
    H. S. THOMAS, Exr., v. HATTIE HOUSTON et al.
    (Filed 16 March, 1921.)
    1. Gifts — Causa Mortis.
    To establish a gift causa mortis, it must be shown that the donor intended the transfer of the subject-matter and a present actual or constructive delivery thereof, in the contemplation by the donor of his death from a present illness or some immediate peril.
    2. Same — Inter Vivos — Intent—Delivery.
    Evidence that the donor had deposited money in the bank and had received a certificate therefor, payable to the order of himself, or his wife, and had deposited the certificate in his wife’s trunk among his valuable papers, when he was in good health and attending to his business, is insufficient to establish a gift of the money to his wife, either causa mortis or inter vivos, and evidence that at the time he had stated to the cashier that he desired his wife to have the money in case of his death, and especially without having communicated this intent to his wife, and without further evidence of delivery, was insufficient.
    U. Gifts — later Vivos — Intent—Delivery.
    To constitute a valid gift inter vivos, there must be a donative intent and a present unconditional delivery to the donee or some one for him, making a completely executed transfer to the donee of the present right of property and its possession.
    4. Same — Nudum Pactum.
    To constitute a gift inter vivos, it is necessary to show a delivery as well as a donative intent, and without a present actual or. constructive delivery it is only a promise of a gift, without consideration, and unen-forcible.
    5. Same — Causa Mortis.
    The chief distinguishing characteristics between a gift inter vivos and one causa mortis, are that the former is absolute, and the latter is revocable and takes effect in futuro, and in each instance it is necessary to show both the present intention to make the gift and the delivery of the thing given.
    6. Wills — Interpretation—Money on Deposit — Certificates of Deposit— Evidence.
    As to whether a certificate of deposit will pass under a bequest in a will of “'money on hand,” quere? and: Held, this interpretation will not prevail when a contrary purpose is quite apparent; and evidence of the declaration of the testator of what he wanted done with the money in the bank, is incompetent.
    Appeal by defendant, Hattie Houston, from Connor, J., at November Term, 1920, of Duplin.
    Civil action, brought to determine the ownership of $1,500 deposited in the Bank of Beaulaville by plaintiff’s testator on 26 February, 1917, taking from the bank a certificate of deposit in words and figures as follows, to wit:
    Beaulaville, N. C., 26 February, 1917.
    This is to certify that R. C. Houston has deposited with the Bank of Beulaville fifteen hundred dollars, payable in current funds to the order of himself or wife, Hattie Houston, on return of this certificate properly indorsed, with interest at 4 per cent per annum if left three months.
    No interest after one year unless renewed.,
    (Signed) A. L. Oavenaugh, CcCshier.
    
    The cashier of the bank testified that at the time of this deposit the deceased stated “he wanted to deposit it on interest so that in case he died, leaving the money in the bank, his wife, Hattie Houston, could get it.” There was also evidence tending to show that R. C. Houston, the deceased, on the date of issuance of said certificate of deposit, placed the same in his wife’s trunk, where his deeds, notes, and other valuable papers were kept.
    The deceased also left a will, from which it appears no specific disposition was made of this certificate of deposit as such, and the residuary legatees, save the appellant, contend th$t this item would pass under the residuary clause.
    His Honor, being of opinion that the evidence was insufficient to establish a gift to Hattie Houston, instructed the jury to answer the issue of ownership in favor of the plaintiff. From the verdict thus rendered, and judgment thereon, the defendant, Hattie Houston, excepted and appealed.
    
      Gavin & Blanton for appellant.
    
    
      II. D. Williams for appellees.
    
   Stacy, J.

The appellant in her brief takes the iiosition that under the evidence offered his Honor should have submitted to the jury the question as to whether the certificate of deposit would pass to her as a gift causa mortis. We do not think this position tenable. To constitute a gift causa mortis not only is an intentional transfer and actual or constructive delivery necessary, but it must be made in view of impending dissolution, or in contemplation of death from a present illness or some immediate peril. 12 R. C. L., 962; Patterson v. Trust Co., 157 N. C., 13; Newman v. Bost, 122 N. C., 524, and Wilson v. Featherston,. 122 N. C., 750. As very tersely and succinctly stated in McCord v. McCord, 77 Mo., 166: “To constitute sueb a gift, it must be made in tbe last illness of tbe donor, or in contemplation and expectation of death. There must be a delivery of tbe subject by tbe donor, and it is. ‘defeasible by reclamation, tbe contingency of survivorship, or deliverance from peril.’ (2 Kent Com., 444.) It must be a delivery as a gift,, and such a delivery, as in case of a gift inter vivosi would invest the-donee with tbe title to tbe subject of tbe gift.”

In tbe instant case, there is no evidence of any intentional gift accompanied by an actual or constructive delivery during tbe last illness of the-deceased. He was up and about bis business at the time tbe money was placed in bank; and there is no evidence that anything transpired between him and bis wife with respect to this certificate of deposit subsequent to tbe date of its issuance which would amount to a valid transfer. It does not appear that any delivery was ever made to tbe appellant. It is true tbe certificate was placed in her trunk, where her husband kept bis deeds and other valuable papers, but there is no' evidence of any intention to thus deliver it to her. Under tbe circumstances it is not even clear that it was in her possession. Even if it were, delivery and possession are two different things. Possession may be bad where no-delivery has been made; but there can be no valid delivery unless possession, actual or constructive, accompanies it. Whalen v. Milholland, 89 Md., 199.

Around every other disposition of tbe property of tbe dead tbe Legislature has thrown safeguards, and wisely so. Around this mode (donatio-mortis causa) tbe requirement of actual or constructive delivery is tbe only substantial protection which tbe law affords, and tbe courts should not weaken this salutary requirement and wise precaution by permitting" tbe substitution of convenient and easily proven devices. Keepers v. Fidelity Co., 56 N. J. L., 302.

On tbe other band, we do not think tbe evidence sufficient to warrant, a finding of a gift inter vivos. Not only must there be a donative intent, but delivery is an indispensable requisite to such a. gift under our law. Gross v. Smith, 132 N. C., 604. It cannot be made to .take effect in the-future. Minor v. Rogers, 40 Con., 512; Askew v. Matthews, 175 N. C., 187. This would amount only to a promise or. an agreement to make a. gift. Spencer v. Vance, 57 Mo., 429. “To constitute a valid gift inter-vivos, there must .be an intention, to give and a. delivery to the donee, or to some one .for him, of t.be property given. An. intention of tbe donor-to give is not alone sufficient. Tbe intention must be .executed by a complete and unconditional delivery. Neither will a delivery be sufficient unless made with, an intention to give. Tbe transaction must •show a completely executed transfer to tbe donee of tbe present right of property and tbe possession. Tbe donee must become tbe owner of tbe property given.” Harris Banking Co. v. Miller, 1 L. R. A. (N. S.), 790.

It bas been beld tbat a deposit under an agreement wbicb preserves to tbe depositor tbe right to deal with tbe deposit for bis own benefit, but wbicb provides tbat upon bis death any balance standing to bis credit shall be paid to tbe donee, though accompanied by a delivery of tbe deposit book to tbe donee, does not constitute a valid gift inter vivos. Stevenson v. Earl, 65 N. J. Equity, 721. A gift is incomplete if tbe donor “retain tbe dominion, or if there remain to him a locus penitentiae, . . . there cannot be a perfect and legal donation.” Murray v. Cannon, 41 Md., 466. See, also, Schippers v. Kempkes, 12 L. R. A. (N. S.), 355, and note.

Tbe chief distinguishing characteristics between a gift inter vivos and •one causa mortis are tbat tbe former is absolute and takes effect in praesenti, while tbe latter is revocable, and takes effect in futuro.

Upon tbe record there is no evidence tending to show any surrender, during tbe lifetime of tbe deceased, of bis dominion or control over tbe •deposit in question. Without such surrender and actual or constructive delivery to tbe donee, a parol gift, in law, is but a promise to give, wbicb, being without consideration, is not obligatory. Picot v. Sanderson, 12 N. C., 309. “A transfer of tbe property is required, and an intention to give is not a gift.” Adams v. Hayes, 24 N. C., 361.

Furthermore, there is no evidence to support tbe conclusion tbat tbe •deceased, during his lifetime, bad promised bis wife that she might have the money which be bad placed in bank. Tbe only competent testimony tending to show what disposition R. C. Houston wished to make of this particular deposit, in tbe event be died leaving it in tbe bank, comes from tbe cashier of tbe Bank of Beaulaville, and tbe record is silent as to whether such desire was ever communicated to appellant during tbe lifetime of her husband. Hence there is not sufficient evidence to show an intention to make tbe gift, and a delivery of tbe thing given. Without both of these prerequisites there can be no gift inter vivos or causa mortis. Newman v. Bost, supra; Medlock v. Powell, 96 N. C., 499.

There are some decisions in our own reports, and elsewhere, to tbe •effect tbat a certificate of deposit or money in bank will pass by will under tbe designation of “money on band,” where it clearly appears tbat such was tbe intention of tbe testator; but. in tbe instant ease a contrary purpose is quite apparent. All tbe facts and circumstances lead to a different conclusion. Tbe testimony of tbe witness Potter tbat tbe testator bad told him, prior to tbe execution of bis will, what be wanted done with tbe money in bank was incompetent, and should have been excluded. Wills are made by testators, not by witnesses.

From the foregoing it follows that his Honor was correct in charging the jury to answer the issue, with respect to the ownership of the certificate of deposit, in favor of the executor.

After a careful examination of the entire record, and the defendant’s exceptions and assignments of error, we think the ruling as indicated should be sustained.

No error.  