Wright v. Wright — 1 Cow. 598

Majority

p. 598

Wright against Wright & M’Millan, executors of Wright.

Headnote

nrte Executed W a testator Bess, and delivered to the payee, .without consideraexpectation of dissolution,

and intended as a gift, is valid as a donatio causa mortis ;

And an action lies thereon, at the suit of the payee, against the executors of the maker.

It seems, that on appeal from the refusal of a circuit judge to grant an order for staying; proceedings, with a view to a motion fer a new trial, it is enough that the party make out a doubtful case.

Assumpsit, by payee against executors of the maker, on a promissory note for 500 dollars, dated Sept. 15th, 1821. Plea, the general issue. This cause was tried at the last Franklin Circuit, Aug. 21, 1823, before the Hon. R. * ° _ H. Walworth, Circuit Judge. The defendants attempted io shew a want of consideration for the note, but wholly

p. 599

failed in their proof, and a verdict was found for the plaintiff, tipon proving the hand writing of the testator.

Soon after the trial, the defendants discovered, for the first time, that John Livingston had, shortly after the testator’s death, heard the plaintiff declare, that the testator had, by his will, not only released him from a considerable debt, but that he had, also, made a present to him of the note in question. The testator made and published his will in August, 1821, from which time to his death, he remained extremely weak and unfit to transact business. He was the brother of the plaintiff.

Upon affidavit of these facts, the defendant applied to Judge Walworth for an order to stay the proceedings in the cause, till the further order of this Court, on a motion for a new trial. His Honor refused the order, for the following reasons, which he endorsed upon the papers presented :

“ I cannot direct the proceedings stayed ; because I am satisfied, from what appeared at the trial, and from the affidavit of Livingston, that the defence is not a meritorious one. The testator intended to give this additional sum to the plaintiff, and executed the note for that purpose, and left ample property to pay it; and the defendants, one of whom is a residuary legatee, seek to get rid of it on a technical objection.' Having had one opportunity to do this, they are not entitled to the favour of the Court.”

An appeal from the decision of Judge Walworth was made to this Court; and S. A. Foot, for the defendant, cited Fink v. Cox, executor.^[1]

J. Parkhurst, contra.

It is clearly inferable, from the facts, as presented, that the note was a donatio causa mortis ; and the case , is, in this respect, distinguishable from the one cited. The testator made his will in his last sickness, and gave the note to his brother, without consideration, to be sure, but in expectation of dissolution. The only question which can arise is, whether a promissory note is the subject of a donatio causa mortis ; for there is always a tacit condition annexed to these gifts, that the donor die. To constitute a valid donatio causa mortis, there must be a delivery of

p. 600

chattels. How is it as to choses in action? There are some conflicting authorities upon the question, whether a mere equitable interest can be transferred in this manner, as where the donor delivers a bond payable to himself; and the doubt arises from its being actionable in the name of the donor only. But the interest in a promissory note passes by mere tradition. There is no pretence in this case that the note was not delivered. It takes effect independent of consideration.

Foot, mentioned to the Court, that- he thought this a question of probable cause, merely ; and submitted, whether they would not grant a rule to stay proceedings, with a view to have the questions, involved in the case, more fully examined than they could be upon this motion.

We think the case, as made, is against-you.

We entertain no doubt, that the note-was a donatio causa mortis.

Motion denied.'