PRYOR, J.
“Sound policy requires that the law regulating
gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged.” Earl, J., in Ridden v. Thrall, 125 N. Y. 572, 581, 26 N. E. Rep. 627. A gift imports, ex vi termini, a present transfer of the property, and an executory gift is a legal absurdity. 2 Kent, Comm. 438. Hence an intention to give, no matter how absolute and explicit, is merely nugatory; but, to a valid and effectual gift, delivery of the thing given, with the purpose and effect of passing the property as well as the possession, is an indispensable condition. Beaver v. Beaver, 117 N. Y. 421, 429, 22 N. E. Rep. 940; Young v. Young, 80 N. Y. 422; Jackson v. [781]*781Railroad Co., 88 N. Y. 520; Harris v. Clark, 3 N. Y. 93. Such a delivery is as essential to a gift causa mortis as to a gift inter vivas. Ridden v. Thrall, 125 N. Y. 572, 579, 26 N. E. Rep. 627; Harris v. Clark, 3 N. Y. 93, 113; Gescheidt v. Drier, (Sup.) 20 N. Y. Supp. 11; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. Rep. 415; Conklin v. Conklin, 20 Hun, 278; Turner v. Brown, 6 Hun, 331, 333; 2 Kent, Comm. (12th Ed.) marg. p. 448, note by Judge Holmes. “There must be a renunciation by the donor, and an acquisition by the donee, of all interest in and title to the subject of the gift.” Wetmore v. Brooks, (Com. Pl. N. Y.) 18 N. Y. Supp. 852. By a gift causa mortis “the title to the property passes from the donor to the donee at the time of delivery, defeasible only during the lifetime of the donor.” 8 Amer & Eng. Enc. Law, 1352. “To constitute a gift causa mortis, it is not only essential that delivery be complete, but possession must be retained by the donee until the donor’s death. If after delivery the donor again has possession, the gift is nugatory.” Dunbar v. Dunbar, 80 Me. 152, 13 Atl. Rep. 578; Craig v. Craig, 3 Barb. Ch. 78. “Death of the donor without revocation of the gift” is requisite to the validity of a donatio causa mortis. Champney v. Blanchard, 39 N. Y. 111, 116.
The burden was upon the respondent to establish the gift she alleges against the apparent title of the appellants, and to establish it by clear and satisfactory proof. Devlin v. Bank, 125 N. Y. 756, 26 N. E. Rep. 744; Wetmore v. Brooks, supra. If the evidence be insufficient as to any fact indispensable in the constitution of a gift causa mortis, the judgment cannot stand; and we must so decide, however repugnant the conclusion to the inclination of the court. Assuming what, however, is extremely questionable, that the doner never resumed possession of the bank books after their delivery to the respondent, the fact is uncontroverted that she subsequently appropriated to her own use a part of the very fund which is claimed to have been transferred to the donee by the alleged gift causa mortis. By the instrumentality of those books, in the presence and with the concurrence of the respondent, she drew $600 from the bank, and applied it to her own personal use. The alternative is inevitable,—that the donor never meant to part with the present possession and dominion of the thing given, or else that, in the exercise of her unquestionable right, she revoked the intended gift; and either inference is fatal to the validity of the donation. By collecting and appropriating a portion of the fund which the delivery of the books is supposed to have destined to the donee, the donor unequivocally asserted possession and dominion of the thing given; asserted and exercised the jus disponendi in its utmost plenitude. “There can be no gift, in law, if one exercises dominion over the subject of the gift.” Dougherty v. Moore, (Md.) 18 Atl. Rep. 35. “Redelivery of the subject of the gift to the donor revokes the gift.” Wigle v. Wigle, 6 Watts, 522. The donor’s act of reclamation, in itself, would operate to nullify her original intention, if such there was, to pass possession and property; but, indeed, it is not clear that she ever meant to relinquish dominion of the subject of the contera plated gift. The paper executed at the time of the transaction, [782]*782otherwise unimportant, contains the most authentic exposition of her purpose; and by that she says, “If anything happens,-1 leave all the money I have in the bank to Bridget McGusker.” Here, beyond question, is not a gift in praesenti, defeasible upon a contingency, i. e. the recovery of the donor, but an inchoate gift suspended in operation and effect upon a future event, i. e. “if anything happens.” In donatio causa mortis the condition is subsequent, and operates to defeat a title already vested, while here the condition is precedent, and intercepted the transfer of title until the something “happens.” With this construction of the paper, the conduct of both donor and donee was in harmony. The donee, mindful of the wants of the donor, urged her to retain one of the books, so that she might draw money for probable exigencies; and the donor did draw from the fund she intended as a gift to the donee. If it be argued that as the money appropriated by the donor was drawn by two books, and from two banks, the deposit in the other bank is unaffected, we answer that the gift was by one act, and, if an integral fund, not by several acts, and in distinct parcels; that the same intention actuated and characterized the delivery of all the books; and that, by necessary consequence, if dominion was reserved as to the deposits in two banks, it was reserved as to all, or, if there was a revocation as to two, there was a revocation as to all the deposits.
But, for another and independent reason, this pretended gift is manifestly void. As its name imports, a gift causa mortis is made in. contemplation of the death of the donor, and that it be so made is an indispensable condition of its validity. A gift upon any other contingency is not a donatio causa mortis. Now, the evidence utterly fails to show that it was an apprehension of death by the donor that prompted the delivery of the bank books to the defendant. True, Margaret Kirk was of infirm health; and true, also, it is, that on the occasion of the delivery of the books she said the doctor had told her she “was liable to go off at any time.” But not for that did she deliver the books to the defendant. By the uncontroverted testimony,—the testimony of defendant’s own witnesses,—another motive than the fear of death actuated the delivery of the books. Detailing the circumstances of the alleged donation, Peter Hughes testifies:
“As soon as I came in, she says: ‘Well, Bridgie’s employers have sent for her to go home. Now, you know about that letter that my sister sent me, saying Thomas Kirk would come on here, and carry out his intention to bum the house. Now, if Bridgie goes home, and he comes and burns the house, I want her to have her share. * * * If he comes on, why, Bridgie, you have got this money. He cannot touch it. You have got it.’ * * * She said that, if anything happened to her while Miss McGusker was away, she would have something anyhow, if Thomas Kirk, her brother, should come here and do any damage. * * * She said that Miss McGusker would have this, if he' would come on and do any damage.”
Kate Gaughran testified:
“She said: T want to leave all the money in bank to Miss McGusker, in case anything should happen. * * * Well, if I don’t see Bridget any more, 1 am glad I got her to take the bank books home with her.’ ”
[783]
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PRYOR, J.
“Sound policy requires that the law regulating
gifts causa mortis should not be extended, and that the range of such gifts should not be enlarged.” Earl, J., in Ridden v. Thrall, 125 N. Y. 572, 581, 26 N. E. Rep. 627. A gift imports, ex vi termini, a present transfer of the property, and an executory gift is a legal absurdity. 2 Kent, Comm. 438. Hence an intention to give, no matter how absolute and explicit, is merely nugatory; but, to a valid and effectual gift, delivery of the thing given, with the purpose and effect of passing the property as well as the possession, is an indispensable condition. Beaver v. Beaver, 117 N. Y. 421, 429, 22 N. E. Rep. 940; Young v. Young, 80 N. Y. 422; Jackson v. [781]*781Railroad Co., 88 N. Y. 520; Harris v. Clark, 3 N. Y. 93. Such a delivery is as essential to a gift causa mortis as to a gift inter vivas. Ridden v. Thrall, 125 N. Y. 572, 579, 26 N. E. Rep. 627; Harris v. Clark, 3 N. Y. 93, 113; Gescheidt v. Drier, (Sup.) 20 N. Y. Supp. 11; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. Rep. 415; Conklin v. Conklin, 20 Hun, 278; Turner v. Brown, 6 Hun, 331, 333; 2 Kent, Comm. (12th Ed.) marg. p. 448, note by Judge Holmes. “There must be a renunciation by the donor, and an acquisition by the donee, of all interest in and title to the subject of the gift.” Wetmore v. Brooks, (Com. Pl. N. Y.) 18 N. Y. Supp. 852. By a gift causa mortis “the title to the property passes from the donor to the donee at the time of delivery, defeasible only during the lifetime of the donor.” 8 Amer & Eng. Enc. Law, 1352. “To constitute a gift causa mortis, it is not only essential that delivery be complete, but possession must be retained by the donee until the donor’s death. If after delivery the donor again has possession, the gift is nugatory.” Dunbar v. Dunbar, 80 Me. 152, 13 Atl. Rep. 578; Craig v. Craig, 3 Barb. Ch. 78. “Death of the donor without revocation of the gift” is requisite to the validity of a donatio causa mortis. Champney v. Blanchard, 39 N. Y. 111, 116.
The burden was upon the respondent to establish the gift she alleges against the apparent title of the appellants, and to establish it by clear and satisfactory proof. Devlin v. Bank, 125 N. Y. 756, 26 N. E. Rep. 744; Wetmore v. Brooks, supra. If the evidence be insufficient as to any fact indispensable in the constitution of a gift causa mortis, the judgment cannot stand; and we must so decide, however repugnant the conclusion to the inclination of the court. Assuming what, however, is extremely questionable, that the doner never resumed possession of the bank books after their delivery to the respondent, the fact is uncontroverted that she subsequently appropriated to her own use a part of the very fund which is claimed to have been transferred to the donee by the alleged gift causa mortis. By the instrumentality of those books, in the presence and with the concurrence of the respondent, she drew $600 from the bank, and applied it to her own personal use. The alternative is inevitable,—that the donor never meant to part with the present possession and dominion of the thing given, or else that, in the exercise of her unquestionable right, she revoked the intended gift; and either inference is fatal to the validity of the donation. By collecting and appropriating a portion of the fund which the delivery of the books is supposed to have destined to the donee, the donor unequivocally asserted possession and dominion of the thing given; asserted and exercised the jus disponendi in its utmost plenitude. “There can be no gift, in law, if one exercises dominion over the subject of the gift.” Dougherty v. Moore, (Md.) 18 Atl. Rep. 35. “Redelivery of the subject of the gift to the donor revokes the gift.” Wigle v. Wigle, 6 Watts, 522. The donor’s act of reclamation, in itself, would operate to nullify her original intention, if such there was, to pass possession and property; but, indeed, it is not clear that she ever meant to relinquish dominion of the subject of the contera plated gift. The paper executed at the time of the transaction, [782]*782otherwise unimportant, contains the most authentic exposition of her purpose; and by that she says, “If anything happens,-1 leave all the money I have in the bank to Bridget McGusker.” Here, beyond question, is not a gift in praesenti, defeasible upon a contingency, i. e. the recovery of the donor, but an inchoate gift suspended in operation and effect upon a future event, i. e. “if anything happens.” In donatio causa mortis the condition is subsequent, and operates to defeat a title already vested, while here the condition is precedent, and intercepted the transfer of title until the something “happens.” With this construction of the paper, the conduct of both donor and donee was in harmony. The donee, mindful of the wants of the donor, urged her to retain one of the books, so that she might draw money for probable exigencies; and the donor did draw from the fund she intended as a gift to the donee. If it be argued that as the money appropriated by the donor was drawn by two books, and from two banks, the deposit in the other bank is unaffected, we answer that the gift was by one act, and, if an integral fund, not by several acts, and in distinct parcels; that the same intention actuated and characterized the delivery of all the books; and that, by necessary consequence, if dominion was reserved as to the deposits in two banks, it was reserved as to all, or, if there was a revocation as to two, there was a revocation as to all the deposits.
But, for another and independent reason, this pretended gift is manifestly void. As its name imports, a gift causa mortis is made in. contemplation of the death of the donor, and that it be so made is an indispensable condition of its validity. A gift upon any other contingency is not a donatio causa mortis. Now, the evidence utterly fails to show that it was an apprehension of death by the donor that prompted the delivery of the bank books to the defendant. True, Margaret Kirk was of infirm health; and true, also, it is, that on the occasion of the delivery of the books she said the doctor had told her she “was liable to go off at any time.” But not for that did she deliver the books to the defendant. By the uncontroverted testimony,—the testimony of defendant’s own witnesses,—another motive than the fear of death actuated the delivery of the books. Detailing the circumstances of the alleged donation, Peter Hughes testifies:
“As soon as I came in, she says: ‘Well, Bridgie’s employers have sent for her to go home. Now, you know about that letter that my sister sent me, saying Thomas Kirk would come on here, and carry out his intention to bum the house. Now, if Bridgie goes home, and he comes and burns the house, I want her to have her share. * * * If he comes on, why, Bridgie, you have got this money. He cannot touch it. You have got it.’ * * * She said that, if anything happened to her while Miss McGusker was away, she would have something anyhow, if Thomas Kirk, her brother, should come here and do any damage. * * * She said that Miss McGusker would have this, if he' would come on and do any damage.”
Kate Gaughran testified:
“She said: T want to leave all the money in bank to Miss McGusker, in case anything should happen. * * * Well, if I don’t see Bridget any more, 1 am glad I got her to take the bank books home with her.’ ”
[783]*783What, then,, is the inference from these repeated expressions of Margaret Kirk? That she delivered the bank books upon the contingency of her death, or in apprehension of the threat of Thomas Kirk to burn or tear down the house? That the latter was the event, and the only event, she had in mind, and intended to provide against, is manifest, beyond the possibility of rational dispute. Indeed, that Margaret Kirk was under no apprehension of imminent death is apparent, not only from the absence of satisfactory evidence to the contrary, but by the fact that, after the so-called “gift causa mortis,” she busied herself about the details of domestic economy, and in making improvements and additions to her house. Mindful that the law regards gifts causa mortis with distrust, and exacts for their support clear and convincing proof, we are unable to find in the record sufficient evidence to uphold the judgment. Whatever our reprobation of the plaintiffs, and sympathy with the defendant, our decision must still be in conformity with the rules of law.
Judgment reversed, and new trial ordered, costs to abide event.
BISOHOFF, J., concurs in result.