Yancey v. Field

• Decision Date: 14 February 1889
• Citation: 85 Va. 756,8 S.E. 721
• Parties: Yancey v. Field.
• Court: Virginia Supreme Court

8 S.E. 721

(85 Va. 756)

Yancey

v.Field.

Supreme Court of Appeals of Virginia

February 14, 1889

Gifts—Donatio Causa Mortis—Delivery.

A gift of certain bonds by one a short time before his death will not be sustained, where they were not delivered, nor the means of obtaining them; although subsequent to the time of the alleged gift the donor declared to a third party that he had given the bonds in question to the claimant, and the administrator of his estate acknowledged that such gift had been made. ¹

Appeal from circuit court, Culpeper county.

Petition of Henry S. Field and Edmonia, his wife, filed in the chancery cause of Yancey v. Field. James P. Yancey had commenced suit for the settlement of the estate of Richard H. Field, and died pending the action. The petitioners averred that the said Yancey was a creditor of the estate of Richard II. Field, as evidenced by certain bonds, and that a short time before his death he had given the bonds to Edmonia Field. It was averred that the bonds were not delivered at the time of the gift, because they had been filed in the action against Richard II. Field. It appeared that the petitioners were living on land belonging to the latter, and that the object of Yancey was to enable them to get a home on such land. Judgment was rendered for the petitioners, sustaining the validity of the gift, and the administrator of Yancey's estate appeals.

G. D. Gray, for appellant. J. G. Field, for appellee.

Lewis, P. The decree appealed from is clearly erroneous. This conclusion, however, has been reached not without reluctance. Had we the authority to execute the alleged gift, or, in other words, to give effect to the manifest intention of the decedent to aid this worthy lady, the female appellee, the court, without hesitation, would affirm the decree. But we have no such authority. Our province is not to make law, but to administer it, and we must therefore decide this case according to the settled law as it is written, and not permit a hard case to make bad law. The appellees themselves admit in the petition filed by them in the court below that there was no delivery by the decedent of the bonds in question, and this of itself is decisive against them, whether the case be viewed as an intended gift inter vivos or mortis causa. The authorities uniformly hold that to render a gift effectual the thing given, or the means of obtaining it, must be delivered to the donee, or to his agent, and accepted by him. The donor must divest himself of all dominion and control over it, and in this respect there is no distinction between the two classes of gifts above mentioned. In either case, actual delivery, or its equivalent, is indispensable. Without a delivery the transaction is not valid as an executed gift, and, being without consideration, it is not a contract to be executed. In short, it is a mere nullity. Thus, in a case where the donor told her servant to take the keys of her dressing-case, and deliver her watch and trinkets, which it contained, to the plaintiff, and the servant took the keys, but kept them in her possession until the death of her mistress, it was held by Sir John Romilly, M. R., that this was not a good gift mortis causa, for want of suf-ficent delivery. Powell v. Hellicar, 26 Beav. 261. In another case, the would-be donor, shortly before her death, spoke to her son of her bank-book, which at the time was in her daughter's possession at another place, and in which was entered a credit of several hundred dollars, and told him to get it, and to settle the bills, and, if anything was left, to divide it among her three children. It was held that this was not a sufficient delivery to sustain thegift, notwithstanding the book was out of the reach of the decedent, and for that reason could not be actually delivered at the time of the conversation in question, and notwithstanding it was in the possession of one of the intended donees. Blackstone says a true and proper gift is always accompanied with delivery of possession, and takes effect immediately. 2 Comm. 441. Indeed, this principle, which was derived from the Roman civil law, has never been questioned as a part of the common law since Lord Hardwicke's decision in the leading case of Ward v. Turner, 2 Ves. Sr. 431. And the only difference between a gift inter vivos and a donatio mortis causa is that to the latter certain implied conditions subsequent are annexed, upon the happening of any one of which the donation is defeated, —that is to say, it is defeasible (1) by actual revocation by the donor in his life-time; (2) by the donor's surviving the apprehended peril; (3) by his outliving the donee; and (4) by the occurrence of a deficiency of assets necessary to pay the debts of the donor after his death. In all other respects the two classes of gifts stand upon the same footing, and the reason why a delivery in either case is required is because the change of possession strengthens the evidence of the gift, and is essential for the prevention of fraud and perjury. And, because of the opening which this mode of transfer affords to fraud, the law watches it with jealousy, and does not permit it, with its attendant uncertainties, to take the place of wills. Therefore any gift which does not take complete effect by the transfer to and acceptance by the donee of the possession and title of the donor, in the life-lime of the latter, is testamentary in its character, and good only if made by will. Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. Rep. 415. Indeed, we have a statute which expressly enacts that no gift of any goods or chattels shall be valid unless by deed or will, or unless accompanied by actual possession, and that, if the donor and donee reside together, possession at their residence will not suffice. Code, § 2414.

As to what constitutes a sufficient delivery of possession, there is some conflict of authority. The question generally depends upon the nature and situation of the thing to be delivered, and is therefore to be determined upon the particular circumstances of each case. There may, however, be a constructive delivery. Thus, the contents of a trunk, even when they consist of bonds or other choses in action, may be given by delivery of the key of the trunk, or goods in transitu by delivery of the bill of lading, if the donor's intention to make the gift clearly appears. And the gift of a bond may be affected not only by a delivery of the bond itself, but by a delivery out of the donor's control of an instrument without which he could not recover the fund...