Wright v. Wright

1 Cow. 598

Opinion

Curia.

It is clearly inferable, from the facts, as presented, that the note was a donatio causa mortis ; and the case , is, in this respect, distinguishable from the one cited. The testator made his will in his last sickness, and gave the note to his brother, without consideration, to be sure, but in expectation of dissolution. The only question which can arise is, whether a promissory note is the subject of a donatio causa mortis ; for there is always a tacit condition annexed to these gifts, that the donor die. To constitute a valid donatio causa mortis, there must be a delivery of chattels. How is it as to choses in action? There are some conflicting authorities upon the question, whether a mere equitable interest can be transferred in this manner, as where the donor delivers a bond payable to himself; and the doubt arises from its being actionable in the name of the donor only. But the interest in a promissory note passes by mere tradition. There is no pretence in this case that the note was not delivered. It takes effect independent of consideration.

Foot, mentioned to the Court, that- he thought this a question of probable cause, merely ; and submitted, whether they would not grant a rule to stay proceedings, with a view to have the questions, involved in the case, more fully examined than they could be upon this motion.

Woodworth, J.

We think the case, as made, is against-you.

Savage, Ch. J.

We entertain no doubt, that the note-was a donatio causa mortis.

Motion denied.'