Walker v. Foster

JUSTICE.-The sole question in this case is as to the sufficiency of the delivery of the notes in question by Archibald Walker to James Dodge, to constitute a good donatio mortis causal. All the other requisites of such a gift are proved.

It is well established by authority that a delivery to a third person for the use of the beneficiary is sufficient. If, however, the third person is a mere trustee, agent or servant of the donor the delivery to him is insufficient.

Such a gift is always revocable by the donor and of course entirely fails if he recovers from the illness from which he is suffering at the time he makes the donation

It is inaccurate to say that the delivery must be to an agent or trustee for the donee.

No one can be an or trustee for another without that person's assent. Then the cases show that the delivery to the third person is sufficient without the assent or even the knowledge of the donee provided it is for the use of the donee.

Indeed the very sense and object of a delivery to a third person is in some cases because the donee is not at hand to give his assent. Therefore the assent of the donee or even his knowledge of a delivery to a third person for his behoof is not an essential requisite provided the donor parts with both the possession and dominion over the subject of the gift in order that the depositee may hold it for the use of the donce.

Chief Justice Shaw in Sessions v. Moseley (1) in his definition of a donatio mortis causa' is careful to avoid the loose and inaccurate language sometimes used by text writers and even in reported cases which requires that the third person must be an agent or trustee for the donee though the latter may know nothing of him. In the case referred to it is said " there was an actual delivery to a person for the use of the donee" thus treating such a delivery as sufficient in law without any requirement of agency or trusteeship for the donee at the time of delivery.

Then the evidence here being not contradicted the question is entirely one of its sufficiency to show that the donor, Archibald Walker, transferred the possession of and dominion over the notes in question to Dodge. The delivery of possession does not depend on the handing over of the keys of the bureau or desk alone, for the notes were previously taken out of the box and replaced there by Dodge himself after the sealing of the envelopes.

However had there been no delivery except that of the keys, thit would by itself have constituted an actual and not a mere symbolical delivery and the possession and dominion over the securities contained in the desk would have been thus acquired by Dodge.

A great number of cases may be cited in support of this view; it is sufficient however Justice to refer to one or two. Sessions v. Moseleg (1) already referred to, is exactly in point; Marshall v. Berry (2) is to the like effect.

Indeed there is no dispute as to the delivery being sufficient if (to put in negatively) it is to the third person not as an agent or trustee for the donor but for the use of the donee.

Moore v. Darton (3) is an English authority the principle of which applied to the undisputed facts in evidence here is conclusive against the judgment of the court below. Many other cases might be quoted but they do not affect the rule of law, but are only instances of the application of that rule to varying states of fact. Moreover, as in the case before us as the donee happened to be present and assented to the gift an actual trust in his favour was constituted.

It is out of the question to say that there was here any proof of agency or trusteeship for the donor, or of anything short of an actual delivery of the notes and a parting with the dominion over them to Dodge for the use of the donees after the testator's death.