By the Court, Bacon, P. J.
This is an action of replevin, to recover the possession of three promissory notes, amounting in all to some $185. These notes were originally the property of one Charles H. Gardner, a brother of the plaintiff: In August, 1862, Gardner enlisted in the volunteer service of the United States, and on the 17th day of that month was at the plaintiff's house on a furlough. This was before he had entered on actual service, but in the expectation of soon being ordered to the seat of war. On this occasion he delivered these three notes to the plaintiff, saying, in the language of one witness, “ I give you these notes; if I never return they are yours or, in that of another, “ Take them, and if I never return' they are yoursif I do return I shall want themor, in the words of still another, i( I give these notes to you—I may never return, and if I do not, they are yours.” It is stated in the finding of facts by the court, that the gift was made by Gardner on the eve of his going into the service as a soldier, and in apprehension of his dying in [383] such service, and that he died while such soldier, on the 26th of June, 1863, in consequence of disease contracted in such service. .On what this finding is grounded I am unable to perceive. The only evidence set forth in the case is that he enlisted in August, 1862, and died in June, 1863. There is no proof given as to where he died, or from what cause, whether in battle, or from wounds received in battle, or from disease inherent in his system, or contracted by exposure; nor even that he ever went to the seat of war, or was in the service at the time of his death. Either no such proof was given, or it has singularly been omitted in making up the ease ■; or it may have been conceded by verbal admission" on the trial, and no note madé of it. We can hardly presume that there was nothing on which the court could base such a statement of facts, and therefore we may assume that they either did, or were conceded to exist. Upon them the court held and decided that the gift of the notes was, under the circumstances, a valid donatio mortis causa, and ordered judgment for the plaintiff.
On the argument, some attempt was made to sustain the transaction as an executed absolute gift inter vivos, founded on the. consideration of the services theretofore rendered to Gardner by the plaintiff, in the care of his clothing and providing him board. But it clearly can not be sustained as such a gift, for the obvious reason that it was coupled with ■ a condition upon the happening of which the owner was to resume possession. An absolute gift, which divests the donor’s title, requires the renunciation on his part, and the acquisition on the part, of the donee, of "all the title to, and interest jn, the subject of "the gift. It is very clear, upon.all the testimony, that there was no .intention on the part of Gardner, to part with the absolute title to the notes, but he contemplated and provided for a future contingency, on the occurrence of which he should resume it, making the plaintiff in the meantime the custodian. A valid gift inter vivos has [384] no reference to the future, but is one which goes into immediate and absolute effect, j (2 Kent’s Com. 438.)
The precise distinction between a gift inter vivos and mortis causa, as is correctly said in Bedell v. Caryl, (33 N. Y. Rep. 584,) is that in the one case the title passes immediately to the donee on delivery, and the donor has no more right to the property than any other 'person; in the other the title does not pass immediately, but it is a conditional gift, to take effect only on the death of the donor, who, in the meantime, has the power of revocation, and may resume and annul the gift.
• But it is unnecessary further to discuss this point, since the court put the case upon' the ground, and only sustained the gift as a good one mortis causa, and it remains to be considered whether this can be upheld. On reflection and a careful review of the authorities, I am satisfied that the learned judge, before whom the cause was tried, fell into an error which requires us to reverse the judgment rendered by him.
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By the Court, Bacon, P. J.
This is an action of replevin, to recover the possession of three promissory notes, amounting in all to some $185. These notes were originally the property of one Charles H. Gardner, a brother of the plaintiff: In August, 1862, Gardner enlisted in the volunteer service of the United States, and on the 17th day of that month was at the plaintiff's house on a furlough. This was before he had entered on actual service, but in the expectation of soon being ordered to the seat of war. On this occasion he delivered these three notes to the plaintiff, saying, in the language of one witness, “ I give you these notes; if I never return they are yours or, in that of another, “ Take them, and if I never return' they are yoursif I do return I shall want themor, in the words of still another, i( I give these notes to you—I may never return, and if I do not, they are yours.” It is stated in the finding of facts by the court, that the gift was made by Gardner on the eve of his going into the service as a soldier, and in apprehension of his dying in [383] such service, and that he died while such soldier, on the 26th of June, 1863, in consequence of disease contracted in such service. .On what this finding is grounded I am unable to perceive. The only evidence set forth in the case is that he enlisted in August, 1862, and died in June, 1863. There is no proof given as to where he died, or from what cause, whether in battle, or from wounds received in battle, or from disease inherent in his system, or contracted by exposure; nor even that he ever went to the seat of war, or was in the service at the time of his death. Either no such proof was given, or it has singularly been omitted in making up the ease ■; or it may have been conceded by verbal admission" on the trial, and no note madé of it. We can hardly presume that there was nothing on which the court could base such a statement of facts, and therefore we may assume that they either did, or were conceded to exist. Upon them the court held and decided that the gift of the notes was, under the circumstances, a valid donatio mortis causa, and ordered judgment for the plaintiff.
On the argument, some attempt was made to sustain the transaction as an executed absolute gift inter vivos, founded on the. consideration of the services theretofore rendered to Gardner by the plaintiff, in the care of his clothing and providing him board. But it clearly can not be sustained as such a gift, for the obvious reason that it was coupled with ■ a condition upon the happening of which the owner was to resume possession. An absolute gift, which divests the donor’s title, requires the renunciation on his part, and the acquisition on the part, of the donee, of "all the title to, and interest jn, the subject of "the gift. It is very clear, upon.all the testimony, that there was no .intention on the part of Gardner, to part with the absolute title to the notes, but he contemplated and provided for a future contingency, on the occurrence of which he should resume it, making the plaintiff in the meantime the custodian. A valid gift inter vivos has [384] no reference to the future, but is one which goes into immediate and absolute effect, j (2 Kent’s Com. 438.)
The precise distinction between a gift inter vivos and mortis causa, as is correctly said in Bedell v. Caryl, (33 N. Y. Rep. 584,) is that in the one case the title passes immediately to the donee on delivery, and the donor has no more right to the property than any other 'person; in the other the title does not pass immediately, but it is a conditional gift, to take effect only on the death of the donor, who, in the meantime, has the power of revocation, and may resume and annul the gift.
• But it is unnecessary further to discuss this point, since the court put the case upon' the ground, and only sustained the gift as a good one mortis causa, and it remains to be considered whether this can be upheld. On reflection and a careful review of the authorities, I am satisfied that the learned judge, before whom the cause was tried, fell into an error which requires us to reverse the judgment rendered by him.
It is justly said by Chancellor Kent, that the English law on the subject of these gifts is derived wholly from the civil law; and yet it is certain that in the course, and as the result of many adjudications, both in England and this country, the rules of the civil law on this subject have been very considerably modified, and this as well in the direction of relaxing as of restricting the Roman law. Thus by the code of Justinian, such a gift was required to be executed in the presence of five witnesses. We demand no such strictness, for the testimony of a single witness, unchallenged and uncontroverted, will establish it. On the other hand, it is said by Yinnius that it is not necessary that the donor should be in imminent danger of death, but it is enough if he be moved by the general apprehension of death as the common lot of humanity. As a result of this principle, it is said by the civil law to be a good donatio mortis causa -if a man, about to set forth on a long journey, and contemplating the [385] perils of the way, makes a conditional gift of property to take effect in favor of another, in case of his never returning. (Tom. Law Dic. tit. Donatio Mortis Causa.) But no such rule is recognized by the common law, and the general drift of the authorities not only requires the gift to be made in the apprehension of death, but in the last illness of the donor. (Blount v. Burrow, 1 Ves. Jr. 546.) So also, by the civil law, delivery was not necessary to the validity of such a gift. By our law there must not only be a delivery, but it must be uninterrupted to the time of the donor’s death. Again, by the Boman law any kind of property might be the subject of a donatio mortis causa, but the law of England restricts such gifts solely to personal' estate. There are other diversities, but these are sufficient to show that cases following or founded solely on the civil law must be received cautiously, if not wholly rejected, as having no controlling authority with us. Thus when Chancellor Kent, in defining such gifts, says, it is essential that the donor make them in his last illness, or in contemplation or expectation of death, and with reference to their effect after his death, he gives a definition entirely supported by English decisions; but when he adds that the apprehension of death may arise from infirmity or old age, or from external and anticipated danger, he superadds elements for which alone the Digest is cited as authority, and which can not, to the-extent of the rule as thus defined, be supported by any case in the English or American reports. After all the attempts at a definition, which shall be at the same time brief and comprehensive, I think it will be found that the one given by Lord Cowper, in the earliest case reported in the English books, is the most satisfactory. A gift of this description is, in his words: “ When a man lies in extremity, or being surprised with sickness, and not having an opportunity of mating his will, but lest he should die before he could make it, gives with his own hands his goods to his friends about him.” “ This,” he adds, “ shall operate as a legacy, but if he recover, then shall the property thereof revert to [386] him.” (Hedges v. Hedges, Prec. Ch. 249.) This definition, with some modifications in respect to an approaching peril, and in respept to the severity and extent of the sickness, and its nearness to the hour of dissolution, concerning which there is some diversity in the decisions, has been adopted and approved by most of the elementary writers, and followed by the Strong current of authority, from that day to this. (See Story’s Eq. Jur. § 507; 1 Wms. Ex’rs, 651; 1 Pars. on Cont. 201; Prince v. Hazleton, 20 John. 502 ; Harris v. Clark, 2 Barb. 94; Weston v. Hight, 5 Shep. 287; Wells v. Tucker, 3 Bin. 366.) The modification of this rule, as I have suggested, relates mainly to the nearness of the approach of death, and I think there will no case be found where such a .gift is upheld, in which there was not either peril of death from some cause imminent and impending, or the conceived near approach of natural death. It is not indeed necessary that the party should be in extremis, according to some of, the earlier cases, but the gift will be presumed to be in contemplation of death, when the donor is on his death bed, or languishing in what proves to be his last illness.
I do not think it would be profitable to go through with a discussion of all the authorities both in England and in this country, where gifts of this description have been the subject of adjudication. After an examination of most of "those that have been cited by the counsel for the respective parties, and some that had escaped their attention, I find as the result, that although circumstantially differing, they concur in establishing the general principle I have stated above, in respect to the imminency of the foreseen peril, or the apprehended approach of death from an existing sickness, which at least proximately proves fatal. The case most strongly relied on by the counsel for the plaintiff, to uphold this gift, (Nicholas v. Adams, 2 Whart. 17,) is not in conflict with the general current of authority. The gift there was by one on his sick bed, laboring under an illness from which death [387] ensued within fourteen days from the delivery of the property, which was clearly intended to be bestowed as a dying legacy on the donee. All the court decided in the case was, that in order to constitute a good donatio mortis causa, it was not necessary that the donor should be in such extremity as is required to give effect to a nuncupative will, and that the subsequent execution of a will bestowing all his property on other beneficiaries, does not divest the right of the donee under the prior gift. The case is entirely consistent with the whole current of authorities which sustain such gifts as the donations of languishing and dying men. In view of the decisions, and the principle which runs through them all,, I think it is impossible to maintain the gift in this case as a donatio mortis causa. The element of illness, in any degree, does not enter into the case, nor does it come within the category of the conceived near approach of death from an impending or apprehended peril. ' The alleged donor was in good health, many hundreds of miles from the seat of war, and if he “ snuffed the battle, the thunder of the captains and the shouting,” it was indeed “ afar off” —too far to give any one not utterly craven hearted the least apprehension or disturbance. /The only expression he made, having any relevancy to a possibly expected peril, was, that he was going to a dangerous place, and might never return. So it is dangerous to leave home on a railroad journey, or a steamboat excursion,- or to ride forth after a pair of spirited horses; but no one would think either of these such an impending peril as to justify a man in giving away his earthly goods, under the conception that death was near at hand, if not already knocking at the door. In short, a vague and general impression that death may occur from those casualites which attend all human affairs, but which are still too remote and uncertain to be regarded as objects of present contemplation and apprehended danger, is not sufficient to sustain such a gift as the one which is claimed in this case. The party must be in a condition to fear approaching death from a proximate and [388] impending peril, or from illness preceding expected dissolution.
[Onondaga General Term,
January 2, 1867.
I am of opinion that the judgment should he reversed, and a new trial granted, with costs to abide the result.
Bacon, Mullin and Foster, Justices.]