McEwen v. Troost

• Decision Date: 31 December 1853
• Parties: JOHN A. McEWEN, Administrator, v. LEWIS TROOST et al.
• Court: Tennessee Supreme Court

33 Tenn. 186

JOHN A. McEWEN, Administrator,

v.LEWIS TROOST et al.

Supreme Court of Tennessee.

December Term, 1853.

FROM DAVIDSON.

On the 22d day of June, 1840, the late Dr. Gerard Troost made a deed of gift to his son and daughter, Lewis Troost and Caroline Stein, of all his mineralogical and geological collection; his collection of organic remains, with manuscript catalogues of the same; and his specimens of birds, reptiles, zoophytes, and shells; his library, engravings, maps, and all the furniture containing the whole. Said deed of gift was acknowledged, and registered in the register's office of Davidson county, in October, 1840, the donor retaining possession of the cabinet until his death, in 1850, when it fell into the possession of the complainant as his administrator. The consideration set forth in the deed of gift was the donor's love and affection for the donees, and his desire that the collection should not be separated, whereby its value, in scientific point of view, would be impaired or destroyed.

At the date of the deed of gift the collection was estimated to be worth $15,000 or $20,000, and at the time of the donor's death it had greatly increased in value. After his death the donees claimed the collection in virtue of their deed, and the widow asserted her claim to a share in the same, as one of the distributees. In view of this conflict, the plaintiff in error, as administrator, filed this bill in chancery, at Nashville, in the nature of a bill of interpleader. The bill sets forth the execution of the deed, and a certified copy thereof, from the register's office, is exhibited in proof, and the complainant asks a construction of the same on the legality of the gift where the donor remains in possession of the subject thereof. The donees answer, and claim the collection under the gift; alleging that it remained in possession of the donor with their assent, as a depositary for them, and that it was in legal effect, delivered to them. The answer of the widow denies the execution and delivery of the deed, demands the production of the original, and asks that the collection be distributed as assets of the estate. There was a decree by the chancellor (Judge Brien) declaring the gift void, and that the collection go to the complainant, as assets, to be distributed; from which decree the defendants appealed. After judgment in this court, the case was reconsidered on the petition of the respondent Mrs. Troost.

John A. McEwen, for the complainant; Meigs, Fogg, and Trimble, for the respondents.

TOTTEN, J., delivered the opinion of the court.

It appears, from the bill, that Dr. Gerard Troost died intestate at Nashville, August 15th, 1850, and that plaintiff was appointed administrator of his estate. It consists of funds, negro slaves, and other effects. The bill then states that intestate died possessed of a very valuable collection of natural and scientific specimens, with manuscript catalogue of the same; also, of a large, varied, and valuable library of scientific and literary books, an extensive assortment of engravings and maps, together with suitable and costly presses and furniture, wherein the same were kept; that the said intestate spent most of his life in collecting this cabinet, and that it is estimated to be of the value of $15,000 or $20,000; that on the 22d of June, 1840, the intestate executed to his two children, Lewis Troost and Caroline Stein, a deed of gift for said cabinet and library; that the deed was duly acknowledged and registered, a certified copy whereof is exhibited with the bill; that said cabinet and library were not delivered into the actual possession of the donees, but remained in the possession and use of said intestate to the time of his death, and are now in the possession of his administrator; that said intestate was, by profession, a geologist and mineralogist, and continued to make additions to said cabinet and library after the execution of said deed. The two donees and Mary Troost, the widow of intestate, are defendants to the bill; and it seeks to obtain the opinion of the court as to the effect of said gift upon the title of said cabinet and library, and whether the same are assets to be administered or not.

The answers of defendants admit, substantially, the facts stated in the bill, except that the donees say that the cabinet, library, and articles named in said deed of gift were, in legal effect, delivered to them, and that they permitted the same to remain with Gerard Troost as a depositary for them; and except that Mary Troost denies any knowledge of the execution of the deed of gift, and insists that the original be produced. It appears from the deposition of Return J. Meigs that the cabinet and library were kept by Doctor Troost in a building called the Laboratory, on College Hill, and continued there until his death, without any change of the possession after the execution of said deed. A few days before his death, Dr. Troost conversed with Mr. Meigs about this gift, and said, “If the cabinet and library were to be disposed of now he would make the same disposition of them as he had already made; that he had made the deed partly to keep the cabinet from being separated.” Mr. Meigs knew of the existence of this deed of gift before the conversation with Dr. Troost, and desired him to settle the balance of his property on Mrs. Troost, which he said he would do, and would furnish to Mr. Meigs a memorandum for that purpose, but died before it was accomplished. The deed exhibited with the bill purports to be acknowledged by the donor before the clerk of the county court of Davidson, and duly registered.

Counsel for the plaintiff insists that the deed was void, because the cabinet and library were not, at the time, delivered to the donees.

It is true that delivery is essential to the validity of a parol gift of a chattel or chose in action, whether it be a gift inter vivos or causa mortis; and without delivery and a transfer of the possession the title does not pass to the donee. The delivery must be according to the nature of the thing--as, the actual delivery of a sum of...