Pardee was not present was held properly excluded, as an indirect attempt to prove a personal transaction with Pardee. The best thing that can be done with section 809 is to repeal it. It is a constant pons asinorum, and works more wrong than right. In Steinbrunner v. Pittsburg & W. R. Co., Supreme Court of Pennsylvania, January 4, 1892, it was held that in a case where the expectation of life of deceased is a question for the jury, the Carlisle mortality tables are admissible in evidence, but are not conclusive, the expectation being affected by the particular circumstances of the case. The court said: "The question asked the witness was, 'Will you state to the jury what the expectation of life is of a man in good health, forty-six years of age?' and the answer was: "The Carlisle table would make it twenty-three and eighty-one onehundreths years; the American table twenty-three and eight-tenths years.' Neither of the tables appears to have been offered in evidence, but as the answer of the witness was based upon evidence obtained from them, their effect may well be considered in connection with this specification; and, as the American table depends upon the same principle as the Carlisle table, we will discuss the question more particularly in reference to the latter. In estimating the damages for the death of the deceased, his expectation of life became an element of importance. His earning power being fixed by the evidence, the next question to be settled by the jury would naturally be, how many years will he probably live to exercise this power? This can never be decided accurately in single cases. The most a jury or any one else can do is to approximate it. A man may die in a day or he may live to earn wages for twenty years. It follows that there must always be an element of uncertainty in every such case. But there are some rules to be observed which aid to some extent in such investigations. Thus, if a man is in poor health, especially if he is suffering from some organic disease which necessarily tends to shorten life, his expectancy is much less than that of a man in robust health. Again, the age of the person and his habits are among the important matters for consideration. It needs no argument to show that the expectation of life is much greater at twenty-one years of age than at fifty. The value of the Carlisle tables as bearing upon this question depends in a measure upon the manner in which they were made up. If based upon selected lives, that is to say only upon lives which are insurable, they would be of value only for life insurance purposes, and utterly useless to apply to unselected lives or lives generally. The evidence in this case is not very clear as to the mode in which these tables were composed. I have therefore consulted the Encyclopædia Britannica, a very high authority (vol. 18, p. 169), from which I extract the following: The Carlisle table was constructed by Mr. Joshua Milne from materials furnished by the labors of Doctor John Heycham. These materials comprised two enumerations of the population of the parishes of St. Mary and St. Cuth bert, Carlisle (England), in 1780 and 1787 (the number of the former year having been 7,677 and in the latter 8,677), and the abridged bills of mortality of those two parishes for the nine years, 1779 to 1787, during which period the total number of deaths was 1,840. These were very limited data upon which to found a mortality table, but they were manipulated with great care and fidelity. The close agreement of the Carlisle table with other observations, especially its agreement, in a general sense, with the experience of assurance companies, won for it a large degree of favor. No other mortality table has been so extensively employed in the construction of auxiliary tables of all kinds for computing the value of benefits depending upon human life. Beside those furnished by Mr. Milne, elaborate and useful tables based upon the Carlisle data have been constructed by David Jones, W. T. Thomson, Christopher Sang and others. The graduation of the Carlisle table is however very faulty, and anomalous results appear in the death rate at certain ages.' It appears therefore that the Carlisle table is based upon general population, and not upon selected or insurable lives. In Shippen's Appeal, 80 Penn. St. 391, it was held that the Carlisle table was not authoritative in determining the value of a life-estate, and the common-law rule of one-third the capital sum was adopted as the measure of the life-interest. It was said in the opinion of the court: 'As to the measure of the life-estate of Slayton T. Platt, we may add that the Carlisle tables are not authoritative. They answer well their proper pur pose, to ascertain the average duration of life, so as to protect life-insurers against ultimate loss upon a large number of policies, and thereby to make a profit to the shareholders. But an individual case depends on its own circumstances, and the relative rights of the life-tenant and remainderman are to be ascertained accordingly. A consumptive or diseased man does not stand on the same plane as one of the same age in vigorous health. Their expectations of life differ in point of fact.' We can understand that in a contest beween a life-tenant and the remainderman the Carlisle tables would not serve as an authoritative guide. In such instance the question must be decided upon its own facts. But in a case like the one in hand, where the expec tation of life of the deceased was a question of fact for the jury, we are unable to see why the tables referred to were not competent evidence. Being intended for general use, and based upon average results, they cannot be conclusive in a given case. That is not the question here. It is whether they are not some evidence, competent to be considered by a jury. Their value, where applied to a particular case, will depend very much upon other matters, such as the state of health of the persen, his habits of life, his social surroundings and other circumstances which might be mentioned. While we are unable to see how such evidence is to be excluded, I must be allowed to express the fear that it may prove a dangerous element in this class of cases, unless the attention of juries is pointedly called to the other questions which affect it." PAROL GIFT OF REAL ESTATE. BROADLY speaking, a parol gift of real estate is void; but this, like all general rules, has its exceptions. And these exceptions arise where it would be manifest injustice and inequitable to allow the donor to take advantage of the statute of frauds. One of these exceptions, and the chief one, is where the donor has induced the donee to accept the gift, and enter upon the land given, and the latter has erected lasting and valuable improvements upon it. In such an instance courts of equity will not allow the donor to take advantage of the statute of frauds. Neale v. Neale, 9 Wall. 1; Dawson v. McFaddin, 22 Neb. 131; Jones v. Tyler, 6 Mich. 363; Gwynn v. McCauley, 32 Ark. 97. "There is no important distinction," says the Supreme Court of New Hampshire, "in this respect between a promise to give and a promise to sell. The expenditure in money or labor in the improvement of the land, induced by the donor's promise to give the land to the party making the expenditure, constitutes, in equity, a consideration for the promise, and the promise will be enforced." Seavey v. Drake, 62 N. H. 393. In this case a father gave his son, by parol, a piece of land in 1860, and the sou lived on it for twenty years, erecting improvements valued at $3,000. At the father's death the son filed a bill for specific performance, and it was held that he was entitled to it. So where a father purchased the land for his son, with the distinct understanding that the latter should at once take possession, hold and use it as his own, the father repeatedly saying that he had so purchased it for him, given it to him, and placed him in possession thereof, conducting himself toward the son as if the latter owned it for seven years, the son paying the taxes, which were assessed to him, the father introducing the son to insurance agents as the owner of the land and the buildings thereon, which were insured in the name of the son, the father saying he would convey the property to the son as soon as the preliminary arrangements for a deed had been perfected, and the son, under the faith of the promise, making improvements in the dwelling-house to the amount of $3,000 (the farm originally costing near $12,000), the gift was held to be perfected, and specific performance was decreed. Hardesty v. Richardson, 44 Md. 617; S. C., 22 Am. Rep. 57. See alse Hainer v. Hainer, 6 Md. 435; Shepherd v. Bevin, 9 Gill. 32, affirming 4 Md. Ch. 133. In an action of ejectment by the donor, such a gift is a good defense. Freeman 7. Freeman, 43 N. Y. 34; S. C., 3 Am. Rep. 657, affirming 51 Barb. 306; Kurtz v. Hibner, 55 Ill. 514; S. C., 8 Am. Rep. 665; Syler v. Eckhart, 1 Binn. 378. Such a gift is more in the nature of a contract. In fact it has been said that the donee "is a purchaser for a valuable consideration," and that it is inaccurate language to call such a contract a gift, and confusion of terms is very apt to lead to confusion of ideas." Moore v. Small, 19 Penn. St. 461, 469; Langston v. Bates, 84 III. 524; S. C., 25 Am. Rep. 466; Van Arsdale v. Perry, 21 N. Y. Week. Dig. 116; Manley v. Howlett, 55 Cal. 94. In an action of ejectment such a defense must usually be especially pleaded. Moore v. Pierson, 6 Iowa, 279; S. C., 71 Am. Dec. 409. Other cases on the general subject are as follows: Dana v. Wright, 23 Barb. 29; Patterson v. Copeland, 52 How. Pr. 460; Dozier v. Matson, 94 Mo. 328 (the father afterward became insolvent); Rumbolds v. Parr, 51 id. 592; Murphy v. Stell, 43 Tex. 123, overruling Boze v. Davis, 14 id. 331; Hendricks v. Suediker, 30 id. 296, and Carlin v. Hendricks, 35 id. 225; Crosbie v. McDougal, 13 Ves. 148 (often cited); Barton v. Duffield, 2 Del. Ch. 130; Porter v. Allen, 54 Ga. 623; Biehn v. Biehn, 18 Gr. Ch. 497; Townsend v. Toker, 1 Ch. App. 446; S. C., 12 Jur. (N. S.) 477; 38 L. J. Ch. 608; 14 W. R. 806; 14 L. T. (N. S.) 531; Lafayette v. Kyle, 51 Ind. 446; Campbell v. Mayes, 38 Iowa, 9; Faxtor v. Faxtor, 28 Mich. 159 (a promise not to enforce a mortgage on land if the donee would live thereon and support a family); Hill v. Chambers, 30 Mich. 422 (for support); Sower v. Weaver, 84 Penn. St. 262 (long possession in a donee is always a potent factor); Lester v. Lester, 28 Gratt. 737; Stanton v. Miller, 58 N. Y. 192, reversing 1 T. & C. 23; McCray v. McCray, 30 Barb. 633; Hart v. Hart, 3 Des. Eq. 592; Greenfield's Estate, 14 Penn. St. 489; Willis v. Mathews, 46 Tex. 478; Shobe v. Carr, 10 Munf. 10; Stokes v. Oliver, 76 Va. 72; Halsey v. Peters, 79 id. 60; Griggsby v. Oliver, 82 id. 371; Beal v. Clark, 71 Ga. 818; Jones v. Clark, 59 id. 136; Irwin v. Dyke, 114 Ill. 302; Warren v. Warren, 105 id. 568; Packwood v. Dorsey, 6 Robt. (N. Y.) 329; Deschappelles v. Labarre, 3 La. Ann. 522. Contra, Conn v. Prewitt, 48 Ala. 636; Pinckard v. Pickard, 23 id. 649; Evans v. Battle, 19 id. 398; Forward v. Armistead, 12 id. 124; Collins v. Johnson, 57 id. 304; Hubbard v. Allen, 59 id. 283; Ridley v. Wife, 2 Humph. 174; Rucker v. Abell, 8 B. Mour. 566. Where a son agreed to go on an eighty-acre tract, improve it, pay his father a certain portion of the crops, and at the latter's death was to receive the title to the land, a decree for specific performance was entered against the heirs. Smith v. Yocum, 110 Ill. 142; Bohannan v. Bohannan, 96 id. 591; McDowell v. Lucas, 97 id. 489; Lonston v. Bates, 84 id. 524. Such transactions have more elements of a contract than a gift. Knapp v. Hungerford, 7 Hun, 588. So where a cemetery lot was purchased by a husband, to be used as a place of burial for himself, his wife and family; and both he and she expended money thereon, greatly improving it; and her son and parents and his brothers were buried therein it was held that a court of equity would enjoin a sale thereof by the husband upon her petition, chiefly upon the principle that it had been devoted to the purpose of a family burial place, and his actions had induced her to expend a large sum of money thereon. Schroder v. Wanzor, 36 Hun, 423. So where J. W. B., a widower, and a locatee of the crown, agreed with J. B., his son, to assign his interest in the land on condition of the son making certain payments and performing certain services, which were all duly made and performed, and afterward the patent was issued in the name of J. B., by which name the father was known to the officers of the land-granting depart ment, but before issuing the patent the father married, and the son, in addition to making the payments and performing the services, erected valuable improvements, it was decided that the second wife was not entitled to dower in such land, the father being a trustee for the sou. Burns v. Burns, 21 Gr. Ch. 7. So where a father put his son in possession of a plantation and slaves, and permitted him for three years to appropriate the crops for his own use, it was held the crops of the fourth year, as well as the preceding three, were to be considered as gifts from the father to the son, and liable to the claims of the latter's creditors. Skinner v. Skinner, 4 Ired. L. 175. So where a father verbally gave his married daughter land, and put her busband into possession of it, and shortly after the land was sold by the daughter and her husband, the father ratifying the sale by the execution of a deed therefor to the purchaser, and the husband received the purchase-money and delivered it to the daughter, his wife, it was held that there was a good gift of the proceeds of the sale. Chachere v. Dumertrait, 2 La. 38. Expenditure of Labor. The expenditure of labor upon land is sufficient, if of a suitable kind. Thus if the condition is to put up a certain kind of improvements, then it is immaterial how they were put up whether by the expenditure of money or labor, unless there is a specific stipulation to that effect. And even where no stipulation whatever is made with regard to the expenditure of money or labor, it is immaterial what kind of labor is performed, so long as it is of that character or kind which the donee would not have expeuded if the property had not been given him, and which an owner himself would likely have done. Thus labor expended to clear up a farm in the forest, or to drain swampy land, or to break and bring into subjection wild prairie land, is as potent in rendering the gift irrevocable as the building of fences, houses or barns. Neale v. Neale, 9 Wall. 1; Dawson v. McFaddin, 22 Neb. 131; Stewart v. Stewart, 3 Watts, 253; Hardesty v. Richardson, 44 Md. 617; S. C., 22 Am. Rep. 57. Donor Stipulating for Expenditures on the Land Given. "And equity protects a parol gift of land equally with a parol gift to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. And this is particularly true where the donor stipulates that the expenditure shall be made, and by so doing this makes it the consideration or condition of the gift." Neale v. Neale, 9 Wall. 1; Dawson v. McFaddin, 22 Neb. 131; King v. Thompson, 9 Pet. 204; Bright v. Bright, 41 Ill. 97: France v. France, 4 Halst. Eq. 650; Lobdell v. Lobdell, 36 N. Y. 327; S. C., 33 How. Pr. 347; 3 Abb. Pr. (N. S.) 56; 8 Am. L. Reg. (O. S.) 29; Moore v. Small, 19 Penn. St. 461. - Promise to Give Donor Retaining Possession. "A mere intention, though expressed, as to the further disposition of a man's property, creates no legal obligation upon him to carry out that intention, and until the intended gift is made he may change his mind respecting it." This was said in a case where a father had promised his son to give him a tract of land for past services, and when the son desired and did take possession, refused to give him a deed for the tract, because he was dissatisfied with his marriage. The son however took possession and made improvements, but the court declined to decree a specific performance. McKay v. McKay, 15 Gr. Ch. 371. So where a testator placed his two sons in possession of certain portions of his land, intending to convey or devise the same to them, but retained full control of the property, notwithstanding which they made valuable improvements upon their respective portions, it was held that they neither took the land nor were entitled to pay for the improvements. Foster v. Emerson, 5 Gr. Ch. 135. See Orr v. Orr, 21 id. 397; 31 Q. B. U. C. 13. While representations made by one party and acts done by another upon the faith of such representations may constitute a contract which will be specifically executed, yet where the representations are merely of a future intention, as to which the party refused to bind himself by contract, the engagement must be regarded rather as of a honorary character, and not enforceable as such in a court of equity. Cox v. Cox, 26 Gratt. 305. "Such a promise in its very nature leaves to the donor a locus penitentiæ, a right to change and revoke or modify the gift, a right which the exigencies of his fortune or his family may make it proper for him to exercise." Taylor v. Staples, 8 R. I. 170; S. C., 5 Am. Rep. 556. See Adamson v. Lamb, 3 Blackf. 446: Pinchard v. Pinchard, 23 Ala. 649; Pope v. Dodson, 58 Ill. 360: Wadhams v. Gay, 73 id. 415. Where the use of the property has afforded the person claiming it as a gift ample compensation for his labor and expenditure, courts are loath to decree a specific performWalton v. Walton, 70 11. 142; Hickman v. Grimes, 1 Marsh (Ky.), 86; Mahill v. Mahill, 69 Iowa, 15. ance. Donor Inducing Donee to Change His Condition Will Contract. If a donor, by promise, induces his donee to change his position, to his detriment, after the change is made the donor can be compelled to make his promises good. The relation between them becomes a contract. "Where a person makes a representation of what he says he has done, or of some independent fact, and makes the representation under circumstances which he must know will be laid before other persons who are to act on the faith of his representations being true, and who do act on it, equity will bind him by such representations, treating it as a contract." Maunsell v. White, 4 H. L. Cas. 1039; S. C., 1 J. & L. 539; 7 Ir. Eq. 413; Jordan v. Morey, 5 H. L. Cas. 185; S. C., 23 L. J. Ch. 865; Morey v. Jordan, DeG., M. & G. 318; S. C., 21 L. J. Ch. 893; Hammersley v. De Biel, 12 CI. & F. 45, affirming 3 Beav. 469. Thus where a father wrote his son that he had devised certain portions of his real estate to him, and expressed a desire that he would leave his then place of residence and settle on the devised property, by the testator, and that if he did so the will should in that respect remain unchanged, and the son, acting upon the desire of his father, left his residence and went to live beside him, it was held that the will was no longer revocable. Fitzgerald v. Fitzgerald, 20 Gr. Ch. 410. So if A. promise B. to give him a certain tract of land if he will marry C., B. may, after the marriage, compel A. to make his gift good. Boyd v. Shouldice, 22 Gr. Ch. 1. But the rule is that (the donee must enter upon the premises and take possession under the terms of the gift. Possession under any other circumstances is insufficient. Anson v. Townsend, 73 Cal. 415; Ogsbury v. Ogsbury, 115 N. Y. 290. If a donee is not induced by the promises of the donor to change his position, but does it through other motives or inducements, he cannot, because of his changed condition, compel the donor to make his gift valid. Stokes v. Oliver, 76 Va. 72; Griggsby v. Osborn, 82 id. 371. Slight or Trivial Improvements - Rents a Full Compensation. If the improvements are slight or trivial, when there is no agreement touching them, or the labor was nothing beyond the cultivation of the soil, or insignificant in comparison with the value of the land, they do not raise an equity in favor of the donee. In deed, as we have elsewhere stated, if the rents and profits derived by the donee from the land by virtue of his possession are a sufficient return for the money or labor expended in permanent improvements, equity will not decree a specific performance. But it is clear that only profits in such an event can be taken into consideration, using the word "rents" in that sense, for if the profits were not equal to the labor expended or expense incurred in securing them, or if they were no more, then the donee would reap nothing for his labor or money expended in permanent improvements, and it would be a manifest injustice to not compel the donor to perfect his gift. But it will not do to let the profits bear too much weight, for, as it has been held, compensation for the improvements or labor is not a bar to an action for specific performance. Youny v. Glendenning, 6 Watts, 509; S. C., 31 Am. Dec. 492. Indeed it has been held in one case that the improvements must add to the permanent value of the land, and where the benefits to the donee by the possession of the land exceeded his expenditures upon it, a specific performance will not be decreed. Wack v. Sorber, 2 Whart. 387; S. C., 30 Am. Dec. 269. Where the donor and donee are related by blood, slight improvements, if valuable and permanent in character, will be sufficient. Hughes v. Hughes, 72 Ga. 173. Ordinarily however the improvements must not only be substantial, permanent and valuable, but such as an owner of land would ordinarily make upon the estate under like circumstances. But whether slight or extensive, they will not serve the purpose unless of real value nor unless they were made by or for the donee pending his possession, and upon the faith of the parol gift sought to be set up and enforced. Porter v. Allen, 54 Ga. 623. Expenditures Must be Made in Consequence of and Relying Upon the Gift, as has just been stated. Courts only enforce a parol gift of lands because of the fact that the words and the acts of the donor have induced the donee to spend labor and money and the like, that he would not have otherwise done, and this must be clearly shown. Dawson v. McFaddin, 22 Neb. 131; Guynn v. McCauley, 32 Ark. 97; Irwin v. Dyke, 114 111. 302. Consequently if it cannot be shown that the expenditures were incurred by reason of the promise a specific performance will not be decreed. McClure v. McClure, 1 Barr (Penn.), 374. Gift After Improvements Made. If possession is taken and improvements made a parol gift made after those events will be unavailing. Eckert v. Eckert, 3 P. & W. 332; Eckert v. Mace, id. 364, note; Adamson v. Lamb, 3 Blackf. 446; McKay v. McKay, 15 Gr. Ch. 371. Possession Without Improvements Made or Labor Expended May be Sufficient. Thus, where the donor offered his son-in-law, who was living and in a successful business in another town, that if he would move to his, the donor's, place of residence, he would give his, the donee's, wife a lot and an unfinished house thereon, and the donee accordingly did move at an expense, furnished the house with his own and his wife's earnings and occupied it twelve years, this was held to be such a gift that the subsequent insolvency of the donor did not render his formal conveyance of the lot at that time void, nor render it liable to the lien of a judgment rendered against him at the end of the twelve years. Burkholder v. Ludlow, 30 Gratt. 255; S. C., 32 Am. Rep. 668; Halsa v. Halsa, 8 Mo. 303; Law v. Henry, 39 Ind. 414. But if the gift was conditioned on the erection of improvements then they must be executed. Bright v. Bright, 41 III. 97. Gift Free of Incumbrances. Where a father orally promised his daughter, in view of her coming marriage, to give her a certain house, and immediately after the marriage he put her and her husband in possession of it, and there was an incumbrance upon it payable in installments, part of which the father paid and then died, it was held that the remaining installments were payable out of his estate, for the contract was to give the house free from incumbrance. Clugley v. Clugley, 4 Ch. Div. 73; S. C., 46 L. J. Ch. 189; 25 W. Adverse Possession by Donee After Gift Made. An adverse possession by the donee, under a claim of ownership, for a sufficient length of time, will give him a good title, although his title by gift be invalid. Mahan v. Baker, 26 Penn. St. 519; Keffer v. Keffer, 27 C. P. (U. S.) 257; Vincent v. Murray, 15 N. B. 375. Contra, Foster v. Emerson, 5 Gr. Ch. 135. But a joint possession with the donor does not amount to an adverse possession. Orr v. Orr, 31 Q. B. U. C. 13. See also Jackson v. Rogers, 3 Cai. Cas. 314; Boykin v. Smith, 65 Ala. 294; Collins v. Johnson, 57 id. 304; Moore v. Webb, 2 B. Monr. 282; Duff v. Leary, 146 Mass. 533; Wheeler v. Laird, 147 id. 421. Confirming Gift by Will. It is no uncommon thing for a donor to confirm a gift by the subsequent execution of his will, expressly devising the land given to the donee. In such an event the donor does what the law would compel him while alive to do, or would compel his heirs or devisees to do. He does not, by the will, give the land to the donee; that he has already done, but he gives him the legal title, as distinguished from the land itself. He gives him no better control over the physical thing than he had given, but he simply clothes him with the legal title and nothing more. Daniel v. Frost, 62 Ga. 697. See Dunnage v. White, Wils. Ch. 67. Title Acquired by Donor After Gift Made. Where a donor was in possession of government land to which he had a valid claim and well-grounded expectation of receiving a title thereto, and he gave it to the donee, but afterward received a patent for it, it was held that he could be compelled to convey the land thus given to the donee. Rhodes v. Rhodes, 10 La. 85; Burns v. Burns, 21 Gr. Ch. 7. Possession by Donee Must be Clear. The possession by the donee must be clear and unequivocal. It "must be very clear and definite, such as would characterize the action of an owner and be inconsistent with the hypothesis of a mere license, for in this class of cases equity dispenses with a writing only when definite and unequivocal facts exist which point with certainty to a prior parol agreement of gift or sale and serves to indicate its existence, and so may be taken as a substitute for the usual written evidence." Consequently a mere license to cut wood and boil sugar water was held not to be such a possession as the law required. Ogsbury v. Ogsbury, 115 N. Y. 290; Griggsby v. Osborn, 82 Va. 371; Warren v. Warren, 105 Ill. 568. Possession Essential. A gift without possession taken by the donee is invalid. Mims v. Ross, 42 Ga. 121; Beal v. Clark, 71 id. 818. Gift to Wife but Possession Taken by Husband. A wife cannot obtain title, at least by adverse possession. where possession is only taken by her husband. Thus where a father gave his daughter a tract of land, and she and her husband went and lived on it, and he farmed it as his own, she merely residing with him on the land as his wife, it was held that she did not acquire title thereto by adverse possession. Vincent v. Murray, 15 N. B. 375. Donor Regaining Possession. If the donor regain possession of the land given, it may or may not operate as a revocation of the gift. A temporary repossession however with the consent of the donee, express or implied, will not defeat the gift. Daniel v. Frost, 62 Ga. 697. If at the time the donor regain forcible possession a court of equity would have decreed a specific performance, then the repossession by the donor will not defeat the donec's title; yet if the douee voluntarily surrenders possession, repossession on the part of the donor will revoke the gift. But if a court of equity would not decree a specific performance at the time the donor forcibly recovers possession, then the act of taking repossession is a revocation. If the donee has made valuable improvements, the donor will be required to reimburse him for his outlay. Hamilton v. Hamilton, 5 Litt. 28; Rucker v. Abel, 8 B. Monr. 566. See Jones v. McKinsey, 4 J. J. Marsh. 625, where a husband recovered for improvements put upon lands given to his wife. Donee Abandoning Gift. A donee may abandon a gift of land, and the abandonment may be either expressed or implied. Thus a father, owner of one hundred acres of land, with a view of retaining his son upon the land and settling him in life, agreed to convey to him one-half of the land for one-third of its value, payable in six years with interest, and executed a bond for that purpose. After obtaining the bond the son went to work about the country, resided several years at a distant part thereof, sometimes returning when out of work and residing in his father's family, and during such residence with the family was in the habit of assisting in doing the usual work of the farm, which consisted of the one hundred acres. He paid no part of the purchase-money, but claimed that he was entitled to credit thereon because of services thus rendered. Ten years afterward he sought to enforce the contract, but the court held that he was not entitled to its enforcement; first, because of his laches; sec ond, because he had abandoned the gift. Evans v. Evans, 2 App. Rep. U. C. 156: Black v. Black, id. 418; reversing 9 Gr. Ch. 403; McDonald v. Rose, 17 id. 657; Cox v. Cox, 26 Gratt. 305. Donor Incumbering the Land Given. A donee in possession will be protected as against a mortgagee of the donor, but the conduct of the donee may be such that he will be estopped to dispute the validity of the mortgage. Potter v. Smith, 68 Mich. 212. Donor Reserving Rent-Taxes. A reservation of rent by the donor for a term of years, or for his life, will not defeat the gift, nor will the fact that he paid the taxes during his life defeat it. McDowell v. Lucas, 97 Ill. 489; Smith v. Yocum. 110 id. 142; Wertz v. Merritt, 74 Iowa, 683; Wamsley v. Lincinum, 68 id. 556. The payment of the taxes however by the donee is a significant factor in his favor bearing upon his ownership. Fairchild v. Barbour, 51 Mich. 57; Davis v. Bowner, 55 Miss. 671. Married Woman. A married woman, even with the consent of her husband, cannot make a parol gift of her land. She can only make a gift of it by deed. Huffman v. Huffman, 118 Penn. St. 58. But after the sale of the land she may make a gift of the purchasemoney, even to her husband. McGinnis v. Curry, 13 W. Va. 29. Minor. A minor's gift of his land is absolutely void. Howey v. Carroll, 72 Tex. 63. Donee Must Show a Definite Promise. The donee, or those claiming under him, bas the burden of showing not only a promise to convey, but a promise that is clear and certain in its terms. Longston v. Bates, 84 "The contract should Ill. 524; S. C., 25 Am. Rep. 466. be established by competent proof, to be clear, definite and unequivocal in all its terms. If the terms are uncertain, or ambiguous, or not made out by satisfactory proofs, a specific performance will not be decreed.” Worth v. Worth, 84 Ill. 442; Stanton v. Miller, 58 N. Y. 192; Murphy v. Stell, 43 Tex. 123; Griggsby v. Osborn, 82 Va. 371; Halsey v. Peters, 79 id. 60. The Land Given-Boundaries. The donee must show the subject of the gift with reasonable certainty. He need not show the lines of separation from the remainder of the donor's land have been actually run upon the ground, if from the transaction and the distinct subsequent possession of the donee, it is possible to ascertain the boundaries and quantity of the land given. In other words, the proof must be such as to enable the jury or court to fix the locality and boundaries so as to direct where a surveyor may divide it off from the remainder of the donor's land. If the tract given has well-defined boundaries and is known by a given name, then the gift of the tract by name, followed by possession, is sufficient. If it is a certain quantity of land out of a larger tract, then the possession of a tract equal in quantity to the amount given will determine the boundaries. Burns v. Sutherland, 7 Barr. 103; Moore v. Small, 19 Penn. St. 461. A failure to show the boundaries or limits of the tract given will defeat the gift. Short v. M. E. Church, 11 La. Ann. 174. Even uncertainty on this point will defeat it. Martin v. McCord, 5 Watts, 443. The boundaries may be fixed after the gift is made. McClain v. White Tp., 51 Penn. St. 196. Sufficiency of Evidence to Establish the Gift. "The proof must be clear, definite and conclusive as to the fact of the gift, and those acts done on the faith of it which render inequitable any attempt by the donor to avoid the gift. But when the proof is thus clear, and all other conditions are shown to exist to entitle the party to the assistance of a court of equity, that court will not hesitate to lend its aid, simply because the proof may rest entirely in parol." Hardesty v. Richardson, 44 Md. 617; S. C., 22 Am. Rep. 57; Dawson v. McFaddin, 22 Neb. 131. "A contract to convey should be clear and certain in its terms, and established by testimony of an undoubted character, which is clear, definite and unequivocal." Langston v. Bates, 84 Ill. 524; S. C., 25 Am. Rep. 466; Worth v. Worth, 84 III. 442; Woodbury v. Gardner, 77 Ala. 68. "The party setting up such promise must be able to establish it by full, clear and satisfactory evidence." Murphy v. Stell, 49 Tex. 123. "The rule is settled that as between father and child the evidence of a gift or sale must be direct, positive, express and unambiguous; that its terms must be clearly defined, and that all the acts necessary to its validity must have special reference to it and nothing else." Shellhammer v. Ashbaugh, 83 Peun. St. 24; S. C., 34 Leg. Int. 67; Ackerman v. Fisher, 57 Penn. St. 457; Printup v. Mitchell, 17 Ga. 558; Ackerman v. Ackerman, 24 N. J. Eq. 315, 585. It has on the other hand been said that it was only necessary to prove the contract with "reasonable certainty." Neale v. Neale, 9 Wall. 1. But see Ogsbury v. Ogsbury, 115 N. Y. 290; Griggsby v. Osborn, 82 Va. 371; Halsey v. Peters, 79 id. 60. "While it is not indispensable that the agreement should be established by direct and positive evidence of its existence, and while it may be inferred from acts and conduct clearly referable to it, yet such acts must be of an unequivocal and unambiguous character and must be established by testimony clear and definite and unambiguous in its terms." Beal v. Clark, 71 Ga. 851; Poullain v. Poullain, 79 id. 441. Declarations of Donor to Prove Gift. The declarations of the donor of an intention to make the gift, his declarations at the alleged time of the gift and his subsequent declarations in favor of it, are all admissible to prove the factum of the gift. What was said at the time the gift is alleged to have been made, which constitutes the res geste, is always admissible whether establishing or disproving it. But his subsequent declarations are not admissible to defeat it. Porter v. Allen, 54 Ga. 623; Hughes v. Hughes, 72 id. 173; Davis v. Bowmar, 55 Miss. 671; Warren v. Warren, 105 Ill. 568. Nor can it be shown that after the gift is made that the donor included the gift in a list of his property as his own. Duff v. Leary, 146 Mass. 533. But subsequent declarations of the donor in the presence of the donee are admissible. Hugus v. Walker, 12 Penn. St. 173. Acts of Donor and Donee. The acts of the donor and donee with reference to the thing given are always the subject of investigation, with the limitation that an act of the donor performed subsequent to the time of making the gift, in disparagement of his title, not performed in the presence of the donee, may not be shown to defeat it. Poullain v. Poullain, 76 Ga. 420; Ferry v. Stevens, 66 N. Y. 321; Warren v. Warren, 105 Ill. 568; Davis v. Bowmar, 55 Miss. 671; Jones v. Clark, 59 Ga. 136. W. W. THORNTON. INDIANAPOLIS, IND MASTER AND SERVANT-TORTS OF SERVANT-SCOPE OF AUTHORITY. NEW YORK COURT OF APPEALS, JANUARY 20, 1892. MULLIGAN v. NEW YORK & R. B. RY. Co. Defendant's ticket agent, acting under a notice given him by police officials to look out for a five-dollar counterfeit, and describing three men passing the same, supposing a bill presented at his window by plaintiff in payment for tickets to be one of the counterfeits, and supposing plaintiff and his companion to be the persons described, after giving plaintiff his tickets and change sent for a police officer and directed their arrest, while they were seated on the The offistation platform waiting to take the next train. cer stated that he knew the two men as reputable men, |