In re Campbell's Estate

• Decision Date: 04 November 1847
• Citation: 7 Pa. 100
• Parties: In re CAMPBELL'S Estate.
• Court: Pennsylvania Supreme Court

Page 100

7 Pa. 100

In re CAMPBELL'S Estate.

Supreme Court of Pennsylvania.

October 28, 1847.

November 4, 1847.

Oct. 28.

APPEAL from the Orphans' Court of Washington.

Mahon, for appellant.—The fact that the intestate survived this alleged gift, and that the notes were not cancelled, is conclusive against the supposed satisfaction of the debt by gift: 2 Story's Eq. ss. 705-6; Flower v. Marten, 2 My. & Cr. 459; Weckett v.

Raby, 3 Bro. P. C. 16; Edwards v. Jones, 1 My. & Cr. 226; Duffield v. Elwes, 1 Blig. N. S. 497.

McCandless and McKennan, contrà.—There were good reasons for this conduct, and they could have been explained by the accountant. But as the report shows there was an equitable discharge, accident only preventing a delivery of the instruments, or the destruction of them according to the owner's directions: Weckett v. Raby, 2 Bro. P. C., Toml. ed. 386; Sibthorp v. Moxom, 3 Atk. 579; Eaton v. Smith, 5 Ves. 350; Gardner v. Gardner, 22 Wend. 535; 2 Story's Eq. ss. 705, 706.

Nov. 4. GIBSON, C. J.

The notes in question could have been discharged only by a sealed release, or a parol gift of them; the disposition of them insisted on by the accountant was neither. A gift is a contract executed; and, as the act of execution is delivery of possession, it is of the essence of the title. It is the consummation of the contract which, without it, would be no more than a contract to give, and without efficacy for the want of a consideration. If made on sufficient consideration, it would be a binding agreement; but then the nature of the contract would be changed, and there would still be no gift. The gift of a bond, note, or any other chattel, therefore, cannot be made by words in futuro, or by words in prœsenti, unaccompanied by such delivery of the possession as makes the disposal of the thing irrevocable. Even the revocation of a will before the statute of frauds, could not be effected by words in futuro; as was held in Benton v. Gowell, Cro. Eliz. 306. Possibly the destruction of a security might be equivalent to a delivery of it; but no mere intent to destroy it would be so. Nothing discharges it while it remains in the creditor's possession and power. The cases all agree, not excepting even Wentz v. Dehaven, 1 Serg. & Rawle, 317, that the parol discharge of a debt without consideration, or delivery up of the security, is inoperative. The gift in the latter was sustained on the baseless argument that the discharge, though unsealed, was in...