By the Court, Mason, J.
When actions had names, this would have been known as an action of trover, brought to recover for a package of promissory notes, the value of which, as admitted upon the trial, was $>8000. The plaintiff claimed title to the notes through an executed gift, or donatio causa mortis, from George Bentley. The defendants, who are the adminis-, trators of the estate of said Bentley, claim to hold the notes as a part of the assets of the estate of said Bentley. Upon the trial of the cause the plaintiff proved that George Bentley, a bachelor, 84 years of age, on the 20th day of April, 1854, when upon his sick bed, and soon apprehending death, directed the plaintiff, who with his family lived in Bentley’s house, and with whom Bentley lived, and by whom he was taken care of, to call in Mr. Enos, to make an invoice of his notes; that this was done by Enos and the plaintiff, and they returned to the sick room where Bentley lay, and Smith, with the notes in his hands, went up to the bed-side of Bentley and asked him what he should do with the notes; that Bentley replied, “ take them and do what you are a mind to with them.” Smith then said to Bentley, “ this is all except a small mortgage, and that will be of no use to any one unless it is assigned "overthat Bentley said, “ yes, let that go.” Smith took the notes and put them in his own bureau. Four days after this, and on the 24th of April, 1854, Bentley died, and the notes were proved to be in Smithes possession after Bentley’s death. The nearest relatives of Bentley are brothers and sisters.
As the defendants claim to hold these notes in right of the intestate George Bentley, and as the legal representatives of the estate, the cases of Ivatt v. Finch, (1 Taunt. 144,) and Smith v. Smith, (3 Bing. N. C. 29,) are authorities in point, to show that the declarations of George Bentley, tending to prove that he had given these notes to the plaintiff, are legitimate evidence against the defendants. The evidence of the [47]*47declarations of George Bentley, therefore, after he had passed the notes over to the plaintiff, made on the afternoon of the same day, and also those made on the night of the alleged gift, were properly admitted in evidence upon the trial, as they tended to show that the intestate had given these notes to the plaintiff. They are admissible against the defendants for the reason that they are privies in representation to George Bentley. (1 Greenl. Ev. § 189, p. 246.) The evidence of the declarations of George Bentley, of his intentions to give these notes to the plaintiff, were properly admitted upon the trial, for the reason that the defendants stand in such privity of representation. They were admissible against those claiming in privity of representation of George Bentley, for two reasons. In the first place they were admissible to aid in giving construction to the language employed by the donor in the alleged gift. There is ambiguity in the language employed by the donor, “take and do what you are a mind to with them.” It is claimed, on the part of the defendants, that this language does not furnish evidence of an intent to donate these notes to the plaintiff. Tha.t -when we consider the fact that George Bentley was a man 88 years of age, living in the family of the plaintiff, with none of his relatives surrounding him, and he lying upon his death bed, advised by his physicians that he could not long survive, and expecting himself soon to die, and knowing that when he departed, these notes would necessarily, for the time being at least, come into the possession of the plaintiff, we are to construe this act of delivery, accompanied by the direction to take them and do what he had a mind to with them, only as evidencing an intent on the part of Bentley to make the plaintiff a bailee of these notes, to hold for him while he lived, and for the benefit of those wrho would in law be entitled to succeed to his estate, upon his death. It is claimed, on the other hand, that the act of delivering the notes to the plaintiff, accompanied by the direction to take them and do what he had a mind to with them, furnishes clear evidence of an intent to donate them to the plaintiff. And especially must this be so, when we consider that Smith spoke of a certain mortgage which [48]*48was with the papers, and said to Bentley, “ this mortgage will be of no use unless it is assigned over,” and that Bentley replied, “ let that go.” The plaintiff claims that this evidence shows that the parties understood that the mortgage would not pass to Smith without an assignment, and that it shows further, that the parties really understood that these notes were being actually transferred to Smith.
These opposite constructions placed upon the language employed by Mr. Bentley at the time he delivered over those notes to Smith, show most conclusively that there is such ambiguity in the language employed and relied upon to sustain this donatio causa mortis as justifies the admission of parol evidence to aid in its interpretation. (19 Barb. 631. 16 Mass. Rep. 108. 22 Wend. 148. 16 Yes. 481.)
These declarations of George Bentley, as proved by the various witnesses upon the trial, expressing his intention to give them to the plaintiff, are admissible as primary evidence in the case, to establish the donation itself. When upon his death bed, and soon anticipating death, he passes over these notes to Smith, in presence of Enos, for whom he had sent. This evidence of the repeated declarations of George Bentley, that he intended to give these notes to Smith at his death, was properly received, as it reflected upon the tradition, or in other words, furnished evidence of the quo animo with which he delivered over the notes to Smith. They are primary evidence to prove the gift. (Cowen & Hill’s Notes, 590, note 452. 1 Nott & McCord, 237. 19 Barb. 631. 16 Mass. R. 108.) If a man were to say to various persons, for several years preceding his death, that he intended to give a certain article to A. at his death, and then upon his death bed, apprehending death, were to call A. to his bed side and deliver over the article to him, without saying any thing, I suppose it would be a question for a jury, and where they might' even infer a gift from the act of tradition and the previously declared intention to give.
The fact that Smith was a stranger in blood to George Bentley, and that Bentley had relatives living, upon whom, for many years, he had been in the habit of bestowing all the income of [49]*49bis property, rendered the declarations of George Bentley, that “ he should pay off his relatives, all he intended to give them, in his life time that “ he had paid his relatives off what he intended to give them,” and that “ he should not give them any more of his property,” pertinent evidence, as it negatives the intent to give the notes to these relatives, who are now claiming them, and as it repels the natural presumption which might otherwise be indulged, that George Bentley, who had been so kind and benevolent in his feelings to his relatives as to give them the entire income of his property for many years, would give his property to them, instead of a stranger to his blood, at his death.
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By the Court, Mason, J.
When actions had names, this would have been known as an action of trover, brought to recover for a package of promissory notes, the value of which, as admitted upon the trial, was $>8000. The plaintiff claimed title to the notes through an executed gift, or donatio causa mortis, from George Bentley. The defendants, who are the adminis-, trators of the estate of said Bentley, claim to hold the notes as a part of the assets of the estate of said Bentley. Upon the trial of the cause the plaintiff proved that George Bentley, a bachelor, 84 years of age, on the 20th day of April, 1854, when upon his sick bed, and soon apprehending death, directed the plaintiff, who with his family lived in Bentley’s house, and with whom Bentley lived, and by whom he was taken care of, to call in Mr. Enos, to make an invoice of his notes; that this was done by Enos and the plaintiff, and they returned to the sick room where Bentley lay, and Smith, with the notes in his hands, went up to the bed-side of Bentley and asked him what he should do with the notes; that Bentley replied, “ take them and do what you are a mind to with them.” Smith then said to Bentley, “ this is all except a small mortgage, and that will be of no use to any one unless it is assigned "overthat Bentley said, “ yes, let that go.” Smith took the notes and put them in his own bureau. Four days after this, and on the 24th of April, 1854, Bentley died, and the notes were proved to be in Smithes possession after Bentley’s death. The nearest relatives of Bentley are brothers and sisters.
As the defendants claim to hold these notes in right of the intestate George Bentley, and as the legal representatives of the estate, the cases of Ivatt v. Finch, (1 Taunt. 144,) and Smith v. Smith, (3 Bing. N. C. 29,) are authorities in point, to show that the declarations of George Bentley, tending to prove that he had given these notes to the plaintiff, are legitimate evidence against the defendants. The evidence of the [47]*47declarations of George Bentley, therefore, after he had passed the notes over to the plaintiff, made on the afternoon of the same day, and also those made on the night of the alleged gift, were properly admitted in evidence upon the trial, as they tended to show that the intestate had given these notes to the plaintiff. They are admissible against the defendants for the reason that they are privies in representation to George Bentley. (1 Greenl. Ev. § 189, p. 246.) The evidence of the declarations of George Bentley, of his intentions to give these notes to the plaintiff, were properly admitted upon the trial, for the reason that the defendants stand in such privity of representation. They were admissible against those claiming in privity of representation of George Bentley, for two reasons. In the first place they were admissible to aid in giving construction to the language employed by the donor in the alleged gift. There is ambiguity in the language employed by the donor, “take and do what you are a mind to with them.” It is claimed, on the part of the defendants, that this language does not furnish evidence of an intent to donate these notes to the plaintiff. Tha.t -when we consider the fact that George Bentley was a man 88 years of age, living in the family of the plaintiff, with none of his relatives surrounding him, and he lying upon his death bed, advised by his physicians that he could not long survive, and expecting himself soon to die, and knowing that when he departed, these notes would necessarily, for the time being at least, come into the possession of the plaintiff, we are to construe this act of delivery, accompanied by the direction to take them and do what he had a mind to with them, only as evidencing an intent on the part of Bentley to make the plaintiff a bailee of these notes, to hold for him while he lived, and for the benefit of those wrho would in law be entitled to succeed to his estate, upon his death. It is claimed, on the other hand, that the act of delivering the notes to the plaintiff, accompanied by the direction to take them and do what he had a mind to with them, furnishes clear evidence of an intent to donate them to the plaintiff. And especially must this be so, when we consider that Smith spoke of a certain mortgage which [48]*48was with the papers, and said to Bentley, “ this mortgage will be of no use unless it is assigned over,” and that Bentley replied, “ let that go.” The plaintiff claims that this evidence shows that the parties understood that the mortgage would not pass to Smith without an assignment, and that it shows further, that the parties really understood that these notes were being actually transferred to Smith.
These opposite constructions placed upon the language employed by Mr. Bentley at the time he delivered over those notes to Smith, show most conclusively that there is such ambiguity in the language employed and relied upon to sustain this donatio causa mortis as justifies the admission of parol evidence to aid in its interpretation. (19 Barb. 631. 16 Mass. Rep. 108. 22 Wend. 148. 16 Yes. 481.)
These declarations of George Bentley, as proved by the various witnesses upon the trial, expressing his intention to give them to the plaintiff, are admissible as primary evidence in the case, to establish the donation itself. When upon his death bed, and soon anticipating death, he passes over these notes to Smith, in presence of Enos, for whom he had sent. This evidence of the repeated declarations of George Bentley, that he intended to give these notes to Smith at his death, was properly received, as it reflected upon the tradition, or in other words, furnished evidence of the quo animo with which he delivered over the notes to Smith. They are primary evidence to prove the gift. (Cowen & Hill’s Notes, 590, note 452. 1 Nott & McCord, 237. 19 Barb. 631. 16 Mass. R. 108.) If a man were to say to various persons, for several years preceding his death, that he intended to give a certain article to A. at his death, and then upon his death bed, apprehending death, were to call A. to his bed side and deliver over the article to him, without saying any thing, I suppose it would be a question for a jury, and where they might' even infer a gift from the act of tradition and the previously declared intention to give.
The fact that Smith was a stranger in blood to George Bentley, and that Bentley had relatives living, upon whom, for many years, he had been in the habit of bestowing all the income of [49]*49bis property, rendered the declarations of George Bentley, that “ he should pay off his relatives, all he intended to give them, in his life time that “ he had paid his relatives off what he intended to give them,” and that “ he should not give them any more of his property,” pertinent evidence, as it negatives the intent to give the notes to these relatives, who are now claiming them, and as it repels the natural presumption which might otherwise be indulged, that George Bentley, who had been so kind and benevolent in his feelings to his relatives as to give them the entire income of his property for many years, would give his property to them, instead of a stranger to his blood, at his death. The evidence which was admitted upon the trial, showing the relations which had existed between George Bentley and the plaintiff, for twenty years previous to his death, and the fact that Bentley considered that the plaintiff had saved his life, by his attentive care and nursing at a former period of life; that he and his wife had nursed him in his old age, and administered to all his wants in the infirmity of his declining years; and that Smith had rendered valuable services for him in the oversight and transacting of his business for him, was also properly admitted, as furnishing a reasonable motive for Bentley’s making a stranger to his blood the heir of so much of his property. It was at least admissible to meet the argument made upon the trial, that it should require stronger evidence to establish the plaintiff’s case, because this property was given to a stranger in blood, instead of a relative. But again, this evidence was all admissible upon another principle. It was admissible to aid in giving construction to the language employed in making the alleged gift. It is declared in books of the highest authority, to be the duty of the court, in giving construction to a will by means of extrinsic evidence, to place itself in the situation of the testator, the meaning of whose language it is called upon to declare. (Wigram on Wills, pi. 5, 96, 215. 1 Greenl. Ev. § 291, note 1 and cases there referred to.) This can only be done by proving the extrinsic facts and circumstances which show the existing relations between the parties. The rule applies with still greater force to the case of a gift, [50]*50where there is no written will to limit or exclude any extrinsic evidence material to establish the meaning of the donor’s language. (2 Russ. <$p M. 689. 2 Roper on Leg. 1741, Am. ed. of 1848, 1760, 1781. 10 Barb. 16, 17. 2 Roper on Leg. 1751 to 1783, and cases there referred to.) The delivery of these notes by the plaintiff to the defendants, on their demand, under protest of the plaintiff that he would not relinquish his title to them by such act, and upon the agreement of the defendants that such delivery should not prejudice the plaintiff’s claim to the notes, did not deprive the plaintiff of any right or title to the notes which he might have had, for two reasons. In the first place, the passing over of an article of personal property with the declared intent not to part with the title, by delivering possession, does not deprive the owner of the right afterwards to assert his title and reclaim his property. The principle relied upon in the ease of the voluntary payment of money on a claim, under a protest that it is not due the party, has no application to a case like the present. A second and perfect answer to this objection is, that the plaintiff refused to give up possession of these notes to the defendants, unless they would agree that his parting with the possession thereof to them should not affect or prejudice any claim he might have to the notes, and the defendants having obtained the possession of them upon such agreement that it should not prejudice his claim, they are estopped in law from setting up such act of delivery as a bar to the plaintiff’s claim to the notes, or insisting that by such delivery the plaintiff relinquished any claim he might have thereto. (9 Barb. 618. 12 id. 427. 5 Metc. 61, 65.)
There was no error committed on the trial, in admitting the conversation between Smith and his counsel Mitchell, as proved by the witness Barnes. Mr. Enos had testified that when the defendants demanded the notes of the plaintiff, he requested to have it put off one day to see his counsel, saying that he did not wish to prejudice his rights, and the defendants refused. Now the defendants, on the cross-examination of this witness, proved by him that the protest was in the handwriting of Mr. Mitchell, one of the plaintiff’s counsel. This- evidence was doubtless [51]*51called out by the defendants, for. the purpose of raising the presumption or inference that the reason assigned by the plaintiff for desiring a delay of one day, to see his counsel, was pretense—was untrue in fact. In answer to this evidence, the plaintiff offered this testimony to show that althongh Mr* Mitchell had drawn this protest as counsel for the plaintiff, he had done so away from his office and without any examination of the matter, and that he advised the plaintiff to take further counsel before acting in the premises. The evidence furnished a legitimate answer to the evidence called out by the defendants on the cross-examination of Mr. Enos, and there was no error in admitting it. The only view in which it is claimed by the appellants that the evidence was improperly admitted, is that it was wholly immaterial to the issue in the cause, and that it was calculated to mislead the jury. Now if this evidence is wholly immaterial, it follows that the evidence called out by the defendants, to which this was but an answer, was immaterial; and if the court have allowed the plaintiff to answer an immaterial piece of evidence called out by the defendants, they cannot urge it as a ground for reversing the judgment. There is another perfect answer to this objection. If we- admit that the evidence was wholly immaterial, as claimed by the appellants, and improperly admitted therefore, it does not furnish any ground for a new trial, for the reason that the evidence given could not have misled the jury. The only branch of the case it could in any manner affect, was the one of the surrender of the notes to the defendants, upon their agreement that it should not prejudice the plaintiff’s claim. And upon this branch of the case the evidence is so conclusive that the defendants are estopped to set up the defense that this evidence could not have influenced the verdict. The nonsuit was properly refused. The case was one for the jury, and the verdict not against evidence. A new trial must be denied.
[Broome General Term,
January 13, 1857.
Gray, Mason and Balcom, Justices.]