time gave J. a promissory note for 1000l. It was determined, upon questions whether the gifts of the check and note could be supported as donations mortis causâ, that they could not. One of the reasons for this decision was, that the gifts of them were not made to take effect in futuro with a view to the donor's death, but in præsenti and irrevocably.

But it is not necessary for the donor to expressly declare that the gift was made conditionally, viz. to take effect only in the event of his death; for if the gift be made during his last illness, the law infers the condition that the donee is only to hold the subject in case the donor die of that indisposition.

Accordingly in Gardiner v. Parker,(k) A. being confined to his bed, gave to B. a bond for 18001. two days before his death, in the presence of a servant, saying, "There take that and keep it." The question was between the donee and executors of A. And Sir John Leach, V. C. decided in favour of the donation, observing, that the doubt originated in the donor not having expressed that the bond was to be returned if he recovered; but that the bond being given in the extremity of sickness, and in contemplation of death, the intention of the donor was to be inferred that the bond should be holden as a gift only in case of his death; and that if a gift be made in the expectation of death, there is an implied condition that it is to be held only in the happening of that event.

So also in a prior case of Lawson v. Lawson, (1) the testator being languishing on his death bed, delivered to his wife a purse of gold, containing 100 guineas, and bid her apply it to no other use but her own, and the transaction was supported as a donation mortis causâ.

It is no objection to this species of donation, that the gift was not made to the donee free from incumbrance, but charged with the performance of a particular purpose. To this effect, Eyre, Lord Commissioner, expressed himself in the case of Blount v. Burrow,(m) as reported by Mr. Brown, and there seems to be no reason why the donee should not have the surplus money, if any remained after the special purpose was answered.

2. The next requisite to constitute a donation mortis causâ is actual delivery of the subject to or for the donee in cases where such a delivery can be made; it is a consequence of that proposition.

That if the delivery be incomplete, and only rest in the intention of the donor, the proposed donation cannot be supported.

Thus in Bryson v. Brownrigg,(n) A. by his will, dated the 4th of December, 1776, disposed of all his real and personal estates in trust for his wife, Alice, and his children, Esther and Mary, and appointed his wife and the trustees executors. The testator died in 1788, leaving his two daughters, his only children, both above the age of twenty-one, and married; Mary died; and the bill was filed by her husband and administrator and their only child, against the testator's widow, Alice Brownrigg, and the surviving trustee, and the testator's other daughter, Esther, and her husband, to have the will established, and an account, &c. The answer stated a gift by the testator in March, 1787, to Esther, then unmarried, of 200l. (viz.) 100l. due to him by bond, and 100l. by mortgage; sums, that according to the (*) 3 Madd. 184 () 1 P. Will, 441. (m) 4 Bro, C, C. 75. (n) 9 Ves, 1.

answers, were so given to her as an equivalent for 100l. which Mary received under the will of her grandfather, and for another sum of 100l. which Mary or her husband received from the testator upon their marriage; and the interest of such gift having been from the time thereof accounted for and paid to Esther by the testator in his life-time, the defendant, Alice Brownrigg, paid the principal and interest received on the said bond and mortgage to her (Esther,) and claimed to be allowed those sums, as paid to her daughter. The plaintiffs disputing those payments, the defendants, Alice Brownrigg and Esther, were examined upon interrogatories; and by their examinations stated, that the mortgage and bond were, in 1786, or early in 1787, given by the testator to his daughter Esther in the following manner the testator having frequently declared his determination to give 2001. to his daughter Esther, to place her upon an equality with his eldest daughter Mary, (who had on her marriage received the like sum,) selected the two securities in question for that purpose, and Alice Brownrigg, by his direction, took them out of a drawer, in which they lay with other securities and papers of the testator, and she by the like direction laid them distinctly and by themselves in another drawer, for and as the property of Esther, then a minor, to whom the same were pointed out, and were several times afterwards mentioned and spoken of as her own by the testator, who, in giving, and afterwards speaking of these securities to the examinants, said, as the securities were good, the money had better remain upon them until Esther should marry. At the death of the testator the two securities remained by themselves, and separately from his other securities, in a lower drawer of his bureau, of which Alice Brownrigg always kept the key. The interest which arose on them in the testator's life-time subsequently to such gift, was by his direction paid to Esther, as her own money; and Alice, after the decease of the testator, at the request of Esther, (who attained her age of twenty-one years a few days after the testator's death) continued to keep the two securities for her; and soon after her death, at her previous request, viz. on the 13th of February, 1789, called in the money and paid it to her husband John Croft. The master allowed the claim; upon which an exception was taken to his report; and in support of the report the delivery of the securities was contended to be good and effectual as donations mortis causâ. But by Sir William Grant, M. R. "has it ever been determined, that the mere delivery of the security passes the interest of the money? A donatio mortis causâ has something in the nature of a legacy. But I do not see, supposing delivery would do, how this can be called so, shifting it from one drawer to the other. It remains just where it was, except that it is in a different drawer, and separated from other papers. What could she have done if he chose to make use of these securities? It depends all upon his mental intention. This is not enough. I cannot think it the mode in which that kind of property can be conveyed." The exception was therefore allowed.

Another instance of imperfect delivery occurred in the case of Bunn v. Markham.(o) That was an action of trover, brought to recover from the defendants, who were the executors of Sir Jervase

(0) 7 Taunt. 224.

Clifton, bart. certain India bonds, bank notes, guineas, an iron chest, and the boxes and envelopes in which these securities and money had been contained. The cause was tried at Guildhall, at the sittings after Trinity Term, 1816, before Gibbs, C. J. The evidence was, that Sir Jervase Clifton being of an advanced age, and confined to his bed, and having by his will, dated in 1814, bequeathed all his cash, notes, and India bonds, to his executors, to be sold and invested in trust for his daughter (the wife of the defendant Markham) and her children, on the 24th of March, thinking himself near his end, sent for his solicitor, (the defendant Jamson) to make a codicil to his will, whose partner Leeson attended him, and prepared a codicil, by which the testator gave to the plaintiff Mary Bunn, otherwise Clifton, (who had for more than thirty years cohabited with him, and was the mother of the other plaintiff) 2000l. and to his and her daughter, the plaintiff, Rebecca Clifton, the like sum of 2000l. While the solicitor was in the house, the testator taking some keys from a basket which he always kept by his bed-side, delivered them to John Bunn Clifton (his son by the one, and the brother of the other plaintiff,) Leeson, and a tenant named Sandby, in whom he reposed great confidence, and directed them to go to an iron chest in which he kept his valuables, fixed in the wall of another room in his house, and to bring from it whatever property they found there. They brought three parcels, and laid them on his bed, one of which contained three India bonds, value 1500l. and bank notes, together of the value of 22251.; another contained 1100l. in bank notes, and the other 479 guineas, the value of the whole being 38291. The testator upon being informed that the amount was about 170l. short of 4000l. said it should be made up to 4000l. even money, and directed for the plaintiffs, 2000l. for each; but the complement was never in fact added. On the box which contained the 22251. Mr. Bunn Clifton had before, on the 7th of March, by the testator's direction, written "For Mrs. and Miss Clifton, 5041." The other two parcels, Mr. Bunn Clifton, by his father's direction, on the present occasion sealed up and wrote on them the words, "For Mrs. and Miss Clifton." The testator charged Mr. Clifton, that after his decease, he should deliver these to his mother and sister, the plaintiffs. Mr. Clifton, by his father's direction, replaced this property in the iron chest, locked it, and brought back the keys, which Leeson, by the testator's direction, sealed up in a paper parcel, and wrote thereon, "To be delivered to Mr. Jamson after Sir Jervase Clifton's decease." The keys were then again put into the basket, by the testator's bedside. The plaintiffs were not then in the house, but upon Mrs. Clifton's arrival some days after, the testator entrusted to her the keys of the iron chest, and told her that the contents were to be her's and her daughter's, and charged her to keep the keys; and many times afterwards, and particularly on the 27th of April, and on the occasion of his making a farther codicil, he declared that the money in the iron chest was for the plaintiffs. After this time, the testator frequently expressed anxiety respecting the keys of the iron chest, and required them to be shown him, and on learning that they had been obtained from Mrs. Clifton by his eldest son, he expressed great displeasure, and caused the keys to be replaced in the basket

of keys, which was always kept in his bed-room. The parcels and the property therein, continued in the same state until after the testator's decease, which happened a year afterwards. Gibbs, C. J. left to the consideration of the jury the probability that the intended 4000l. of which the testator had spoken, was the same sum designated by the codicil of the 24th of March; and also the question, whether the testator meant to make this an absolute gift to the plaintiffs, or only provisional, upon the probability that he might not survive long enough to complete the codicil. The jury found, that this was not the 4000l. designated by the codicil, and that the testator intended it as an absolute, and not a provisional gift. His lordship reserved the point, whether there had been in this instance such a delivery of the property as was sufficient to constitute a donatio mortis causá? And the opinion of the Court of Common Pleas was thus delivered by Gibbs, C. J. "The two grounds on which the present application is made, have a different object in view. The one is, that the jury did not draw a correct conclusion from the facts submitted to them; the other is, to enter a nonsuit, on the ground that the facts, taking them to be proved, do not make out the title of the plaintiffs. The first question stands principally on the evidence of Mr. Bunn Clifton. If his memory has not failed him, the verdict is certainly right, and his credit and character stand unimpeached. As to the other points, it is agreed on all hands, that a donatio mortis causâ cannot exist without a delivery. The facts of this case are, that the property was taken out of a chest of the testator, looked over by him, and sealed up in three different parcels: being so sealed, he declares that it is intended for the witness's mother and sister, and directs that it shall be given to them after his decease; there is no other delivery but that: it is replaced in the same chest, and the keys are re-delivered to the testator, or by him to persons whom he always nominates as his servants for that effect, and he expresses a continual anxiety about the custody of the keys. The question is, whether this be a sufficient delivery to make a donatio mortis causâ; and we are clear that it is not. It is argued by the counsel for the plaintiffs, that there needs not to be a continuing possession in the donee, but that the donor may resume the possession without determining the gift. There is no case which decides that the donor may resume possession, and the donatio continue. Smith v. Smith(p) is a very confused case. Where the master died, does not appear: inasmuch as it is stated that the master delivered the key of his rooms to his servants when he went out of town; probably he died in the country, and then the delivery last made to his servant would be a continuing of possession up to his decease. But all the cases agree, that if the donor resume the possession, it ends the gift. Lord Hardwicke expressly so holds, in Ward v. Turner, where it suited the purpose of the counsel to argue, that if the donor, after making a complete delivery, receives back the article, the donation remains perfect. Lord Hardwicke immediately denied that proposition, and held, that if the possession of the donee do not continue, the gift is at an end. Seeing, therefore, that it is in the power of the donor at any time to revoke the donation before

(^) 2 Stra. 955.

his death, and that there must be a continuing possession of the donee after the delivery to the time of the donor's death; seeing too, here, that there is neither a delivery, nor a continuing possession, we are of opinion that no interest in this property passed to Mrs. and Miss Clifton under the supposed delivery to the son, for the use of his mother and sister; and that therefore a nonsuit must be entered."

In the last case was cited that of Spratley v. Wilson,(q) in which Gibbs, C. J. considered actual delivery unnecessary, holding the donation sufficient, where a person in extremis, said, "I have left my watch at Mr. R's, at Charing Cross, fetch it away, and I will make you a present of it." But his lordship desired that the case might not be mentioned, since immediately after the trial, he perceived that what he had improvidently thrown out, could not be maintained, because a delivery was wanting, and he had accordingly written a remark to that effect, at the end of his own note of the case. Again,

In Miller v. Miller, (r) the testator verbally gave to his wife, two days before his death, his coach and two horses, in the presence of three witnesses, but no delivery was made. Sir Joseph Jekyll decided that the gift was imperfect as a donation mortis causâ, since the subjects were not delivered during the life of the testator.

But although the act of delivery by the donor be complete, still it may be insufficient, from the nature of the property intended to be given, to entitle the donee to such property as a donation mortis causă.

This may happen in instances of symbolic deliveries of possession. And it may be considered as settled, that where the thing delivered in lieu of the principal, in cases where the principal itself cannot be delivered in specie, is mere evidence of the subjects existence, and no property in it is transferred to the donee by the symbolic delivery, or at the utmost only a right of action, such a delivery, with a view to constitute a donation mortis causâ, cannot be established.

Upon this principle, Lord Hardwicke decided in Ward v. Turner(s) that delivery of receipts for South sea annuities, was not such a delivery of the annuities themselves of which they were capable, and that therefore the gift of them as an intended donation mortis causa, could not be supported. But he inclined to the opinion, that if a transfer of the annuities had been made to the donee the gift would have operated as such a donation. The case was in substance to the following effect:

W. as executor of M. claimed specific parts of the personal estate of F. and also South Sea annuities as donations mortis causâ made to M. in his life-time by F. The manner in which these gifts were proved to have been made, was as follows: "I give you M. those papers, which are receipts for South Sea annuities, ad will serve you after I am dead." "I give you M. all the goods and plate in this house;" and a witness swore that F. declared to him and another person, who alone were present, that he (F.) gave to M. all his household goods, money, arrears of rent, and every thing which should be found in his house, except his sword, gun and books. Lord Hardwicke determined that the gift of the general personal estate of F. could not be supported, there being no pretence of any sort of delivery. And with respect to the South Sea annuities, his lordship, (g) 1 Holt. 10. (r) 3 P. Will. 356. 358. (8) 2 Ves. sen. 431. see also 3 Madd. 185.