half the judgment he might obtain forence to the motives which prompted said witnesses to prove it?" answered, "I will Callihan to execute and deliver said note to just answer that in this way, 'No, sir-ee, her, that "it was for the considerate purBob;"" and on this point he is squarely con- pose of aiding her in forming such alliance tradicted by the deposition of said Charles as would be suitable to the condition of S. Callihan, and six of his neighbors testi- his family, which was the most wealthy fied that his reputation for truth and ve- and substantial in the county," when the racity was bad, and they would not be- evidence shows that he offered her said note lieve him on oath, although more than upon condition that she would not marry double that number testified that his repu- this man Board, whom he disliked; and tation was good, and that they would be- when P. G. Crislip was examined by the lieve him on oath. His testimony must, defendants he states that said note did at least, be regarded with suspicion; and not bear interest according to his recollecthe circumstance that he is acquainted tion, and it appeared to him there was with the fact that the plaintiff G. W. Board some condition in the note that she was to was in search of witnesses, and offering marry as he wanted her to. This testihalf of the recovery if he could prove the mony, to say the least of it, is too uncerexecution and delivery of said note, does tain and indefinite to authorize a court to not in any manner detract from the sus- ascertain what the terms of this obligation picion which should attach to his charac- were. ter.

The evidence shows that said Lucinda The remaining witness who claims to married George W. Board in 1857. Johnhave seen this note is Perry Green Crislip, son W. Crislip fixes the date at about the who testifies that in the summer of 1855, he year 1856, when he tendered said note to thinks in June, William W. R. Callihan, in said Lucinda upon condition that she his presence, gave to said Lucinda a note would have nothing more to say to Board, for $1,500, payable at his death, and he be- which note she then indignantly refused, lieves he witnessed the note. That some and returned it to him, and said Callihan six months after this at said Callihan's then remarked that she should never have house he heard a conversation between one cent of his estate without she did as he William W. R. Callihan and Lucinda to this wanted her to. Samuel Crislip states that effect: Callihan proposed to sell her 50 acres he saw this note two or three weeks before of land, at $40 per acre, and take up the the marriage of said Lucinda, in her posses$1,500 note, and give him her note for $500, sion, but Mary Simon states in her deposiwhich she declined, because she did not tion that she had a conversation with said know where to raise the $500. Now, it is William W. R. Callihan shortly before said extremely difficult to reconcile this testi- marriage, in which he said she was too mony with that of Johnson W. Crislip, who young to marry, and that if she had states that in the year 1856 said William stayed with him until she became a woW. R. Callihan sent by him his note for man's age that he would have made her a $1,500 to be presented to said Lucinda Calli- nice present, but that he did not know that. han, upon condition that she would have he would give her anything now. Then nothing more to say to said G. W. Board; the witness Worthington Douglas states that he did so present it, and informed her that George W. Board wanted him to swear that her grandfather said that if she ever that he knew of the note, and offered him did have anything to do with said Board a portion of the recovery if he was successhe would disinherit her, and would never ful, and that he heard said Lucinda say give her one cent; and she returned said that she thanked her grandpap for what he note to witness, and sent an insulting had done for her; that he had never given message to her grandfather. This note was her the wrappings of her finger; and Celia made payable some time after the death of Hickman, Jonathan Adams, and M. D. said William W. R. Callihan, and witness Reed all testified that they heard said Lureturned the note to him, and delivered cinda Board say, in substance, that she her message, who took the note back, and had received nothing that she knew of from said she should never have one cent of his her said grandfather. Alfred Armstrong estate without she did as he wanted her states that he heard said William W. R. to. Is it at all probable that said William Callihan tell her that she should never have W. R. Callihan would, as Johnson W. Cris- a cent as long as she lived, and E. D. Westlip swears, be presenting her a note for fall saw him just after the marriage. He $1,500 in 1856, either conditional or uncon- was very much enraged, and said he had ditional, if she had already in her posses- never given her anything, and be d―d if sion his said note for $1,500, which Perry G. he ever would; and while it is true that the Crislip says he saw said William W. R. Calli-witnesses John R. Brown and Daniel Boyhan give her in the summer of 1855, when len state that William W. R. Callihan said he took him two boxes of honey, and all the female plaintiff was to have money from of the plaintiffs' witnesses who speak of his estate, the former stating that said this note claim that it bore date in 1855, Callihan told him in 1858 or 1859 that he and carried interest from June, 1855? It is had given G. W. Board's wife a note for not claimed that said Callihan gave said about $1,500, which was not to be paid Lucinda two notes for $1,500, yet we must during his life; the latter stating that said believe that he offered her a second note Callihan informed him that the female for $1,500, if she would have nothing fur- plaintiff would be able some day to pay for ther to say to Board, if we reconcile the the Charles Nutte farm, worth $1,500 or testimony of Perry Green Crislip with that $2,000, as he had arranged that she was to of Johnson W. Crislip. This testimony have money from his estate,-and Austin does not accord well with the allegation of Reeder also states that on the 29th of plaintiff's bill. She therein avers, in refer- March, 1874, said William R. Callihan told

him he had already made provisions for tunity to set up a fraudulent pretense of a said Board's wife, that she was to have gift inter vivos than of a gift causa mortis.” $1,500, or get it, yet these statements are In the case of Conklin v. Conklin, 20 Hun, met by her own declarations to Celia Hick-279, the court quotes with approval from man, Jonathan Adams, Penelope I. Calli- the case of Coutant v. Schuyler, 1 Paige, han, and M. D. Reed that her grandfather 316, the following language: "It is clear had left her nothing. Another circumstance that if I own a chattel, not a chose in acwhich indicates that the plaintiffs did not tion, to-day, and next week it is found in at first intend to assert this claim is that another's possession, the law does not preit appears that on the 5th day of January, sume a legal transfer of the title to the pos1876, said G. W. Board sued the adminis-sessor, but as against me, if title beclaimed, trator of said William R. Callihan on a he must prove it. Why should any differsmall account for potatoes and produce, in ent rule prevail as to a promissory note?" the county court of Barbour county, four "But if any presumption of title or of payyears before this suit was brought, and it ment prevail by mere possession, it is only would be reasonable to suppose that if the where the possession is free from suspiplaintiffs had this large claim they would cion." The learned judge says: "We connot have delayed its assertion for six years cur in the good sense of these observations, after the death of said William R. Calli- for we think nothing would be more injurihan. ous to the administration of the law than to permit the mere fact of possession of property, shown to have belonged to a deceased person a few days before his death, by relatives or persons residing in the same family and having access thereto, to be satisfactory or even prima facie evidence of title."

In Parsons on Contracts (volume 1, p. 234) the author says: "It is essential to a gift that it goes into effect at once, and completely. If it regards the future, it is but a promise, and, being a promise without consideration, it cannot be enforced, and has no legal validity. Hence delivery is essential to the validity of every gift." Is the evidence of P. G. Crislip free from Now, in this case, the delivery of this obliga-suspicion? He says he was at James D. tion to the female plaintiff in the year 1855 Hall's in June, 1855, having brought him by said William W. R. Callihan is alleged two boxes of honey. "William W. R. Calliin the bill and denied in the answer, and han was there, and in my presence gave to the only witness who pretends to prove Lucinda Callihan a note for the sum of $1,said delivery is P. G. Crislip, and he fixes 500, payable at his death." He believes he the date of said delivery in June, 1855, and witnessed it. What need was there for a says he believes he witnessed the note. But witness? He does not say he read it, but how can we give credence to this statement he does say in his second deposition that it when he is again called as a witness, and did not bear interest, and that there was a states that it appears to him there was a condition in it that she was to marry as he condition in said note that she was to mar- wanted her. If he proves anything, he ry as he wanted her, but he cannot recollect proves too much for the plaintiffs, and they positive, and also stated that said note feel called upon to place their attorney in did not bear interest, although in his first this case and the law case on the stand to deposition he had left the impression that contradict him. It seems to me that the said note was unconditional, and bore proof in the cause is not sufficient to show interest; and when asked if he did not state that any note or bond was ever delivered at the trial of the law case, on cross-ex- by said William W. R. Callihan to the plainamination, that there was no condition to tiff Lucinda Board, or, if so executed and said note, or words to that effect, he denied delivered, the circumstances tend to show it; and one of the counsel who first intro- that it was coupled with the condition that duced him as a witness was called as a wit- she was not to marry the plaintiff G. W. ness, and contradicted his statement? And Board. But, if the proof was sufficient to again, if the statement of P. G. Crislip as establish the delivery of said bonds, does the to the delivery of said obligation was true, evidence establish the terms of the contract why was said Callihan again sending her with that certainty and definiteness that his obligation for $1,500 in 1856, by John- would enable the court to specifically enson W. Crislip, to be delivered to her if she force it against the estate of said William would have nothing further to say to W. R. Callihan? P. G. Crislip, the only witGeorge W. Board? and would said Lucinda ness that pretends to prove the delivery of herself have been repeatedly declaring that said obligation, says it did not bear interher grandfather had given her nothing that est, and Samuel Crislip, who claims to have she knew of, if she had this obligation for read the note, says that it did. P. G. Cris$1,500 in her possession, bearing interest? lip also says that "it appears to me there And the loss is alleged in the bill, and was some condition in said note that she squarely denied, and no witness proves the was to marry as he wanted," and that he loss. In the case of Seabright v. Seabright, was the subscribing witness. It cannot 28 W. Va. 483, in which the question was be that a court of equity will enforce a whether notes amounting in value to $22,- contract proven as this one was, against 000 had been given by Louis Seabright the estate of a dead man. But if this paper shortly before his death to his two half was executed and delivered, and we adopt brothers, GREEN, J., in delivering the opin- either the version of its contents given by ion of the court, says. "The delivery of the Samuel Crislip or P. G. Crislip, can it be repossession to the donee to perfect a gift garded otherwise than simply a testamentinter vivos is necessary; but the courts re-ary paper, and as such inoperative? In the quire less stringent proof of delivery to establish such gifts than to establish gifts causa mortis, as there is usually less oppor

case of Habergham v. Vincent, 2 Ves. Jr. 204, it is held that an instrument in any form, whether deed poll or indenture, if the obvi

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*

ous purpose is not to take place till after voluntary, said land could not be subjectthe decease of the person making it, shall ed after the lapse of five years. Again, operate as a will. In the case of Master- this court has held in the case of Bank v. man v. Maberly, 2 Hagg. Ecc. 235, the Good, 21 W. Va. 455: "A judgment against court held that where a paper is not in- the personal representatives of an estate is tended as a will, but as an instrument of a not even prima facie, much less conclusive, different nature, if it cannot operate in the evidence against the devisee or heir of such latter it may in the former character, for estate, and the fact that the same person the form does not effect its title to probate, may be both personal representative and provided it is to carry into effect the in- heir or devisee does not constitute an extention of the deceased after death." In Reception to the rule." Also in Saddler's Knight, 2 Hagg. Ecc. 554, the court probated Adm'r v. Kennedy's Adm'r, 26 W. Va. 636, a deed testamentary in its whole purport the same ruling is found; and in that case and effect, and not to operate till after this court also holds that in a suit brought death. In the case of Frew v. Clarke, 80 Pa. on such a judgment, to subject the real asSt. 170, the following paper was held to be sets descended, such judgment against the testamentary: "Know all men by these personal representative will not prevent presents, that I, James McCully, the heirs from relying on the statute of limitations as a bar to the original cause of action in said suit. Yet the circuit court in this cause in its decree, after setting forth that the plaintiffs had recovered judgment against the administrator of the estate of said William W. R. Callihan for $1,500, with interest and $242.60 costs, decreed that said sum of $1,500, and the interest accruing thereon, together with said costs, constituted a proper charge against the estate of said William W. R. Callihan in the hands of his administrator, heirs, devisees, and voluntary alienees, and proceeded to declare the conveyances hereinbefore mentioned as made by said William W. R. Callihan in his life-time fraudulent and void as to said debt, and to direct a sale of said 116-acre tract. It is clear that the court below erred in holding said real estate chargeable with said sum of $1,500, with its accrued interest and costs, and that the same or any portion of it can be subjected to the payment thereof; and, having arrived at this conclusion, it renders it unnecessary to pass upon the questions raised in the assignment of errors as to want of necessary parties, although I may say that all persons interested in said real estate were necessary parties to a suit brought to sell the same.

do order and direct my administrators or executors, in case of my death, to pay to Robert D. Clarke the sum of $75,000, as a token of my regard for him, and to commemorate the long friendship existing between us. Witness my hand and seal this 17th day of April, A. D. 1872. JAMES MCCULLY. [Seal.]" An instrument in any form, if the obvious purpose is to take place after the death of the person making it, operates as a will. In the case of Hunt v. Hunt, 4 N. H. 434, it is held: "Where the payee of a note wrote upon the back of it as follows: 'If I am not living at the time this note is paid, I order the contents to be paid to A. H.,' and, having signed it, afterwards died before the note was paid, -it was held that the indorsement was testamentary, and entitled to probate as a will." In Jackson v. Jackson, 6 Dana, 258, the court held that "the form of a will of personalty is not material. Any writing which shows the maker's intention that the whole or a part of his effects shall pass at his death to a designated individual or person may, it seems, be sustained as a testamentary provision." A court of chancery will take jurisdiction of a case upon a lost writing, but very clear proof of its execution and contents is required; and in the case of Cover v Stem, 67 Md. 449, 10 Atl. Rep. 231, an instrument in the following form was made and delivered to the person therein named: "Maryland, September 4, 1884. At my death my estate or my executor pay to July Ann Cover three thousand dollars. DAVID ENGEL, of P. [Seal.] Witness: COLUMBUS COVER." In an action of debt on this instrument, as a writing obligatory, after the death of the maker against his executor, it was held that it was a testamentary paper, and no recovery could be had thereon.

The decree complained of must be reversed, and the cause must be remanded to the circuit court of Barbour county for further proceedings to be had therein in accordance with the principles announced in this opinion and the rules of equity, and the appellant must recover the costs of this appeal.

SNYDER, P., and BRANNON, J., concurred in syllabus and conclusion. GREEN, J., absent.

CALVO V. RAILROAD CO.
(Supreme Court of South Carolina.
11, 1888.)
APPEAL-DISMISSAL.

Dec.

From these authorities I can arrive at no other conclusion than that the said paper, if ever delivered, could not be enforced against the estate of said Callihan, not only on account of the indefiniteness and uncertainty as to its character and con- The fact that appellant thought that during tents, but because it must be regarded as the pendency of a motion made by him at circuit a testamentary paper, which has not been to vacate the judgment he could not proceed with properly proven; and again, if said obli- an appeal theretofore taken will not excuse his gation was valid, and its execution and failure to file the return within 40 days, as required delivery satisfactorily established, it could by Rule of Court S. C. 1. not be satisfied out of the lands conveyed away by said Callihan in his life-time, because the suit was not instituted for more than five years after the death of said Callihan, and, even if said conveyances were

Motion to reinstate an appeal dismissed for failure to file the return, as required by rule 1, within 40 days after the record was completed. Appellant insisted that his failure to file the return was occasioned by the

No opinion. Motion denied on the ground SIMPSON, C. J. We have carefully exthat a "case agreed to will not dispense amined this petition, and, finding that no with the requirement of rule 2, that the re-material fact or principle of law has been turn be filed, unless it is also agreed that the "case" shall constitute the return.

agent by his principal, the circular itself should | testified that he did not see the fertilizer, have been produced, or explanation made of the and did not know whether it was tagged failure to do so, before evidence of its contents or not. There was a verdict for plaintiffs would be admissible.

2. Hearsay and uncertain testimony as to analyses, made by the state chemist, and as to dissatisfaction given by the fertilizer to others, their refusal to pay for it, etc., was properly excluded.

for $128, besides interest and attorney's fees. A motion for a new trial was overruled, and defendant brings error.

The grounds of the motion for a new 3. To authorize the grant of a new trial for ex- trial were that the verdict was contrary cluding evidence, it must be clearly shown that to the law and the evidence, and that the the testimony offered would elucidate some issue court erred in excluding from the considermade, and was legally admissible for that pur-ation of the jury certain testimony offered pose. If a witness derived information that the fertilizer sold did not come up to the required analysis, from an analysis made by himself of the guano sold, his testimony upon the point would be admissible; but if based on information from others, or from its effects on crops, it should have been excluded. De Loach v. Hardee, 64 Ga. 94; Allen v. Young, 62 Ga. 617.

4. A plea which set up that defendant was to have the privilege of paying the debt in a manner not stipulated in the original contract, and that pursuant to this agreement he paid a part, and was to pay the balance afterwards, but which did not aver that plaintiffs obtained any advantage by this agreement, or that defendant gave any new consideration or additional security, or executed the agreement by paying the amount agreed on, should have been stricken, and all the evidence introduced under it excluded. Code, §§ 2880, 2881.

(Syllabus by the Official Reporter.)

Error from superior court, Bibb county; SIMMONS, Judge.

by defendant. The testimony of one Anderson, who sold the fertilizer to defendant, the exclusion of which is now assigned as error, was to the following effect: That he represented to defendant that the "Gilt Edge" fertilizer, the brand sold, was a high grade, containing 10 per cent. of available phosphoric acid; that the representation was made on the faith of a printed circular sent out by plaintiffs to their agents, and by virtue of authority given him. by a member of plaintiffs' firm; that after the sale in question several analyses of the "Gilt Edge" fertilizer were made, and the available phosphoric acid was found to vary from 5 to 10 per cent.; that the "Gilt Edge" proved very unsatisfactory that year; that, while a few purchasers paid for it, they did so under protest; and that in all cases where the right to recover was contested Action by Ramspeck & Green against R. there was either no recovery or a nominal M. Patterson on a note for $264, given for one. The witness also stated that he did the price of a quantity of fertilizer. The note not see the lot of fertilizer sold to defendant, recited that the fertilizer had “the guaran- and had no knowledge as to whether it was tied analysis on each sack;" that it was tagged and the analysis made according properly tagged as required by law; that to law. He stated, further, that he saw the maker purchased the fertilizer on his the crop on which defendant had used the judgment, waiving all guaranty as to effects fertilizer in question, and that the crop on crops, and provided that the note might showed little, if any, benefit from it, while be discharged by the delivery, at or before the effect of other fertilizers used in the maturity, of cotton of a certain grade, at same field appeared very plainly. It was 15 cents a pound; that the maker should objected, further, that the court erred in repay all attorney's fees and costs of collec-fusing to allow the witness Anderson to antion; and that he thereby waived all ex-swer questions put to him as to whether emptions as to that note. Defendant filed the fertilizer sold by him for plaintiffs, in four pleas, as follows: (1) A general de- the year that the sale in question to defendnial; (2) failure of consideration, in that ant was made, came up to the required the fertilizer was represented as a very supe- analysis," and as to what representations rior article, when in fact it was of no value the agent of plaintiffs from whom witness whatever, and that it was not tagged and bought the fertilizer made as to its qualinspected according to law, (3) a set-off ity. After the evidence of the witness Anfor money paid to plaintiffs on account of derson had been given, defendant, in purthe note in suit before defendant became suance of a previous notice, amended his aware of the fact that the fertilizer deliv-fourth plea so as to allege, as stated above, ered to him was not as represented by that the parties had entered into a subseplaintiffs; and (4) that afterwards the parties agreed that defendant should pay the note in cotton of the grade and at the price specified in the note, and that he did pay $136 under this agreement. Plaintiffs relied on the note in suit, and offered no further evidence. Defendant introduced testimony to the effect that he had paid plaintiffs $136 in cotton, and that at the time of the payment it was agreed between the parties that defendant was to pay the balance due on the note, with interest at the rate of 8 per cent. per annum, in the fall of 1884, as alleged in his fourth plea. Defendant introduced an analysis by the commissioner of agriculture, to show that the amount of available phosphoric acid in the fertilizer was less than the amount represented at the time of the sale. Defendant

66

quent agreement as to the payment of the
note. The court struck out this fourth
plea, and withdrew the testimony of the
witness Anderson set out above. Defend-
ant also offered to show the value of cot-
ton of the grade referred to in his plea at
the time of the alleged agreement, in order
to show the value of the note on that ba-
sis. The court refused to receive this evi-
dence. The motion for a new trial was
overruled, and defendant brings error.
R. W. Patterson, for plaintiff in error.
Lyon & Estes, for defendants in error.

BOYNTON, J. The head-notes in this case are full, and cover all the points in the record, and are quite as comprehensive as a longer opinion would be. Judgment af|firmed.