VIRGINIA SUPREME COURT OF APPEALS.
Legh R. PAGE, Admr. of William A. Thomas, Deceased, Appt.,
John H. LEWIS & Wife.
1. A valid gift causa mortis including the valuables in the depository is effected where a man sick in bed on the day ofhis death sends for securities and the keys to thedepository containing other securities all belonging to him, and with the remark, "I am a
sick man and don't know what may happen to me," picks up the securities and hands them to the donee, saying, "I give you these," and taking the keys describes in a general way the contents of the depository and handing the keys to the donee says, "These keys I now give you" are where the valuable papers are; "whatever you find you can have—it is yours," and then directs the donee to place the securities and keys in her trunk and lock it, which the donee does.
2. Evidence of statements by a lawyer who went to the bedside of a dying man with an offer to prepare his will that the man made an appointment to meet the lawyer at a future time for the purpose of having his will drawn, before which time he died, is not admissible to defeat an alleged donatio causa mortis where the lawyer is employed in the case and refuses to testify as to what took place at the interview between himself and decedent.
3. Evidence of declarations by the donee and her companion as to the fact of the gift, made on the day of the donor's death, is admissible in support of an alleged donatio causa mortis both as part of the res gestaand to rebut the inference flowing from testimony that in a conversation three days after the donor's death the donee made no mention of the gift.
4. Evidence of failure to mention an alleged donatio causa mortis at an interview three days after the donor's death at which the affairs of the estate were under consideration, and that the donee said that "as there was no will she supposed all she would have" was certain other property mentioned and not including the gift, does not furnish a sufficient basis for even a reasonable conjecture againstthe gift where the donee had not then consulted a lawyer and had been informed by the family physician that the gift was invalid; especially where the witness giving the testimony contra-
— page 171 —dicted himself on material points and had always acted adversely to the claimant.
5. One competent, credible witness is sufficient to establish a gift causa mortis.
6. A gift causa mortis may extend to the whole of the donor's personal estate, however large.
7. The mere existence for precaution against loss or accident in the hands of a third person of a duplicate set of keys to the receptacle where valuable papers are kept, will not impair the validity of a gift of the papers causa mortis by delivery of the keys in the donor's possession.
8. That the donor of valuables causa mortis in transferring them to the donee used the expression "to be yours in case of my death," will not convert the transaction into a testamentary disposition so as to prevent its taking effect as a donatio causa mortis.
9. A donatio causa mortis is not within the provisions of Code, §2414, providing that no gift shall be valid unless actual possession come to and remain in the donee, and that
"if donor and donee reside together at the time of the gift possession at the place of their residence shall not be sufficient possession" within the meaning of the section.
10. Delivery of possession of a bank pass-book in consummation of a gift causa mortis is not sufficient to transfer the bank deposit.
(Lacy, J., dissents.)
(June 16, 1892.)
APPEAL by defendant from a decree of the Chancery Court of Richmond in favor of
plaintiffs in a suit brought to establish a gift causa mortis. Affirmed.
The facts are stated in the opinion.
Messrs. Guy & Gilliam, Staples & Munford, Green & Miller, Peatross & Harris, William J. Robertson, and G. W. Hansbrough for appellant.
Messrs. Edmund Waddill, Jr., Christian & Christian, Edgar Allen, W. W Gordon, and E. C. Burks for appellees.
Fauntleroy, J., delivered the opinion of the court:
The petition of Legh R. Page, administrator of William A. Thomas, deceased, represents that, on the 4th of January, 1889, the said William A. Thomas died intestate, leaving an estate valued at some $225,000, of which some $20,000 was realty, $18,000 on deposit in the Planters' National Bank of Richmond, and the balance, represented by bonds, stocks, choses in action, and gold coin, deposited in a rented box in the vaults of the
— page 172 —said bank. That on the 14th day of January, 1889, the county court of Henrico county, on the motion of the heirs-at-law of the said decedent, appointed William R. Quarles and Mann S. Quarles curators of the said estate, who immediately qualified as such, by giving bond in the penalty of $300,000, and entered upon the discharge of their duties. That on the 29th day of January, 1889, said Bettie Lewis, along with her husband, filed her bill in the chancery court of the city of Richmond, against the aforesaid curators, in which she asserted that said William A. Thomas, deceased, during his last illness, by gift causa mortis, gave her the keys to the tin box in the vault of the Planters' National Bank, above described, and with them all the property contained therein. That he gave her the passbook showing the status of his account with said Planters' Bank for money placed on deposit therein, and with it gave to her the balance on deposit to his credit in said bank, amounting, as aforesaid, to some $18,000; and that he also gave to her several negotiable notes, aggregating less than $1,000, which he had with him at his residence at the time of his last illness. That, to this bill, the curators filed their joint demurrer and answer, denying the claim asserted by said Bettie Lewis; denying that said Thomas had attempted during his last illness to make a gift to the plaintiff of said property; and insisting that actual possession of the several subjects of this pretended donation had never come to or remained with the plaintiff; and that no possession, either actual or constructive, by her, at the joint residence of the donor and donee, could render valid the alleged gift, the same not being evidenced by deed or will. That on the 19th day of February, 1889, petitioner, Legh R. Page, was appointed administrator of the estate of said William A. Thomas, deceased, by the county court of Henrico county, and, as such, he filed his answer to the bill of said Bettie Lewis. Before the assets in the hands of the curators aforesaid could be turned over to petitioner, the chancery court of the city of Richmond, on the motion of Bettie Lewis, appointed N. W. Bowe and I. A. Coke receivers, to take charge of and hold of all the aforesaid assets, pending a decision of the questions raised by the suit aforesaid. After the appointment of the aforesaid receivers, depositions were taken by both plaintiff and defendants, and the case made ready for a hearing at the June term, 1890, of the chancery court. The cause was argued, elaborately and exhaustively, before the Honorable E. H. Fitzhugh, the judge of the said court. No decree was, however, rendered by him, he having unexpectedly and suddenly died before the next term of his court. The Honorable W. J. Leake having been appointed his successor, the cause was again argued, at great length, before him; and on the 8th day of January, 1891, a decree was pronounced by him, sustaining the claim of the said Bettie Lewis (as preferred in her bill) to all the personal estate of the said William A. Thomas, deceased, except the sum of $18,000, money on deposit in the Planters' National Bank, which was awarded to petitioner, as administrator aforesaid. From this decree the case is here on appeal.
The question raised in the controversy, and to be decided by this court, is, What constitutes a valid gift causa mortis? and whether the evidence adduced by the complainant comes up to the law's requirements to establish such a gift by the decedent, William A. Thomas, to the complainant Bettie Thomas Lewis, by and through the facts and circumstances detailed in the bill and attested by the proofs. It is essential to a correct and just estimate of the facts of the case, as disclosed by the record, that they be viewed in the light of the history and relations of the parties to the controversy, the congruities of the case, and the legal weight of the testimony.
Bettie Thomas Lewis, who, before her marriage, was Bettie Thomas, is the only living child of the late William A. Thomas, a wealthy retired merchant, who, at the age of 70 years and enfeebled by long sickness, departed this life, intestate, on the 4th day of January, 1889, at his residence, in or near to the city of Richmond, possessed of a large estate of both real and personal property, but principally personalty. He never married, but cohabited with a woman of half white blood, formerly his slave, in the county of Pittsylvania, Va., by whom he was the father of two daughters, Bettie, and an older sister, Fannie, who married and died, soon after the late civil war, without issue. Bettie, 35 years of age when her father died, and Fannie were always recognized and acknowledged by William A. Thomas as his children; they called him father; and he called them and cherished and lived with them as his children. The death of Fannie was a great grief to him; and after that event, his whole and devoted affection was centered upon Bettie, as the "daughter of his heart and house," whom he loved "passing well," and from whom he was never thereafter separated, except for the two years that he sent her to a boarding school. Soon after the termination of the late war, he removed to Richmond to engage in business, and he purchased a small farm just outside the city limits for a home for himself and Bettie; and there they lived together for more than twenty years; she presiding at his table and over his household affairs, and administering to him in sickness and in health, nursing and caring for him with the constant assiduities of a devoted and dutiful daughter, and he providing for her comfort and pleasure, in every conceivable form that lavish parental love and large means could suggest. He built the house in which they lived for her; and, according to her directions he planned and furnished it. He occupied a room intercommunicating with Bettie's; and, during his long and languishing age, enfeebled by sickness and suffering, he preferred and tolerated no ministry but hers to his wants and his weariness. He provided for her an intelligent, agreeable female living-companion in his house until her marriage to John H. Lewis; and, for many years previous and up to his death, Fannie Coles, an educated, intellectual woman,—the natural and recognized daughter of the late John S. Coles, of Albemarle county,—was her household
— page 173 —companion, friend, and roommate. He urged Bettie to make a trip to Europe with him; and for eight or ten summers, next before his death, he visited Saratoga Springs, taking with him Bettie and Fannie Coles; and there, as at his own home, sitting and eating with them at the same table. For Bettie's mother he provided a home, where, for a time, she lived, but this he sold; and, at the time of his death, she lived at his house with Bettie, though the proof in the record is that he did not, of late years of his life, cohabit with her. William A. Thomas is represented, by the witnesses of the appellant, as a man honest, just, close to his interest, unusually prudent, and of fine business capacity, simple and frugal in his habits. He is described by the witness Dr. H. McGuire, who was his attending physician, chosen friend, and adviser, as "a peculiar character, anyhow. I think, too, he had some little superstition about making his will. I think it was a dislike, that belongs to a great many men, to provide for death in any way." This "peculiar character, anyhow," cut off from society by the kind and circumstance of his household affinities, lived, isolated in his own home, almost absolutely without social recognition or intercourse. He had a few business friends, and no enemies. He had no relations of legal blood, except some collateral kindred, who had never visited him, in health or in sickness, and whom he knew of only by the importunity of occasional begging letters; of which he complained as an annoyance, saying: "Here is a begging letter. The only use my relatives have for me is to get all out of me they can; but if they expect to get what I have when I die they will be mistaken." Dr. Mc Guire says: "From some things he said to me, I don't know what, I had an idea that he did not like his relatives; for I sometimes used these facts in urging him to make his will."
Mr. A. Judson Watkins, an adverse witness (whose acts and animus, bearing upon this contest over William A. Thomas' dying dispositions, will be the subject of analysis further on in this opinion), says: "I had a conversation with him [Mr. Thomas] on Wednesday evening (he died on Friday), which was the last I had of about an hour's duration. I had frequently talked with and persuaded him, with all the power that was in me, not to neglect further providing for Bettie, if he so intended … . He did refer to Mr. Haxall's will, and I think he said, in course of conversation that he was very feeble, and that he wanted to see me especially in regard to making some moneyed arrangement. And, furthermore, I think I remarked to him: 'If you were to die without a will, the lawyers and others [what others?] will get the most you have.' He followed me to the door, and said to me, 'I am going to make everything all right.'" He did die, 48 hours after that interview without a will; and, whatever may be the ultimate issue of the contest made by "the others" over William A. Thomas' large estate, the event will fully verify the other branch of Mr. Watkins' warning prediction. Mrs. Sarah Philips, a neighbor who lived the length of two city squares and for twenty one or twenty-two years near Mr. Thomas, and who had been employed by him to teach his daughter Bettie, and who says that she saw a great deal of both of them, often and intimately, says: "I never heard him refer to his relations but once. He said that he had lately gotten a letter from one of them; that he knew from the style it was written in, what he wanted, and that was money; that he never answered that letter, but rather shoved it off in the wastebasket; that he (Thomas) had had to look out for himself since he was very young, and that others might do the same." Mrs. Mary F. Boyd, a near neighbor and intimate of Mr. Thomas and his family for fifteen years before his death, whose husband, as a merchant, had business and personal relations with him, says: "I heard Mr. Thomas say, conversing with my husband about the property, 'Oh, William, I have bought all my relatives off.'" Mr. Stephen B. Hughes, the most intimate and trusted friend of Mr. Thomas, says: "I have known Mr. Thomas since 1850. We lived together, in the same store, for many years, occupied the same room together, and were partners in business for about three years. And these friendly relations continued up to the time of his death." This witness, with very much other testimony equally important in its bearing upon the relations and affection existing between Mr. Thomas and his daughter Bettie, says they were "of the most affectionate nature, that of father and daughter. I have been present when Mr. Thomas was sick, and I have seen for myself. When Thomas was sick, he usually sent for me. I was, several years ago, sent for to see Mr. Thomas. I found Thomas, as I thought, quite sick, and I asked Thomas to allow me to send him a trained nurse; and he said, ‘No,' that he preferred Bettie to anybody else. It was during that sickness that Thomas first told me that Bettie was his daughter. It was during that spell of sickness that Thomas told me, at his death Bettie Lewis would be amply provided for. Some three or four summers ago, when Mr. Thomas was making his arrangements to go to Saratoga, I told him that I did not think he ought to venture so far from home, as feeble as he was, without having some one to care for him that he could rely on; and he told me that he was going to take Bettie with him; that he would rely on her sooner than any one else. During his last spell of sickness Mr. Thomas frequently told me of her kindness and attention, and believed but for her he would not have lived to have gotten back from Saratoga. Mr. Thomas told me that he was very feeble; his appetite was poor; and he would rather be there with Bettie, because she knew better how to care for him than any one else. He got me to go and buy a trunk for her, and had her name marked on it." After stating that he had heard Mr. Thomas speak, more than once, of his intention to provide amply for Bettie at his death, he said: "She was the only one I ever heard him say he was going to make provision for. Thomas used to get his mail at our store; and I have heard Thomas remark, 'Here's a begging letter,' or 'Another begging letter,' and the only use his relations had for him was to get all out of him they could; but, if they expected to get what he had when he died that they would be mistaken."
Fannie Coles, who was the bedroom com-
— page 174 —panion of his daughter Bettie and an inmate of his home and confidence for many years previous and up to his death, says that she never knew any of his relatives to be at his house but did remember his handing to Bettie a begging letter, which he thought he had put in the wastebasket at Drewry's, but afterwards found a part of it in his pocket. She also remembered another begging letter (Exhibit A.) as to which she says: "I have heard Mr. Thomas tell Bettie about this letter, and he took it and gave it to her, and told her he had nothing to send them, and that he had given them all he expected to give them, long years ago; and she said, 'Don't be so hard on the poor thing'; and he said to her, 'Bettie if I left you alone you and I would both go to the poorhouse together, because there is no end to your giving, and I am not going to give them a cent.'"
There is in the record very much more testimony, equally strong, explicit, unimpeached, and uncontradicted, attesting the life-long, avowed and unwavering solicitude and purpose of this isolated old man to nourish tenderly while he lived, and to provide for amply at his death, his devoted and faithful daughter Bettie, the only light of his long life, and the only love which quickened the emotions of his introverted and self-centered soul. There is no particle of evidence—and none could be adduced by the appellant, aided by the direction of able, accomplished, and assiduous counsel, and prompted by the large stake of the controversy—to prove that William A. Thomas ever declared or intimated an intention to provide for any of his collateral kindred at all, much less to allow them to take and enjoy the acquisitions of his long life of industry, thrift, frugality and self-denial. But while we are asked to deny judicial credence to the clearest, the most consistent and convincing testimony that this dying and devoted father did give, with all due and legal solemnities, the larger portion—not all—of his property to his only child and darling daughter, we are deliberately invoked to infer (without the slightest evidence to warrant the deduction, and in disregard of full, incontrovertible proof to the contrary) that it was William A. Thomas' dying design to leave his beloved only child in destitution and disappointed helplessness; and to devolve, by the Statute of Distributions, his whole estate upon collateral kindred, with whom he had no intercourse, and for whom he cared nothing,―strangers, absolutely, to his heart and his home. And the only inducement urged for this illogical and unwarranted inference is the circumstance that Mr. Thomas had the portrait of B. F. Gravely, who had married Mr. Thomas' cousin; and that in a letter of condolence, dated March 2, 1882, in reply to a letter announcing the death of B. F. Gravely, he expressed kindly regard, and asked Mr. Gravely's son, "Can I do anything for the family?" The inference is that he did, then, give them aid; and to this he, doubtless, had reference when he declared (as detailed in the evidence of Stephen B. Hughes, Fannie Coles, Mrs. Boyd and sundry others) that he had given to them, long years ago, all he intended ever to give them.
We have given this unavoidably long narrative of the relations, circumstances, congruities and situation of the parties to this cause to show that the avowed and constant object of Mr. Thomas' life, labor and love was solicitude and provision for his daughter Bettie; and that there is not one scintilla of proof in the record that, through all the years of his life, and in all the references he ever made to his intended disposition of his property, he ever had in his heart or mind a purpose to provide particularly for any other than his cherished child, to whom he was bound by the strongest ties of nature and affection; to whom he owed the undivided obligation of a father; and whose whole tenor of life, as shown by the record in this case, from her birth to the moment of his death, was an unvarying demonstration of dutiful devotion and filial confidence and affection. During the long years of his declining health and "cold gradations of decay," there was no planning or plotting after property in her heavy heart; but reposing in child-like confidence and disinterested trust in the love of her father, Dr. McGuire says that, when repeatedly warned and advised by him (as often he had urged upon her father, on all the occasions of his critical illness), that, if he should die without a will, the law would deprive her of everything, "she always seemed rather indifferent about it, and was always more concerned about his health than his money."
The factum of the gift depends mainly upon the testimony of Fanny Coles, detailing the circumstances, actions, and accompanying statements of Mr. Thomas during the period of impending dissolution; and, if that testimony be credible, consistent, uncontradicted and corroborated by concomitant circumstance, it establishes, by legal and sufficient evidence, the gift, as a valid donation mortis causa, by William A. Thomas to the claimant, his daughter Bettie Lewis. Her testimony is very voluminous, and we will state only so much of it as is necessary to the conclusion. She was subjected to the ordeal of 433 searching questions and answers, and to a cross-examination of many days, by a powerful array of practiced, skillful, able and accomplished counsel for the contestant, —a fiery furnace of trial and a labyrinth of entanglement, through which she (nor any other human intelligence) could not have passed successfully without the panoply of conscious truth and the thread of absolute consistency. Bettie Lewis went upon the witness stand and offered to undergo the same process; but the appellant peremptorily refused to let her testify, when well he and his astute counsel knew that, if (argued and insisted now) there was a collusion of untruth and fraud between Fanny Coles and her, all that was necessary to catch and convict them was to let them both testify. On Thursday, the 3d day of January, 1889, William A. Thomas was taken seriously ill, and he died in the early part of the night of Friday,—the next day. It was during that illness that he made to his daughter Bettie the gift which is the subject of controversy in this case, and to which the chancery court of the city of Richmond, upon the evidence adduced, has solemnly adjudged she is entitled by law.
The witness Fannie Coles says: "Mr. Thom-
— page 175 —as as called Bettie to his bedside, and said, 'Bettie, I am a very sick man, I do not know what may happen; and he said, ‘Bettie look into my pants' pocket, and bring me my keys, my penknives, my two purses, and look in the inside of my vest pocket, and bring me a package of papers tied with a red string.' She brought them to his bed to him, and he said, 'Bettie, I am going to give you these things as yours.' He gave her the keys to his top bureau drawer, and told her that in that drawer she would find two notes in a white envelope; to get these notes out of the drawer,―that they were hers. Then he opened a small black purse and took out a small package of white tissue paper. Out of this paper he took some keys, and he said, 'Bettie, here are the keys to my safe at Drewry & Co's, and to the box I have in the vault of the bank.' He says, 'At Drewry & Co's, in the safe, you will not find anything of any great value but whatever you find in that safe you can have. Now, Bettie, these keys that I now give you that belong to the box in the vault at the bank is where all my valuables are. Whatever you find in that box, you can have as yours; and, Bettie, whatever you do, don't let any one get these keys away from you on any pretense. Swing on to them as you would your life.' Then he took up his pocketbook, and gave it to her, and told her it had no great amount in the pocketbook, but that it was her's. Then he took up the package of papers that was tied with a red string, and he said, 'Bettie, in this package you will find my bank book, showing you how much I have in bank. Whatever it calls for, you can have as yours, and in this package also you will find some notes. They will be money for you; you can have them also. Bettie, I wish you to take these papers, my purses, and my knives,—I give you these knives also,―and put them in your trunk. I don't want you to put them in my bureau, but put them between your clothes, for safe-keeping; for, Bettie, you will have to take care of these things now. I have been taking care of them all these years for you.'"
As to what occurred on the afternoon of Friday, the next day, after Mr. Gilliam left, the witness further testified: "I went up stairs after seeing the gentleman (Mr. Gilliam) out, that Dr. McGuire sent up and knocked at Mr. Thomas' door. Mr. Thomas spoke, and said: 'Come in, Fannie,' and said, 'Take a seat.' I said, 'No, sir; I thank you. I don't care about sitting down. He said, 'Fannie, take that chair there by the table.' I said, 'No, sir; I don't care about sitting down.' He said, 'Take that seat;' and I sat down. In a minute or so a servant knocked at the door, and said, 'Miss Bettie, I have everything all ready for you now.' Bettie said to him, 'Father, won't you have some lunch now? It is time you were eating something, as the doctor said you must eat all you can.' She turned to me and said, 'Fannie, go down stairs, and bring something nice up here for father's lunch.' He turned to me and said, 'Fannie, keep your seat until I tell you to go,' and he said to Bettie, 'I have something more important to do than to eat now.' Then he said to Bettie, 'Where are those things I gave you last night?' and he said, 'I hope you have got them where I told you to put them, safe under lock and key. Bettie told him, 'Yes, sir; she had, they were safe.' And he asked, 'Where were they?' and she told him they were safe. And he told her to go and get them, and bring them to him. She turned to get them, and instead of putting them in her trunk, where he had told her the night before, she had dropped them in his bureau drawer. And he got very angry with her for putting them in his bureau drawer, and said to her, 'Look here, now, Bettie, you had better do as I tell you about these things I have given you, for your very life hangs on them, and the bread you eat. Bettie brought the things, and laid them on the table in front of him, and he turned to her, and he said, 'Bettie, where is that white envelope with those two notes in it; get it out of the drawer, and hand that here also.' Then he asked her and said, 'Bettie, where is your trunk at?' She said, 'In my room behind the door. He said, 'Now, Bettie, I want you to do for once in your life just as I tell you about these things.' Then he took the package of papers with the red string round, untied it, and he said, 'Bettie, I want to show these to you, and show you the importance of taking care of them.' He untied the envelope, and took out his bank book, and he says, 'Bettie, here is my bank book, which shows you exactly how much I have in bank. I give you this book, and whatever it calls for you will find in the bank, and you can have the money.' Then he laid the bank book on the table, and took the notes out of the large envelope, and he says, 'Bettie, here's some notes which will be money for you also.' Then he picked up that white envelope, and said, 'There [are] two notes in here which will be money for you also. I give these also.' Then he laid his hands on them, and said, 'Bettie, these are yours, and you will have to take care of them.' Then he picked up a red pocketbook, and he said, 'Bettie, here's my pocketbook. You will find a little change in it. Here, take it, keep it, and take good care of it,'—and laid it with the rest of his papers. Then he picked up his little black purse, and he says, 'Bettie, what I am going to give you now is of great importance and very valuable.' And he undid this little black purse, and took out the keys, and said, 'Bettie, these keys belong to the safe at Drewry & Co's, and these which I hold in my hand,' he says, 'belong to the box which I have in the vault in the bank where all my valuables are.' He says, 'These keys open the safe at Drewry & Co's. You won't find anything of any great value in this safe, but what you find in there you can have,―it is yours.' He then handed her the keys of the safe, and says, 'Now, Bettie, these keys I now give you are where all my bonds, deeds, and valuable papers are.' He said, 'Bettie, these keys I want you to swing on to as you would your life. Don't let anybody get them away from you on any pretense. In that box, Bettie, in the vault you will find everything valuable I possess in this world. Whatever you find, Bettie, you can have,—it is yours.' Then he handed her those keys, and handed her the purse, and told her to be very careful to wrap those keys up in tissue paper as she found them. Then he gave her his penknives, and
— page 176 —said that he set great store by them, and told her not to give them away to anybody, and to be careful not to let anybody steal them from her. Then he turned and tied these papers all together. He took the two purses, and slipped them together between the red string, and handed them to Bettie; and I was sitting by the table, as I first told you, and he said to her, 'Bettie, I have given you everything I possessed in the world.' Then he said to me, 'Fannie, you see me give Bettie these things?' I said, 'Yes, sir.' Then he said to her, 'Bettie, you will have these things to take care of.' He said, 'Bettie, I am a sick man, and I don't know what may happen to me, and I have been taking care of these things all my life; and, Bettie, you know how careful I am about my papers and keys, now you will have to do the same.' He said, 'Now, Bettie, I want you to take this package in your room, and put it in your own trunk, raise your underclothes up, and place them between your clothes. Lock the trunk, and bring me the key here. Bettie, I want to see if your trunk key is a good one.' He took the two keys to the trunk, and looked at them, and said, 'Yes, Bettie, they will do;' and he asked her had she strapped the trunk. She told him, 'No, she locked it;' and he said to her, 'Bettie, are you crazy?' She said 'No,' that she thought locking the trunk was sufficient; and he told her it was not sufficient, and to go back and strap it up; that he had given her all that he had in the world, and that if she didn't take care of it she would wind up in the poorhouse. Then he turned to me, and asked me again, and said, 'Now, Fannie, you have seen me give Bettie everything I possess in the world.' Then he turned to me, and told me that I could go,―that he was through with me. And Bettie said to me, 'Fannie, go down stairs to the storeroom, and get a bottle of that liquid bread, and take the cork out, and bring me a glassful up here for father.' I got the liquid bread, and carried it up stairs, and handed it to Bettie. She handed it to her father. He took a sip of it, and turned to me, and said again to me, 'Fannie, you see me give Bettie everything I possess in this world, didn't you?' I said, 'Yes, sir; I did.' And he turned to me and said, 'Fannie, remember that now.' And I said, 'Yes, sir.' And he told her to take special care of the trunk keys; and, whatever she did, not to leave the trunk open, and let any one steal those things out of there that he had given her; and if she did, she would go to the poorhouse; and to keep her trunk keys on her person day and night."
After the conversation last detailed by the witness, Thomas became much worse late on Friday evening, and Dr. McGuire was again sent for. He arrived at eight o'clock that night, and left a little after eight. Thomas grew rapidly worse after the doctor left, and the witness Fannie Coles testifies "that Thomas called Bettie and said to her, 'Oh, Bettie, I am a mighty sick man,—sicker than you have any idea about;' and he says, 'Bettie, where are those things I have given you?' She says, 'In my trunk, safe.' And he says, 'Bettie, where are your trunk keys?' And she said to him, 'I have got them in my bosom, here.' And he said, 'That is right, Bettie, keep your keys on your person.' And he says, 'Bettie, make sure of it again; I have given you everything I possess in this world.' He says, 'Fannie, you hear me give them to Bettie again, don't you?' I said, 'Yes, sir.' He says, 'Now, Fannie, remember.' And he said, 'Bettie, I am sicker than ever I was in my life.' And Bettie says, 'I shall send for the doctor.' He says, 'Oh, Bettie, I don't think he can do much good.' Then he turned to her, and he says, 'Oh, Bettie, remember, now, I have given you everything;' and he turned over and complained of a severe pain in his side, and in a few minutes he was dead."
It is vehemently charged that the testimony of Fannie Coles, as to the factum of the gift, is false; that it is the result of a conspiracy with Bettie Lewis to defraud the legal distributees of William A. Thomas; that no such gift as she testifies to was ever made. The charge is easily asserted; but law, logic, and a decent respect for human nature all require clear and indubitable proof to induce judicial credence to such an atrocity. Why should this witness not be believed? Why should a court of justice, in the teeth of her clear, consistent, convincing and uncontradicted testimony, gratuitously brand her as a perjured conspirator with Bettie Thomas Lewis, without a particle of evidence, of either an uncontradicted or credible witness or a circumstance, simply because William A. Thomas, a dying father, with many years' infallible knowledge of her intelligence and integrity had called upon her, with his expiring breath, to witness and attest the consummation of the life-long solicitude of his heart, and his constantly declared purpose to provide amply, at his death, for his cherished child, and in a legal method, with parental piety, shed his parting benefice and blessing on "a duteous daughter's head?" Her statements in evidence are consistent throughout; they are natural, reasonable, and most probable, in themselves; while they are corroborated by the evidence of Dr. McGuire, Stephen B. Hughes, the dying declaration of William A. Thomas himself, and by all the concomitant circumstances of the res gesta. She is wholly unimpeached in any of the ways known to the law, and her character for truth is as fair as that of any other witness in the cause. She is the daughter of a wealthy farmer of Albemarle county, and her mother was a colored woman of mixed blood. She resided with her father in his house, where he employed white persons to teach her, till she was sent, at the age of thirteen years, to the normal high school in Richmond for several years, when she became a teacher in the public schools of Virginia for five years or more, until, her health failing, she became the chosen companion of Bettie Lewis in her father's house for many years previous and up to his death. She was thirty years old when she testified, and had lived in Virginia all her life; and she was subjected to a protracted and pertinacious cross-examination, which reviewed, with microscopic and relentless scrutiny, her whole life, and which disclosed no single circumstance affecting her moral character or discrediting her triple armor of truth. No material statement of fact, made by her in her testimony, is contradicted by any other witness. It is strenuously asserted that she is
— page 177 —contradicted by Dr. McGuire; but this is neither just nor true in fact. She says that, when she went to Dr. McGuire's office on Friday morning to let him know (as he had instructed the night before should be done) the condition of Mr. Thomas, the doctor inquired of her whether Mr. Thomas had made any will; that she told him he had not; that Mr. Thomas had given Bettie everything the night before; and that Dr. McGuire replied, "It was not worth a cent." Dr. McGuire does not remember Fannie's then telling him about Thomas' having given his property to Bettie the night before; but he says, "The conversation between Fannie and myself took place while a good many patients were waiting to see me. She may have stated it, though I am entirely unable to recall it. My memory is not very perfect about such things." The statement of Fannie Coles is positive as to what was said; while Dr. McGuire merely says he does not recall it, though he admits that, for the very sufficient reasons he gives, her statement may be true. But it is made obviously and undoubtedly true by what Dr. McGuire then immediately did and said. Soon after Fannie Coles left his office, he went to see Mr. Thomas, and he says: "Bettie told me, after I got in the house, that her father had given her the keys, his bank book, and papers, as far as I can recollect. I think she told me she had put them in the top bureau drawer. She told me he had given them to her. They were to be hers. I told her they were not worth a cent; that unless he made a will the law would give her nothing." Dr. McGuire had never conceived of a gift mortis causa, and therefore, in his oft-expressed solicitude for Mr. Thomas to provide for Bettie by will, he told Bettie, as he had told Fannie Coles in his office but an hour or two before, that the gift to Bettie was "not worth a cent, and that unless her father made a will the law would give her nothing."
Fannie Coles testified before Dr. McGuire did, and she is corroborated by both the language and substance of Dr. McGuire's statement; and even if this were not so, it would be Dr. McGuire's mere failure of recollection, which happens daily in judicial investigations without giving rise to a suspicion of untruthfulness in the witness. Fannie Coles' testimony in minute detail of the making of this dying gift of his property by William A. Thomas to his daughter Bettie is corroborated by Dr. McGuire's statement of what passed between him and Mr. Thomas in the chamber of death within an hour of his last breath. Dr. McGuire had in his mid-day visit to Mr. Thomas, on Friday, told him of his extreme illness, and for the last time of often-repeated admonitions to him, of the urgency and duty of his making his will to provide against his leaving his daughter penniless, and to the tender mercies of his uncared-for collateral kindred; and he asked Mr. Thomas' consent to his sending to him a lawyer to write his will. Accordingly, he had sent Mr. M. M. Gilliam out in the early afternoon of that day. Mr. Gilliam stayed only a few minutes–8 or 10–at most, and left the premises. Mr. Thomas became rapidly and alarmingly worse, and Dr. McGuire was summoned, and arrived upon the scene at about 8 o'clock that night, and left a few minutes thereafter, leaving directions as to what was to be done for Mr. Thomas that night. He states: "After that was finished, I said to him, 'Has Mr. Gilliam been here?' 'Yes,' he answered, 'that's all right, doctor,' with a waive [sic] of his hand, as if the matter was settled, and looked to me as if he expected me to approve of what he had said. I said to him, 'I am glad you have done it. You have only done justice.' He then said, 'You will be very well satisfied, or perfectly satisfied, with what I have done.'" What had this dying, devoted father "done," to repair his failure to convey the valuable city lots to Dr. McGuire as trustee for his daughter, and to build costly houses thereon, and to provide for her by will, when, with his expiring breath, he calmly and coolly assures Dr. McGuire's iterated, and over and over again reiterated, anxiety about provision for his daughter Bettie,—"That's all right, doctor. You will be very well satisfied, or perfectly satisfied, with what I have done." He meant, and could only mean, that he "had done" that ample provision for his daughter that he always assured Dr. McGuire he intended to make,—not by will, but by giving and delivering to her, on his deathbed, the bulk of his personal property, which was just as effectual, and just as legal, as a will.
It is argued that Mr. Thomas did not make the gift mortis causa of his property to his child Bettie, as distinctly and incontrovertibly proved, because of his oft and emphatic statement of intention to provide for her by will; and time and time again, it is argued that, in the eight or ten minutes of Mr. Gilliam's presence, with him alone, in the death chamber, only a brief time on Friday afternoon before he expired, he made an appointment with Mr. Gilliam to go to Mr. Gilliam's office the next day to have his will written. Aside from the utter improbability, not to say impossibility, of an enfeebled and dying old man, in the country, beyond the limits of the city of Richmond, making an engagement at 4 o'clock P. M. to arise from what proved to be his deathbed early that night, and to come into the city and to a lawyer's office the next day, there is no evidence in the record of any such purpose or possibility. What passed between Mr. Thomas and Mr. Gilliam, in those eight or ten minutes, we can never judicially know. Thomas is dead; and Mr. Gilliam, one of the counsel for appellant, has declined to testify in this case. The appellant, by his cross-examination, elicited from Dr. McGuire: "I think Mr. Gilliam told me a short time afterwards that Mr. Thomas, in his interview with him, said there were some papers that he wanted to get hold of, then out of reach, and that he had postponed the making of his will until the next day. I think he had an appointment with Mr. Gilliam for the next day. I think Mr. Gilliam said this." Both this question and answer were objected to by the plaintiffs as illegal. Mr. Gilliam's attitude, of the Sphinx, cannot be operated, as hearsay evidence in this case, by any Œdipus, however respectable; and, howsoever important or interesting Mr. Gilliam's pregnancy of what occurred in that brief interview with the dying man may be, he cannot be delivered by the process of obstetrics, unknown to the science of the law. If, too, the
— page 178 —field of conjecture be open, it is the most reasonable supposition that if Mr. Thomas did, in fact, want his will written the next day, it was only for the purpose of devising to his daughter, in addition to the personal property he had given her, his valuable real estate, which he knew could not be given except by deed or will. While no witness testifies that Thomas ever said that he intended to give his whole estate to his daughter, yet he frequently declared his purpose to provide for her liberally, and no one ever heard him say that he intended to give anything to any one else; and the plain and positive proof is that he did not intend (but emphatically asserted to the contrary) that his collateral kindred should have any part of "what he had at his death." To whom, then, but his daughter, must he have intended his property to go at his death? If he had left her his whole estate by a will, instead of the larger part, only, by donatio mortis causa, all just-minded persons would have said, as Dr. McGuire's last utterance to him, "You have only done justice."
Mr. Stephen B. Hughes testifies: "I was at Thomas' house the night of his death. I asked Bettie Lewis where Mr. Thomas' keys were. She said that she had them; that her father had given them to her, and told her to lock them up; that they were hers, and not to give them to anybody. I heard Fannie Coles say that she was present when Mr. Thomas gave Bettie Lewis the keys, and told her to lock them up and not to give them to anybody,―that they were hers (Bettie Lewis', I mean), and took me into the back chamber, and showed me the trunk that they were locked up in." And this witness says that this fact, together with what Mr. Thomas had previously told him were his intentions towards Bettie, were his reasons for offering to deliver to Bettie the duplicate set of keys which he held. When Bettie Lewis told Dr. McGuire, as she unquestionably did tell him, on Friday, before he had seen Mr. Thomas, and just as he was about to enter Mr. Thomas' room, that her father had made the gift to her, she might reasonably have known that he would mention it to her father, as he was urging him to make a will; and it is impossible to believe, without contradicting all human experience, that she would ever have made this statement to Dr. McGuire, at the time and under the circumstances, if it had been false and fabricated, as alleged. Those declarations of Bettie Lewis and Fannie Coles, as well as the declaration of Bettie Lewis to Mr. Hughes, are competent evidence, on both of two grounds,—as part of the res gesta, and as the declaration of a party in possession, and to rebut and repel the inference sought to be drawn from the testimony of the witness for the appellants, Watkins, as to the silence of Bettie Lewis in respect to her claim, in her interview with him on Monday night next after Thomas died. It is insisted that her silence on that occasion as to any gift made to her by her father was equivalent to an admission that none had been made; that she had no claim, and pretended to none. Shall it be, in a court of justice, that she may not repel this inference by the testimony of Dr. McGuire and Stephen B. Hughes that she had, to them, on prior occasions, asserted her claim? If the silence of Bettie Lewis as to the gift, in her conversation with Watkins on Monday night, is a circumstance prejudicial to her claim, what is the significance of the assertion of her claim on Friday night before—the night that Thomas died—to Mr. Hughes, and to Dr. McGuire on Friday morning, while Mr. Thomas was yet living? What she said to Mr. Hughes was only in reply to his direct inquiry about the keys; and Watkins did not in that conversation, on Monday night, ask her anything about the keys; and she did not make any statement to Watkins then about the gift, because (it may have been) of intuitive distrust, or because Dr. McGuire had told her, as he had told Fannie Coles, that the gift "was not worth a cent." Dr. McGuire as before stated, had never heard of such a thing, in law, as a gift mortis causa, and she relying on Dr. McGuire's opinion, and not then having consulted any lawyer about the matter, there was no occasion for her to mention the gift in that conversation with Watkins.
Mr. Thomas was buried on Sunday. On the night of Monday, the next day, Watkins called to see Bettie, and he says that she did not then say to him that her father had given her his money, his bank book, or other securities, or the key to his box in the bank or his safe at Drewry & Co's, and that she did then say, "as there was no will, she supposed that all she would have was the property held by me as trustee, and that she wished I would see Mr. Gilliam in her behalf." This statement, if true, has already been explained by what Dr. McGuire and others had so impressively told Bettie Lewis would be her condition if her father died without a will; but is it not manifestly impossible for Bettie Lewis to have affirmed positively, as a fact in her knowledge, on Monday night, that Mr. Thomas had left "no will, and she knew it," when then there had been no opening or examination of Mr. Thomas' papers or places of safe deposit? Dr. McGuire says: "Bettie Lewis certainly did not know that before the old man's death; for she and Fannie both told me that they didn't know whether the old man had made a will or not, when Mr. Gilliam was there."
Bettie Lewis has been peremptorily denied the privilege of testifying in this case, notwithstanding the great concern she has at stake, and simple justice demands that the statements of this witness, Watkins, for the appellant, should be tested by all the touchstones of truth,—probability and consistency, which are the fixed standards of evidence. Out of the mouth of this witness himself the records show that he involves himself in flat and flagrant self contradictions; but, first, his attitude and animus in the case are manifested by his interview with Bettie Lewis on Thursday night, next following. He says: "I told Bettie Lewis that I had been to see Mr. Gilliam for her, and stated the case to him the best I could; and he said it was impossible to make a case of it, and that he was sorry he could not do something for her. She said it made no difference, that she had employed other counsel, viz., Judge Waddill, Judge Christian, and Edgar Allen. She then said she was very much obliged to me for seeing Mr. Gilliam for her. I said to her, I had nothing but her interest at stake, and that I
— page 179 —would be glad to know exactly what Mr. Thomas said to her in his last moments. Fannie Coles, who was sitting near by, said: 'Bettie, Judge Christian told you not to talk to any one on the subject.' I said, 'If such are your instructions, I certainly don't want to hear anything about it.'" By this, Mr. Watkins' own version, it appears that, after Bettie Lewis had told him she had confided her case to the counsel of her choice he, adroitly and artfully prefacing his question with the professing of his disinterested solitude for her interest at stake, asked her to tell him "exactly what Mr. Thomas said to her in his last moments." The object of this attempt is obvious enough; but by the significance of Mr. Watkins' attitude in this case, as disclosed by the record, it is made perspicuously plain. Fannie Coles' account of this interview, in response to the 287th cross-question, shows that Mr. Watkins used importunity and expostulation in his endeavor to induce Bettie Lewis to let him "know exactly what Mr. Thomas said to her in his last moments," and that it was not until he had been repeatedly denied and thwarted in his attempt that he said, (if indeed, he said it at all), "If such are your instructions, I certainly don't want to hear anything about it." Fannie Coles says, "Mr. Watkins came out there one night, and asked Bettie about her father giving her the keys. Her reply was to him: 'Mr. Watkins, I do not care to talk on that subject at all.' Mr. Watkins turned to me, and said, 'Fannie, don't you think Bettie ought to tell me all about the keys, for I am just the same to her as her father?' I said: 'Mr. Watkins, I don't know anything about that. She has her lawyers, and she ought to do as they told her to do.' And Mr. Watkins said, 'Now, Fannie, you know there is nothing in the world that I would not do for Bettie.' I said: 'You and Bettie can suit yourselves about the matter. I have no more to say.' Mr. Watkins again asked her. She said: 'Mr. Watkins, I do not care to talk on that subject to-night.' And I remember now, as you mention the subject, that Mr. Watkins said to her: 'Bettie, I only came out here to-night to find out all about those keys.'" The record shows that this witness, who professed that he had nothing but Bettie Lewis' interest in view, and who had promised Mr. Thomas (as he says) on the 16th day of February, 1878, "I will do the very best for her as long as I live," and who undertook to see Mr. Gilliam for the purpose of stating "her case" to him, and of seeing whether he "could make a case of it," was, a day or two after, if not at the very time, he [sic] was inviting Bettie Lewis' confidence on the ground of his fatherly interest in and for her, actually conferring with Mr. Thomas' next of kin, and entertaining a proposition to be appointed one of the curators, which only failed because Mr. Pace (Page) objected to going his security, and that, although he averred his intimate knowledge of Mr. Thomas' affairs, yet he refused to tell what he knew when requested so to do by Bettie Lewis' counsel. And this witness, (except a Mr. Gravely, who knows nothing) is the only witness who has been found to defeat the fully attested claim of Bettie Lewis to her father's bounty. He fixes Monday night, next after Mr. Thomas' death, as the date he was out at Mr. Thomas' house, by the fact that he went there to see an insurance policy; and he was certain he saw the policy there that night, and he swears that he is certain that he saw Clay Thomas there that same evening. Yet he swears that it was on Thursday night that he went to see, and did see and examine, the policy, and that it was on Thursday night that he first saw Clay Thomas there. This is the unenviable attitude of this, the only witness to support the contest of Mr. Thomas' collateral kindred, and to defeat his dying disposition of the bulk of his personal property.
The testimony and the circumstances relied on by the appellant to show that no such gift was made by Mr. Thomas as sworn to by Fannie Coles, and attested by corroborating facts, do not, we think, furnish a sufficient basis for even reasonable conjecture; much less to assure the guarded discretion of a court of justice. The circumstance that there is but one direct witness to the gift, competent to testify, (the appellant declining to allow the donee as a witness when offered), does not affect the validity of the gift. One witness, if credible, is sufficient. The law does not require more than one; and especially, as in this case, when that one is not only unimpeached, but corroborated. Nor does the magnitude of the gift affect its validity. It may extend to the whole of the donor's personal estate. The law fixes no limit. In the case of Duffield v. Elwes, 1 Bligh, N. S. 497, the gift causa mortis was of the value of $165,000. In Hatch v. Atkinson, 56 Me. 327, 96 Am. Dec. 464; the court says: "The common law does not require the gift to be executed in the presence of any stated number of witnesses; nor does it limit the amount of the property that may thus be disposed of." Ward v. Turner, 1 White & T. Lead Cas. Eq. pt. 2, p. 1251, note; 2 Schouler, Pers. Prop. 132–136.
The factum of the gift in this case being clearly and conclusively proved, as we think it indisputably has been, it only remains to state the law, and apply it to the facts proved. They show all the essential attributes or constituent elements of a donatio mortis causa, as defined by the law and established by the course of adjudication. The gift was made in periculo mortis, under the apprehension of death as imminent; and it was of personal property, such as, under the law, may be the subject of a gift mortis causa. Possession of delivery was made at the time of the gift; and the donor died of that illness in a few hours after the making of the gift. Thus the gift, inchoate, conditional, and defeasible when made, became absolute at the donor's death. Delivery is essential. It may be either actual, by manual tradition of the subject of the gift, or constructive, by delivery of the means of obtaining possession. Constructive delivery is always sufficient when actual, manual delivery is either impracticable or inconvenient. The contents of a warehouse, trunk, box, or other depository may be sufficiently delivered by delivery of the key of the receptacle. Jones v. Selby, Prec. in Ch. 300; Ward v. Turner, 2 Ves. Sr. 431; 1 White & T. Lead. Cas. Eq. 1205; Jones v. Brown, 34 N. H. 445, Cooper v. Burr, 45 Barb. 10; Penfield
— page 180 —v. Thayer, 2 E. D. Smith, 305; Westerlo v. Dewitt, 36 N. Y. 341, 93 Am. Dec. 517; Ellis v. Secor, 31 Mich. 185, 18 Am. Rep. 178; Hillebrant v. Brewer, 6 Tex. 45, 55 Am. Dec. 757; Elam v. Keen, 4 Leigh, 333, 26 Am. Dec. 322; Stephenson v. King, 81 Ky. 425, 50 Am. Rep. 173; Lee v. Boak, 11 Gratt. 182.
Many cases were cited by the appellant. In some of them it did not appear that there was any intention to give, while in others the delivery of possession was not complete; the donor intentionally retaining control or dominion. In the cases of Miller v. Jeffress, 4 Gratt. 472; Lewis v. Mason, 84 Va. 731; Yancey v. Field, 85 Va. 756; Rowe v. Marchant, 86 Va. 177,—there was no delivery whatever, either actual or constructive. The delivery of the keys to Bettie Lewis, with words of gift, by her father upon his deathbed, invested her with the same means of obtaining possession that Thomas had, and made her the owner, with title defeasible only by recovery or revocation of the donor, or by a deficiency of assets to pay creditors; and the mere existence in Stephen B. Hughes' hands of a duplicate set of keys, for precaution against loss or accident, which he had no right or authority to use, did not impair the validity of the gift which he did make to his daughter in his last moments, in the most unqualified manner; and being thus invested with lawful ownership, the law, in case of refusal by the officers of the bank, would open the doors to her. It is contended that the gift was testamentary, because of the words in the affidavits of Bettie Lewis and Fannie Coles,—"were hers in case of his death;" "to be hers in case of his death." The affidavits were prepared by counsel and certified by the notary as a predication for the appointment of receivers, and they were not intended, and could not be regarded, as evidence; and they do not purport to give the language of the affiants, nor to state the language and actions, in detail, of Mr. Thomas in making the gift. But even if Mr. Thomas had used the very words, "to be hers in case of his death," it would have been but expressing in terms the very definition, substance, and form of a gift mortis causa, as given by all the law writers and adjudged cases,—that it is conditional, defeasible, not to be absolute and irrevocable unless and until the death of the donor from the impending peril, under the apprehension of which the gift was made." Bouvier, Law Dict, "Donatio mortis causa;" 1 Abbott, Law Dict. 402; 2 Jacobs, Law Dict. 307; 3 Pom. Eq. Jur. § 1146; 2 Schouler, Pers. Prop. 2d ed. chap. 5, § 135; Parish v. Stone, 14 Pick. 198, 25 Am. Dec. 378; Grover v. Grover, 24 Pick. 261, 35 Am. Dec. 319; Gano v. Fisk, 43 Ohio St. 462, 54 Am. Rep. 819; Taylor v. Henry, 48 Md. 550, 30 Am. Rep. 486.
The cases in which gifts made in similar and identical language by dying donors have been held to be valid donations mortis causa are numerous; the principle being that the expression, "In case of my death it is yours," or like words, do not of themselves make a testamentary disposition, but merely express the condition which the law annexes to every donation mortis causa. Snellgrove v. Baily, 3 Atk. 214; English notes to Ward v. Turner, 1 White & T. Lead. Cas. Eq. 1222; Ashbrook v. Ryon, 2 Bush, 228, 92 Am. Dec. 481; Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313.
In the case of Sterling v. Wilkinson, 83 Va. 791, the gift was made more than three years before the donor died, and was not made in view of death impending; and the donor actually did retain and exercise control over the subject of the gift by disposing of so many of the bonds as were necessary to idemnify his indorsers. In the case of Basket v. Hassell, 107 U. S. 602, 27 L. ed. 500, the decision turned alone on the construction and legal effect of the indorsement upon the certificate by the donor: "Pay to Martin Basket…no one else; then not until my death." This was held to be a testamentary disposition; but in the opinion of the court, Mr. Justice Matthews says: "The certificate was payable on demand; and it is unquestionable that a delivery of it to the donee with an indorsement in blank, or a special indorsement to the donee, or without indorsement, would have transferred the whole title and interest of the donor in the fund represented by it, and might have been valid as a donatio mortis causa."
It is contended that the gift by Thomas, in this case, was invalid because it comprised the bulk of his estate. The jus disponendi is the essential value and element of property, and the exercise of that right is commended in the beatitude, "It is more blessed to give than to receive." By the law of Virginia a person may make a dying disposition of all of his personal property, donatio mortis causa; and there is no limit as to the extent of the gift,—whatever of the whole or of the part,—inter vivos or donatio mortis causa. Such limitation can only be by express legislation, and the courts are invested with no such function. The Roman or civil law of donationes mortis causa did recognize the limitation or restriction; but the common law does not limit the amount, absolute or comparative, of the personal estate which may thus be disposed of. Michener v. Dale, 23 Pa. 59; Seabright v. Seabright, 28 W. Va, 481; Hatch v. Atkinson, 56 Me 327, 96 Am. Dec. 464, White & T. Lead. Cas. Eq. pt. 2, p. 1251; 2 Schouler, Pers. Prop. 132–136.
It is contended that the gift in this case comes within the operation of section 2414 of the Code of Virginia; and as the donor and donee resided together at the time of the gift, possession by the donee at the common place of residence was not sufficient, and for that reason the gift must fail. The section is: "No gift of any goods or chattels shall be valid unless by deed or will, or unless actual possession shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession, within the meaning of this section." In the construction of statutes the general rule is that the words used in the statute are to be construed according to their natural and ordinary, popular and accepted, use and meaning, unless it plainly appear that it was intended by the Legislature to give to them a different, special, and extraordinary meaning. All the law-writers use the simple term "gift," when used without qualifications,
— page 181 —to express the "ordinary gift" or "simple gift" which transfers an absolute and irrevocable title to the donee, as contradistinguished from the extraordinary and technical gift mortis causa, which is made under the apprehension of impending death, and transfers only a conditional, defeasible, and revocable interest. The peculiar gift mortis causa is always designated by its special, technical name; and it is never understood or intended to be embraced or expressed by the term "gift," merely. A gift mortis causa is a very different thing from a "gift," in many essential particulars. 2 Kent, Com. lecture 38; 2 Schouler, Pers. Prop. 2d ed. § 64. The policy of the section (2414) originated in 1757, and again in 1758 and in 1787, in the Revised Code of 1819, in the Code of 1849 and in the Code of 1887; and in none of these enactments is the special, peculiar, and distinctive technical descriptive phrase, "gifts mortis causa," to be found. The mischief intended to be guarded against in the policy of the statute was as to gifts inter vivos, and until 1849 it was applicable only to gifts of slaves. Then it was made to embrace all "goods and chattels;" but it would violate both reason and analogy to hold that in its new, any more than in its ancient, form, it would embrace gifts mortis causa. It is an established rule of construction that the existing law is not intended to be changed unless such intention plainly appear; and the inference is irresistible that the Legislature did not intend to abrogate the common law of donatio mortis causa, without having expressly, and by proper descriptive legal language, said so. Paramore v. Taylor, 11 Gratt. 242, 243; Wenonah S. B. Owners v. Bragdon, 21 Gratt. 695; Durham v. Dunkly, 6 Rand. (Va.) 139. The disposition of personal property by donatio mortis causa has been a principle and practice of the common law, both in England and in the states of this Union, for centuries past; and although, since the day of Lord Hardwicke, there have been extrajudicial utterances in deprecation of it, it is to-day a fixed principle of enlightened jurisprudence in all civilized countries. It is the imperative function of the courts to interpret and operate the law as it is, not as they may think it ought to be.
In the able and elaborate opinion of Judge Leake, filed with the record in this case, he decided (saying "but certainly not without doubts," "the question to my mind is a very doubtful one") that the gift by Mr. Thomas of his bank book, showing the amount of his deposits in the Planters' National Bank, was ineffectual in law as a donatio mortis causa of the money to his credit in the said bank; and he decreed accordingly. In this, I am of the opinion the decree under review is erroneous, and that it should be, under the rule, in this particular, corrected in favor of the appellees, and in all other respects affirmed, but the majority of the court think the decree is wholly right, and that it must be affirmed as it is. Every species of personal property—in its largest sense—capable of delivery, actual or constructive, may be the subject of a valid gift mortis causa, including money, bank notes, stocks, bonds, notes, due bills, certificates of deposit, and any other written evidence of debt. Lee v. Boak, 11 Gratt. 182, and cases there cited; Elam v. Keen, 4 Leigh, 333, 26 Am. Dec. 322; 1 White & T. Lead, Cas. Eq. 1205; Duffield v. Elwes, 1 Bligh, N. S. 497, Grover v. Grover, 24 Pick. 265, 35 Am. Dec. 319. In the case of Coleman v. Parker, 114 Mass. 33, it is said: "This term 'delivery' is not to be taken in such a narrow sense as to import that the chattel or property is to go literally into the hands of the recipient, and to be carried away. There are many articles which might be made the subjects of a donation mortis causa, in which a manual delivery of that kind might be inconvenient or impracticable. We have no doubt that a trunk, with its contents, might be effectually given and delivered in such a case by a delivery of the key…" In the case of Cooper v. Burr, 45 Barb. 9, it is said: "The situation, relation, and circumstances of the parties, and of the subject of the gift, may be taken into consideration in determining the intent to give, and the fact as to delivery. A total exclusion of the power or means of resuming possession by the donor is not necessary." In Elam v. Keen, 4 Leigh, 335, 26 Am. Dec. 322, Judge Carr said: "There are many things of which actual, manual tradition cannot be made, either from their nature or their situation at the time. It is not the intention of the law to take from the owner the power of giving these. It merely requires that he shall do what under the circumstances will in reason be considered equivalent to an actual delivery." In Hatch v. Atkinson, 56 Me. 324, 96 Am. Dec. 464, the court said that delivery must be as complete "as the nature of the property would admit of." See Wing v. Merchant, 57 Me, 383; Dole v. Lincoln, 31 Me. 422; Hillebrant v. Brewer, 6 Tex. 45, 55 Am. Dec. 757; Noble v. Smith, 2 Johns. 52, 3 Am. Dec. 399; Jones v. Brown, 34 N. H. 445; Marsh v. Fuller, 18 N. H. 360. In Stephenson v. King, 81 Ky. 425, 50 Am. Rep. 173, the court, refer ring to the case of Ashbrook v. Ryon, as to the bank book, says: "What evidence the pass-book contains of the deposit in that case does not appear. If an ordinary pass-book, (and it must be so inferred,) it was an acknowledgment by the bank that the donor had to his credit in the bank that much money; and when actually delivered, we cannot see why it did not pass the right." Suppose Mr. Thomas, instead of having certificates of deposits made and entered by the bank in his bank book, had taken a separate receipt or certificate of deposit for each deposit at the time it was made. Would not the delivery, with words of gift of each one, of such receipts or certificates of deposit have been as effectual in law to pass the title to his money in bank as the delivery of the letter in Stephenson v. King, or the attorney's receipt for claims in his hands for collection in Elam v. Keen? Mr. Thomas' bank book had just been written up or balanced by the bank and it showed on its face the balance due to him by the bank. It was the bank's acknowledgment of indebtedness to Thomas, and the only voucher or evidence which he had, upon which the law implies a promise to pay; and it was transferable by delivery without writing, like any other chose in action. It passed the equitable title, and that is sufficient. The "beneficial owner" of any chose in action may sue upon it in his own
— page 181 —name. Va. Code 1887 § 2860. There is a difference between a savings bank pass-book and an ordinary bank book, in that by a special method and agreement, on the mere presentation of savings bank pass-book, the bank will pay, but this is the mere special mode of dealing agreed on by the parties in that case; and, though the bank would have the right to require evidence to satisfy it that Mr. Thomas had duly delivered, with words of gift sufficient in law to transfer his title to his money in the bank to his done, Bettie Lewis, his daughter, yet that would not, any more than in the case of the keys, affect her title and right to demand the money, which the law would enforce.
This case was first argued before Chancellor Fitzhugh, and submitted for his decision; but he died in a few days, leaving nothing to show what conclusion he would have reached upon the facts. He had (as it appears by what is stated in the petition for appeal) noted down a few platitudes or propositions of law, which (no more than if he had copied the Decalogue) do not afford the slightest clue as to what he would have decreed upon the facts under the law.
We have given to this case elaborate consideration and the closest scrutiny; and upon the law and the facts, our judgment is to affirm the decree of the Chancery Court of the city of Richmond.
I concur in the opinion that the decree of the chancery court ought to be affirmed, and add a few words to what has been said by the court, only because of the reliance for the appellant upon the case of Yancey v. Field, 85 Va. 756. It has been asserted that that was a case of a gift mortis causa, which this court refused to sustain, because of its want of compliance with the statute, now carried into section 2414 of the Code. In other words, that this court, in that case, construed that statute as applying to gifts mortis causa. There is no warrant whatever of such a proposition. In the first place, it was not claimed that the alleged gift in that case was a gift of that description. On the contrary, it was distinctly claimed as a gift inter vivos. The petition filed in the lower court, after stating that JudgeField died indebted to Yancey, further averred as follows: "Your petitioners further represent that the said James P. Yancey, a short time before his death, gave to your petitioner, Edmonia, the indebtedness to him by the said R. H. Field, she, the said Edmonia, being a niece of the said Jas. P. Yancey; that the bonds evidencing said indebtedness could not be delivered, as they had been filed with the commissioner in the said suit of Yancey v. Field. And your petitioners insist that they are, by virtue of the said gift, entitled to the said indebtedness, and to have the said debts indorsed for their benefit." The same counsel who prepared this petition argued the case for the appellees in this court, and both in his oral and printed arguments he insisted that the alleged gift was valid as a completed gift inter vivos. In his brief, filed with the record, he said: "The testimony proves not only the gift, but that it was a completed gift inter vivos." And, again: "In the case at bar there is no claim, by virtue of a nuncupative will or other testamentary act. From the very first the gift was claimed as an act inter vivos." It will thus be seen that the case was presented to the lower court and to this court as a gift inter vivos and as such it was dealt with. As the appellees themselves admitted that there had been no delivery of the subject-matter, that, as the court said, was decisive of the case, whether viewed as an intended gift inter vivos or mortis causa; and this was all that was necessary to the decision of the case. Reference, however, was made in the opinion to some of the general principles of the common law relating to gifts, and to the difference between the two classes of gifts, attention being especially called to the necessity of a delivery in all cases. And as illustrative merely, or rather to call attention to the fact that the common-law requirement of delivery in case of a verbal gift had been incorporated in our statute law, the statute was referred to. The court, however, did not say the statute was intended to apply to gifts mortis causa, for no such question, as we have seen, was before the court; and, therefore, the expression of any opinion on that subject would have been purely obiter. This, indeed, is so obvious from the opinion itself, that I ought, perhaps, to beg pardon for adding anything to what has been said in the opinion of the court in this case.
Lacy, J., dissenting:
As appears from the opinion of the majority of the court, this is a suit to enforce against the administrator of a dead man's estate an alleged gift of the whole estate, amounting to over $200,000, which alleged gift is claimed to have been made by the decedent in disregard of all of his heirs and distributees,—his next of kin,—a few minutes before his death, to a colored woman living in his house, who claims to be the result of illicit intercourse with a colored slave woman. It also appears from the opinion of the majority that the alleged gift consisted of goods and chattels in the house and goods and chattels out of the house, where the alleged donor and donee resided together. The claim is that the goods and chattels in question were, as to certain keys, pocketbook, and two pocket-knives, actually delivered into the donee's possession. That money, etc., in a bank vault, and money, etc., in an iron safe, and money on deposit in bank subject to check, were symbolically delivered by the delivery of the keys and the pass-book of the bank, in which deposits were entered. It is not pretended that there was any further delivery than such as I have mentioned, either as to the thing delivered or the manner of its delivery. So that, if everything was done in manner and form as this woman Lewis alleges, then the gift was made by the donor to the donee, at their common residence, with delivery of possession of keys as to the great bulk of the property given, and not actual delivery. Let us consider first whether the goods and chattels in question could pass from the donor to the donee in this way, and become the property of the donee. Our statute laws provide general rules as to the creation and limitation of estates, and their
— page 182 —qualities, and the manner of making valid gifts is regulated by the law from the earliest times of which we have any account. The law has, to a greater or less degree, thrown some protection around the estates of dying men, and provided safeguards against the perjuries and frauds employed by the designing to obtain the possession of the estates of the deceased person. Of those I will speak briefly hereafter.
It is profitable to consider first what are the regulations to be found in the Virginia law, prescribing general rules as to the creation of estates. It is provided by law in this state that "no gift of any goods and chattels shall be valid unless by deed or will, or unless actual possession shall have come to and remained with the donee or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession within the meaning of this section." Va. Code, § 2414, chap. 107, p. 591. It must be admitted—it cannot be denied—that Thomas and Bettie Lewis were domiciled together. It is also distinctly proved that they did reside together at the time of the alleged gift. It is equally true that no actual possession ever came to Bettie Lewis of any important part of the large estate said to have been given to her, and that there was no possession of any sort except such as may be construed to pass with the key to the bank vault box and iron safe, of which another person had a duplicate key, and with the pass-book of the bank. The pocketknives and some notes were actually delivered into Bettie Lewis' hand, but even this was at their common domicil, where they resided together. This statute is conclusive of the case, unless in some way it can be avoided. This is attempted to be done by the assertion that this statute does not apply to this kind of gift, that this statute was made to protect creditors, and to prevent fraudulent acts, by way of gifts falsely alleged to be made, from defrauding creditors of their just debts, and that a gift of this sort does not affect creditors. But there is no language of this sort to be found in this section nor in this entire chapter. It does not treat of the rights of creditors as against the claims of fraudulent alienees. Chapter 109 of the Code treats "of acts valid between the parties, but void as to creditors and purchasers." This chapter, as its title declares, prescribes general rules as to the creation and termination of estates and their qualities. Section 2414 enacts a general rule as to all gifts, and prescribes what shall be necessary in order to create an estate in goods and chattels by a valid gift, and declares all gifts not so made invalid. No gift of any goods or chattels shall be valid unless, etc. This is an alleged gift, alleged to have been made by a donor to a donee, when donor and donee resided together at the time of the alleged gift. The word "gift" is not limited, but is used in its full signification. If this term does not include this kind of gift, what word could be used to describe it? If the statute was intended to apply to gifts inter vivos only, why is the word "will" in the statute? Gifts inter vivos are not given by will; a will takes effect at the death of the testator. A gift inter vivos is not—cannot be—bestowed by will. It may be by deed or by actual and complete delivery of possession, so as to cut off and determine the possession, control, and dominion of the former owner; otherwise it is incomplete, and, being without consideration, cannot be enforced. A will is the appropriate method to give gifts to take effect after the death of the testator or donor; bequests and legacies are allowed and enforced against the executor, or persons entitled without a will. If a will is not made, then there is allowed, by the law, a gift, which has certain characteristics and attributes appropriately signified by the words "mortis causa." Among other things, it is revocable by the recovery of the sick man from the impending peril which threatened him. But it is well settled that, like all other gifts, and as a gift, it must be completely given, and actual possession consummated, so as to cut off the possession, control, and dominion of the donor; interrupt his possession just as completely as is necessary in all gifts. In other words, the same sort of delivery of possession is necessary in the one case as in the other. In this respect there is no difference between gifts, whether inter vivos or mortis causa. And when the kind of possession is prescribed by statute, that sort must be given, or there is no gift; the attempt is abortive, and the gift is invalid. I do not see any reason in construing this statute to limit the meaning of the word "gift" to one kind of gift only; the word applies to both kinds,—the reason of the law applies, as we well know, to the one as well as to the other. The statute has never been otherwise construed, but has been often construed in this state, and always in the same way, and I will cite the cases, and there are none per contra until this.
There is only one other state in the Union which embodies this statute in its Code of laws,—the state of West Virginia,—and there this statute has been construed, and construed in accordance with the Virginia decisions. Dickeschied v. Erchange Bank, 28 W. Va., 340. It is there considered that the principal object which the Legislature had in view in the passage of the law as it stood in the Code of 1849 was to protect the estates of decedents from the rapacity of unscrupulous attendants residing with and constantly with and constantly surrounding them, and to prevent them from appropriating to their own use the slaves or other personal property belonging to the alleged donor. And just in proportion as his personal property was valuable and of a character to be readily appropriated was it the more necessary that, when claiming as a gift, the actual possession of the property should be required to come to and remain in good faith with the alleged donee. Where the donee resides with the donor, so many opportunities of unfair dealing may be found, and so many temptations to commit perjury may exist, the Legislature determined to render the same impossible by declaring that "no gift of goods or chattels should be valid unless actual possession shall have come to and remain with the donee, or some person claiming under him. And if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession within the meaning of this section." The de-
— page 183 —livery of everything which is claimed to have been delivered in this case is invalid under this statute. The money, stocks, bonds, etc., were never delivered at all, actually or otherwise. But it is said that the keys were actually delivered, and that the stocks, bonds, etc., were given and were not at the place of the common residence of the donor and donee, and so were not affected by the statute. The answer to this is that delivery is necessary, and here there is no delivery. If the delivery of the keys symbolized the valuables, the symbolical delivery was incomplete and invalid, and, if the keys and pocketknives were not validly given, then there was no gift, for nothing else is alleged to have been given. One of the learned counsel who argued this case here by brief insists that "it would be absurd to suggest that a delivery of keys and a pocketbook as representative or symbolical of the gifts would be valid gifts of chattels; and that the chattels themselves, if delivered as the symbols were, would be invalid and ineffectual." That would defeat the object and destroy the spirit of the statute. That would make the shadow more potent than the substance. Just here let us consider what becomes of the symbol itself in such a delivery of possession, for the symbol in this case was a key, a chattel, and that was the thing delivered, if anything was, at "the place of their residence." I think it is clear that the reason as well as the letter of the law applies equally to every species of property alleged to be the subject of the gift. This section first came into our law in the Code of 1849, where sections 2413 and 2414 of the present Code were embodied in section 1 of chapter 116. And the words, "if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession within the meaning of this section," first then appeared in our law. The Code of 1849 was not, like its predecessors, a compilation of revised statutes, but an Act of assembly, one of the chief objects of which, as expressed in the preamble to the Act, was to arrange the subjects under appropriate titles; and the title of chapter 107 of the present Code is a copy of the title of chapter 116 of that Code; so the Legislature there declared that this section prescribed prerequisites to a valid gift, and declared that to be the object of its enactment; and the revisers have provided the same language in the preamble to the present Code, to arrange them in appropriate titles, etc. The learned lawyers who revised and codified our laws appended to this section a note referring to the decisions construing this section (most of the marginal references being to decisions found in the Code of 1849, and decided, therefore, before the enactment of the law in question). The note is as follows: "Donatio mortis causa. Miller v. Jeffress, 4 Gratt. 472; Lee v. Boak, 11 Gratt. 182; Morrison v. Grubb, 23 Gratt. 342; Basket v. Hassell, 107 U. S. 602, 27 L. ed. 500."
The first case referred to by the learned lawyers who composed the board of revisers as appropriate to this section, as to what is necessary to render valid a donatio mortis causa, is the case of Miller v. Jeffress, supra. That was a controversy over an alleged gift to the donee of bonds which the alleged donor held against him. The court rejected the claim of the donee. In that case Judge Allen said: "As the witnesses examined to prove the alleged donation vary somewhat as to the precise words used by the decedent, the certificate written and signed at the time, and referred to and recognized by the witnesses when giving their testimony, can be more safely relied on as showing what did actually occur than the recollection of the witnesses after so great an interval." The certificates and the depositions vary in this case, as I will hereafter show. Judge Allen said further: "The words themselves import a future benefit;…imply not a present donation, but a future enjoyment. The words were that his friend Jeffress should have all the bonds of his, in his possession. Viewing the words as clearly testamentary, that they were so intended, and not as importing any present gift or parting with dominion over the thing, I am of the opinion [says Judge Allen] the appellee is not entitled to claim the bonds as a donation causa mortis." In the same case Judge Baldwin said, in delivering the opinion of the court: "The court is of the opinion that the appellee, Jeffress, has shown no right to the bonds assigned to and placed in the hands of Jeffress & Co. [of which firm he was partner] by Paschal Folkes, deceased; the subsequent parol gift to said Jeffress under which he claims having never been perfected by delivery, which was not the less essential to its validity because the gift was in the donor's last sickness and in contemplation of approaching death. A donatio mortis causa is of a mixed character, being partly testamentary and partly donative. From an indulgence to the nature of the emergency, the law dispenses with the solemnities of a testament, and for that very reason requires the essentials of a gift." I will pause here to ask, What are the essentials of a gift in this state? My answer is: They are prescribed in section 2414 of the Code, supra,—by deed or will, or by actual possession delivered to the donee, and, if the donor and done reside together, possession at the place of their residence is not sufficient. Judge Baldwin says further: "A delivery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, as of a watch or a ring, or of the means of getting the possession and enjoyment of the thing, as of a key of a trunk or a warehouse in which the thing is deposited; or, if the thing be in action, of the instrument, by using which the chose is to be reduced into possession, as a bond or a receipt, or the like…It is the naked case of an abortive nuncupative will which the disappointed legatee is now seeking to convert into a donatio mortis causa."
In the case of Lee v. Boak, 11 Gratt. 185, Judge Moncure said: "Whether the donation was valid or not depends upon whether there was a sufficient delivery of possession to perfect the gift. All gifts, except by will, must be attended by delivery of possession to make them valid. Until such delivery, they are inchoate and revocable: indeed, mere nullities. The donation in this case, as found by the jury, was a donatio mortis causa. But there is no difference, in this respect, between donations mortis causa and inter vivos. The same kind
— page 184 —of delivery of possession which is necessary to make good the one is necessary to make good the other." And in the case of Morrison v. Grubb, 23 Gratt. 350, Judge Anderson, delivering the opinion of the court, when speaking of the delivery of possession of a gift, says: "And it matters not whether it was a gift causa mortis or inter vivos." In a recent case in this court (Yancey v. Field, 85 Wa. 756), the statute concerning gifts, which I have been considering, came up for consideration. The case was an alleged donatio causa mortis. The circuit court had sustained the gift, but this court, for want of compliance with the requirements of the statute (Va. Code, § 2414) as to delivery, reversed the trial court and refused to sustain the gift with reluctance, it being stated in the opinion: "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 court without hesitation would affirm the decree; but we have no such authority. Our province is not to make the 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." Blackstone says: "A true and proper gift is always accompanied with delivery of possession, and takes effect immediately." 2 Com. 441, citing Ward v. Turner, 2 Wes. Sr. 431; and, quoting from and citing Basket v. Hassell, 107 U. S. 602, 27 L. ed. 500, says: "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. It is, however, now decided in this case that this statute, so expressly quoted, and held by the unanimous opinion of this court in Yancey v. Field to render a gift mortis causa invalid, has no application to such an alleged gift. I am of opinion that the words of the statute clearly and unequivocally apply to all gifts. "No gift…shall be valid unless," is equivalent to "every gift shall be invalid unless;" and, as there was no delivery of possession, actual or otherwise, claimed except at the common residence of the alleged donor and donee, this supposed gift is invalid. So the law is written. The decision here must rest upon the assertion that a gift mortis causa is not a gift; that is, that the word "gift" does not apply to a gift with a particular motive. The words of the statute are general, and include all gifts, and they have been so distinctly held in this court up to this case. A gift is the voluntary transfer of a thing without consideration,—a transfer of the title to property to one who receives it without paying for it.
This case was first considered in the chancery court of Richmond by the late chancellor, Edward H. Fitzhugh, who died before decree in the cause, but not before he had partially written his opinion, and such was his eminence in his profession that his opinions have upon appeal here been several times adopted by this court in full, as the best exposition of its opinion that could be made of the law of the subject, and recorded as the opinion of the appellate court; and I have turned to his opinion to see what was his construction of the particular question upon which I think this case should be determined,—the delivery of possession set forth in the testimony. Judge Fitzhugh says, among other things: "The question in this case is whether the gift set up in the plaintiff's bill has been maintained as a valid gift causa mortis, under the law and the evidence, so as to confer a title to the property,—the subject of the gift,—to the donee. As was justly observed by one of the counsel in argument, the Statute of Descents and Distribution has long been held as a wise and just and natural disposition of a man's property if he chooses to die intestate. If he thinks proper to make a different disposition of his property than that prescribed by law in case of intestacy, he is at liberty to make a will. Our Statute of Wills can fully guard him against imposition in his dying hours. A man may make a gift causa mortis, but for obvious reasons the courts are extremely guarded and cautious in the establishment of such gifts. Every reason which the wisdom of the law deems to be necessary to establish a will applies with equal if not greater force to the establishment of a gift causa mortis; 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 a will. It is apparent, if these remarks are sound, that the court should require the clearest proof of the donor's intention to make the gift, and of every requisite necessary to make a valid donation causa mortis. One of these requisites is delivery." And the learned chancellor, after quoting extensively from the case of Yancey v. Field, supra, recently decided here, says: "This, I think, is a sound exposition of the law. It conforms to the policy of the law, which watches this mode of transfer of property with so much caution and jealousy; and, moreover, it seems to be the view which our supreme court of appeals has taken of it, and which is therefore binding on this court" (chancery court of Richmond city). In view of these extracts, it cannot be doubted what his decision was to be in this case.
Mr. Minor, in his third volume, speaking of the mode of perfecting the gift of a chattel between donor and donee (referring to a separate head,—the mode of perfecting a gift of chattels as to third parties), after referring to actual delivery, or its equivalent when the thing was incapable of actual delivery, as a prerequisite to a valid gift, says: "The donor must part not only with the possession, but with the dominion of the property." Says further, at page 81: "Much embarrassment having arisen, when the donor and done lived together (as, for example, in the case of father and child), in respect to what should be a sufficient delivery of the possession, it has been judicially enacted that 'if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession within the meaning of this section."
It was decided in this court in Shirley v. Long, 6 Rand. (Va.) 764, that a parol gift of a
— page 186 —slave to a son by his father, when they resided together, was void as between the donor and donee for want of actual possession. See also Hunter v. Jones, 6 Rand. (Va.) 541; Slaughter v. Tutt, 12 Leigh, 147; Tutt v. Slaughter, 5 Gratt. 364. This is a controversy as to the validity of a gift between the parties which is not valid as between them; that is, is no gift unless delivered in the mode prescribed by law.
I think this is conclusive of this case, but the learned chancellor who rendered the opinion appealed from has sustained the alleged gifts as to all except the alleged gift of the bank deposit by delivering the pass-book. As to this pass-book, I think he was right; as to all else, wrong. There was no valid gift, under the law, of anything. I do not consider it necessary to review the evidence, therefore, to sustain my view, as, admitting all that is claimed to be true, the gift was invalid for want of delivery; but I do not mean to concede that all that is testified to appears to me to be credible. It is an alleged gift of everything the donor possessed. This is the claim. Who was the donor? An infirm, sick man, advanced in years. At his bedside was the alleged donee, a colored married woman, acknowledged to be his child by the donor, no longer young. At her elbow another colored woman, which latter is the sole witness to prove the gift of this large estate, who, with much detail, recites the circumstances of the gift. No other person was present, no other witness was called in, although others were in the house. The gift is not of a trifle, or a competency, merely, but of everything the donor had in the world. What are the circumstances that tended to discredit this sweeping gift of everything the donor had in the world?
First. The donor had an intimate friend who had been chosen by him (the donor) to hold certain property for the alleged donee, and to whom he had conveyed certain lots in Richmond in trust for the alleged donee, and to whom, in a long intimacy, he had often spoken concerning this woman, and to whom he had said that a large bequest to the donee in her situation would do her no good. When the trustee called, after the donor's death, the donee said Thomas had made no will. She supposed she would get nothing except what he held in trust for her. When the story of the keys, etc., was noised abroad, he called to inquire about it, and asked the donee about it, and expressed his interest in her. The single witness, who was again at her elbow, cautioned her to say nothing on the subject, alleging that this was the advice of her counsel.
Secondly. It is also shown that Thomas, the donor, was negotiating with another gentleman and had procured his consent to act as trustee,—to hold other property for the donee,—about the time of his death; so that he appears to have considered a trustee necessary to hold and protect such property as he should give her.
Thirdly. It is also shown that at the time of his death he had consulted with a lawyer about making his will, and had an engagement to attend at the lawyer's office the next day after his death, to make his will. This lawyer was spoken to by the trustee of the donee to attend to her interest to establish this gift, or concerning it, but declined upon the ground that she had no case.
Fourthly. Although Thomas, the donor, as the evidence shows, was in the habit of talking a good deal about his property and his disposition of it, yet there is no person to whom he ever, before his gift, mentioned such an intention as giving all of his property to this woman, while Mr. Watkins, a witness, says he expressed a contrary purpose.
Fifthly. He had relatives with whom he was on good terms, and one of whom he was especially fond of, whose portrait hung over,—always over,—the mantel in the room where he slept; and a letter from him is exhibited by a relative, written by Thomas to inquire the full names of certain relatives of the deceased.
These circumstances stand not conclusively disproving the evidence of the single witness, but they do not render it any more probable. Moreover, the affidavit filed at the commencement and first assertion of the claim set up a gift testamentary in character, to be effected only after the death of the donor, (Basket v. Hassell, 107 U. S. 614, 27 L. ed. 500; Sterling v. Wilkinson, 83 Va. 791,) whereas, in her deposition, she, the single witness, leaves out all that indicates a postponement of the effectual delivery of the gift to the death of the decedent. The case alleged in her deposition is an absolute gift of everything the donor had, completely given, and the whole detail gone over more than once. If the law does not favor such gifts, (as it does not,) then, in strictness, this gift is not established by the testimony of one inconsistent witness.
I forbear comment upon the policy of the law which permits such gifts at all on the dying bed, but will refer to the remarks of Mr. Schouler in his treatise on the Law of Personal Property (vol. 2, pp. 182, 183, 184,) and the cases there cited, especially the views of Lord Eldon in Duffield v. Elwes, 1 Bligh, N. S. 533. In Virginia, I have heretofore thought that the character of delivery required by our statute would sufficiently protect the dying man, but, if there is no statute concerning the kind of delivery necessary to pass a dying man's estate on his deathbed by gift, then our Statute of Wills appears to be useless. This question is of no importance, so far as creditors are concerned; such gifts do not affect them or their debts; but the next of kin and distributees, near in blood or remote, are all concerned. One child against another, or one child against grandchildren, all may rest at the mercy of attendants. It opens wide the door for fraud and perjury, and I think Lord Eldon was right when he said: "Improvements in the law, or somethings which have been considered improvements, have been lately proposed; and if, among those things called 'improvements,' this donation mortis causa were struck out of our law altogether, it would be quite as well." "And at the present day, [says a learned author above mentioned,] when the effort to carry out the giver's intention has resulted in encouragement to a giver to leave his deliberate intention in lasting doubt, when legal consistency seems to require reluctant courts to uphold a nurse in sole attendance upon some foolish person in carrying off stock, bonds, and
— page 187 —promissory notes with little more ado than floor sweepings, or waste paper, utterly regardless of the claims of kindred, it is no wonder that we find the reports full of judicial regrets that the gift causa mortis was ever admitted to our law at all." Schouler, Pers. Prop. 184; Walsh v. Sexton, 55 Barb. 251; Tillinghast v. Wheaton, 8 R. I. 536, 94 Am. Dec. 126. "It is far better that a gift of this kind occasionally fail, than that the rules of law be so relaxed as to encourage fraud and perjury." Hatch v. Atkinson, 56 Me. 324, 96 Am. Dec. 464.
I feel constrained to dissent from the opinion of the other judges for the foregoing reasons.
Note.—Sufficiency of constructive delivery to sustain gift causa mortis.
The above case is an extraordinary one in respect to the magnitude of the gift resting on the testimony of a single witness as well as on the sufficiency of a constructive delivery by transfer of keys.
The question of the sufficiency of such a constructive delivery is one about which there is some conflict but the main case is fairly well supported by the prior decisions.
In an early English case, Jones v. Selby, Prec. in Ch. 300, the delivery of the key to a trunk was regarded as a sufficient delivery of the contents to sustain a gift causa mortis, and the question whether a tally upon the government for £500 was given therewith was held to depend on its presence in the trunk at the time of the gift. This decision seems fairly to represent the law to-day.
In Jones v. Brown, 34 N. H. 439, where a gift causa mortis by a married woman was held invalid without her husband's consent, it was held on the question of the sufficiency of the delivery of things in a chest that a delivery of the key was sufficient.
And in Sheegog v. Perkins, 4 Baxt. 273, it is said: "As to the manner of the gift by delivering the key it has been several times held that this would be a sufficient delivery."
In Coleman v. Parker, 114 Mass. 30, it was held that a key placed in the hands of another person by the donor who relinquished all dominion over it was a sufficient delivery of the contents of a trunk to which the key belonged, but that it was otherwise where the donor after having called for the key and opened the trunk directed the key to be replaced where it was found and it was left there until after his death.
In Cooper v. Burr, 45 Barb.9, a sufficient delivery of personal property in trunks, bureaus, etc., was held to be made for the purpose of a gift causa mortis by a delivery of the keys.
In Phipard v. Phipard, 55 Hun, 433, a delivery to one of the donees of a key to a box in a safe-deposit vault with an order to the custodian for its delivery was held sufficient as to a gift of an insurance policy in such box although there were other papers of the donor therein, where with the policy there was a paper signed by the insured with attesting witnesses stating that the insurance was for the benefit of the donees in the event of the donor's death before the maturity of the policy. The principal ground of the decision in this case, however, was that a trust was created for the donees.
In Stephenson v. King, 81 Ky. 425, 50 Am. Rep. 172, negotiable notes and bonds transferable by delivery are held to be sufficiently delivered for the purpose of a gift causa mortis by actual delivery of a letter from an agent acknowledging possession of them with a statement of their amounts and by delivery also of a key to a small writing desk in which the letter was kept.
In Devol v. Dye, 7 L. R. A.439, 123 Ind. 321, where a donor having a private box in a bank vault instructed a person who had the keys to count from the box a certain amount of money and label it as the property of the donee and deliver it to him with another such package in the event of the donor's death, and when informed that the packages are prepared gives approval and never again takes possession of the keys, it was held that a sufficient delivery was made.
But there are cases somewhat inconsistent with those above cited.
In Powell v. Hellicar, 26 Beav. 261, it was held that there was not a good delivery of the contents of a dressing case and boxes for a gift causa mortis by the delivery to a person of the keys thereof with directions to keep them and deliver the contents of the dressing case and box to the donees after the donor's death.
And in Hatch v. Atkins, 56 Me. 324, 96 Am. Dec. 464, the delivery to a person of the key of a trunk kept in a closet of the donor's own room with directions to keep it for the donee was held not a sufficient delivery of certain contents of the trunk to make a valid gift causa motis where the donor had other papers in the trunk and this remained his immediate observation. In this case there was also a lack of evidence of the alleged gift.
In Gano v. Fisk, 43 Ohio St. 462, 54 Am. Rep. 819, it was held there was no delivery of the contents of a box on a bureau in the donor's room where be told one child in the presence of others that he wanted her to take the box and divide the contents between them equally and to go and get the key, which she did and after finding by trial that it fitted the lock gave it to her husband to keep, but no division or delivery of the contents of the box was made during the donor's life.
In Reddel v. Dobree, 10 Sim. 244, a delivery to a donee of a locked cash box with the key, but with directions to get the key after the donor's death from his son, and with the injunction that the box should be returned to the donor every three months while he lived, was held not sufficient for a gift causa mortis as the donor retained control of the property.
The frequently quoted test of delivery that it shall be as good as can be made under the circumstances may serve to explain in some degree the lack of agreement in the above decisions as in several of those in which the delivery is held insufficient the property was at hand and of such kind that it could have been delivered as easily as the key.
In Bunn v. Markham, 7 Taunt. 224, a direction that keys should be delivered after the donor's decease was held insufficient as a constructive delivery, but here there was not even a constructive delivery during the donor's life.
Gift of savings bank deposit.
The authorities prior to the main case were well settled in accordance with the minority view of Fauntleroy, J., in that case, that a gift causa mortis of money in a savings bank may be made by delivery of the savings bank book. Ridden v. Thrall, 11 L. R. A. 684, 125 N. Y. 572; Pierce v. Boston Five Cents Sav. Bank, 129 Mass. 425, 37 Am. Rep. 371; Walsh v. Bowery Sav. Bank, 15 Daly, 403, 405; Glynn v. Seaman's Fund Sav. Bank, 9 N. Y. S. R. 499; Camp's App. 36 Conn. 88, 4 Am. Rep. 39.
And a fortiori a delivery of the book together with an assignment is sufficient for such a gift. Sheedy v. Roach, 124 Mass. 472, 26 Am. Rep. 680.
But a sufficient delivery of such a book is not made for a gift causa mortis by mere words of gift without actually delivering the book although it was at the time in a trunk to which the donee, who was the donor's husband, had access and in which he also kept his papers. Dean v. Dean, 43 Vt. 337.
A delivery of receipts for the consideration money of the purchase of annuities was held in an early case not a sufficient delivery for a gift causa mortis of such annuities. Ward v. Turner, 2 Ves. Sr. 431.
But the delivery of an absolute assignment in writing of shares of stock in a corporation is sufficient for a gift causa mortis although the certificates of stock are not delivered and the transfer is not completed on the books of the corporation. Grymes v. Hone, 49 N.Y. 17, 10 Am. Rep. 330.
And the delivery of an attorney's receipt for a bond in suit and which was filed among the papers in the case is a sufficient delivery of the bond for the purpose of a gift causa mortis, this being the best possible delivery. Elam v. Keen, 4 Leigh, 333, 26 Am. Dec. 322.
In Ellis v. Secor, 31 Mich. 185, 18 Am. Rep. 178, a valid gift causa mortis of securities in a valise was held to be made by writing on a slate by the bed side of the donor stating that she wanted the done to take possession of all her property and directing him to look in the valise, while in the valise with the securities was an envelope directed to him containing a writing which authorized him to take possession of the effects and do with them as he saw fit. This decision touches another question not entered upon in this note, as to the necessity of any delivery to sustain a gift causa mortis. That question will be taken up in a subsequent note.
For notes on the general subject of gifts causa mortis, see Ridden v. Thrall (N.Y.) 11 L. R. A. 684; Devol v. Dye (Ind.) 7 L. R. A. 439; Williams v. Guile (N.Y.) 6 L. R. A. 366; Drew v. Hagerty (Me.) 3 L. R. A. 230; Walsh's App. (Pa.) 1 L. R. A. 535.