Leyson v. Davis

42 P. 775, 17 Mont. 220, 1895 Mont. LEXIS 81

• Court: Montana Supreme Court
• Decided: November 25, 1895
• Status: Published

Opinion

Hunt, J.

As is often, perhaps generally, the case in suits where property is claimed as a donatio causa mortis, the court is not seriously embarrassed by conflicts in the testimony. When the idea pervades the mind that death is certainly close at hand, and that it is a fitting time to act in relation to property affairs with a view to their disposition in case of death,, a reflecting sense of the occasion whereon they may act bids men seek the unobtrusive confidence and privacy of close, friendships, trusted counsel or strong ties of consanguinity. It. therefore happens that our duty in judicially considering this, case is not made so difficult by deciding which of various accounts of the transaction is true, as to correctly weigh what was said, and then to ascertain what are the correct legal principles to control, and apply them to the facts as they stand, without material contradiction or dispute.

Now, (1) what was the intention of Judge Davis ? What is the evidence in point of fact ? How strong is it, and of what weight ? And (2) to what legal results must that evidence lead us ?

Here was a rich old man, who felt that he and his wealth must soon be parted. With nearly 70 years of busy life behind him, his time to lay down its cares had come. Ill health and disease were in him, and he knew it. Premonitions of death, well-founded apprehensions that he was too old to recover, bade him adjust his business. With no family ties to make his life less within himself, reticent of speech concerning his own affairs, this old millionaire evinced but one genuine attachment in the ebb of his life. To his namesake and his nephew his heart went out in quiet, undemonstrative solicitude, as it did to no one else on earth. Business confidence, accompanied, no doubt, by a disposition, natural to one in Judge Davis’ situation, yearning for some one in whom his affections might center, prompted him to select Andy, of all others, to uphold his name, and perpetuate the particular pride of his business career, — the First National Bank of Butte. “Andy will have the bank some day. Thus it will remain in the Davis family. Thus it will remain under Davis management. I will let it form no part of my estate. Bring me my box, and let one trusted friend witness my contemplated act. ’ ’ There we observe method. There we find unreserved indications of a fixed plan to give the bank to Andy, and mark intelligent preparations to execute the plan. There, too, was the fast declining health, and the expectation of death soon to come from disease already upon him. Alone in his bedroom, with his nephew and friend, the mind of the decedent still bent on the plan already instituted. First, the exact verification of the number of certificates of shares. Then, without delay, with his own hand, a tradition of the certificates to his nephew. ‘ ‘I have always intended that for you, and now I will do it.” There was the act which proved the sincerity of the intention to give. There was the execution of the plan in view when the box was ordered brought down. There was the proof that the bank was not intended to be part of the estate, and there, withal, was the hovering apprehension of death moving the donor to execute his plan without delay. Andy took the stock and put it in his pocket in his uncle’s presence. There was an acceptance of the gift. The scene, at night; the delivery itself, upon the eve of departure to fight against the inevitable; the words; the enfeebled health and age of Judge Davis; the magnitude of the gift, — all naturally suggested to his two listeners that he anticipated death very soon. Straightway his nephew and friend, in a spirit of hopefulness and sympathy incident to such solemn occasions, told him they did not think him so ill. “The train may jump the track and kill me. * * * If I don’t come back, or anything happens, I want you to have that. * _ * I am an old man, and there is no telling. * * * I don’t think I can get over this disease. I can’t stand it. * * * I can’t expect it. * * * I only hope it will be so, but I don’t think it.” These were the serious words of a very sick man, who believed that death was close at hand. The last expressions were born of that hope which is in the mind of nearly every man until the last vital spark is extinguished. Then the departure for Tacoma. In that act we find an additional reason for the previous conduct of the donor. He was going away with, at most, a faint hope of recovery, and realized that he might never see Andy again. The opportunity was ripe for the execution of his long-announced plan. “Now take it.” He believed the bank was severed from any estate he might leave. Andy had the bank, he thought; and it would forever remain in the Davis name and in the Davis management. The human object of his affection had been considered in the manner he had said he would regard him. All other material affairs might rest upon the possibility of future action. So far as Judge Davis was concerned, the purpose towards which his thoughts were directed was accomplished. He believed on that night that his plan was consummated.

The appellant would break the force of all these facts and circumstances by arguing that the testimony discloses an intention only on the part of the decedent, when he died, to give Andy the bank stock. He urges that decedent knew the bylaws of the bank and the national banking laws, which said that no transfer of stock could be made, except by the assignment thereof and transfer upon the books, and that, if he intended to divest himself- of his title, he would have used the .pen and ink so close at hand. But, the by-laws did not require any indorsement or .assignment or power of attorney, in writing or otherwise, upon the certificates of the stock, or elsewhere, to.transfer them, but only an assignment or transfer on the transfer books of the bank. There was no provision that even this assignment or transfer must be ma'de by the stockholder or, .his. attorney. The certificates stated on their face that the stock was transferable only by the holder or his attorney on the books of the bank on the surrender of the certificates. There was no assignment or power of attorney on the back of the certificates given to Andy. The by-laws required no blank for such a purpose. To make the transfer on the books of the bank would have required the presence of the transfer books and a surrender of the certificates; but the books were not at hand. The mind of the donor was upon one essential feature as alone indispensable to his purpose, — the actual surrender of the certificates themselves. Thus would he part with the representatives of his ownership. This, he thought, was the all and only important act of his intended gift. And this he did.

Next, as to the words spoken in the decedent’s room. The appellant would do away with our view by quoting the testimony of Talbott, given on a former hearing. We agree with the learned counsel for the appellant that the statements of Talbott on the former hearing ought to be considered with those given upon the trial of this suit; but, in considering them, we bear in mind that there is no contention or insinuation by the appellant that Talbott has testified falsely. The lower court must have believed that, in his testimony, he tried to hold hard to the truth; and we shall treat his several statements as complementary of one another. The salient points are conspicuously and uniformly brought out, — namely, the actual and perilous sickness of Judge Davis, and the actual and manual delivery of the certificates to Andy by way of gift. The assurances were then made by Talbott and Andy to Judge Davis that he was no”t so' ill as he thought himself. Thereupon Judge Davis, not wishing to dwell upon so painful .a subject as death, and to parry further reference to his physical condition, expressed the possibility of being killed in a railroad accident, and-added, ‘‘If I don’t come back, or anything happens to me, I want you to have that. ’ ’ Then followed the further statements by J udge Davis to the effect that he could not expect to recover from his disease. This must have been the exact situation at the interview, for Talbott expressly says the way that J udge’ Davis came to make the remark about the train jumping-the track and killing him was because he and Andy tried to “brace him up, make him think he was not so bad off, you know, ’ ’ and after that remark J udge Davis said the train might jump the track. This statement of Talbott’s that the remarks of J udge Davis were not made until after the tradition of the certificates themselves, is of importance, and greatly strengthens our opinion that there were no qualifications to the gift, other than those' inherent in all gifts, causa mortis, and that the donor intended none other to be attached.

It must never be forgotten that, just before the judge made any remarks, he had delivered the certificates, without any words of qualification, and this act properly aids us in interpreting the meaning of the donor in his subsequent words. (Thornton on Gifts, p. 122.) The stock certificates had been delivered. The intention of , Judge Davis was executed. If Andy and Talbott had prepared to leave the room at once, would Judge Davis have said anything more about the gift ? We think not. Or if, remaining, they had made no reference whatsoever, after the tradition, to his physical condition, is it not reasonable to say that no other word would have been spoken on the subject of the gift by the donor himself ? We think so. The very fact that the statements were not called out except by way of response to the remarks of Andy and Talbott, in the light of what Judge Davis had done before, makes them but explanations of the reason why the donor had given the certificates to his nephew at that particular time.

This construction of the remarks of Judge Davis, after the certificates had been delivered, is not only consistent with the prior acts and statements of the donor at the moment of the delivery and gift itself, but is in strict accord with his intention, as manifested by repeated prior declarations to friends.

But, if we are in error in that reasoning, let us follow the theory of appellant’s counsel, and consider all the acts and the conversation together, as forming essential and inseparable parts of the act of delivery. To proceed, then: Suppose the donor had said, at the time he handed the certificates over, “I always intended that for yon. I want you to take it,” and then added, “If I don’t come back I want you to have that. I am an old man and cannot expect to recover,”— then appellant’s argument that the condition of death while away at Tacoma was attached to the gift would have been of force, and a return might, ipso facto, have operated as a revocation of the gift. We here remark that we attach no significance to.any fear on the decedent’s part of being killed by a railroad accident. That idea is, in our judgment, incompatible with the evidence of every act and word and thought of the donor at the time of the delivery of the certificates. Death from his illness was the only current of his thoughts.

But the foregoing line of reasoning cannot be pursued without departure from appellant’s theory, because it eliminates another and material part of the statement of the decedent, namely, the alternative condition, “or if anything happens, 1 want you to have that. ’ ’ Let us, therefore, take up this further qualification, and by adding it on, we have these words: ‘‘I have always intended that for you and 1 want you to take it. If I do not come back or anything happens I want you to have that. I am an old man, and cannot expect to recover. ’ ’ Considered with the act of delivery of the certificates, we find that the gift was not limited to the event of death on his trip, only, but comprehended death at any time in the near future. Now, if we put the several whole sentences together, and connect them exactly with the delivery, we have this condition of testimony: Judge Davis: “I have always intended that for you, now take it. ’ ’ The certificates are handed over. Talbott: “You are not so bad off as you think.” Judge Davis: “I don’t know whether I will ever come back or not. There may be an accident on the railroad.’ If I don’t come back, or anything happens, I want you to have that. I am an old man, and there is no telling. I can’t stand what I used to. I don’t think I can get over this disease. I can’t stand it. I am too old. I can’t expect it.” Talbott: “We think you will come back, and that you will live 10 or 15 years.” There we have one portion of the sentence, “if I don’t come back or anything happens,” imposing conditions of death before a return from Tacoma, and the succeeding and last portion expressly without conditions whatsoever pertaining to the particular journey about to be begun. Here the argument of appellant must be that the qualification or limitation placed upon the first portion of the sentence governs the latter as well. If this be correct, we render the latter portion of- the sentence, namely, the words; ‘ ‘or if anything happens, I want you to have that, ’ ’ entirely superfluous and meaningless. They are ignored. But, if they were meaningless,, why did the donor express them ? Surely, if everything said is part of the gift, no construction can be accurate which would omit to give some effect to these latter words, as well as to all others. The only way to do so is to interpret the whole-sentence by the light of all else done and said,, before and after-wards. Doing this, the donor said: . “Take this stock. I have always intended to give it to you, and now I will do it. I believe I am a dying man. I have but little hope of.recovéry. If I do not live to coiné back, or if I.die soon, then this stock is absolutely yours. ’ ’

We cannot say by which process of reasoning the district court was moved to adopt its primary conclusion that Judge Davis intended a gift causa mortis, at the interview on the night before his departure for. Tacoma The first view, in our opinion, is correct, and we adopt-it; but both analyses of all that was said and done lead to the same logical deduction. Each is built upon the firm and unshaken evidential, foundation of an oft-repeated intent of the donor to give the bank, some day, to Andy, and upon that other and most convincing act, the manual delivery of the certificates by Judge Davis while in a Condition of health which clearly evinced his apprehension of speedy death.

We cannot find, in our consideration of the case up to this point, substantial support for the argument that, by any words or acts of the donor, prior to his departure for.Tacoma, he intended the gift to be dependent only upon his failure to return to Butte; for, no matter what refinements may be given to the-language of the donor, no force of speech at this time can overcome the fact that the donor, sagacious and close man that he was, parted' with the certificates. Probably, too, Talbott’s language was not, at the first hearing (which was not a trial of the ownership of the stock), precise ip its details of the occurrence, for he says that he does not see any substantial difference between what he said at that time and upon ' the trial of this case. But, assuming that what he said on each trial was an exact statement, we certainly cannot now say that the district court was hot warranted in its conclusion that the donor intended to give the stock to the donee at the time of the delivery thereof. The finding, therefore, to that effect,. must be sustained, unless subsequent events, by themselves or in connection with preceding affairs, overthrow the finding, or the law will not permit it to stand.

The appellant opens his exhaustive argument with references to the early English text writers and their definitions of gifts causa mortis. We will therefore go further back than he does, and briefly examine the law, to determine whether his primary inferences are sound.

If we revert to the Institutes of Justinian, published A. D. 533, (lmperatoris Justinicmi Institutiones, by J. B. Moyle), we find the first definition of the essential conditions of a donatio mortis causa, as a primary source of the meaning adopted in the common-law reports of England, and in the decisions of many of our own most learned courts. Omitting the Latin text, and accepting the translation of Professor Hammond (Sandars, Just., page 218), we find: “A donation mortis causa is that which is made to meet the case of death, as when anything is given upon condition that, if any fatal accident befalls the donor, the person to whom it is given shall have it as his own; but, if the donor should survive, or if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given. These donations mortis causa are now placed exactly on the footing of legacies. It was much doubted by the jurists whether they ought to be considered as a gift or as a legacy, partaking as they did; in some respects, of the^ nature of .both; and some were of opinion that they belonged to the one head, and others that they belonged to the other. We have decided, by a constitution that they shall be in almost every respect reckoned among legacies, and shall be made in accordance with the forms our constitution provides. In short, it is a donation mortis causa when the donor wishes that the thing given should belong to himself rather than to the person to whom he gives it, and to that person rather than to his own heir. ’ ’

The original text adds a line illustrating gifts cama mortis by reference to the Odyssey of Homer, where Telemachus makes presents to Piraeus if he be killed. Sandars then proceeds to elaborate the text as follows: “There are two essential conditions of a donatio mortis causa: It must be made with a view of meeting the case of death; it must be made to take effect only if death occurs, and so as to be revocable at any time previous, and to fail if the recipient died before the giver. The donor might, however, at his pleasure, alter the character of the gift, making it irrevocable, but it was always dependent on the recipient outliving the donor. * * * It might be made conditional upon death in two ways. The donor might say, ‘ I hand you over my horse, but the gift is only to be complete if I die in this enterprise. ’ Or he might say, ‘ I give you my horse. If I survive this enterprise you are to give it back to me. ’ In the latter method, the delivery of the thing is made at once, ‘ subject to a conditional redelivery. In the former the delivery is made conditional. * * * If the gift was made in the first of the two ways above mentioned, although there was delivery, yet the thing was only acquired on the death of the donor, and, the donor not having ceased to. be dominus, could therefore, if he revoked the gift, bring a real action to reclaim the thing handed over. If the gift was made in the second way, the whole property passed at once by the tradition to the recipient; and as, in the older and stricter law, the dominium passed absolutely when it passed at all, the property in the thing could not revert to the donor merely by the condition having been accomplished. He would only have a personal áction against the recipient to compel him to give the value of the thing, if he did not choose to give back the thing itself. The later jurists seem, however, to consider that the dominium reverted ipso jure, and that the donor could bring a real action for the thing itself. ’ ’ (Page 219.)

In these definitions it is to be observed that the distinction between conditions precedent and subsequent is not as closely drawn, as the test of whether the gift may be upheld, as by some modern authorities. Such gifts were regarded as standing‘‘ midway between legacies and gifts inter vivos. In that it consists in a present act of bounty, it differs from a legacy, which confers no right whatever on the legatee until the testator is dead, and his heir has accepted the inheritence. Here if the donee outlives the donor, the thing given never goes to the heirs at all. It differs from the latter in being absolutely perfected only by the donor’s decease. The gift may be made so conditional on that event that the property in the gift does not pass to the donee until its occurrence. In the meanwhile he has only its use and enjoyment. Or the property may pass at once, subject to the understanding that it is to revert to the donor in case of his proving the better life.” Moyle’s Comments on Justinian’s definitions, page 222, note 1.

Inasmuch as the appellant founds his discussion of the description and nature of donationes causa mortis upon Swinburne, who wrote upon the Civil Law in the latter part of the sixteenth century, we give that commentator’s definition: ‘‘ One, when the giver is not terrified with fear of any present peril, but moved with general consideration of man’s mortality giveth anything. Another, when the giver being moved with imminent danger, doth so give, that straightways it is made his to whom it is given. The third is when any being in peril of death, doth give something, but not so that it shall presently be his that received it, but in case the giver do die. ’ ’ (Swinburne on Wills, Powell’s Edition, 1803.)

The earliest decisions, next after Swinburne’s text-book, to which we have accessible reference, begin with Drury v. Smith, 1 P. Wms. 405, where Lord Cowper, in 1717, held that, where a testator, in his last sickness, made a gift, and the possession was transmuted to his nephew, it must be upheld, because ‘‘ he might, in. his lifetime, after the making of his will, give away any part of his estate absolutely, and, by the same, reason, notwithstanding the will, give away any part thereof conditionally, and this gift, being so fully proved, ’’ was held to be a donatio mortis causa.

That a delivery has always been held necessary in England is also sustained by Lawson v. Lawson, Id. 441, where a gift was made by a husband, in his last sickness, to his wife of a purse with money in it.

In Miller v. Miller, 3 P. Wms. 356, just before death the testator called to his servant to reach him his pocketbook, took thereout two bank notes for £300' each, and another note for £100, not being a cash note, or payable to bearer, all of which notes he ordered his servant to deliver to his wife, who was present. Afterwards the testator, by word of mouth, gave her his coach and horses. The gift of the bank notes for £600. was sustained upon the ground that the party was in his last sickness, and that they were delivered.

The next case, and what may be termed a leading one in England, was Lord Hardwicke’s opinion, in 1752, in Ward v. Turner, 2 Ves. Sr. 431. It cited the last two cases just above referred to, sustaining the doctrine that there must be an actual delivery. The deductions from the discussion in that case are well summed up by an English writer (Shearwood) in an. Elementary outline of the principles of equity. He says that Lord Hardwicke decided that a gift of this description, in order to be valid, must be made : (1) In such a state of illness or expectation of death as would warrant a supposition that the gift was made in contemplation of that event. (2) On condition that it is to become absolute only upon the event of the donor’s death. It follows from this that it is a gift revocable during the donor’s lifetime. (3) There must be actual delivery.

Advancing, next, to the time of Blackstone, that commentator treats this species of gift as ‘‘ another deathbed disposition of property, ’ ’ and thus defines it: ‘‘ And that is, when a person, in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods, under which have been included bonds and bills drawn by the deceased upon his banker, to keep, in case of his decease. This gift, if the donor dies, needs not the assent of his executor; yet it shall not prevail against creditors, and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or causa mortis. This method of donation might have subsisted in a state of nature, being always accompanied with delivery of actual possession, and so far differs from a testamentary disposition; but seems to have been handed to us from the civil lawyers, who themselves borrowed it from the Greeks.” (Ham. Bl. Comm., page 771.)

In Tate v. Hilbert, 2 Ves. Jr. 111, Lord Loughborough, in 1793, discusses the delivery essential to sustain a donatio mortis causa, and disapproves of the definitions of Swinburne heretofore referred to. He treats them as only references to different texts of the civil law, and says that Swinburne, in his definitions, ‘ ‘is coupling the description of a legacy with a very short text of the civil law, and there is a perplexity in it. ’ ’ He further says that the first two definitions, the second of which the appellant in this case relies upon, are clearly mere donations. He then discusses the books of Justinian, and says that Swinburne ought to have looked a little farther, and he would have found a history by Justinian of the contest upon-the subject of gifts. The exact text from Justinian, from which Professor Hammond has worked his translation, as given above, is quoted in full by Lord Loughborough, who thus ap-. proves: ‘‘There it is clearly and correctly defined that it had in effect the nature of a legacy, was liable to debts, and that it was only a gift upon survivorship; and the danger of suffering these gifts to be taken loosely occasioned, at the same time, with the passage I have read, an ordinance by the emperorthat it should be in writing with five witnesses.” He then refers to Ward v. Turner, and concurs with the reasoning that there must be some delivery of the property. We cite this. case, having had access to the same and studied it with much care, to demonstrate that that portion of Swinburne’s definition upon which the appellant relies has not met-with approval by the most learned judges in England since Swinburne wrote. Powell in his comments and annotations to Swinburne’s text also says : ‘‘ The two first instances * * are simple gifts, the latter only applies to the donatio causa mortis and is better described or defined in lege 27 and in Justin. Inst. tit. de dcnationibusT See note to Powell’s Swinburne on Wills, page 54, Part I. Roper on Legacies approves of the criticisms of Swinburne by Loughborough in Tate v. Hilbert, and unequivocally states in his text that ‘‘it appears, upon consideration of the before-mentioned definitions (Swinburne’s), that the third alone is the proper donatio mortis causa\ the other two being nothing else than pure irrevocable gifts inter vivos. ’ ’ (1 Rop. Leg. c. 1.)

Other English writers have followed Justinian’s definition, with the qualification, recognized by Lord Hardwicke in Ward v. Turner, that a delivery was essential. Spence on Equitable Jurisdiction, in 1846, called a donatio causa mortis a disposition of property “when a person in a sickness, apprehending his dissolution near, delivers or causes to be delivered any personal goods or chattels to another, or puts the physical means of dominion over them into his power to keep for himself or for some one else, in case of the donor’s decease. * * * In the event of the donor recovering, the property reverts to him. If the donor die, the property belongs to the donee, without the assent of the executor, though not as against creditors.” (1 Spence, Eq. Jur. p. 196.) Williams on Executors (page 887, c. 2, § 4) briefly summarizes the attributes of a donatio mortis causa as follows: “First, the gift must be with a view to the donor’s death; second, it must be conditioned to take effect only on the death of the donor by his existing disorder; third, there must be a delivery of the subject of the donation.”

In America, commentators, in their definitions, have followed in the line of the mother country. Kent says that such gifts are conditional, like legacies, and it is essential to them that the donor make them in his last illness, or in contemplation and in expectation of death, and that there must be a delivery. * * * A gift inter vivos was irrevocable; but a gift causa mortis was conditional and revocable. (2 Kent, Comm. p. 444.) Judge Story says such a gift is properly “a gift of personal property by a party who is in peril of death, upon condition that it shall presently belong to the donee in case the donor shall die, but not otherwise. To give it effect there must be a delivery of it by the donor, and it is subject to be defeated by his subsequent personal revocation, or by his recovery or escape from the impending peril of death. If no event happens which revokes it, the title of the donee is deemed to be directly derived from the donor in his lifetime, and therefore in no sense is it a testamentary act. ’ ’ (Story, Eq. Jur. § 64)6.)

The supreme court of Connecticut, many years ago, defined these gifts as follows: “That species of donation is derived wholly from the civil law, and is where a person, in his last sickness, apprehending his dissolution near, delivers to another personal property, under which have been included bonds payable to the donor and bank bills, to keep in case of the donor’s death. Three requisites are necessary to constitute a gift of this sort: (1) It must be made by the donor, in contemplation of the conceived approach of death; (2) it must be given to take effect only in case the donor dies; (3) and there must be a delivery of the subject of donation. It is essential that the condition of its not passing while the donor lives be included; otherwise, it will be a donation of another kind, namely, a donatio inter vivos. It differs from the latter in several respects, in which it resembles a legacy. It is ambulatory, incomplete, and revocable during the donor’s life. The revocation may be effected either by the recovery of the donor from his disorder, or by taking back the possession of the property. It can be made to the wife of the donor. On the other hand, it differs from a legacy in several particulars. The claim need not be proved in a court of probate. The title of the donee becomes, by relation, complete and absolute from the time of the delivery. No consent or other act, on the part of the executor or administrator, is necessary to perfect the title of the donee. It is a claim against the executor. A legacy is a claim from the executor. ’ ’ (Raymond v. Sellick, et al., 10 Conn. 484.)

Without reviewing in detail the definitions of-many more American writers, we find that the general requirements, as laid down by Williams on Executors, succinctly state the law. Of modern American commentators, certainly none are more perspicuous or intelligible m their definitions than Pomeroy, who sums up the discussion in the following words: A gift absolute in form, made by the donor in anticipation of his speedy death, and intended to take effect and operate as a transfer of the title upon, and only upon, the happening of the donor’s death. Between the time when the gift is made and the article donated is delivered, and the time when the donor dies, the donation is wholly inchoate and conditional. The property remains in the donor, awaiting the time of his death, and passes to the donee when the death, in anticipation of which the gift was made, happens, unless the donation has, in the meantime,- been revoked by the donor. The donee thus becomes'a trustee for the donor, with.respect to the article delivered into his possession, until the gift is made perfect by the donor’s death. The gift must be .absolute, with the exception of the condition, inherent in its nature, depending upon the donor’s death, as above described, and a delivery of the article donated is a necessary element; but it is subject to revocation by the act of the donor prior .to death, and is' completely revoked by the donor’s recovery from the sickness,' or escape from the dánger, in view of which, it was made. ’ ’ (3 Pom. Eq. Jur. § 1146. See, also, 2 Beach Mode Eq. Jur. § 1061; Grymes v. Hone, 49 N. Y. 21; Michener v. Dale, 23 Pa. St. 63; Story Eq. Jur. pp. 599, 604; 2 Schouler Pers. Prop. §§ 135, 138; Thornt. Gifts § 21; Crosw. Ex’rs & Adm’rs 620.)

In Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 115, relied upon by appellant, it was said “that a donatio ccmsa mortis must be completely executed, precisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the conditions subsequent, — that is, upon actual revocation by the donor or the donor’s surviving the apprehended peril or outliving the do-nee, ’ ’ etc. On the other hand, if the gift does not take effect, as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, ’ ’ etc.

Reverting to the appellant’s theory of the evidence in this case, if the foregoing definition of Justice Matthews was meant to exactly conform with Swinburne’s second definition and rejects all gifts, where a donor, with intent to make a gift ccmsa mortis, delivers the property, and surrenders the possession and control of the subject-matter of the gift, with a statement, such as the donor used in this case, to the effect that, if he died, he wanted the donee to have the property delivered, then there has been a contraction of the generally accepted common-law rule that a gift causa, mortis could be made by present delivery, yet conditioned upon the death of the donor. But it was not so décided upon the facts of that case, and we doubt whether the definition quoted conflicts with Mi’- Pomeroy’s, when the words used are measured by their strict applicability to the whole subject, and its nature, under consideration, and the inherent qualifications inseparably attached to all gifts causa mortis. We believe we are accurate in this-last comment upon the opinion Of Justice Matthews. We have examined the particular case upon which the reasoning.of that opinion is laid, — -a decision of the supreme court of Tennessee,- made in 1867. (Gass v. Simpson, 4 Cold. 288.) The Tennessee case was this: The decedent was obliged to leave Tennessee to avoid the operations of the' rebel conscription laws, and went to Kentucky, .where he -died,- at Louisville, in 1863. Before leaving Tennessee, in 1862,-he placed in the -hands of Mary Simpson some gold and paper- money, "together with notes, receipts, etc., and stated to her at the time, ‘‘ If he never returned, he wanted it all to be given to her son, George M. Simpson,” who was at that time a minor; and on the day he left he stated to others that, if he never returned he wanted ‘‘ little George ’ ’ to have what he had left in respondent’s hands. The defendants contended that the facts constituted a valid donatio ccmsa mortis of all the effects and money. The court, by Justice Hawkins, after taking up the definition of Swinburne, speaks of the contest which arose at an early day as to the real nature of gifts ccmsa mortis, and expressly recognize that a gift causa mortis is a conditional gift, dependent upon the contingency of expected death, which need not be expressed or specified by the donor; and, after applying this principle to the facts in the case, it was held that a valid donation causa mortis existed in favor of George Simpson. A part of this discussion of the supreme court of Tennessee is quoted verbatim by Justice Matthews as the foundation for his subsequent deductions. After taking up another part of the opinion, to the effect that delivery» was essential, he says that ‘‘ a view of the entire passage leaves no room to doubt its meaning; that a donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vimos, subject to be divested by the happening of any of the conditions subsequent, — that is, upon actual revocation by the donor, or by the donor’s surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and inter vivos. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will. ’ ’

A close scrutiny of Justice Matthews’ deductions would seem, therefore, to demonstrate that he did not mean to disaffirm the general doctrine as it was enunciated by the supreme court of Tennessee. Indeed, he expressly affirms their meaning. But, if the appellant is correct, in this case, in his interpretation of the definition of Justice Matthews, that distinguished jurist has laid down a rule which, if it had been applied to the very case whence it was deduced, could not have coincided with the principles announced therein or with the conclusion reached by the Tennessee court. We, therefore, cannot believe that the United States supreme court intended to say that a gift made in apprehension of death, and where the donor delivered the property to the donee with an expression to the effect that the property was to belong to the donee if he (the donor) should die, could not be sustained. The leading English cases and the civil law are not exhaustively examined, in the opinion of Justice Matthews. He seems to have founded his opinion as to what delivery would sustain the gift largely upon the summarized law of the Tennessee case; but, by his elaboration of the rule of the Tennessee case, although he affirmed the law thereof, nevertheless, he has apparently laid down a doctrine often invoked and interpreted to defeat gifts omisa mortis where exactly such conditions were expressed by the donor as the appellant contends were imposed by Judge Davis in this case, but which would appear,-under the weight of authority, including the Tennessee decision, to but merely express the condition which is annexed by law to every donation causa mortis. Eor, no matter whether the gift is made upon death or nonrevocation as a condition precedent or subsequent, upon either condition an absolute and indefeasible title comes to the donee only upon the donor’s death. The gift must be absolute in form by the donor while living. It cannot be absolute in fact until his death. The supreme court of Arkansas, in Hatcher v. Buford (1895) 27 L. R. A. 507, referred to Basket v. Hassell upon this point, and declined to follow the usually accepted interpretation of it. Its apparent doctrine is also ably discussed in Travis on Sales, where the author speaks of the ‘ ‘ mistake ’ ’ made by the supreme court.

But, however interesting it might be to enter upon a comparison of the various decisions, to determine whether the appellant’s interpretation of Basket v. Hassell is correct or not upon the question of delivery, and to consider the divergencies of opinion, we refrain from so doing, because, under our view of the facts of this case, the gift herein was delivered, within the rule of the letter of the definition of that case, as appellant would apply it.

The facts of the case at bar so clearly demonstrate that the delivery of the certificates was made by Judge Davis in contemplation of speedy death from his disease, that it is unnecessary to dwell on that feature of the case. The prolonged and dangerous illness of the donor, his age, and the circumstances of the delivery fully show the expectation of Judge Davis to die shortly from the ailment from which he was then suffering. His trip to Puget Sound was but a desperate fight for life, or-to prolong the life which he felt he must soon lose. The argu ment that he apprehended death from a railway accident, as said before, is not well founded, in our judgment. But, if it were, it could not avail appellant, because the decedent also apprehended death from his disease, and, inasmuch as he failed in health and died soon of buch apprehended disease, which was the particular cause of death, with especial reference to which the delivery was made, it matters not that he may also have feared death from other and insufficient causes. “The rule is that the donor must not recover from the disease from which he then apprehended death. If he recovers, the gift is void; if he does not recover, and the gift is not revoked, it becomes effectual.” (Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627; Gourley v. Linsenbigler, 51 Pa. St. 345, 56 Pa. St. 166; Craig v. Kittredge, 46 N. H. 57; Thornt. Gifts, § 23 et seq.; Williams v. Guile, 117 N. Y. 343, 22 N E. 1071.)

Next, as to the important question of the effect of the delivery of the certificates of stock. We start with a delivery, and acceptance of the certificates at the time of the delivery, and the intention on Judge Davis’ part to make a complete gift. But we have this question: The subject of the gift was bank stock, shares in a national bank, or the certificates thereof, without indorsement or assignment in writing, and without transfer ón the books of the bank. Can national bank stock be so transferred, and thus be made the subject of a valid gift causa mortis? The appellant asks a negative reply, and in an argument displaying great research and learning, bases his request upon the common law and cases construed by him to be within the reasoning of the English adjudications. And here, again, is a divergency of opinion between learned writers. Some years back the common law of England, so far as the same was applicable and of a general nature, and not in conflict with special enactments of the territory, was declared to be the law, and was to be considered of full force. But to determine what the common law is, are we to disregard the expositions by judicial authorities of our own country upon the common law % Clearly not. “No one,” said Judge McLean, in Wheaton v. Peters, 8 Pet. 659, “will contend that the common law, as it existed in England, has ever been in force, in all its provisions, in any state in this Union. It was adopted so far only as its principles were suited to the condition of the colonies; and from this circumstance we see, what is common law in one .state is not so considered in another. The judicial decisions, the usages and customs of the respective states, must determine how far the common law has been introduced and sanctioned in each. ’ ’

Upon this question we quote from Chief Justice Shaw in Com. v. York, 9 Metc. (Mass.) 93, who thus wrote of the adoption of the rules and principles of the common law of England in their applicability to our conditions: “As this is an unwritten law, we must seek for the evidence of it in judicial records, precedents and decisions, and those digests, treatises, and commentaries of learned and experienced men which have acquired respect and confidence by long usage and general consent. If we consult English decisions made since the revolution, it is not because they have any binding force as rules, but because they are expositions of the rules and principles of the common law, by men of great experience and judgment in the knowledge and application of the same laws which we are seeking to expound. And, if we read the digests and treatises of reputable authors, published since we ceased to be English subjects, it is because they contain the authentic records of the precedents and judicial proceedings which furnish thó evidence of the common law. In like manner the decisions of courts of other states having the same common origin and deriving their laws from the same common source, are valuable and useful in enabling us the more clearly to understand and the more fitly to apply the rules and principles of our own authoritative code ’ of laws. ’ ’

The appellant relies at once upon Lord Hardwicke’s opinion in Ward v. Turner. Although some cases and writers do not regard that case as positively deciding that choses in action, such as stocks, cannot be effectually delivered as a gift causa mortis, without transfer of the legal property, yet it is generally cited to that holding. The property there delivered was receipts for South Sea annuities. We quote, in part, from the chancellor’s opinion: “Nor does it appear to me, by proof, that possession of these three receipts continued with Mosely from the time they were given, in February, to the time of Fly’s death; for there is a witness who speaks that, in some short time before his death, Fly showed him these receipts, and said he intended them for his uncle Mosely. Therefore, I am of opinion it would be most dangerous to allow the donation mortis causa, from parol proof of delivery of such receipts, which are not regarded or taken care of after acceptance; and if these annuities are called choses in action, there is less reason to allow of it in this case than in any other chose in action, because stocks and annuities are capable of a transfer of the legal property by act of parliament, which might be done easily; and if the intestate had such an aversion to make a will as supposed, he might have transferred to Mosely. Consequently, this is merely legatory and amounts to a nuncupative will, and contrary to the statute of frauds, and will introduce a a greater breach on that law than was ever yet made; for, if you take away the necessity of delivery of the thing given, it remains merely nuncupative. ’.’ (Ward v. Turner, 1 White & T. Lead Cas. Eq. 1217.)

After the decision of Ward v. Turner, throughout the various cases we find distinctions as to the extent to which Lord Hardwicke meant to go concerning the delivery of choses in action. There is a review of the history of these decisions in 1 Rop. Leg. pp. 10, 11, et seg. But, in 1827, Lord Eldon, under whose judgments have been recognized the expansion of those principles of equity which were matured in the time of Lord Hardwicke, cleared up much of the doubt which had existed before his time, and advanced to the point of construction upon which have been, to a great degree, founded the further expansions of our American courts.

Duffield v. Elwes, 1 Sim. & S. 243, was an action where the defendant was possessed of a bond for a certain sum of money, and had also a mortgage, created by a deed of even date with the bond, to secure the sum mentioned in the bond, and he had another mortgage for a large sum. The second mortgage was dated November 3, 1820. It recited that £30,000 had been advanced upon mortgage by Sir Sandys to the prior mortgagees, and further secured by a bond, and a judgment recovered, and that the mortgagees had called in the money. It was witnessed, in consideration of the £30,000 advanced by Elwes to Sandys to pay off the mortgage, that the money and judgment were assigned, and certain premises were also conveyed by mortgage from Sandys to Elwes to secure the £30,000. Elwes, when on his deathbed, and unable to write, declared that he gave the bond and mortgage, and the money secured by them, to his daughter. Mrs. Duffield. At the desire of Elwes they were delivered into the hands of Mrs. Duffield. The vice chancellor decided that the gift was not complete, because the delivery was not complete as a gift inter vivos. But, in the house of lords, Lord Eldon, after citing the authorities, observed: “Lord Hardwicke is clearly of opinion that the delivery of a bond as a specialty would do; and if, then, the debt is well given by the delivery of the bond, the next question is, what are we to do with the other secureties, which are, or not, delivered over ? In the present case, the bond, the assignment, the covenant, and all the deeds are delivered over in such a manner that the representatives of the donor could not get at them; and the question is, whether, considering the difference between an absolute estate in land and a mortgage, the same principle does not apply in the case of a mortgage as in the case of a bond. Upon the whole, then, I am of opinion that the delivery of these securities is a good donatio mortis ccmsa, as raising a trust by operation of law, and that as so raising a trust by operation of law, they are not within the provisions of the statute of frauds. (Rop. Leg. p. 19).

This celebrated case of Duffield v. Elwes is regarded as the turning point in the English law of property susceptible of delivery, and Lord Harwicke’s distinction between “the delivery of property and the delivery of its evidence has assuredly lost its point. ” (2 Schouler, Pers. Prop. p. 115.) Hewitt v. Kaye (1868) E. L. R., Vol. 6, p. 198, recognizes the principle that ‘when a man on his deathbed gives to another an instrument, such as a bond or promissory note, or an 1. O. U., he gives a chose in action and the delivery of the instrument confers upon the donee all the rights to the chose in action arising out of the instrument.” The court approved of the doctrine laid down in Amis v. Witt, 33 Beav. 619.

The last English case that we have been able to find is Robson v. Hamilton, (1891) 2 L. R. Ch. 559. Joseph Robson bequeathed and gave to his nephew, Joseph Robson, his old mahogany desk, ‘ ‘with the contents thereof, ’ ’ and made other disposition of his other property. The desk was found to contain notes, bankers’ deposit receipts, and unindorsed checks to the order of the testator. The court sustained the gift of the desk with its contents, except the key to a tin box, and adverted upon the disadvantage to men in making bequests of that kind, and then said: “But in this case, as I have said, I think that the words the testator has used are strong enough, and, properly construed, ought to be held do include all the choses in action. The choses in action, if any distinction is to be taken, are such as could have been given by the testator by mere delivery as a donatio mortis causa. In that case the indorsement of the executors would be required, and in this case the indorsement of the executors will also be required. ’ ’ This last expression from the court of appeals of England is evidence of the development of the law in that country upon the subject of gifts causa mortis. It is only cited as an instance of the growth of the doctrine permitting gifts of choses in action.

Chancellor Kent, about the same time that Lord Eldon decided Duffield v. Elwes, wrote that the distinction made by Lord Hardwicke between bonds and bills of exchange, promissory notes, and other choses in action, “seems now to be exploded in this country, and they are all considered proper subjects of a valid donation causa mortis as well as inter vivos. ’ ’ (2 Kent Comm. 448.) One of the earliest explosions was in Wells v. Tucker, 3 Bin. (Pa.) 366, when, in 1811, it was decided that where a bond was delivered by the donor in his last illness to his wife, for the use of a third person, it was a good donatio ccmsa mortis. See, also, 2 Barb. Pers. Prop. p. 632. Shaw, C. J., followed the doctrine of Kent in Parish v. Stone, 14 Pick. 198, and Sessions v. Mosely, 4 Cush. 87.

The principle has also been recognized by English text writers.

Williams on Executors says bank notes may be the subject of a donatio mortis causa, because the property is transferred by the delivery; and, on the same principles, all negotiable instruments, which require nothing more than delivery to pass to the donee the money secured by them may be the subjects of donations mortis causa. (1 Williams Ex’rs p. 829; Rop. Leg. p. 18, and cases cited.)

Story, when he wrote in 1835, doubted the soundness of the doctrine of Ward v. Turner, to the effect that a promissory note or bill of exchange not payable to bearer, or indorsed in blank, cannot take effect- as a donatio mortis causa, inasmuch as no property therein could pass by the delivery of the instrument, and boldly said that the doctrine no longer prevails; that, where a delivery will not execute a complete gift inter viwos, it cannot create a donatio mortis causa, because it would not prevent the property from vesting in the executor; and as a court of equity will not, inter viejos, compel a party to complete his gift, so it will not compel the executor to complete the gift of his testator. On the contrary, the doctrine now established by the highest authority is that courts of equity do not consider the interest as completely vested in the donee, but treat the delivery of the instrument as creating a trust for the donee to be enforced in equity. (1 Story Eq. Jur. 604.)

It being clear now that, under the progress of administration of principles of equity, gifts causa mortis may be madó of incorporeal as well as corporeal chattels, and of choses in action generally, we must examine the class of property in this case, — namely, national bank shares,- — and observe whether or not they are to be treated as upon any different plane from that occupied by shares of stock generally. As will be seen by the statement of the facts, the certificates delivered to Andy were issued in the donor’s name, and each certificate contained the words ‘ ‘transferable only by him or his attorney on the books of the bank on the surrender of this certificate. ’ ’ The by-laws of the bank also required a transfer on the books. The Revised Statutes of the United States (section 5139) provide as follows: “The capital stock of each association shall be divided into shares of one hundred dollars each, and be deemed personal property, and transferred on the books of the association in such manner as may be prescribed by the by-laws or articles of association. Every person becoming a shareholder by such transfer, shall, in proportion to his shares succeed to all the rights and liabilities of the prior holder of such shares.” No writing having passed at all between the parties, donor and donee, and no transfer on the books having been made, we must look at the principles and authorities bearing upon the direct point involved.

It was held in Slaymaker v. Bank, 10 Pa. St. 373, that shares of stock are, in commercial usages, regarded as choses in action, and the certificates are evidence of the title of the holder to them. Now, a chose in action is incorporeal and incapable of delivery except by symbol. We grant that it is essential to the validity of a gift that it should be executed, but, where the nature of the property given is incapable of manual delivery, a delivery of the symbol which represents it is the only way to execute the gift. Things incorporeal, says Schouler, in a learned review of gifts causa mortis, were not contemplated by the earlier English jurists at all, but when, in the commercial world, bills and notes acquired a standing before the courts, ‘ ‘delivery of the writing, with or without indorsement, became the rule of transfer. ’ ’ Equitable assignments are now thoroughly recognized in the law, and, as a consequence, gifts that would have failed long ago in England because of imperfect delivery may be now upheld by the aid of a court of equity. (2 Schouler Pers. Prop. § 72 et seq. Thornt. Gifts § 273 et seq.)

In Grover v. Grover (1837) 24 Pick. 261, it was decided that a valid gift could be made inter vivos of a promissory note payable to the order of the donor, without indorsement by him or other writing. The English cases referred to heretofore are cited in the opinion of the court, and Lord Hardwicke’s opinions referred to in the following language: “The leading case on this point is that of Miller v. Miller, 3 P. Wms. 356, in which it was held that the gift of a note, being a mere chose in action, could not take effect as a donation mortis causa, because no property therein could pass by delivery, and an action thereon must be sued in the name of the executor. But in Snellgrove v. Baily, 3 Atk. 214, Lord Hardwicke decided that the gift and delivery over of a bond were good as a donation causa mortis, on the ground that an equitable assignment of the bond was sufficient. It seems to be very difficult to reconcile these two cases. The distinction suggested by Lord Hardwicke in the case of Ward v. Turner, 2 Ves. Sr. 431, in which he adheres to the decision in Snellgrove v. Baily, is technical, and, to my mind, unsatisfactory, and certainly has no application to our laws, which jfface bonds and other securities on the same footing. We cannot, therefore, adopt both decisions without manifest inconsistency; and we think for the reasons already stated, that the decision in Snellgrove v. Baily, is supported by the better reasons, and is more conformable to general principles and the modern decisions in respect to equitable assignments. We are therefore of the opinion that the gift of the note of hand in question is valid.”

In Camp's Appeal (1869) 36 Conn. 88, it was decided that choses in action, the title to which passes by delivery, may be the subject of a gift, as well as any other species of property, and the court said : “Whatever may be said or thought of the propriety of the law, it is well settled by the modern authorities that choses in action not negotiable, and negotiable paper not indorsed, may be the subject of a gift, and that a delivery which vests in the donee the equitable title is sufficient without a complete transfer of the legal title. In this respect a title by gift is not distinguishable from a title by purchase for a valuable consideration, and, when the claims of creditors do not interfere to affect its validity, such a title will be recognized and protected in the same manner and to the same extent as a title by sale. ’ ’

In Tillinghast v. Wheaton (R. I., 1867) 5 Am. Rep. 621, the delivery of a savings bank pass book containing entries by the officers of the bank of the amounts deposited by a deceased’s wife, with a parol gift of the same by her husband on his deathbed, was a good gift causa mortis of the money deposited in the bank. The court there said that in the more recent English decisions the strictness of the ancient rule was relaxed, and the gift was sustained. The courts of Kentucky (Stevenson's Adm'r v. King, 50 Am. Rep. 172) have recently followed the modern doctrine. A Mrs. Stevenson selected John King as her agent, and, when she died, King had in his possession a note and some county bonds, the bonds payable to bearer, and the note indorsed in blank. On the day before Mrs. Stevenson died, she told her mother that she gave her property to her, and she delivered a paper to her mother, telling her that this paper was to show the property she had at Louisville, and to get her money on the paper. The paper was the letter from the agent, King, containing a state ment of the property in his possession belonging to Mrs. Stevenson. The contention waso in part in that case that, in order to make such a gift of a note or bond, it must be delivered by passing manually from the possession of the one to the other; but the court held that the delivery required “must be according to the nature of the thing, and usually that means according to the physical nature of the thing to be delivered. * * * Now, will it be insisted, under the more modern authorities, that an actual delivery of the chose in action to the donee will not constitute a gift ? We think not.’’ The earlier cases are reviewed in this opinion, and the gift of the note and bonds was held to be good.

In Hill v. Stevenson (1873) 63 Me. 364, a delivery to a donee of a savings bank book, containing entries of deposits to the credit of the donor, with the intent to give the donee the deposits represented by the book, was held to be a good delivery, as vesting an equitable title in the donee without assignment. See, also, Druke v. Heiken, 61 Cal. 346; Westerlo v. De Witt, 36 N. Y. 340; 3 Redf. Wills, page 336.

Although some writers of recent date disapprove of the doctrine which sustains gifts causa mortis of stock in a bank by mere manual delivery of the certificate, yet there is a recognition that such gifts made are upheld where a complete equitable title vests in the donee, and where the evidence shows that it was plainly the intent of the donor to make the gift. This principle is recognized in Grover v. Grover, heretofore cited; also, in Bates v. Kempton, 7 Gray 382, and in the following cases : Allerton v. Lang, 10 Bosw. 362; Penfield v. Thayer, 2 E. D. Smith 305; and, indeed, it was thought it was recognized by Lord Hardwicke himself in Snellgrove v. Baily, criticised in Grover v. Grover. Pomeroy, after laying down the modern rule that all things in action “which consist of the promises or undertakings of third parties, not the donor himself, of which the legal or equitable title can pass by delivery, may be the subjects of a valid gift,” says, in a note: “It is held in England that shares of stock are not capable of being the subject-matter of a valid donation,.because no title can be transferred by delivery; no title can pass except by transfer on the company’s own books. Under the law of this country with respect to the title of the assignee before transfer is made in the company’s books, there seems to be no reason why a certificate of stock may not be the subject of a valid gift, certainly if it has been indorsed in blank; but in my opinion, such indorsement is not necessary.” (3 Pom. Eq. Jur. § 1148; 1 Mor. Priv. Corp. § 197.)

In Grymes v. Hone, 49 N. Y. 17, the court sustained a gift ccmsa mortis of bank stock, where there was no delivery of the certificate, and no transfer on the books, but an assignment in writing of the shares. It was held that delivery of the certificates without a transfer on the books of the bank would have made no more than an equitable title against the bank, but would have' given a legal title as against the assignor, and that the representatives of the donor became trustees for the donee by operation of law to make the gift erfectual.

In Walsh v. Sexton, 55 Barb. 251, a woman, apprehending death, gave some certificates of stock in a railroad to her husband. The certificates, on their face, were transferable only by her or her attorney on the books of the company on surrender of the certificates. There was no transfer, and no power of attorney was signed. The gift was sustained upon the authority of Westerlo v. De Witt, 36 N Y. 340. Westerlo v. De Witt (1867) is generally cited, and bears closely upon the case at bar. The donor, apprehending speedy death, told the plaintiff to bring her a roll of paper from the pocket of one of her dresses. She took the roll, and gave it to the plaintiff. There was in the roll a certificate of deposit for $1,500. After the gift, the donee returned the parcel to the pocket of the dress, as directed by the donor before her death. The donor left a last will and testament, in which she bequeathed to the plaintiff the legacy of a thousand dollars and the dress in which the parcel was placed. The plaintiff doubted whether the certificate was intended for her. She was advised that she could not recover it in law. There were other facts and circumstances not necessary to here recapitulate. The court of appeals, by Hunt, J., sustained the gift,, upon the ground that it was quite clear that in apprehension of death, or among the living, the gift of a mortgage or an indorsed note may be effected by a simple delivery of the security, and that Mrs. Clinton did not expect or intend to retain any control over the possession of the money or security after the date of the delivery. The security was placed upon the same footing as the money, and both were held to be susceptible of being presented as a gift by delivery. “It is impossible,” said the court, ‘ ‘to apply any rule which would make this a valid gift as to the money, and invalid as to the certificate. They must stand or fall together. ’’

In Com. v. Crompton, (1890) 137 Pa. St. 138, 20 Atl. 417, the donor there delivered a box containing a government bond and certificates of railroad stock, with the intent to give the securities to the defendant. The court passed upon the direct question of whether the failure to make a formal written transfer would defeat the purpose of the donor. It was treated as well settled that a valid gift of nonnegotiable securities may be made by delivery of them to the donee, without assignment or indorsement in writing; and, to sustain that proposition, the court cite Wells v. Tucker, 3 Bin. 366; and Licey v. Licey, 7 Pa. St. 251. The shares of stock are choses in action, and the certificates evidence of the title to them. Why may not a delivery of certificates, coupled with words of absolute and present gift, invest the donee with an equitable title to the stock, which the donor or a volunteer cannot successfully assail? A stockholder may clothe another with the complete equitable title to his stock, without compliance with the forms printed by the corporation.”

In Cook v. Lum, 55 N. J. Law 373, 26 Atl. 803, it is recognized that things in action may be given by a surrender to the donee of the donor’s voucher of right or title, although the gift was in that, case, on the facts, held invalid. So does Tiedeman on Equity Jurisprudence (section 359) uphold gifts of choses in action. (Brantl. Pers. Prop. § 208, citing Pomeroy’s opinion in his note.) Lowell on Transfers (sections 43 and 109) lays down the rule that “a certificate is a muniment of title, and a delivery of the certificates, like a delivery of the title deeds in England, may be evidence of an intention to transfer the property they represent; and, on the same principle, the delivery of a certificate of stock may be a good donatio ccmsa mortis, although no transfer of the stock is executed.” (Reed v. Copeland, 50 Conn. 472.) Promissory notes, with or without indorsements, if delivered, may be good gifts causa mortis. (Crosw. Ex’rs & Adm’rs § 621; Vandor v. Roach, 73 Cal. 614, 15 Pac. 354.)

The delivery of the certificates being intended as a gift of the stock, the donor did all that was required to pass an ownership, especially as there was no blank assignment on the back, and no attorney present to draw one. The authorities above cited permit the circumstances surrounding the actors to be considered. (Thomas’ Adm’r v. Lewis, (Va.) 15 S. E. 389.)

The view that a delivery of the shares to Andy without writing of transfer on the books is good is also in direct harmony with Basket v. Hassell, supra, where it was regarded as unquestionable that a delivery of the certificate of deposit involved therein, to the donee, without an indorsement, would have transferred the whole title and interest of the donor in the fund represented by it, and might have been valid as a donatio causa mortis. And we here observe that, as the doctrine of the supreme court in this oft referred to case seems, upon appellant’s theory, to contract the common-law definitions of the character of the conditions attached to a delivery, yet upon this point — that choses in action may be given causa mortis — we find the same great tribunal that decided that case expanding the original English definitions so as to include not only choses in action generally, but those which, by delivery, concededly passed but an equitable title against all, except between the parties themselves.

Thompson, in his Commentaries on Private Corporations, upholds a gift of stock by a delivery of the certificates, and cites Basket v. Hassell, supra, to sustain his text, and lays it down “that, in conformity with this doctrine, it has been often held that a valid gift of nonnegotiable securities may be made by the delivery of them to the donee without an assignment or indorsement in writing. This principle has been applied to notes, bonds, stocks, certificates of deposit, and life insurance policies. * * * So, also, it has been held that a valid gift, in view of death, of corporate stocks, may be made by a simple delivery of the certificates with the intent to transfer the stocks, even though the certificates on their face are made ‘transferable only by her or his attorney on surrender of this certificate ’ though, as already seen, a gift of shares may be executed by a transfer on the books without a delivery of the certificate.” (Section 2390.)

The argument that national bank shares stand upon a different footing is not tenable, for it was held in Johnson v. Laflin, 103 U. S. 800, that, when a certificate of stock in a national bank was delivered (with a blank power of attorney indorsed) as between the parties thereto, the title to the shares then passed; the right to the shares then vested in the purchaser. “The entry,” said the court, “of the transaction on the books of the bank, where stock is sold, is required, not for the translation of the title, but for the protection of the parties dealing with the bank, and to enable it to know who are its stockholders entitled to vote at their meetings, and receiving dividends when declared. * * * Purchasers and creditors, in the absence of other knowledge are only bound to look to the books of registry of the bank. But, as between the parties to a sale, it is enough that the certificate is delivered with authority to the purchaser, or any one he may name to transfer it on the books of the company, and the price is paid. ’ ’ And, again : ‘ ‘ The transferability of shares in the national banks is not governed by different rules from those which are ordinarily applied to the transfer of shares in oth ex-corporate bodies. ’ ’

In McNeil v. The Tenth Bank, 46 N. Y. 325, the delivery of a certificate with the assignment and power indorsed was held to pass the entire title, legal and equitable, in the shares of a na tional bank, notwithstanding that, by the terms of the charter or by-laws, the stock was declared transferable only on its books. “ Such by-laws, ’ ’ said the court, “ do not incapacitate the shareholder from parting with his interest, and that his assignment, not on the books, passes the entire legal title to the stock, subject only to such liens as the corporation may have upon it, and except the right of voting at elections,” etc. Judge Thompson, in his usual clear and vigorous style, discusses the doctrine of distinguishing between the legal and equitable ownership of stock where the delivery of the certificate is had, and approves that part of the opinion of Judge Rapallo in the case last cited, and concludes with the following observations of his own : “ So, the legal owner of shares in a corporation is the owner in whose name the shares stand on the books of the corporation; whereas the equitable owner is the one who, being the beneficiary,- — that is, the real owner, — is not registered as such on the corporate books, and who must, if the corporation refuses so to register him, go into a court of equity to compel them to do so. The real meaning is that his title is complete as against everybody but the corporation itself, and those who have a superior right to have the corporation make the transfer to them.” (Thomp. Corp., § 2393.)

We are therefore of opinion that it was not indispensable to the validity of the transfer of the stock in question, by our statutes or the law generally, that there should have been any' writing on the backs of the certificates, and that an equitable title passed to Andy. This equitable title gave Andy full right to the stock, and equity should afford him the means of obtaining the possession of that incorporeal subject of gift,— stock itself. The intent having existed in Judge Davis’ mind to make the gift, and the stock certificates having been delivered, the legal title was complete as between Andy and his uncle, subject always, of course, to revocation or to the inherent conditions in gifts causa mortis. We need not consider the attitude of third parties or creditors, because none have appeared in this case. The donee, therefore, haying an equitable title and a legal right, may enforce that right by the aid of equity. Many of the cases heretofore cited are where courts have extended their aid to give effect to gifts causa mortis. (1 Story, Eq. Jur. 607 et seq.)

Passing to the point of dominion and control, the authorities hold, without much conflict, in recent decisions, that the delivery of a chose in action as a gift must be such as to vest in the donee the equitable title, and to divest the donor of all present control and dominion, always, of course, upon the recognized condition in cases of a gift causa mortis; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession, by enforcing the obligation, according to its terms, will not suffice. As we have seen, the intent of Judge Davis was complete in this case, and the delivery passed to the donee the equitable title. Thus did the gift possess the all-important qualities of depriving the donor of all control and dominion over the property; and thus was the right conferred upon Andy to have compelled a transfer on the books of the bank of the stock to him. Under our view of the testimony of the words spoken by Judge Davis subsequent to the gift, it is unnecessary to discuss whether or not there was any limitation or suspension of this right conferred upon Andy by the donor, although, as said, even upon appellant’s theory, we doubt if there was other than the law implies in all gifts causa mortis. No writing was necessary, as said before, to perfect the delivery, and the omission of this ceremony does not lead to the conclusion that the transaction is invalidated, on the ground that, by its omission, the donor was deprived of the control and dominion. The donor had parted, and intended to part, with the muniments of title to the shares in the bank, and thus surrendered the certificates which were necessary to obtain a transfer on the books of the bank.

Did Judge Davis, however, exercise any dominion and control after the date of the gift? The facts and circumstances, as apparent by the statement preceding this opinion, show that his nephew voted 950 shares of stock for the decedent for director, at the regular stockholders’ meeting, January 14, 1890. The holder of this proxy never conversed with Judge Davis regarding the same. It was given to the holder by Andy, and the facts all go to show that from the time Judge Davis executed the proxy, which antedated the gift some three days, he never was at the bank or took any part' in its management or affairs. At the time of the meeting, he was sick and away. Andy controlled the proxy entirely. It was necessary to hold the bank meeting, and, to do this, the stock in question had to be voted. As against the bank itself, the legal title to the stock was in Judge Davis, for by its books was it alone guided. Andy produced the proxy, and inserted his brother’s name; and at the direction of Andy, as said before, the stock was voted. We cannot see how this proxy can be made to defeat the donor’s intent, as evidenced by the words and delivery and surrender of the certificates to Andy after the date of the proxy. Possibly, when the proxy was signed by Judge Davis, he had not made up his mind exactly what to do, or he might have contemplated postponing the execution of this gift; but it would be most unjust to hold that an act done under that proxy, without his knowledge or consent, should nullify all his acts and words sanely done just before he went to Tacoma. And, so far as Andy is concerned, he only did what any layman under such circumstances would have done; that is, assist to confer upon his dying uncle, during the rest of his life, the highest mark of affectionate regard then within his power to bestow.

It has taken centuries for-the most experienced and wise judges to determine that a do'nor of a gift causa mortis must divest himself, at the time of the gift, of all dominion and control of the article donated, and must place it wholly under the donee’s power, and enable him, without further act on his (the donor’s) part, to reduce it to his own manual possession; yet it is strenuously urged by the appellant in this case that because Andy did this one single act, made necessary, within a few weeks’ after his uncle’s departure, it should be construed as so inconsistent'with .the surrender and control of the stock by his uncle, and of his own right of' dominion and control over the same, as to deprive him of all his rights. It was the dominion of the donee which controlled the voting of the shares. Every presumption is that the donee accepted such a gift, and we cannot believe for a moment that this conduct of Andy at that bank meeting ought to overcome that presumption, when considered in relation with the intent of his uncle, and the delivery of the evidence of the shares to him.

We have not considered Judge Knowles’ testimony at the various points throughout this opinion where it might have been pertinent to do so. This omission, however, was due to our desire to avoid needless repetition, for we have regarded it in its application to the whole case. Without repeating it here, we find nothing in the interview between Judge Davis and Judge Knowles, about February 1st, which is not susceptible of reasonable interpretation favorable to Andy. Judge Knowles was not to return to see Judge Davis three days after his first visit with a view to make any testamentary disposition to Andy, for Judge Knowles expressly says that he was not to return “to fix up these gifts exactly, ” meaning thereby the gifts to Mrs. Wehrspaun’s daughter, and the Butte Library, and a lady, and two persons in the states. Judge Davis did not ask Judge Knowles about a will, and only referred to these particular gifts as gifts. He did say that Andy “is to control the bank, or have the bank, ’ ’ or both, which language is surely not unfavorable to the respondent in this case; and, indeed, there is reason in the argument that Judge Davis knew that he had given the stock to Andy, and, by his words, that he meant to exclude it from his estate proper. In doing so, he was but carrying out an intent he had expressed to that effect, long before, to many persons. That the testimony of these prior declarations was admissible is well sustained in reason and in decision. (Moyer’s Appeal, 77 Pa. St. 486; Thornt. Gifts, §§ 222, 234.)

The length of this opinion prevents any more extended notices of the'many cases cited by the appellant which have upheld contrary views of the law. Many of them turned upon the peculiar facts incident to the words of the gift; others are of a date when systems of commercial transactions between men were far less practical and convenient than in later years; while some adhere to the more ancient common-law doctrines which refuse to recognize gifts causa mortis of shares until transfer' is made on the books. The early Maryland decisions fully sustain appellant’s position that a written transfer is necessary. Those cited to us, and others, are collated in Hinkley’s Testamentary Law of Maryland (page 146 et seq.) The recent decisions of that state proceed upon stare decisis.

The court is asked to pass upon the ‘ ‘federal question’ ’ involved in this case. To us it appears, however, that the main point involved is whether there has been a valid gift causa mortis. It being clear to us that the equitable title to the stock passed by the delivery of the certificates, no decision has been made upon that point other than by the common law generally; for we do not think the statutes of the United States attempt to regulate the transfer of such an equitable title. But, if there is a federal question raised, it is this: Can an interest in the shares of a national bank be legally transferred by the owner thereof to a donee, as a gift causa mortis, so as to confer the equitable title upon the donee, without a written transfer of the shares on the books of the bank, or an indorsement on the backs of the certificates themselves % We answer that question affirmatively, in the light of the decisions of the supreme court of the United States, that a transfer on the books of a national bank is not necessary to give to a donee or purchaser an equitable title to the shares. (National Bank v. Watsontown Bank, 105 U. S. 220; Bank v. Lanier, 11 Wall. 378; Johnston v. Laflin, 103 U. S. 804; Black v. Zackarie, 3 How. 513.) Judge Brewer, as circuit judge, held in Kansas v. Bradley, 26 Fed. 289, that a proposition once decided by the supreme court of the United States is no longer to be treated as a federal question. Nor do questions which involve the ownership of national bapk shares always present federal questions. ( Williams v. Weaver, 100 U. S. 547; Le Sassier v. Kennedy, 123 U. S. 521, 8 Sup. Ct. 244.)

We see no error in admitting the testimony of John E. Davis. The defendant had the burden of proof upon him; and, as the legal title stood in the name of the decedent, it was proper to show that respondent controlled and directed the voting of the stock, although it was voted and stood in the decedent’s name. Having been rejected as a witness himself, he was obliged to produce some proof to explain who exercised dominion in fact, and to rebut a presumption which might otherwise have arisen against him by the records of the bank meeting.

The testimony of Darnold, if entirely credible, would have rendered this ease much simpler for discussion. We cannot tell what weight the district court gave to it. It is plausible and consistent in itself, and may have impressed the court as truthful. But we have considered its value as impaired by the omission of Darnold to deny Boyce’s affidavits by counter affidavit. We regard Boyce’s testimony on the trial as not weakening Darnold’s statements. On the contrary, a reason for believing that Darnold told the truth is that Boyce failed to produce his books, which were at his house, he says, and thus to verify his statement that Darnold did not leave his (Boyce’s) employ until some time after the alleged interview with Judge Davis, in 1890. It was to appellant’s interest to impeach Darnold, and Boyce was called for that purpose. To know whether Darnold was in search of employment when he says he called upon Judge Davis was of the highest importance from the standpoint of impeachment, but upon that point appellant wholly failed, although Boyce said he had the evidénce in his own, possession. Moreover, if the affidavit of respondent Davis is true, Boyce was using Darnold’s alleged statement of former perjury to coerce respondent into participation in a scheme to get money from the estate to pay Boyce’s debts. Such a proposition, if it were really made, unfolds a brief chapter of moral obliquity on Boyce’s part, well calculated to shake the truth of his entire affidavit.

There is nothing whatsoever in the motion for a new trial to show that Darnold would testify differently from the way he did, even if we assume that what he said upon the preceding trial was false. The rule is not to grant a new trial to get impeaching testimony. A prosecution for perjury would be appropriate. (Hopcraft v. Kittredge (Mass.), 37 N. E. 768.) The same evidence produced on this trial, if the testimony of Darnold were excluded, would be abundantly sufficient to sustain the conclusion reached by the district court; and courts will not grant new trials where it is apparent from the record that the result would probably be the same. (United States v. Biena (N. M.), 42 Pac. 70.)

The findings made cover the issues involved in the pleadings, and are supported by the evidence.

Our conclusion is that this gift must be sustained. We believe in adhering to the rule that, where a party claims by way of a donation causa mortis, he should make out a strong case. It is therefore the duty of the court to give particular heed to every fact and circumstance in the testimony, being very careful to avoid any conclusion not fully sustained by credible evidence. On the other hand, there is a cardinal principle never to be lost sight of, namely, that the law permits a man to make gifts in apprehension of his death; and if he has done so in due manner, while in full possession of his senses, and with deliberation and intent to bestow his personal property upon another, it would be a fearful injustice to nullify that intent, and take away the property from the person justly entitled thereto.

The more we have studied this case, the stronger has grown our conclusion that Judge Davis deliberately gave the bank stock to his nephew, and never, by any word or deed, signified any desire whatsoever to revoke the gift. We can find no middle line to follow in applying the rule of equity to the facts. Either the gift was perfected as between the judge and Andy, and must be sustained, or the entire case of respondent Andy Davis is conceived in an iniquitous conspiracy with the appellant to enrich himself at the expense of his dead uncle’s estate. If there were a conspiracy, the very foundation of it must needs lie in the premise that Judge Davis never handed over to the respondent any certificates of the shares at all before he went to Tacoma. But the premise that he did deliver the certificates is not assailed by any one throughout this case, and, under the testimony, could not be considered for a moment. So that, when the assumed premise is removed, the whole hypothesis of dishonesty falls with it, and leaves standing by itself, as the correct reasoning and conclusion of the case, the gift of this fortune, which equity will uphold and enforce, as prayed for by the respondent. The judgment is affirmed.

Affirmed.

Pemberton, C. J., and Da Witt, J., concur.

Per Curiam. — -The record in this case was made up entirely with Talbott, as special administrator, as plaintiff, and the briefs so treat him. For that reason he has been called ‘plaintiff. ’ ’ At the argument of the case, by consent of counsel, John H. Leyson was substituted as plaintiff; Leyson having been appointed as administrator since the appeal in this case was taken.