Le Grand, C. J.,
delivered the opinion of this court.
This is a case of issues sent from the orphans court to the circuit court for Prince George’s county. The record shows that the appellant filed his petition in the orphans court, alleging that lie was the brother of his intestate, who died possessed of certain negroes, and a sealed note for $1000, executed in her favor by one Washington J. Beall, and that the appellee hath concealed, and doth conceal,” three negroes, viz., [430]*430Louisa, Maria, grid Emeline, and the sealed note for $1000. . The appellee answered, by admitting that the intestate was, just before her death, seized and possessed of the property mentioned in the petition, but “denies that she does now, or ever has, concealed any property or chose in action,” and “claims title5 ’ to the whole of said property, as a bona fide gift from the intestate, by virtue of which she took said negroes and bond, or chose in action, and now is, and has been, in the possession thereof. The answer further states the circumstances under which the gift was made, claiming it to be a case of donatio mortis causa. On the coming in of this answer, on application, issues, five in number,-were framed, and sent to the circuit court for trial. It is from the ruling of the circuit court, on said trial, that this appeal is taken.
The 1st issue propounded the inquiry, whether the appellee concealed the negroes ? The 2nd, whether she has concealed the sealed note of $1000? The 3rd, whether the intestate did give to the appellee the negro girl, Louisa, as a donatio mortis causal The 4th, whether the intestate did give to the appellee the negro girls, Mana and Emeiine, as a donatio mortis causal And the 5th, whether the intestate did give to the appellee the sealed note for $1000 as a donatio mortis causa ?
At the trial, it was proven that Miss Deborah Waring was the companion and house-keeper of Mrs. Martha Beall, at whose house she died, and that she was possessed of the property mentioned in the issues. It was also shown, that Miss Waring had great attachment to her sister, Mrs. Edmonds, the appellee, and that the latter had been attentive on more occasions than one, when Miss Waring was sick, whilst her other relatives failed altogether to visit her. On this point, Miss Elizabetli Johns testifies, “that she had not known any of the other brothers and sisters, or relations of Miss Waring, ever to visit her during her life; she saw her brother (the present plaintiff) at her funeral. That she had often heard Miss D. Waring speak of her sister, Mrs. Edmonds, affectionately; said she had been a mother to her, and she was almost a stranger to her other relations; and at her death she wished her sister to have all her property. That in her last illness, [431]*431seeming conscious of her condition, Miss Waring sent for witness and Mrs. Martha Bell, to her sick room, and then said, ‘ Cousin Martha, I have three servants, I wish them given to my sister Rebecca, (Mrs. Edmonds,) and the note 1 hold of Washington Beall’s; I wish also given to her every thing that I have. Cousin Martha, I wish you to see that she gets them.’ Louisa, who is about ten years of age, was in the room; she pointed to her, and said, ‘You will see that my sister has her.’ ” She further testified, that at the time of this conversation, the other negroes, who were small children, were at the quarters, on the plantation. She requested Mrs. Mary Beall, at her death, to deliver them to her sister, Mrs. Edmonds, and tried to impress on her mind that such was her wish. Mrs. Beall promised she would do so at the risk of her life. Mrs. Beall delivered the negroes, after Miss Waring’s death, to Mrs. Edmonds, who carried them to Baltimore. Mrs. Beall proves that she was with Miss Waring for six weeks before her death, and that, for several weeks prior to that event, Mrs. Edmonds was in attendance upon her. She continues thus, “I heard her say that she had given her sister the note of Washington Beall, the three negroes named in these issues, and all the other things she owned. She pointed to the girl Louisa, who was in the room; she requested me to see that she (her sister) had this property. She said, 1 have given the note to my sister, (Mrs. Edmonds.) I asked Mrs. Edmonds where the note was? She said, she had it.” u This conversation took place about 10 o'clock in the morning; and she, Miss Waring, died about the same time that night.''
The attending physician, Dr. Sheehy, proved that he was with her during her last illness; that she was perfectly conscious of her situation; that about a week or ten days before her death, he make known to her her approaching end, and suggested to her to make disposition of her property by will, to which she answered, “You know, Doctor, I cannot use my hand; it is paralyzed, I could not write my name.” She then asked him if she could not give her sister, Mrs. Rebecca Edmonds, her property, in the presence of witnesses? 1 answered, yes. She then said, I have given my sister (Mrs, [432]*432Edmonds) my three negroes. Mrs. Edmonds was then in the room, and the negro girl Louisa; and Miss Deborah Waring told Louisa, “There is your mistress, (pointing to Mrs. Edmonds,) you must be a good girl, and obedient to her.” She sent for Mrs. Mary Beall, and requested her, after her death, to deliver the negroes to Mrs. Edmonds, who was very attentive to her in sickness. I never saw any of her other connections there during her life.
Whatever doubt there may be in regard to the law of the case, there certainly can be none, in any just mind, as to what was the intention of Miss Waring. If ever the wishes of a party were made manifest, they are in this case; that Mrs. Edmonds was the only person intended by her as the beneficiary of her bounty, we think no one can doubt. If, therefore, she be deprived of it, it must be owing to some stem principle of law which works great hardship in special cases for the sake of the general, public good. Is there any such principle?
So far as the negro Louisa is concerned, the proof is positive of not only a gift, but of actual delivery. The donee, the subject of the gift, and the donor being all in each others presence at the time of the transaction. If a negro be the subject of a gift, donatio mortis causa, it is impossible for us to perceive or imagine what defect there was in the transfer of the title to Louisa. We think, also, that the gift of the other slaves was completed by an effectual and perfect delivery. They were referred to specifically, and although not personally present, in addition to the donee, Mrs. Bell was, in whose care they were, and who was most solemnly charged to fulfil the wish of the donor, which she equally as solemnly promised to do, and faithfully fulfilled her undertaking. We regard her as the constituted agent and trustee to make the delivery; and we know of nothing to prevent the deceased from so constituting her. See Smith vs. Smith, 2 Strange, 935, and cases cited in note (a) to 7th Johnson, 28.
The only remaining question for our consideration is, whether a sealed bond is the subject of a gift donatio mortis causal If it be, then there is nothing to dispute about, for [433]*433the testimony shows that the bond, in this case, had been given and delivered to the appellee bjr the donor, under the consciousness of her
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Le Grand, C. J.,
delivered the opinion of this court.
This is a case of issues sent from the orphans court to the circuit court for Prince George’s county. The record shows that the appellant filed his petition in the orphans court, alleging that lie was the brother of his intestate, who died possessed of certain negroes, and a sealed note for $1000, executed in her favor by one Washington J. Beall, and that the appellee hath concealed, and doth conceal,” three negroes, viz., [430]*430Louisa, Maria, grid Emeline, and the sealed note for $1000. . The appellee answered, by admitting that the intestate was, just before her death, seized and possessed of the property mentioned in the petition, but “denies that she does now, or ever has, concealed any property or chose in action,” and “claims title5 ’ to the whole of said property, as a bona fide gift from the intestate, by virtue of which she took said negroes and bond, or chose in action, and now is, and has been, in the possession thereof. The answer further states the circumstances under which the gift was made, claiming it to be a case of donatio mortis causa. On the coming in of this answer, on application, issues, five in number,-were framed, and sent to the circuit court for trial. It is from the ruling of the circuit court, on said trial, that this appeal is taken.
The 1st issue propounded the inquiry, whether the appellee concealed the negroes ? The 2nd, whether she has concealed the sealed note of $1000? The 3rd, whether the intestate did give to the appellee the negro girl, Louisa, as a donatio mortis causal The 4th, whether the intestate did give to the appellee the negro girls, Mana and Emeiine, as a donatio mortis causal And the 5th, whether the intestate did give to the appellee the sealed note for $1000 as a donatio mortis causa ?
At the trial, it was proven that Miss Deborah Waring was the companion and house-keeper of Mrs. Martha Beall, at whose house she died, and that she was possessed of the property mentioned in the issues. It was also shown, that Miss Waring had great attachment to her sister, Mrs. Edmonds, the appellee, and that the latter had been attentive on more occasions than one, when Miss Waring was sick, whilst her other relatives failed altogether to visit her. On this point, Miss Elizabetli Johns testifies, “that she had not known any of the other brothers and sisters, or relations of Miss Waring, ever to visit her during her life; she saw her brother (the present plaintiff) at her funeral. That she had often heard Miss D. Waring speak of her sister, Mrs. Edmonds, affectionately; said she had been a mother to her, and she was almost a stranger to her other relations; and at her death she wished her sister to have all her property. That in her last illness, [431]*431seeming conscious of her condition, Miss Waring sent for witness and Mrs. Martha Bell, to her sick room, and then said, ‘ Cousin Martha, I have three servants, I wish them given to my sister Rebecca, (Mrs. Edmonds,) and the note 1 hold of Washington Beall’s; I wish also given to her every thing that I have. Cousin Martha, I wish you to see that she gets them.’ Louisa, who is about ten years of age, was in the room; she pointed to her, and said, ‘You will see that my sister has her.’ ” She further testified, that at the time of this conversation, the other negroes, who were small children, were at the quarters, on the plantation. She requested Mrs. Mary Beall, at her death, to deliver them to her sister, Mrs. Edmonds, and tried to impress on her mind that such was her wish. Mrs. Beall promised she would do so at the risk of her life. Mrs. Beall delivered the negroes, after Miss Waring’s death, to Mrs. Edmonds, who carried them to Baltimore. Mrs. Beall proves that she was with Miss Waring for six weeks before her death, and that, for several weeks prior to that event, Mrs. Edmonds was in attendance upon her. She continues thus, “I heard her say that she had given her sister the note of Washington Beall, the three negroes named in these issues, and all the other things she owned. She pointed to the girl Louisa, who was in the room; she requested me to see that she (her sister) had this property. She said, 1 have given the note to my sister, (Mrs. Edmonds.) I asked Mrs. Edmonds where the note was? She said, she had it.” u This conversation took place about 10 o'clock in the morning; and she, Miss Waring, died about the same time that night.''
The attending physician, Dr. Sheehy, proved that he was with her during her last illness; that she was perfectly conscious of her situation; that about a week or ten days before her death, he make known to her her approaching end, and suggested to her to make disposition of her property by will, to which she answered, “You know, Doctor, I cannot use my hand; it is paralyzed, I could not write my name.” She then asked him if she could not give her sister, Mrs. Rebecca Edmonds, her property, in the presence of witnesses? 1 answered, yes. She then said, I have given my sister (Mrs, [432]*432Edmonds) my three negroes. Mrs. Edmonds was then in the room, and the negro girl Louisa; and Miss Deborah Waring told Louisa, “There is your mistress, (pointing to Mrs. Edmonds,) you must be a good girl, and obedient to her.” She sent for Mrs. Mary Beall, and requested her, after her death, to deliver the negroes to Mrs. Edmonds, who was very attentive to her in sickness. I never saw any of her other connections there during her life.
Whatever doubt there may be in regard to the law of the case, there certainly can be none, in any just mind, as to what was the intention of Miss Waring. If ever the wishes of a party were made manifest, they are in this case; that Mrs. Edmonds was the only person intended by her as the beneficiary of her bounty, we think no one can doubt. If, therefore, she be deprived of it, it must be owing to some stem principle of law which works great hardship in special cases for the sake of the general, public good. Is there any such principle?
So far as the negro Louisa is concerned, the proof is positive of not only a gift, but of actual delivery. The donee, the subject of the gift, and the donor being all in each others presence at the time of the transaction. If a negro be the subject of a gift, donatio mortis causa, it is impossible for us to perceive or imagine what defect there was in the transfer of the title to Louisa. We think, also, that the gift of the other slaves was completed by an effectual and perfect delivery. They were referred to specifically, and although not personally present, in addition to the donee, Mrs. Bell was, in whose care they were, and who was most solemnly charged to fulfil the wish of the donor, which she equally as solemnly promised to do, and faithfully fulfilled her undertaking. We regard her as the constituted agent and trustee to make the delivery; and we know of nothing to prevent the deceased from so constituting her. See Smith vs. Smith, 2 Strange, 935, and cases cited in note (a) to 7th Johnson, 28.
The only remaining question for our consideration is, whether a sealed bond is the subject of a gift donatio mortis causal If it be, then there is nothing to dispute about, for [433]*433the testimony shows that the bond, in this case, had been given and delivered to the appellee bjr the donor, under the consciousness of her impending dissolution, which actually took place on the same day on which she, for the last time, made the gift and acknowledged the delivery, the bond being then in the possession of the donee. The case of Hebb vs. Hebb, 5 Gill, 506, relied upon by the counsel for the appellant, is sufficient to show that it is competent to a person in extremis, by way of donatio mortis causa, to dispose of a bond without an assignment. In that case the gift was held inoperative, because the language of the donor was but a narrative of what he had done a long time previously, when in health, in the case before us, the party was in extremis, unable to write, and fully conscious of her approaching death, declaring the gift and the delivery, and also the open avowal of its acceptance by the donee.
To guard against all misapprehension, hereafter, we add, that we have very serious doubts whether the case be one over which the orphans court had jurisdiction, being a question of title and not of “concealment.”
Although the second and fourth instructions given by the court, are not as clear in their expression of the law as they should have been, yet we do not perceive the appellant has, in any sense, been prejudiced thereby, and we will not, therefore, reverse the judgment because of such want of precision. We consider the testimony abundantly establishes that the single bill and negroes became the property of the appellee by donatio mortis causa. The gift was perfect at the time it was made, they being in the possession of Mrs. Beall, who was constituted the agent for the delivery. Her acceptance of them, as the bailee of the appellee, was, in law, a sufficient delivery to the latter. The other rulings are unobjectionable.
By authority of the 3rd section of the act of 1832, ch. 208, this court allow and render costs against appellant, to be recovered and enforced, as in case of costs awarded on appeals from judgments at common law.
Judgment affirmed.