Craig v. Craig

The. first question upon which- the court is asked to'give a judicial construction of the will in this case, is as to the investment for the purpose of raising an income for the support of the lunatic son of the testator. In this question the children of Mrs, Rhoades and Mrs. Hudson, as well as their parents and the lunatic, have an interest. For the capital of this investment is carved out of the general residuary estate of the testator, in which residuary estate the interests of the parties will be different 'from what they are in the capital of the fund thus carved out of the same. For in the general residuary estate Mrs. Rhoades and Mrs. Hudson have but life interests ; and the remainder in fee is limited to their

As the capital of the general residuary estate is to be distributed immediately, no provision can be made to supply any deficiency either in this fund or in that provided for raising the annuity of $1600 for the use of the widow. In making both of these investments, therefore, the executors must see that a sufficient sum is invested to raise the annuity, and to reinvest the capital from time to time without diminishing the capital or the income thereof. In relation to both, the executors, as trustees of those who may ultimately be entitled to the capital of the fund, must see that it is safely invested. But in relation to the last mentioned fund, the widow also, by the terms of the will, has a right to be consulted as to the mode of investment,, so as to render it safe for her. She has no right, however, to

The "better course for all parties, probably, is to invest upon bond and mortgage a sufficient amount of capital to produce $1600 annually, at the rate of six per cent; as it cannot probably be made to .produce more than at that rate during the whole period of the widow’s life. In case it should produce more, the, surplus will belong to the four children of the testator among whom- the residuary estate is to be divided ; as the persons who are now presumptively entitled to the next eventual estate in the capital of that special fund. The executors, with the assent of Mrs. Craig, are therefore to be authorized to invest the capital necessary to raise her annuity of $1600 in that manner. And if there should be any income from the investment, by reason of a temporary investment at a higher rate of interest than six per cent, the executors are to distribute the same among those who are- then presumptively entitled to the next eventual estate in the capital of the fund.-

The executors are only authorized to use so much of the annual sum of $500 as may be necessary for the support and maintenance of the lunatic. And the court is called upon to decide what- is to be done with the surplus, if the annuity is; more than sufficient for his support. Trusts for accumulation, are prohibited, except for the benefit of minors. (1 R. S. 726, \\ 36, 37. Idem, 773, §§ 3, 4.) A trust to accumulate the rents and profits of real estate, or the interest or income of personal estate cannot, therefore, be created for the benefit of a lunatic. But if this annuity had been given absolutely to the lunatic, the court might have directed the surplus, beyond what was necessary for his support, to be paid over to his committee, and to be invested for his use. For where the income of a lunatic is more than can be properly expended for his use, it must, as a matter of necessity, be, accumulated for him, or those who-may be entitled to his property eventually, as, his next of kin. That, however, is not a trust for accumulation prohibited by the statute. If this annuity was given absolutely to the luna-, tic, therefore, the court would give the proper directions to some

In reference to the third question raised by the bill, it is only necessary to say there is no trust as to the shares of Mrs. Rhoades and Mrs. Hudson in the annuity fund of their brother, after the death of the lunatic without issue; but upon the happening of that event, they will be entitled to their shares of the fund absolutely, and the executors may pay it over to their husbands with safety. Their interests in the $6000 which their brother James R. is to pay for the farm, are also absolute interests. And upon the facts stated in the bill, and admitted in the answers of the'adult

The next question which I shall consider, .is, whether valid trusts to receive the rents, profits, and income of the shares of Mrs. Rhoades and Mrs. Hudson, for life, are created by the eleventh and twelfth clauses of the will, so far as relates to the real and personal estate embraced in the eighth clause. First, as to the devise and bequest to Mrs. Hudson: If there had been a direct devise and bequest to the executors, of the real and personal .estate embraced in that share, in trust to receive the rents. and profits and income, during her life, and apply the same to her use, with a limitation over of the capital of-the estate to her heirs after her death, there could be no doubt that a valid trust would have been created, vesting the legal title in the executors during the continuance of her life; under the third subdivision of the fifty-fifth section of the article of the revised statutes relative to uses and trusts. (1 R. S. 728.) And in the case of Gott v. Cook, (7 Paige's Rep. 521,) this court decided, that a trust to receive the rents, profits and income of property, and to apply them to the use of the-cestui que trust, by paying the same over to him in money after, they had accrued and been received by the trustee, was applying such rents, profits and income to the use of the cestui que trust, within the intent and meaning of the provision of the revised statutes on this subject. It is said, however, that there- is no devise or bequest to the executors, as trustees of this share of the estate; and therefore that Mrs. Hudson takes the legal estate therein, by a devise to her. of the income and-avails of her share of the property. • This would undoubtedly have, been so, as to the real estate, if there had been nothing else in the will to show that the testator -intended to create a valid trust of the estate for her benefit during her life. For. a devise of the rents and profits of land for life,-without any thing more, is but a different mode of expression to - create

The same question arose, in England, about one hundred and fifty years since, and, as I understand the different reports of the case, was decided the same way, in South v. Allen, (Comb. Rep. 375; 5 Mod. Rep. 98, and 1 Salk. 228, S. C.) Salkeld, it is true, states the case as having been decided against the executrix, contrary to the opinion of Holt, C. J. But it will be seen by a reference to the record, which is set out at length in the report in 5 Modern, that Mrs. Birch and her husband were the lessors of the plaintiff in that case; and claimed the legal estate in the premises under a clause in the will of her brother, substantially the same as in the present case, devising the rents and profits of the land to her for life, to be paid to her by the executors. Salkeld’s report of the case is very short, and states that C. J. Holt seemed strongly to incline to the opinion that the executors were trustees for the wife. But he says the defendant had judgment by the opinion of Bnkeby and Eyre against C. J. Holt. Comberbach’s report, which is also very short, states what the question was, and that Holt, C. J. at first said, it is a devise to the executors by implication of law, else the will cannot be performed, and the other justices agreed with him; but Holt afterwards said the devise of the rents and profits is a devise of the land to the wife, and then the subsequent words were void and could not exclude the husband. The other judges, however, retained the contrary opinion ; and said that a devise of the rents and profits was not always a devise of the land. For this they referred to the case of Griffith v. Smith, (Moor's Rep. 753,) in which case it was

I am not aware of any decision, either in England or else- • where, conflicting with the judgment in that case. It is true Cruise says the doctrine laid down by C. J. Holt in, that case was fully established in the subsequent case of Say & Sele v. Jones, (1 Cru. Dig. tit. 12, ch. 1, § 21.) But he has evidently • made a mistake in supposing, from the report of the case of South v. Allen by Salkeld, that the majority of the judges in that case had decided against the trust, and held that the legal estate was in the wife. It may also be proper to remark that the author of the Abridgment of Equity Cases has made the same mistake, in supposing that the decision in South v. Allen ■was against the vesting of the legal estate in the executors, and that Holt’s final opinion was in favor of the trust. (See 1

The language of the devise and bequest of Mrs. Rhoades’ share is a little different. But the express direction to the executors to pay the avails and income of that share to her during her natural life, clearly shows that the testator intended that the executors should take the legal estate therein in the mean time, to enable them to lease the real estate and put out the personal estate, and receive the rents and interest, so as to be able to pay them to her. The decree must therefore declare the construction of the will accordingly.

There is no authority given by the will tor sell any of the real estate of the testator, except that which is expressly given

As James R. Craig, one of ihe executors and trustees, is also one of the parties interested in the division, the proper course is td divide the real estate embraced in the eighth clause, exclusive of the homestead, devised to the widow for life, into four equal shares, as nearly as practicable, and then by lot to determine to whom each share therein- shall belong, unless the four children interested therein, after the division thereof into four parcels, shall agree among themselves which parcel shall be set off tp each of them. The decree must therefore direct a partition of ‘those lands accordingly; and that the executors execute,-acknowledge and put upon record a proper'instrument, to be approved by a master, or by one of the justices of the supreme court organized under the new constitution, evidencing the making of the said division or partition, under the power in trust for that purpose contained in the will. And the executors, in making investments of the capital of the shares of Mrs. Rhoades and 'Mrs. Hudson respectively, of the personal estate, and of the - proceeds of. the two lots directed to be sold, must take -them in their own names, as executors and trustees under the-will; -specifying in-the securities or certificates to'be-taken as-the evidences of such investments for each, the trusts upon which they are held, and the name of -the person who 'is' enti- ' tied to the bicorne-thereof for life p so - that the same-may be

The pairties by their stipulation have 'made provision for the security of the $8000 for their lunatic brother, in case'of his restoration to reason. It is only necessary, therefore, to direct as to the investment of this fund, so as to protect the rights of all parties therein. And the safer way to do it is, to invest it upon bonds and mortgages or in stocks, in the name of the clerk of the court of appeals, and to make the income thereof payable to those who are presumptively entitled to the fund. The executors may therefore pay over to J. R. Craig his $2000, upon his giving his bond and mortgage upon unincumbered real estate, of double the value, to be approved of by his co-executor, to the clerk of the court of appeals, conditioned to pay the $2000 to John Craig upon his restoration to reason, to be certified in the manner directed in the will. Or he may procure a good bond and mortgage of a third person,'of the same character, to the clerk of the court of appeals, for the $2000, with á condition to pay the interest to J. R. Craig until the restoration of John to his reason, and to pay the principal to the clerk of the court of appeals, for John, upon the happening of that contingency, and to pay the capital to James R. Craig upon the death of John without having been restored to his reason. Or he may have the $2000 invested in- the public slacks of this state or of the United States, at par, and may receive the dividends thereon until it is ascertained who is to be entitled to the capital of the fund. La Rue Craig’s, Mrs. Rhoades’ and Mrs. Hudson’s $2000 may be secured in the same manner; except that in reference to the capital of the fund of the shares of the two latter it must be payable to the clerk of the court of appeals for the benefit "of John if he should be restored to his reason, and for the use of the heirs at law of Mrs. Rhoades or Mrs. Hudson, after the termination of their life estates therein. And the interest or dividends, in the mean time, must be paid to Mrs. Rhoades and Mrs. Hudson, respectively, for their separate use. Mr. Rhoades and-Mi*. Hudson, respectively, are at liberty to give their own bonds and mortgages to the clerk of

In making the investment of the residue of the shares of Mrs. Rhoades and. Mrs. Hudson respectively, the executors should invest them upon bond and mortgage on unincumbered real property in this state, of double the valúe of such investments, or in stocks of this state or of the United States, in such manner as to produce the best income to the owners of the life estates in the fund, and without endangering or diminishing the amount of the capital, by such investments. And in making such investments from time to time, it will be proper for the executors, whenever it is practicable, to consult with each cestui que trust, or her husband; so that the investment may be made in a manner which will be most beneficial to her, without endangering the capital.

The executors having accepted the trusts under this will, and one of them having received a legacy of $500, in addition to his share of the ■ commissions, upon condition of executing the trust, it would be improper to accept their resignation and cast the burthen upon others, without some good and sufficient cause. The trusts, as to Mrs. Hudson’s and Mrs. Rhoades’ shares, however, after the division shall have been made according to the provisions of the will of the testator, will be so far severed from the general trust committed to the executors; as to be capable of being -vested' in different persons; according to the recent decision- of this' court in the Matter of Wads-worth, ( 2 Barb. Ch. Rep. 381 .) Then, upon sufficient cause shown, and úpon procuring proper and responsible persons to accept and execute these particular trusts for the usual commissions, or upon recéiving a proportionate part of the $500"

Upon the happening of the contingency of Mrs. Craig’s dividing the property which she owned at the death of the testator equally between Mrs. Rhoades, Mrs. Hudson, James R. Craig, and La Rue Craig, the ultimate remainder in fee in the homestead, which is devised to the widow for life,'and the capital of the fund appropriated to raise her life annuity of $1600, are only disposed of as a part of the testator’s residuary estate, embraced in the eighth clause of his will. If she should so divide her property, therefore, either during her lifetime or at her death, the remainder in lee in the homestead, and the capital appropriated to raise the annuity of $1600, are wholly unaffected by the provisions of the fourteenth clause of the will. In that event this part of the testator’s property forms a part of the rest and residue of the real and personal estate, mentioned in the eighth clause of the will as not therein before devised, bequeathed and disposed of. And the same is, upon the happening of the contingency contemplated, to be divided into four shares and disposed of according to the ninth, tenth, eleventh and twelfth clausés of the will: That is, one-fourth thereof will belong to James, and one-fourth to La Rue; absolutely. And the executors will take one-fourth thereof in trust for Mrs. Rhoades for life, with remainder in fee to her heirs; and the remaining fourth as trustees for Mrs. Hudson for life, with remainder to her heirs. For a residuary devise of real or personal estate carries with it not only the property of the testator in which no interest is devised or bequeathed by other parts of the will, but also all reversionary and contingent interests in property which, in the events contemplated by the testator, are not otherwise disposed of. (Hopewell v. Ackland, 1 Salk. Rep. 239. Brigham v. Shattuck, 10 Pick. Rep. 309 . Goodtitle v. Knott, Cowp. Rep. 43. Willows v. Lydcot, 2 Vent 285. Ridout v. Pain, 3 Atk. 485. Doe v. Weatherby, 11 East's Rep.

It is impossible, however, to bring the remainder in fee in the homestead, and the capital of the fund appropriated to raise the $1600 annuity, within the eighth clause of .the will, in the event of the widow’s making no disposition of her. property in her lifetime, or by will, so that Mrs. Rhoades, who is not one of her heirs pr next of kin, will get no part thereof as qn heir or distributee ; or in the event of her making an unequal distribution between Mrs. Rhoades and the other children of the testator except John. In either of those events the testator has, by the fourteenth clause of the will, made a valid and effectual disposition of the remainder in that portion of his property. The title to the real estate will not pass to. the executors as. a trust, although they will, as executors, have the personal fund in their hands to be disposed of, as directed by this clause of the will, in equalizing the shares of the four children, in reference .

The fifty-eighth section of the article of the revised statutes relative to uses and' trusts, (1 R. S'. 729,). provides that where an. express- trust shall be created for any purpose not enumerated in the preceding sections of that article, no.estate shall vest in the trustees; but the. trust, if directing or authorizing the performance of any act which may lawfully be performed under a power, shall be valid as a power in trust; subject to the provisions of the next article relative to powers. The substance and effect of the fourteenth clause of the will, therefore, is, that if there shall be an unequal distribution of the estate of the widow among the four children of the testator, named in that clause as entitled to share in the remainder in. fee in the hornet stead and in the capital of the .fund appropriated to raise the annuity, the amount which shall have been received by any of. them, from the estate.of the widow, shall be brought into hotchpot in distribution. And the ■ executors, under the power in trust given to them,by this clause of the will, and by the section of the revised statu fes referred to, must make distribution accordingly, so as to.pi oduce equality.

The revised statutes require advancements to children to be brought into hotchpot m the division of real as well as of personal estate not disposed of by will. (.1 R. >S. 754, §§ 23,24, 25.) And there is no more difficulty in. making distribution upon that principle hern, than there would be in a case arising under, these provisions of the.revised statutes. The value of the.prqperty which Mrs. Graig had at the death of her. husband must first be ascertained. And if she makes an unequal distribution of the property, or of the proceeds thereof, estimating such value as the capital to be distributed, or if she suffers it to go to her

The stock standing in the name of Mrs. Craig, or in the joint names of herself and her husband, at the time of his death, belongs to her; and is a part of her estate to which the testator refers in the fourteenth clause of his will. But that.clause of the will does not in any way control- or interfere with her right to use and dispose of her property in any manner she maj- think proper. It only provides that in case she thinks proper to give

The annuities for the widow and for the support of the testator’s son John are to commence from the testator’s death; so as to give her the $1§00 in semi-annual payments from that time, and to raise $500 for the support of John for the tirst year. (Gibson v. Bolt, 7 Ves. 96. Fearnes v. Young, 9 Idem, 553. Rebecca Owings’ case, 1 Bland’s Ch. Rep. 296.)

The widow is entitled to the arrears of rents due for lands held in trust as her .separate estate; and to the unclaimed dividends upon stocks which formed a part of her separate estate. But the unclaimed dividends, if any there were, upon stocks which stood in the names of the testator and his wife jointly, belong to his estate; although she is entitled to the stock by survivorship, in analogy to a similar interest in lands conveyed to the husband and wife jointly. The executors are also entitled to the moneys refunded for the erroneous assessment upon her lands in the city of Albany; as the legal presumption is that the testator paid the assessment out of his own funds, in the absence of proof that his wife furnished him the funds to pay it out of her separate estate.

The executors are to be at liberty to apply from time to time, if necessary, to pass their accounts in relation to the various trusts. But from the nature of the trusts it does not appear to be necessary to pass their accounts annually; and it would subject the estate to a useless expense. ' They may be permitted, however, to pass their accounts annually in relation to the shares of .Mrs. Rhoades and Mrs. Hudson, with the assent of those cestuis que trust respectively. And either of those cestuis que trust may apply from time to time, to compel the trustees to pass their accounts and pay Over the, balances, if any, in their hands, during the continuance of the trust.

The costs of all parties in this suit are to be paid out of the general personal estate of the testator in the hands of the ex>

A reference having been made to a master, in the-progress, of this cause, to state the accounts of the complainants as executors of the estate of Archibald Craig deceased, J: R. Craig-was authorized, by the order, on such reference, to present his claim, against the estate, for the amount of a note of $4000, dated the 31st of January, 1846, payable on demand, and purporting to be given by the testator to J-..R. Craig his son; so that the master might take testimony and report as to the validity of the claim; with liberty, to the master to make a. separate report on- that subject. The master reported in favor, of the validity of the-claim, against- the estate of: the. testator, in a separate report. Exceptions to the report were taken by. most of the other parties who were interested in. the estate of the testator.

A. G. Paige, for James R. Craig. .The note is a valid note m the hands of James R. Craig, as a donatio mortis causa It was executed by the testator and. delivered by him to David Tomlinson, in his, the testator’s, last sickness, for the use of James R. Craig, and to be delivered and paid to-him at the decease- of the testator. • This - transaction has all the characteristics of a valid dotiatio-mortis causa. The- gift of the note was made in the last sickness of the donor, and in contemplation of death. It was to-take effect - on the don.or’s.death by his existing disorder, or- in his- existing illness. It was actually delivered to a third person,, (Tomlinson,) for the use of the donee, -James R. Craig, and to-be given to him on the testator’s death. (Story's Eq. Juris. $ 60£, a.,, and cases, cited in notes, last ed. Toller's Executors, 233. 2 <Kent's¡ Com. 444. :1 Williams on Ex'rs, 499.)

Promissory notes may be subjects of a donatio mortis causa (1 Paige's Ch, Rep. 316. 1 Cowen's Rep. 598. Story's Eq,

To make a gift mortis causa void, the donor must recover from his sickness. (2 Kents Com. 444. Swinb. 18. 1 P. Wms. 404. .1 Ves. Jr. 546. 3 Bin. 366 .) There was no recovery here. The donor came to his death by his existing disorder, and in his existing illness. (Story’s Eq. Juris. § 607, a, last ed. 1 Williams on Ex’rs, 499,500.) To. make a gift valid as a donatio mortis causa, it is not necessary.that.it should be made in the last extremity. It is. sufficient if it be made in the last sickness of the donor; the sickness immediately preceding his death, without reference to any precise period of the disease; especially if there be a constant apprehension of death, (as there was here.) (1 Williams on Ex’rs, 499, 500. Blount v. Barrow, 1 Ves. Jr. -546. 4 Brown, C. C. 81. Miller v. Miller, 3 P. Wms. 356. 1 Idem, 404, 441. 2 Ves. Jr. 111.) And the apprehension of death may arise from infirmity, pr old age, or from external and anticipated danger. (2 Kent's Com. 444.) It is not necessary that the. donor should be surprised by a sudden and violent sickness, leaving himno opportunity to make, a will.

But even if the delivery of the note, on the 31st January, 1846, to Tomlinson, for the use of James R. Craig, \vas too long previous to the death of the testator to make it a valid donatio mortis causa; this objection is obviated by the testator’s confirmation, very shortly previous to his.death, of.the

Again'; this note maybe sustained, in the hands of James It. Craig, as a note given upon a sufficient consideration. If so, it is a legal claim, in his hands, against the estate of A. Craig, deceased.

J. C. Spencer M. T. Reynolds, for J. Rhoades and wife, and for J. T. Hudson and wife. The statements in the master’s report as to the consideration and motives of the testator in giving the note, are not sustained by the evidence. Judge Tomlinson and Mr. Gibson are the only witnesses who are competent to testify to the transaction, as it occurred in their presence. Subsequent loose remarks are entitled to no weight against their statements; and least of all, to supply material: facts which they do not state. We contend that it is evident from the whole testimony, (particularly the fact stated by Mr. Gibson, that the testator was satisfied with the assurance Mr. Gibson had given him that James R. Craig’s services and expenses would be a proper charge against the testatoils estate,) that there was no pecuniary consideration in the mind of the. testator, but that the note was intended as an alteration of his ■will, and- a mere gift. The same requisites are. necessaiy to constitute a valid gift inter vivas, and a donatio causa mortis: and the only differencé between them is that the latter is revoked by the fact of the recovery of the testator from the sick

An essential requisite to the validity of a donation, or gift, is, delivery of the thing given, or such an instrument of conveyance as transfers the right to immediate possession. In Irons v. Smallpiece, (2 Barn, & Ald. 552,) Ch. Justice Abbott says, “ By the law of England, in order to transfer property by gift, there must be either a deed or instrument of gift, or there must be an actual delivery of the thing to the donee.” In Hooper v. Goodwin, (1 Swans. 486,) the master of the rolls -says: “ A gift at law or in equity supposes some act to pass the property, if the subject is capable of delivery; if a chose in action, a release or other equivalent instrument; in either case a transfer of the property is required.”

A promissory note of the donor is not such an instrument as transfers the property in the amount of money specified, or a right to the possession of it. In former times it was held that no chose in action, neither the promissory note of a third person, nor a sealed obligation, could be the subject of a gift. (See Miller v. Miller, 3 P. Wms. 356; Ward v. Turner, 2 Ves. sen. 442.) But this doctrine is now repudiated, and a bond is capable of gift by mere delivery. (Blount v. Blount, 1 Ves. jun. 546. Gardner v. Parker, 3 Mad. 184.) So as to lottery tickets, (Grangiac v. Arden, 10 John. 293 ;) or, a promissory note of a third person. (Coutant v. Schuyler, 1 Paige, 318. Grover v. Grover, 24 Pick. 261 .) But all these, being' execu

It is true, that in Coutant v. Schuyler, (1 Paige, 316,) the chancellor recognized the decision in Wells v. Tucker, ( 3 Bin. 366 ,) that a gift to a third person, for the use of the intended donee, was a valid gift. But it is submitted that the question is still open for consideration, and that upon principle, the gift should be in such a condition that the donee may at once reduce it into his own possession.

J. V. L. Pruyn if D. C. Smith, for the infant defendants. On the part of the infant defendants, rye adopt the argument of the counsel for Mr. and Mrs. Rhoades, and for J. T. Hudson and wife, who have preceded us; and we also submit the following view's in addition. It is essential to the validity of a gift, as well as of a will, that the testator should be of sound mind at the time, and capable of discrimination and the exercise of a proper judgment. In making a will, the term disposing has been used as indicating this state of mind. We say that the testator must be of sound and disposing mind. The revised statutes have used the word competent, which embraces both. It is evident that the testator, Archibald Craig, was in a feeble state of body and mind at the time the note in question was given; although .he rallied afterwards, and lived for several months. In the month of April previously, Mr. Gibson, when advised as to al

The whole transaction evidently shows that the testator, in the weakness of his mind, had forgotten what his will was; and, as Mr. Gibson rightly supposed, he was in a state of mind' in which a question would necessarily have arisen as to his testamentary capacity if he had altered his will. The inevitable .result of his attempted action, if the note should be sustained, would be to defeat his own declared views. He evidently intended that James should give at least some considerable part of the $6000 for the farm. How this intention would be carried out by sustaining the validity of the note in any shape, has already been seen.

It has been said that the note might be sustained as a gift to James R Craig for services. The attempt to prove services to any extent utterly failed. Certainly none were shown which c'uld have induced the testator to give James $4000 in addition to what he had already done for him. But it is a conclusive answer to this branch of the case to say, that the testator declared his reasons to be of an entirely different character, and such as were stated to Mr. Gibson" and Mr. Tomlinson, and have been already adverted to. The attempt to show other declarations of the testator, by the examination of Judge Tomlinson, before the master, entirely failed.

The master is clearly wrong in supposing that there was any consideration for the note in question. It is true the complainant had performed some services for his father, both before and after the date of the note. But from the testimony before the master it is evident those services, if they were not paid for by the testator, did not enter into the consideration of this note. I have also great doubts whether the testator, at the time the note was given, was in a situation to make a disposition of his estate, to this extent, with judgment and understanding. He had made his will with great care only six or seven months before, as Mr. Gibson, who drew the will, testifies. The will itself also declares upon its face that it is the intention of the testator that his four children and their descendants shall share equally, not only in the property which he holds in his own right, but also in that which is vested in his wife and subject to her disposition. And the testator made a very special provision to carry that intention into effect, as far as it was possible for him to do so in a testamentary disposition of his property. He had, from the spring of 1844, had several attacks of apoplexy, which affected his nervous system to a considerable extent. But in the latter part of January, 1846, he had a much more serious attack than he had ever before had, which entirely prostrated him; so that his attending physicians gave it as their opinion that he could not survive. It was while he was lying in this situation, as I understand the testimony, that Mr. Gibson, who had prepared the will with so much care, under the testator’s special directions and dictation, was sent for to alter the disposition which the testator had previously made of his property in case of his death. And it is not pretended that any thing had occurred, either in his family or in the situation of his property, to induce a change in the will. Under such circumstances, I think both Judge Tomlinson and Mr. Gibson very wisely urged him not to alter his will at that time. For if he had attempted to alter it under those circumstances, in favor of the children who were then around him, the probability is that the testamentary disposition then made would have been declared invalid. The testimony

It is perfectly evident from the testimony óf Júdge Tomlin-son, that the testator never inteñded to place this note beyond his" own control during his lifetime, any more than he did his will; but that it was to be kept with his will, as forming a part of the testamentary disposition of his property. If Tomlinson was thé mér'e agent-of the maker of the note, to keep it for him— with his" will and subject to his control—and not merely as the trustee of the son to hold it for the' use of the latter, in case the disease under which the donor was then laboring should terminate fatally, so as to place it beyond the reach of the maker of the note Unless he should recover—it wanted- one of the essential requisites of a- good donatió mortis Causa-; án absolute delivery, and continued change of possession. (Bunn v. Markham, 7 Taunt. Rep. 224.)

Again; the weight of authority appears to be a'gaiñst the principle that the donor’s own note, merely creating a debt against himself, can1 be the proper subject of a gift-mortis ccmsa.- Most of the cases referred' to for the purpose of showing that- such a gift is valid’, weré casés of gifts inter vivas. For until within about thirty years,- it was supposed tó be' the law, that á prom'isstiry note was riot only prima facie- evidence óf válue,- but that it could1 nót= be" contradicted by paroi evidence' to show that the maker had actually intended to give á vóid note} for which lie knew there was no consideration whatévef; and- that it was only open to him to impeach the note by showing á füilufé óf

It was at a very early day decided in England that a draft, by the donor upon his banker, payable after his death, for mourning, accompanied by an actual delivery of the draft to

As I said before, therefore, the weight of authority is against the validity of the donor’s promissory note as a gift moms

The exceptions to the master’s report must be allowed ; and the claim for the amount of the $4000 note, must be rejected as illegal or unfounded. But this is not a case to charge the claimant personally’with costs. The costs of the parties upon the exceptions to the report and upon the reference, as to this claim, must therefore be paid by the executors out of the personal estate of the decedent.