By the Court,
Mullin, J.
The testator, in his lifetime, loaned John S. Vrooman, on the 26th of-June, 1843, the sum of $450, payable at the expiration of five years, with interest. To secure the payment of this money, John S. Vrooman made and delivered to the testator, his bond dated the day and year above mentioned, in the penal sum of $900, payable as aforesaid. Said Vrooman and wife also executed and delivered to the testator, a mortgage on the premises described in the complaint, and the same was duly acknowledged and recorded June 29th, 1843, in the clerk’s office of Oswego county, where said premises - wére situated. The wife of the mortgagor was a daughter of the testator. When the loan was made and the papers executed, the testator resided at Minden, in' Montgomei-y county, Vrooman and wife at Hastings, Oswego county. The testator was on a visit to his daughter, at Hastings, when the papers were executed. At some time after, the date, he returned to Minden, where he died June 13,1846. The will was admitted to probate in April 1857.. By his last will the testator, after providing for the payment of his debts, bequeathed all his personal estate to his four [666]*666sons, subject to certain rights of his wife. The plaintiff is one of the heirs and next of kin of the testator. The defendant was permitted to prove, on the trial, in opposition to the plaintiff’s objection, what was said by the testator as to what the bond and mortgage were given for, and that he intended that the mortgagor’s wife should have it if he should not need it himself. In other words, he was permitted to show that it was the testator’s intention, at some time in the future, to make a gift of the securities to his daughter, Mrs. Vrooman. And as the case turns on the evidence given under this objection, the question of its admissibility must be settled in the first instance.
In almost all the cases in which gifts have been the subject of litigation, the declarations of the donor have been received in evidence, without objection, or any question that they were not competent. If the donor were living, and suing for the property, it is quite clear that his declarations in reference to a gift to the donee, would'be admissible on the most elementary, principles of the law of evidence. When the contest, as to the gift, is between the donee and the representatives of the donor, the declarations of the donor are undoubtedly admissible, being against his interest when made ; and the admissions of the testator or intestate, as a universal rule, are admissible against the representatives. (1 Cowen & Hill’s Notes, 646, 656. Paige v. Cagwin, 7 Hill, 361. 1 Grreenl. Ev., § 189.) The evidence was competent.
The scrivener who drew the bond and mortgage testified that at the time the bond and mortgage were executed, the testator said that he had let Vrooman have money to pay for some land, the title of which was in Vrooman, but as he (Vrooman) had lost his only child, if his (Vrooman’s) wife outlived him, the property would go to Vrooman’s family, gnd she would have no interest in it, and by the mortgage then taken he (the testator) could hold it, so it could not be taken from her. He calculated eventually to [667]*667give1 it to Mrs. Vrooman, but he did not know but he might eventually want to use it himself. Mrs. Vrooman died in January 1847, and her husband in December 1857; The bond and mortgage were found after Vrooman’s death, in a tin box containing paid notes, papers of old date,' bills of goods, some old outlawed notes due him, and other miscellaneous papers. I agree with the plaintiff’s counsel that there is no evidence of a donatio causa mortis, as there is no evidence that the testator then contemplated an early* death, or was not at the time in perfect health. It is also true that the bond and mortgage were not given at the time of the conversation above alludéd to. • On the contrary, a gift in the future was alone contemplated. If, then, the plaintiff is not entitled to recover, in this case, it must be either because a gift of the bond and mortgage was made during the life of. the testator, or that he forgave the mortgagor the .debt. The manner in which the result was attained was not very important. The question is, whether such result has been reached, in any mode. The gift, if there was one, must have been made during the lifetime of the donor. As he died in January 1846, it was made, if at all, during the lifetime of himself and daughter, the intended donee. There is no evidence in the case that either Vrooman or his wife were at' the testator’s house after the mortgage was given. We cannot presume that they obtained it by unfair means, either before or after his death. Being found in the custody of the husband of the intended donee, we must presume that it was obtained fairly, and it could only be fairly obtained from the testator in his lifetime by way of gift or deposit. We have evidence of a declared intention to give, with possession by the donee, and an absence of all evidence to cast suspicion on it. Had it been shown that either Vrooman or his wife had an opportunity of getting possession of the papers without the consent of the lawful owner, we ought not, on the-proof before us, to sustain this .judgment. [668]*668(Kenney v. Public Adm’r of. New York, 2 Bradf. 319.) But without any such proof, or even evidence casting suspicion on the bonafides of the possession, we must hold the possession presumptive evidence of a gift. As we do not find the testator, his daughter and her husband, together at any time, except at the.time of his visit when the papers were executed, it is quite probable that the gift was made at that time. That was some two and a half years before his death. Had the papers been left at that time on deposit they would have probably been recalled before his death; or had they, at that time, been surreptitiously or unfairly obtained, the testator would have mentioned their loss to some person, so that the heirs and legatees would have had some intimation that the papers were out of the testator’s possession without his consent. It is urged by the-plaintiff's counsel, that the papers not being found in the custody of the donee, the foundation of the presumption of a gift is destroyed, If these papers had been found in the possession of any third person, without claim of title to them, and there was nothing in the case but evidence of an intention to give to the daughter, it seems to me it would not be a violent presumption to hold that they had been thus left for the daughter, and the delivery thus made would have perfected the gift. (Smith v. Wiggins, 3 Stewart, 221.) The papers are found exactly where they naturally and properly would be if they had been given to Mrs. Vrooman in her lifetime. The husband was entitled, on her death, to her personal estate, and to administer on it for his own benefit. He was the legal custodian of all the personal property belonging to the wife at her death.
It was further argued by the plaintiff’s counsel, as I understand him, that the gift, being of a bond and mortgage, was incomplete, there being upon them no assignment to Mrs. Vrooman, and that equity could not aid the donee in perfecting it by compelling the .donor, or his ' [669]*669legal representatives, to assign, or do any other act essential to the completion of the gift. It was never doubted but that a bond was the subject of a gift, either inter vivas or causa mortis. But it was held, at one time, that nothing passed to the donee by a gift of a mortgage.
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By the Court,
Mullin, J.
The testator, in his lifetime, loaned John S. Vrooman, on the 26th of-June, 1843, the sum of $450, payable at the expiration of five years, with interest. To secure the payment of this money, John S. Vrooman made and delivered to the testator, his bond dated the day and year above mentioned, in the penal sum of $900, payable as aforesaid. Said Vrooman and wife also executed and delivered to the testator, a mortgage on the premises described in the complaint, and the same was duly acknowledged and recorded June 29th, 1843, in the clerk’s office of Oswego county, where said premises - wére situated. The wife of the mortgagor was a daughter of the testator. When the loan was made and the papers executed, the testator resided at Minden, in' Montgomei-y county, Vrooman and wife at Hastings, Oswego county. The testator was on a visit to his daughter, at Hastings, when the papers were executed. At some time after, the date, he returned to Minden, where he died June 13,1846. The will was admitted to probate in April 1857.. By his last will the testator, after providing for the payment of his debts, bequeathed all his personal estate to his four [666]*666sons, subject to certain rights of his wife. The plaintiff is one of the heirs and next of kin of the testator. The defendant was permitted to prove, on the trial, in opposition to the plaintiff’s objection, what was said by the testator as to what the bond and mortgage were given for, and that he intended that the mortgagor’s wife should have it if he should not need it himself. In other words, he was permitted to show that it was the testator’s intention, at some time in the future, to make a gift of the securities to his daughter, Mrs. Vrooman. And as the case turns on the evidence given under this objection, the question of its admissibility must be settled in the first instance.
In almost all the cases in which gifts have been the subject of litigation, the declarations of the donor have been received in evidence, without objection, or any question that they were not competent. If the donor were living, and suing for the property, it is quite clear that his declarations in reference to a gift to the donee, would'be admissible on the most elementary, principles of the law of evidence. When the contest, as to the gift, is between the donee and the representatives of the donor, the declarations of the donor are undoubtedly admissible, being against his interest when made ; and the admissions of the testator or intestate, as a universal rule, are admissible against the representatives. (1 Cowen & Hill’s Notes, 646, 656. Paige v. Cagwin, 7 Hill, 361. 1 Grreenl. Ev., § 189.) The evidence was competent.
The scrivener who drew the bond and mortgage testified that at the time the bond and mortgage were executed, the testator said that he had let Vrooman have money to pay for some land, the title of which was in Vrooman, but as he (Vrooman) had lost his only child, if his (Vrooman’s) wife outlived him, the property would go to Vrooman’s family, gnd she would have no interest in it, and by the mortgage then taken he (the testator) could hold it, so it could not be taken from her. He calculated eventually to [667]*667give1 it to Mrs. Vrooman, but he did not know but he might eventually want to use it himself. Mrs. Vrooman died in January 1847, and her husband in December 1857; The bond and mortgage were found after Vrooman’s death, in a tin box containing paid notes, papers of old date,' bills of goods, some old outlawed notes due him, and other miscellaneous papers. I agree with the plaintiff’s counsel that there is no evidence of a donatio causa mortis, as there is no evidence that the testator then contemplated an early* death, or was not at the time in perfect health. It is also true that the bond and mortgage were not given at the time of the conversation above alludéd to. • On the contrary, a gift in the future was alone contemplated. If, then, the plaintiff is not entitled to recover, in this case, it must be either because a gift of the bond and mortgage was made during the life of. the testator, or that he forgave the mortgagor the .debt. The manner in which the result was attained was not very important. The question is, whether such result has been reached, in any mode. The gift, if there was one, must have been made during the lifetime of the donor. As he died in January 1846, it was made, if at all, during the lifetime of himself and daughter, the intended donee. There is no evidence in the case that either Vrooman or his wife were at' the testator’s house after the mortgage was given. We cannot presume that they obtained it by unfair means, either before or after his death. Being found in the custody of the husband of the intended donee, we must presume that it was obtained fairly, and it could only be fairly obtained from the testator in his lifetime by way of gift or deposit. We have evidence of a declared intention to give, with possession by the donee, and an absence of all evidence to cast suspicion on it. Had it been shown that either Vrooman or his wife had an opportunity of getting possession of the papers without the consent of the lawful owner, we ought not, on the-proof before us, to sustain this .judgment. [668]*668(Kenney v. Public Adm’r of. New York, 2 Bradf. 319.) But without any such proof, or even evidence casting suspicion on the bonafides of the possession, we must hold the possession presumptive evidence of a gift. As we do not find the testator, his daughter and her husband, together at any time, except at the.time of his visit when the papers were executed, it is quite probable that the gift was made at that time. That was some two and a half years before his death. Had the papers been left at that time on deposit they would have probably been recalled before his death; or had they, at that time, been surreptitiously or unfairly obtained, the testator would have mentioned their loss to some person, so that the heirs and legatees would have had some intimation that the papers were out of the testator’s possession without his consent. It is urged by the-plaintiff's counsel, that the papers not being found in the custody of the donee, the foundation of the presumption of a gift is destroyed, If these papers had been found in the possession of any third person, without claim of title to them, and there was nothing in the case but evidence of an intention to give to the daughter, it seems to me it would not be a violent presumption to hold that they had been thus left for the daughter, and the delivery thus made would have perfected the gift. (Smith v. Wiggins, 3 Stewart, 221.) The papers are found exactly where they naturally and properly would be if they had been given to Mrs. Vrooman in her lifetime. The husband was entitled, on her death, to her personal estate, and to administer on it for his own benefit. He was the legal custodian of all the personal property belonging to the wife at her death.
It was further argued by the plaintiff’s counsel, as I understand him, that the gift, being of a bond and mortgage, was incomplete, there being upon them no assignment to Mrs. Vrooman, and that equity could not aid the donee in perfecting it by compelling the .donor, or his ' [669]*669legal representatives, to assign, or do any other act essential to the completion of the gift. It was never doubted but that a bond was the subject of a gift, either inter vivas or causa mortis. But it was held, at one time, that nothing passed to the donee by a gift of a mortgage. (Bryson v. Brownrigg, 9 Vesey, Jr., 1.) In Grover v. Grover, (24 Pick. 261,) the contrary was distinctly held. Wilde, J., says : “ It is objected that no valid gift of a chose in action can be made inter vivas without writing; and this objection would be well maintained if a legal transfer of a chose in action were essential to give effect to a gift.. But as a good and effectual equitable assignment of a chose in action may be made by paroi, and as courts of law take notice of and give effect to such assignments, there seems to be no good foundation for this objection.” And in a subsequent part of his opinion, speaking of the validity of a gift of a mortgage by paroi, he refers to Duffield v. Elms, (1 Sim. & Stu. 243,) in which it was decided that a mortgage was not the subject of. a gift causa mortis. But the house of lords, (1 Bligh’s New Rep. 497,) reversed the judgment. So that in England a mortgage is the subject of gift. The Supreme Court of Massachusetts, in the case cited, refused to express an opinion on the subject.
In lsi Story’s Equity, (§ 607, a,) it is said: “ The doctrine now established is, that not only negotiable notes and bills of exchange, payable to bearer or indorsed in blank, but exchequer notes and bank notes, may be the subjects of donatio mortis causa, because they may, and do, in the ordinary course of business, pass by delivery ; but that bonds and mortgages may also be the subject of a donatio causa mortis, and pass by a delivery of the deeds and instruments by which they are created. * * * Mortgage deeds, when delivered, are treated but as securities for debts, and would, in the hands of the donee, be governed by the same rules. The delivery, in the case of a mortgage, is therefore treated, not as a complete act passing [670]*670the property, but as creating a trust by operation of law in favor of the donee, which a court of equity will enforce in the same manner as it would the- right of a donee to a bond.” At section 607, (6) he says: “ The same doctrine is applicable to the case .of a donatio causa mortis of a bond and -mortgage, by the mortgagee to the mortgagor, consummated by the delivery of the bond and mortgage to him. In such a case, it will operate as a release or discharge of the debt if the donor should die of his existing illness. For, (it has been said,) if it was a gift inter vivas, the mortgagee could not get back the deeds from the mortgagor, but by operation of law a trust would be created in the mortgagee, to make good a gift of the debt to the mortgagor, to whom he had delivered the deeds. But however this may be, it seems clear that in the case of such a donatio causa mortis, the representatives of the donor would never be permitted to enforce the mortgage or bond against tbe donee.”
[Jefferson General Term,
October 7, 1862.
Mullin, Morgan and Bacon, Justices.]
It seems to me that whether, the gift be inter vivas or c«ms« mortis, the donee acquires a legal as well as equitable title to the bond and mortgage which are the subject of the gift, by mere delivery without writing. It was not .the intention of the donor in giving the securities to his daughter, to discharge the debt. He designed that it should be her separate property, so that she could assert an interest in the premises covered by the mortgage, in the event of Vrooman’s death without heirs by her. On her death before foreclosure, the securities bebame the property of the husband, and thus the legal and equitable estates meeting in him, the latter became merged in the former.
On this ground, alone, without going over those elaborately examined by Justice Morgan, I am of the opinion that the judgment of the special term ought to be affirmed.
Judgment affirmed.