Buchanan, Ch. J
delivered the opinion of the Court.
The bill was fded to compel the defendant, the executor of James Oiilings, to transfer to the original complainant, Ann Valter son, daughter of the testator, seventy-five shares of stock, of the Commercial and Farmers’ Bank of Baltimore; a certificate of which, it alleges, was given and delivered to her by the testator, who, it is stated, endorsed Iris name on the back of the certificate in her presence, and f í he same time informed her that he gave her the stock.
The answer admits thejpgftiPÍÍfe^he testator, ndorsced upon the certificate toj^íf^tf AtM-^tljting, but denies that he gave or intcxided/jpjtyre the certificate of stock to Ann Patterson, as allegeakañd^u^^e^ebmplainant on proof of the allegation ; and dcflpaAinso the ^d£ve|y of the certificate as stated. It miar xiofeAY^fMps Me amiss here to remark, that the answer administrator in his representative capacity, wmch’'asserts a fact that is not, and cannot be within his own knowledge, does not properly come within the general rule, that an answer asserting a fact responsive to the bill, can only be disproved or outweighed by the testimony of two witnesses, or one with pregnant circumstances. A plaintiff, by calling on the defendant to answer the allegations in his bill upon oath, makes the answer evidence; and as one witness would only be equivalent to the answer, and the plaintiff to prevail must have preponderating proof, it is necessary that he . should have another witness, or circumstances in addition to the testimony of one, in order to turn the scale. But looking to an answer as testimony only, it must be treated as any other testimony, and the weight of it must, from the very nature of evidence, in some degree depend on the fact it asserts. Therefore when an executor or administrator answering in his representative character, alleges facts of which he can have no personal knowledge, it can but [216]*216amount'to an assertion of his impressions; and his speaking positively cannot alter the character of his testimony, merely because it comes in the shape of an answer, but must be allowed its due weight only; and is not entitled to the full influence of the answer of a man, speaking of facts which may be within his own knowledge. And upon the obvious principle, that when a witness asserts a fact, of which further developments in the course of his examination prove him to be in a situation to prevent his having a full knowledge of the subject, his testimony is not entitled to the weight of that of a man swearing to facts, which may be fully within his knowledge. ' The answer in this case, is of that description; and is not, we think, such as to require the testimony of two witnesses, or one with circumstances to outweigh it. But as it does not admit the allegations in the bill, it puts the complainant on proof, and leaves him to sustain them as he can, unembarrassed by any supposed résponsive features, of the answer. Under the view however, that we had taken of the case, it is not necessary to examine whether the allegations in the bill have been sufficiently established or not, by the proof in the cause. For supposing them to be fully proved, it does not appear to us that the object of the bill can be gratified. The alleged gift seems to have been intended as a donatio inter vivos; but whether a donatio' inter vivos, or donatio mortis causa, makes no difference. Such a gift cannot be by mere parol. The rule of law in either case is, that a delivery of the thing intended to be given, is essential to the perfection of the gift. This is admitted; indeed it cannot be denied. As to donations inter vivos, it has never been doubted, that delivery of the thing intended to be given is indispensable ; and the same principle is now equally well settled in relation to donations mortis causa. The delivery must be according to the manner in which the particular thing is susceptible of being delivered; and that which is not capable of being delivered is not the subject of a donation. There must be a parting by the donor with the legal power [217]*217and dominion over it. If he retains the dominion, if there remains to him a locus penilentice (which must he the case, when he retains the possession, and what is done, is merely by parol,) there cannot be a perfect and legal donation, and that which is not a good and valid gift in law, cannot be made good in equity.
Proceeding upon this principle, the relief sought in Mary Tate vs. Hilbert, and Jane Tate vs. Hilbert, 2d Vesey, Jr. 112, was refused where a man, a short time before his death, gave one a check on his banker, which was ncj presented before his death, and to the other a promissory note, both of them being his relations. They were strong cases, particularly that of the chock, which, if it had been presented before the death of the deceased, would have been paid, the banker having sufficient funds in his hands.
But the money, the thing that was intended to be given, not having been delivered, they were not good and available donations in law; the promissory note and the check being only evidences of contract, they did not transfer the possession of the money, nor invest the persons to whom they were respectively given, with the legal dominion over it, which continued in the deceased until his death, when the property vested in the executors. A promissory note delivered as a donation, is not a vested gift of the money, but only a promise or engagement to give; and imposes no stronger obligations, nor affords a better ground of action, than a promise to deliver any chattel as a gift. Such intended donations cannot be enforced on the consideration of blood, which has been insisted on in this case, and was probably a leading motive with the defendant’s testator; in the cases referred to, in 2d Vesey, Jr. 112, Mary Tate and Jane Tate being stated to have been his relations.
' The consideration of natural love and affection is sufficient in a deed; but a mere executory contract, that requires a consideration, as a promissory note, cannot be supported on the consideration of blood, or natural love and affection there must be something more: a valuable consideration, or [218]*218it is not good and cannot be enforced at law, but may be broken at the will of the party. ..And being void at law for want of a sufficient consideration, Chancery cannot sustain and enforce it. The cases of Mary Tate, and Jane Tate vs. Hilbert, have been mentioned as striking cases,in which the Lord Chancellor manifested a strong desire, more than once expressed, to grant the relief prayed; a desire not foreign from us, so far as sitting here we are permitted to entertain it, but we are, as he then was, restrained by the settled and stubborn rules of law. The case of Ward vs. Turner, 2d. Vesey, Sen. 431, is just this case. It was a bill to compel a transfer of South Sea annuities, the receipt for which had been delivered to the complainant’s testator by one Flog, saying, “I give you, Mosely, these papers, which are receipts for South Sea Annuities, and will serve you after I am dead.” It was argued for the complainant that the delivery of these receipts, with the strong words of gift accompanying it, was as much as could be done towards giving the annuities, except a mere transfer in the books.
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Buchanan, Ch. J
delivered the opinion of the Court.
The bill was fded to compel the defendant, the executor of James Oiilings, to transfer to the original complainant, Ann Valter son, daughter of the testator, seventy-five shares of stock, of the Commercial and Farmers’ Bank of Baltimore; a certificate of which, it alleges, was given and delivered to her by the testator, who, it is stated, endorsed Iris name on the back of the certificate in her presence, and f í he same time informed her that he gave her the stock.
The answer admits thejpgftiPÍÍfe^he testator, ndorsced upon the certificate toj^íf^tf AtM-^tljting, but denies that he gave or intcxided/jpjtyre the certificate of stock to Ann Patterson, as allegeakañd^u^^e^ebmplainant on proof of the allegation ; and dcflpaAinso the ^d£ve|y of the certificate as stated. It miar xiofeAY^fMps Me amiss here to remark, that the answer administrator in his representative capacity, wmch’'asserts a fact that is not, and cannot be within his own knowledge, does not properly come within the general rule, that an answer asserting a fact responsive to the bill, can only be disproved or outweighed by the testimony of two witnesses, or one with pregnant circumstances. A plaintiff, by calling on the defendant to answer the allegations in his bill upon oath, makes the answer evidence; and as one witness would only be equivalent to the answer, and the plaintiff to prevail must have preponderating proof, it is necessary that he . should have another witness, or circumstances in addition to the testimony of one, in order to turn the scale. But looking to an answer as testimony only, it must be treated as any other testimony, and the weight of it must, from the very nature of evidence, in some degree depend on the fact it asserts. Therefore when an executor or administrator answering in his representative character, alleges facts of which he can have no personal knowledge, it can but [216]*216amount'to an assertion of his impressions; and his speaking positively cannot alter the character of his testimony, merely because it comes in the shape of an answer, but must be allowed its due weight only; and is not entitled to the full influence of the answer of a man, speaking of facts which may be within his own knowledge. And upon the obvious principle, that when a witness asserts a fact, of which further developments in the course of his examination prove him to be in a situation to prevent his having a full knowledge of the subject, his testimony is not entitled to the weight of that of a man swearing to facts, which may be fully within his knowledge. ' The answer in this case, is of that description; and is not, we think, such as to require the testimony of two witnesses, or one with circumstances to outweigh it. But as it does not admit the allegations in the bill, it puts the complainant on proof, and leaves him to sustain them as he can, unembarrassed by any supposed résponsive features, of the answer. Under the view however, that we had taken of the case, it is not necessary to examine whether the allegations in the bill have been sufficiently established or not, by the proof in the cause. For supposing them to be fully proved, it does not appear to us that the object of the bill can be gratified. The alleged gift seems to have been intended as a donatio inter vivos; but whether a donatio' inter vivos, or donatio mortis causa, makes no difference. Such a gift cannot be by mere parol. The rule of law in either case is, that a delivery of the thing intended to be given, is essential to the perfection of the gift. This is admitted; indeed it cannot be denied. As to donations inter vivos, it has never been doubted, that delivery of the thing intended to be given is indispensable ; and the same principle is now equally well settled in relation to donations mortis causa. The delivery must be according to the manner in which the particular thing is susceptible of being delivered; and that which is not capable of being delivered is not the subject of a donation. There must be a parting by the donor with the legal power [217]*217and dominion over it. If he retains the dominion, if there remains to him a locus penilentice (which must he the case, when he retains the possession, and what is done, is merely by parol,) there cannot be a perfect and legal donation, and that which is not a good and valid gift in law, cannot be made good in equity.
Proceeding upon this principle, the relief sought in Mary Tate vs. Hilbert, and Jane Tate vs. Hilbert, 2d Vesey, Jr. 112, was refused where a man, a short time before his death, gave one a check on his banker, which was ncj presented before his death, and to the other a promissory note, both of them being his relations. They were strong cases, particularly that of the chock, which, if it had been presented before the death of the deceased, would have been paid, the banker having sufficient funds in his hands.
But the money, the thing that was intended to be given, not having been delivered, they were not good and available donations in law; the promissory note and the check being only evidences of contract, they did not transfer the possession of the money, nor invest the persons to whom they were respectively given, with the legal dominion over it, which continued in the deceased until his death, when the property vested in the executors. A promissory note delivered as a donation, is not a vested gift of the money, but only a promise or engagement to give; and imposes no stronger obligations, nor affords a better ground of action, than a promise to deliver any chattel as a gift. Such intended donations cannot be enforced on the consideration of blood, which has been insisted on in this case, and was probably a leading motive with the defendant’s testator; in the cases referred to, in 2d Vesey, Jr. 112, Mary Tate and Jane Tate being stated to have been his relations.
' The consideration of natural love and affection is sufficient in a deed; but a mere executory contract, that requires a consideration, as a promissory note, cannot be supported on the consideration of blood, or natural love and affection there must be something more: a valuable consideration, or [218]*218it is not good and cannot be enforced at law, but may be broken at the will of the party. ..And being void at law for want of a sufficient consideration, Chancery cannot sustain and enforce it. The cases of Mary Tate, and Jane Tate vs. Hilbert, have been mentioned as striking cases,in which the Lord Chancellor manifested a strong desire, more than once expressed, to grant the relief prayed; a desire not foreign from us, so far as sitting here we are permitted to entertain it, but we are, as he then was, restrained by the settled and stubborn rules of law. The case of Ward vs. Turner, 2d. Vesey, Sen. 431, is just this case. It was a bill to compel a transfer of South Sea annuities, the receipt for which had been delivered to the complainant’s testator by one Flog, saying, “I give you, Mosely, these papers, which are receipts for South Sea Annuities, and will serve you after I am dead.” It was argued for the complainant that the delivery of these receipts, with the strong words of gift accompanying it, was as much as could be done towards giving the annuities, except a mere transfer in the books. But it,was held that the annuities being the thing intended to'he given, a delivery of the annuities was indispensably necessary to make it a good donation; that the delivery of the receipts was not sufficient, and that such a donation could not be made without a transfer, or something equivalent, that being the only mode in which stock or annuities are susceptible of being delivered.
It is supposed that this case differs from that, because, as .'..is alleged, that James Gittings, at the time of delivering the certificate of stock to his daughter, endorsed his name upon the back of it (which does not appear to have been done by Flog, when he delivered the receipts for the annuities) which, it is contended, gave her authority to write over it a full assignment or a power of attorney, which would have enabled her to go to the bank, and cause a transfer of the stock to be made to her on the books. But it is not perceived that this makes any difference, nor is it necessary to inquire whether that endorsement gave any such autho[219]*219my; if it did, it never was executed. It appears upon the faco of the certificate itself that the stock was transferable id 'he bank only, and it is admitted that the endorsement, whether in blank or in full, did not, and could not, oner n. transfer the' stock; and as it was the stock and not <i certificate, that was the subject of the intended gift, it.in-iife-s not whether the endorsement was in full or in blank; hw, as in the case of the check on the banker, which not I «•oil oresented and paid in the life-time of the maker, the i.-.i- u d donation of the money was defeated for want' of deli v « i notwithstanding the holder of the cheek might, by presero..'ng it in the life-time of the maker, have obtained the mot" y, and thus perfected the gift; so here, even if by the endorsement of the certificate, whether filled up or remaining in blank, Mrs. Patterson might have gone to the bank in the life-time of her father, and caused a transfer of the stock to herself on the books of the bank, the only way in which the stock, the thing that was intended to be given, could be delivered, and thus have perfected the donation; yet, not having done so, it was not a valid gift of the stock, either in law or equity, for want of delivery. It was not a valid gift in law, otherwise there would have been no necessity for going into Chancery to perfect it. And being void in law, Chancery cannot interpose to make it good or enforce it. If Mr. Gittings was alive, it could not be seriously contended, that he could be compelled to transfer the stock in the absence of any consideration; and the same principle applies to his executor, llis death does not make that good, which was bad before.
DHCKEE AKITli’ViEI), WITH COSTS.