there is no presumption of law, that either of two persons perishing in a common catastrophe survives the other. That the question is wholly one of fact and must be determined as such upon the evidence. That the party on whom the onus lies, must fail in the absence of evidence satisfactory to sustain the conclusion he seeks to establish.

Upon this subject, see Dig. lib. 34, tit. 5, chap. 10, arts. 22, 23, De Rebus Dubiis; Toulier, Droit Civil Français, tom. iv. No. 76; Causes Célèbres, tom. iii. p. 412, et seq. The 720th article of the Code Civil is as follows: "Si plusieurs personnes respectivement appelées à la succession l'une de l'autre périssent dans un même évènement sans qu'on puisse reconnaitre laquelle est décédée la premiere, la présomption de survie est déterminée par les circonstances du fait, et, à leur défaut, par la force de l'âge ou du sexe." Upon this a learned commentator, M. Rogron, remarks as follows:

Périssent dans un même évènement. Il devient alors indispensable de fixer laquelle de ces personnes a survécu aux autres, et par consequent leur a succédé. Si on ne peut pas le faire pas des preuves certaines, on sera forcé de s'arréter à des presomptions plus ou moins fortes, car il faut bien nécessairement que ces successions soient données à l'une de ces personnes.

Par les circonstances du fait.— Par exemple, dans l'incindie d'une maison qui a commencé par le premier étage, ceux qui l'habitaient ont péri probablement avant ceux qui habitaient les étages supérieurs; dans un naufrage, ceux qui savaient nager ont survécu probablement à ceux qui ne le savaient pas.

A leur défaut. Ce n'est que dans les cas où les circonstances manquent entièrement, que l'on a recours aux présomptions fondées sur l'âge et sur la force, parcequ' elles ont toujours quelque chose de très incertain.

The foregoing extracts are taken from the reporter's note to Sillick v. Booth, 1 Younge & Collyer, Cas. in Ch. 126.

LECTURE XXXVIII.

OF TITLE TO PERSONAL PROPERTY BY GIFT.

TITI.E to personal property arising from transfer by act of the party may be acquired by gift and by contract.

There has been much discussion among the writers on the civil law, whether a gift was not properly a contract, inasmuch as it is not perfect without delivery and acceptance, which imply a convention between the parties. In the opinion of Toullier, (a) every gift is a contract, for it is founded on agreement; while, on the other hand, Puffendorf had excluded it from the class of contracts, out of deference to the Roman lawyers, who restrained the definition of a contract to engagements resulting from negotiation. Barbeyrac, in his notes to Puffendorf, (b) insists that, upon principles of natural law, a gift inter vivos, and which ordidinarily is expressed by the simple term gift, is a true contract; for the donor irrevocably divests himself of a right to a thing, and transfers it gratuitously to another, who accepts it; and which acceptance he rationally contends to be necessary to the validity of the transfer. The English law does not consider a gift, strictly speaking, in the light of a contract, because it is voluntary, and without consideration; whereas a contract is defined *to *438 be an agreement upon sufficient consideration to do or not

to do a particular thing. (a) And yet every gift which is made perfect by delivery, and every grant, are executed contracts; for they are founded on the mutual consent of the parties, in reference to a right or interest passing between them.

There are two kinds of gifts: 1. Gifts simply so called, or gifts inter vivos, as they were distinguished in the civil law; 2. Gifts causâ mortis, or those made in apprehension of death. The rules

(a) Droit Civil Français, tom. v. Des Donations Entre Vifs, secs. 4, 5, and n. 1.

(b) Droit Des Gens, liv. v. ch. 3, sec. 10, n. 5.

(a) 2 Blacks. Com. 442.

by which they are governed are different and quite distinct, and they were taken from the Roman law.

1

1. Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. Delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel or chose in action; and it is the same whether it be a gift inter vivos or causâ mortis. (b)1 Without actual delivery, the title does not pass. A mere intention, or naked promise to give, without some act to pass the property, is not a gift. There exists the locus pænitentiæ, so long as the gift is incomplete and left imperfect in the mode of making it; and a court of equity will not interfere and give effect to a gift left inchoate and imperfect. (e) The necessity of delivery has been maintained in every period of the English law. Donatio perficitur possessione accipientis, was one of its ancient maxims. (d) The subject of the gift must be certain, and there must be the mutual consent and concurrent will of both parties. It is, nevertheless, hinted or assumed, in ancient and modern cases, (e) that a gift of a chattel, by deed or writing,

(b) Irons v. Smallpiece, 2 B. & Ald. 551. Bunn v. Markham, 7 Taunt. 227. Bryson v. Brownrigg, 9 Vesey, 1. Antrobus v. Smith, 12 Idem, 39. Hooper v. Goodwin, 1 Swanst. 485. Sims v. Sims, 2 Alab. (N. S.) 117. Noble v. Smith, 2 Johns. 52. Adams v. Hayes, 2 Ired. (N. C.) 366. But though the two cases first mentioned do not advert to any distinction between gifts inter vivos and gifts causâ mortis, there are cases which do make it, and consider a gift inter vivos, by parol, accompanied by acceptance, good to pass the property, without actual delivery of the chattel. Com. Dig. tit. Biens, D. 2. 2 Mann. & Gr. 691, note c.

(c) Antrobus v. Smith, 12 Vesey, 39. Pennington v. Gittings, 2 Gill & Johns. 208. (d) Jenk. Cent. 109, case 9. Bracton, de acquirendo rerum dominio, lib. 2, 15, 16. The delivery must be, if not actual, yet, under the circumstances, constructive or symbolical. Carradine v. Collins, 7 Smedes & Marsh. 428. In South Carolina, it is declared by statute, in 1830, that no parol gift of any chattel shall be valid against subsequent creditors, purchasers, or mortgagees, except where the donee is separate and apart from the donor, and actual possession delivered at the time, and continued in the donee and his representatives.

(e) Flower's case, Noy 67. Irons v. Smallpiece, 2 B. & Ald. 551. Caines v. Marley, 2 Yerger (Tenn.) 582.

1 Carpenter v. Dodge, 20 Vermont, 595. Withers v. Weaver, 10 Barr, 391. Allen v. Polereczky, 31 Maine, 338. Dole v. Lincoln, 3 Ibid. 422. Huntington v. Gilmore, 14 Barb. (N. Y.) 243. People v. Johnson, 14 Ill. 342. Hunter v. Hunter, 19 Barb. (N. Y.) 631. Brown v. Brown, 23 Barb. (N. Y.) 565. Hitch v. Davis, 3 Md. Ch. 266. Woodruff v. Cook, 25 Barb. (N. Y.) 505. Cutting v. Gilman, 41 N. Hamp. 147. Harris v. Clarke, 3 N. Y. 93. But it is not necessary for the delivery to be simultaneous with the words of conveyance. Gillespie v. Burleson, 28 Ala. 551.

might do without delivery; for an assignment in writing would be tantamount to delivery. But in Cotteen v. 439 Missing, (a) a letter to executors, expressing a consent that a specific sum of money be given to a donee, was not a sufficient act in writing; and it was held not to be a gift of so much money in their hands, because the consent was not executed and carried into effect, and a further act was wanting in that case to pass the money. The vice-chancellor held, that money paid into the hands of B., for the benefit of a third person, was countermandable, so long as it remained in the hands of B. (b) A parol promise to pay money as a gift is not binding, and the party may revoke his promise; (c) and a parol gift of a note from a father to a son was held not to be recoverable from the executors of the father. (d)

Delivery, in this, as in every other case, must be according to the nature of a thing. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. (e). If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed. Therefore, where a donor expressed by letter his intention of relinquishing his share of an estate, and directed the preparation of a release of the personal estate, and he died before it was executed, it was held that his intention, not being perfected, did not amount to a gift. (ƒ)3

(a) 1 Madd. Ch. 176.

(c) Pearson v. Pearson, 7 Johns. 26. (d) Fink v. Cox, 18 Johns. 145.

Harris v. Clark, 3 Comst. 93.

(e) Hawkins v. Blewitt, 2 Esp. 663. (f) Hooper v. Goodwin, 1 Swamst.

(b) 1 Dyer, 49 a, S. P.

Pitts v. Mangum, 2 Bailey (S. C.) 588, S. P.

Noble v. Smith, 2 Johns. 52.

485. Picot v. Sanderson, 1 Dev. (N. C.) 309,

1 Chadoin v. Carter, 12 B. Mon. 383. Roland v. Schrack, 29 Penn. 125.

2 It may be constructive. Pope v. Randolph, 13 Ala. 214. Carradine v. Collins, 7 Smedes & Marsh. 428. Blakey v. Blakey, 9 Ala. 391. Anderson v. Baker, 1 Kelly, 595. Hillebrant v. Brewer, 6 Texas, 45.

So a direction by a creditor to deliver notes to his debtor, not complied with, is no release

*440

*When the gift is perfect, by delivery and acceptance, it is then irrevocable, unless it be prejudicial to creditors, or the donor was under a legal incapacity, or was circumvented by fraud. A pure and perfect gift inter vivos was also held by the Roman law to be in its nature irrevocable; and yet in that law it was nevertheless revocable for special reason, such as extreme ingratitude in the donee, or the unexpected birth of a child to the donor, or when sufficient property was not left with the donor to satisfy prior legal demands. (a) The English law does not indulge in these refinements, though it controls gifts when made to the prejudice of existing creditors.

8

By the statutes of 50 Ed. III. ch. 6, and 3 Hen. VII. ch. 4, all fraudulent gifts of goods and chattels in trust for the donor, and to defraud creditors, were declared void; and by the statute of 13 Eliz. ch. 5, gifts of goods and chattels, as well as of lands, by writing or otherwise, made with intent to delay, hinder, and defraud creditors, were rendered void, as against the person to whom such fraud would be prejudicial. But the statute excepted from its operation estates or interests in lands or chattels conveyed or assured bonâ fide and upon good consideration, without notice of any fraud or collusion. The statute of 27 Eliz. ch. 4, was made

S. P. By the Civil Code of Louisiana, edited by Upton & Jennings, art. 1523, a donation inter vivos, of immovables and choses in action, must be verified before a notary and two witnesses, unless it be manual gifts, accompanied with actual delivery.

(a) Code, lib. 8, tit. 56, De Revocandis Donationibus, 1, 10. Ibid. 1, 8. Code, lib. 3, tit. 29, De Inofficiosis Donationibus. Puff. Droit des Gens, par Barbeyrac, tom. ii. 53 n. So, by the Civil Code of Louisiana, art. 1484, 1485, the donation would be void if the donor divested himself of all his property, and did not reserve enough for his own subsistence; and he cannot deprive his descendants of a certain portion. Legrange v. Barré, 11 Rob. (Louis.) 302.2

to the debtor, and the notes remain as assets of the estate. Campbell's Estate, 7 Barr, 100. Penfield v. Thayer, 2 E. D. Smith (N. Y.) 305. Nor is a gift of the donor's own promissory note or draft valid as a donatio causâ mortis. Star v. Star, 9 Ohio, 74. Harris v. Clark, 3 N. Y. 93.

1 Gilchrist v. Stevenson, 9 Barb. (N. Y.) 9. Marston v. Marston, 1 Foster, 491. Sanborn v. Goodhue, 8 Ibid. 48. Van Deusen v. Rowley, 4 Seld. 358. Reed v. Spaulding, 42 N. Hamp. 114. Such a gift may be in trust for others than the donee, and the trust will be enforced in equity. Dresser v. Dresser, 46 Maine, 48.

* As to what kind of donation is not prohibited by the Code, see Bourgeat ♥. Dumoulin, 12 Louis. An. 204.

3 See Curtis v. Leavitt, 15 N. Y. 147.

In Mebane v. Mebane, the doctrine was declared, that property cannot be given to a man, or to another for him, in such manner as to permit him to take the benefit of it, and