sole [372]*372judges. They were instructed to deliberate calmly upon her testimony, and on the one hand to consider the danger of such evidence, the necessary consequences of parol evidence in such cases in general, and the particular prepossessions of the witness in this case towards her niece; on the other hand, they were told to recollect, that she testified against her own interest as to one half of the demand, that the impulse of her husband’s mind was favourably directed towards Mrs. Tucker his adopted child from early infancy, which was confirmed by the unfinished wills wherein he marks her husband and children as objects of his bounty, that the probability of her story, her character and manner of giving testimony, should also be taken into view, and a temperate decision formed on the whole. The jury have affirmed the credibility of the witness by their verdict, with which I am perfectly satisfied. As to the conduct of Tucker in cancelling the bonds, and prevailing on Stephen Sicard to acknowledge satisfaction on the record of the mortgage, after he had assigned it over to the intestate, the jury were told that it was highly improper and reprehensible; but if the children independently of these acts were intitled to the benefit of these bonds, such acts would not defeat their interest therein.
I think the evidence would have warranted the jury to pronounce the gift to the defendant’s children to be absolute in the first instance, and to take effect immediately, and therefore irrevocable in its nature. Nothing was said or hinted at, of its being a conditional gift in case of his death; but he gave the bonds to Tucker’s children equally to be divided betzucen them; arid such might be a good present donatio hita vivos.
Supposing however that the act was done in contemplation of death,and that it could only take effect as a donatio causa mortis, I think it may be established as such. It is agreed on all hands, that in such cases the gift must be made in the party’s last sickness, and be accompanied by a delivery of the article to the donee, or some one in his behalf. The objection made in this instance is, that the delivery to the intestate’s wife was insufficient, because it still remained while in her possession subject to his control, and therefore rever[373]*373cable. The ansVver is, that a small matter will operate as a good delivery; such as a mixed possession, the delivery of”' the key of the room in which the furniture given is, to the donee. Smith v. Smith, 2 Stra. 955. Besides, it is fully established, that a wife is capable of taking a donatio causa mortis from her husband, being in nature of a legacy, though it need not be proved as a will. Miller v. Miller et al. 3 Wms. 356., S. C. 2 Eq. Ab. 356. pl. 24., Lawson v. Lawson, 2 Eq. Ab. 575., 3 Woodes. 514. Now what good reason can be assigned, that the possession of the article by the wife is sufficient to validate a gift made by her husband in his last illness for her exclusive benefit, and yet that a like possession as agpnt for another shall not be good? It is equally subject to countermand and revocation in both instances. She may be attorney to deliver seisin to her husband. Co. Litt. 52 a. Moreover we have the authority of the lord chancellor for asserting that a donatio causa mortis taking place in futuro, is revocable as a will during the life of the party. Jones v. Selby, Prec. Cha. 303. And the reason why it should not prevail against creditors, is that it is considered as a legacy. Drury v. Smith, 1 P. Wms. 406., 2 Bla. Com. 514. According to the language of the chancellor in the last case, a man certainly, notwithstanding his will, has a power to give away any part of his estate in his lifetime. He might in his lifetime, after the making of his will, give away any part of his estate absolutely; and by the same reason he might do it conditionally. The conditional gift presupposes the power of revocation; were it not so, a gift bona fide in the lifetime of the party, would prevail against creditors after his death.
Many of the observations of the plaintiff’s counsel seem to me rather referable to the general state of the law, as now settled, than as objections to what was done either by the court or jury in the cause before them. I feel the force of the re-» marks made, that a written will is attended with more secu- } rity and certainty, than a verbal gift of goods and property in the nature of a donatio causa mortis; and that frauds and , perjuries may arise from parol testimony in the latter casé* no reasonable mind can doubt. To the court belongs the duty of deciding upon the competency of evidence; but the jury ultimately must decide upon the credibility of the wit[374]*374nesses. As to a widow’s oath in cases of this nature, her interests will in general prevent her from acting collusively to the prejudice of children, or collateral kinsmen. Should it unhappily prove otherwise, I know of no other safeguard than the intelligence of independent jurors. If the circumstances will fairly warrant the conclusion, that a nefarious scheme has been meditated to plunder the next of kin, I trust it would soon be rendered abortive.
On the whole, I am of opinion, that judgment on the verdict should be rendered for the defendants.
Brackenridge J. was of the same opinion.
Judgment for defendants.