
    Thomas Scott, executor of John D. Simes, deceased, Plaintiff and Respondent, v. Mary Elizabeth Simes Defendant and Appellant.
    1. Where a husband takes a security, causing it to be made payable to his wife, and retains possession of it, but without doing any act tending to defeat the right of the wife to an absolute property therein, no actual delivery by him to her is necessary to complete the gift to her, but his possession of the security is to be deemed” her possession, and upon his death it belongs to her absolutely, and not to his estate.
    2. Thus, where the defendant’s husband, in his lifetime, took promissory notes for moneys due to him, in her name, expressing, to her his intention that the fund was to be a gift to her, and kept the -notes for a time in a secretary to which she had access, and subsequently deposited them with his firm for safe keeping during his absence from home, without ever making any' actual delivery to her, and collected the interest from time to time;
    
      Held, that upon his death the notes belonged to her, and his executor could not recover the possession thereof from her.
    3. An executory contract, if it be made in the wife’s name, or the joint names of herself and husband, survives to the wife by force of its mere form, without reference to any supposed assignment or delivery by him to her. (Per Robertson, J.)
    (Before Robertson, White and Monell, J. J.)
    Heard, November 7, 1862;
    decided, March 3, 1863.
    This was an appeal from a judgment in favor of the plaintiff, on a verdict recovered on a trial before Mr. Justice Monorief, without a Jury, in April, 1862.
    This action was brought to recover possession of two promissory notes detained by the defendant, and which the plaintiff claimed constituted a part of the estate of his testator.
    The notes were dated, respectively, April 1, 1854, and January 1, 1857; one for six thousand dollars and the other for five thousand dollars, and were each payable to the order of Mrs. Mary Elizabeth Simes, the defendant, who was the wife of the plaintiff’s testator.
    The action was tried by the Court, without a Jury, and the Judge found, among others, the following facts:
    
      That in the lifetime of John D. Simes, the testator, Sarah Simes, his sister, became indebted to him in the amounts of the said two promissory notes, and thereupon made and delivered the same to him;
    That the interest accruing upon said notes was paid to said John D. Simes up to January 1st, 1860;
    That the notes continued in the possession of said John D. Simes until his decease;
    That John D. Simes died about June, 1860, leaving the defendant, Mary Elizabeth Simes, his widow, and two infant children, him surviving, having previously made his last will and testament;
    That after the decease of the said John D. Simes, the said two promissory notes came into the possession of the defendant, his widow, by finding the same;
    That the defendant still retains possession and claims to be the owner of the said notes, and refused to return the same upon the demand of the plaintiff.
    Upon these facts the Justice adjudged that the plaintiff was entitled to a return of the notes; or, if a return could not be had, to judgment for the amounts thereof, with interest.
    The defendant, who was examined as a witness, testified, without objection, that the first she knew of any arrangement with regard to the notes was at the time of the purchase of a house in Fifth avenue, in consideration of which they were given, when Mr. Scott, (the plaintiff,) told her he had proposed to Mr. Simes to make the notes payable to her; that he, (Simes,) intended to give the amount to her; that she mentioned to Mr. Simes what Mr. Scott had told her, and he, Simes, said it did not originate with Mr. Scott, that it was his own intention. She further testified that the uotes were kept in the secretary in the family sitting room; that the children’s bank books, his will, and other notes, and railroad securities, were kept in the same place; that Mr. Simes and herself each had a key to the secretary, but she could not say in what part of the secretary he kept the notes, because she did not care to know, though he supposed she did know; that shortly before going south, (whither he went for the benefit of his health, in March, I860,) he took from the secretary a package, which, he said, contained his will; he said it had been sealed up, but that he had opened it to put inside some notes belonging to the witness and the children ; that the "notes he referred to were his sister’s notes for six thousand dollars and five thousand dollars; that he said he would seal the package up and put it in the safe at the office.
    She further testified, that the day before her husband’s death, by his request, she sent for the package, he intimating a desire to alter his will; that it was brought to her, and that she put it in a trunk, where it remained until after his death; the package was subsequently opened by Mr. Scott, who returned to her the notes, telling her to keep them, as he could do nothing, or had nothing to do with them.
    She further testified that Mr. Simes told her that in his will he had not given her money outright to hold; that he made several attempts to explain the will or its contents to her, but that she was never willing to know them; that he told her he had given her outright a handsome sum. She also testified that there was nothing for her except the two promissory notes.
    On her cross-examination, she stated that she had seen the notes before her husband went South ; that he showed to her the payments of interest on the back of them; that he "handed them to her, saying, Sarah has paid up her interest.
    Leopold Huffier, a witness for the plaintiff, testified that he was a partner of Simes ; that before Simes went South, he brought the package to the store and put it in the safe; that, upon receiving a request from the defendant, he took the package to Simes’ house, but that it was not opened; that he found Simes unable to do anything, and he gave the package to Mrs. Simes.
    The defendant excepted to the conclusions of the Judge, and appealed from the judgment entered thereon.
    
      
      Daniel Lord, for defendant, appellant.
    I. These facts are established without any question.
    1. That the notes were taken in the name of the wife, by the husband’s procurement. And that he intended the notes as a gift to her.
    2. That the custody of the vouchers was with the same original purpose; that it was not in exclusion of it; that it was in connection with other papers which he held for others, and with the acknowledgment that he held them for her.
    3. Moreover, the custody of the securities was «such as the husband always has of choses in action appertaining to his wife, and usually has of securities for her separate estate.
    II. The obligation survived to her. (Cheekly v. Cheekly, 2 Shower, 247; Day v. Pargrave, reported by Dampier, J., in his opinion in Philliskirk v. Pluckwell, 2 Maule & Sel., 396; Gaters v. Madeley, 6 Mees. & W., 425; Howard v. Okes, 3 Wels., H. & G., 136; Scarpellini v. Atcheson, 7 Ad. & El., (N. S.,) 864; Allen v. Wilkins, 3 Allen, (Mass.,) 321; Gibson v. Todd, 1 Rawle, (Penn.,) 455; Borst v. Spelman, 4 N. Y. R., (4 Comst.,) 284.) So held, also, in the case of obligations to husband and wife jointly. (1 Rolle Ab., 342; Bar. & F., D.; Id., 349, citing Yr. Bk., 43 Ed. III, 10; Demlyn v. Browne, Moore, 887; Coppin v. —, 2 P. Wms., 496; Christ’s Hospital v. Budgin, 2 Vern., 683; Dalton v. Midland Railway Co., 20 Eng. L. & Eq., 273, per Jervis, Ch. J.; Richards v. Richards, 2 B. & Ad., 447; Reeve Dom. Rel., 132.)
    III. There was no reducing of the chose in action into possession, so as to defeat the wife’s survivorship.
    1. The distinction between choses in action and other chattels, personal, is well established. (Co. Litt., 351, b.; Richards v. Richards, 2 B. & Ad., 447.)
    2. The custody of the securities by the husband is not a reducing into possession.
    3. Hor is the receiving of interest by the husband. 
      (Hart v. Stephens, 6 Ad. & El., N. S.,] 937; Scarpellini v. Atcheson, 7 Id., 864; see 1 Roper H. & W., 208, ch. V., § 4.)
    4. The delivery of the note to the husband made it an executed gift on his part.
    5. As a voluntary settlement, there was enough to constitute it a valid delivery in favor of the wife. (Clavering v. Clavering, 2 Vern., 473; Boughton v. Boughton, 1 Atk., 625; Garnans v. Knight, 5 Barn. & Cress., 671; Scrugham v. Wood, 15 Wend., 546.)
    IV. A gift from husband to wife, even when invalid, at law, is valid in equity, if the intention be clear. (Borst v. Spelman, 4 Comst., 284; Lucas v. Lucas, 1 Atk., 270; Fisher v. Filbert, 6 Barr, 66; Mews v. Mews, 21 Eng. L. & E., 556; rule recognized.)
    2. The intention here to make a gift, is' entirely clear and repeatedly expressed, and is the only explanation of the taking the notes in the wife’s name. (See Beeve Dom. Eel., 132.)
    
      G. C. Goddard, for plaintiff, respondent.
    1. The notes did not become the property of the wife by the principles of the common law applicable to gifts, for there was no delivery. (3 Kent’s Com., 6th ed., 435, 438 ; Harris v. Clark, 3 Comst., 113; Huntington v. Gilmore, 14 Barb., 243 ; Newfville v. Thompson, 3 Edw., 92.)
    2. The defendant did not acquire any title to or property in the notes in equity.
    The evidence does not establish the fact,' in such manner as a Court of equity requires, that the husband had given the notes to his wife and made them her property. (3 Edw. Ch., 92; McLean v. Longlands, 5 Ves., 71; Walter v. Hodge, 2 Swan., 92; Mews v. Mews, 21 Eng. L. and Eq., 558.) Without delivery the transaction is not valid as an executed gift. (Harris v. Clark, 3 Comst., 113; Van Deusen v. Rowley, 4 Seld., 358; Gilchrist v. Stevenson, 9 Barb., 13 Brown v. Brown, 23 Id., 565; Hitch v. Davis, 3 Mary. Ch. 266.)
    If any presumption arises of an intention to set apart these notes, as a provision for the wife, from the fact of their being drawn payable to her, this is rebutted by the other facts of the-case; namely, that the husband kept control of the notes; that he never delivered them to his wife as her property; nor treated them as such; but received and used the interest as if he regarded the notes as his own.
    With the aid of this presumption the case of defendant is not brought by the evidence within the rule above referred to, as to what shall constitute sufficient evidence of a gift from husband to wife.
    The question of a right by survivorship as of choses in action of the wife not reduced to possession, does not arise, until it is established that the notes belonged to her.
    ¡Nor can it be said that the gift was conditional and future, to take effect if not revoked, on the death of the husband, as a donatio mortis causd. Of this it had not the requisites. (Harris v. Clark, 3 Comst., 121.)
    ¡Neither law or equity recognize a third class of gifts, which are neither gifts in presentí, nor gifts causd mortis.
    
    A gift must be the one or the other. If in presentí, the property, is then vested and in the control of the donee from the moment the gift is made.
    If it is to wait the donor’s death to determine whether it vests, it must have the requisites of a gift mortis causd; or the formalities of a last will; or of a noncupative will.
    The right of survivorship in a wife applies only to choses in action which have once vested in her, involving no question of gift from the husband.
    There are no considerations of policy which should lead to the adoption of a rule in such cases, less carefully guarded, or of less certainty than the one above cited. A departure from such rule would leave no rule.
   By the Court—Monell, J.

There can be no doubt, from the evidence in this case, that Simes intended to make a gift to his wife of the two promissory notes. The circumstance of his taking the notes payable to the order of his wife, would of itself sufficiently indicate the intention to make the gift. But if this were not so, the evidence of Sirs. Simes, which was not objected to, and which is nowhere contradicted, relieves the case from any doubt on that subject. She testifies to his declared intention to make the gift, and the adoption of the particular form in svhich it was made, was as effectual to consummate his design as if it had been given to her out and out by his will.

Had the notes been delivered to her by her husband, and continued in her actual possession until his death, no one would question the completeness of the gift, or that she could hold them as against his representatives.

The Justice has found, as a fact, that the notes continued in the possession of Simes until his decease, and that after his decease they came into the possession of the defendant by finding.

The question, then, to be determined, is whether the continued possession of the notes by the husband, during his life and until his death, prevented the gift from taking effect.

There never was any actual delivery of the notes to the defendant during the life of her husband, unless the delivery testified to by the witness Huffer can be so considered. They were taken by Simes, the consideration moving from himself, and were always in his custody. He could, at any time, have received the money and discharged the obligation, or he might have prosecuted the maker and collected the amount. Had he done so, the money would have been absolutely his, and his wife could have had no claim whatever upon him, or upon his representatives. But he did not do so. He exercised no exclusive act of ownership over the notes, but suffered them to remain intact, merely receiving the accruing interest to a period shortly previous to his death.

The possession by the husband of the wife’s choses in action is the possession of the wife. At law they are one person, and the possession of herself is always that of the husband. (McNeill v. Arnold, 17 Ark., 154; Lee v. Matthews, 10 Ala., 682.)

No actual delivery to the defendant was necessary to constitute it an executed gift. The taking the security in her name constituted the gift, and its retention in his custody was a delivery to her.

In Wilde v. Wilde, (cited in 1 Bright’s H. & W., 32,) Lord Elder said, the purchase of stock by the husband, in the joint names of himself and wife, was prima facie a gift to her in the-event of her surviving, unless evidence was produced of eotemporaneous acts, showing a contrary intention. And Bright says, (p. 32,) the wife may take from the husband, by purchase made by him in her name, or in their joint names, which will be presumed to have been intended as a gift and advancement to her, and on surviving her husband she will be entitled.. (Kingdome v. Bridges, 2 Vein., 67; Glaister v. Hewer, 8 Ves., 199.)

In Day v. Pargrave, (cited in 2 Maule & Sel., 396,) Lee, Ch. J., held that when a bond was given to the wife during coverture, no action will lie for it by the wife solely; but they may have a joint action during their lives, or the husband may bring such action during coverture in his own name; yet if he does not, it survives to the wife.

In Gaters v. Madeley, (6 Mees. & W., 423,) a promissory note was given to the wife during coverture. Parke, B. says: “When a chose in action, such as a bond or note, is given to a feme covert, the husband may elect to let his wife have the benefit of it; or if he thinks proper, he may take it himself; and if, in this case, the husband had in his lifetime brought an action upon this note in his own name, that would have amounted to an election to take it himself, and to an expression of dissent on his part to his wife’s having any interest in it. On the other hand, he may, if he pleases, leave it as it is, and in that case, the remedy on it survives to the wife.”

In Scarpellini v. Atcheson, (7 Adol. & El., N. S., 864,) the plea was that the note was given to the wife, and that the husband “ elected to take and have the said note in his marital right.” On demurrer, it was held that it was to be considered rather as the legal conclusion from the facts stated, than as an averment sufficient in itself, and the plea was overruled.

In Christ's Hospital v. Budgin, (2 Vern., 683,) the husband had lent out money in the names of himself and wife, upon bond and mortgage taken in their joint names, and she was regarded as a joint purchaser and entitled to the securities by survivorship.

In Dummer v. Pitcher, (5 Simons, 35,) the husband transferred two sums of bank annuities into the names of himself and wife, and died in her lifetime. It was held that , the wife surviving her husband became absolutely entitled to the stock, there being nothing to show that the husband intended that the transfers should have any operation but what they legally had.

In Nash v. Nash, (2 Mad. C. C., 133,) the father of a married woman had drawn a check on his bankers for £10,000, in favor of his daughter, which she presented at the bank and took from them a promissory note for the sum, payable on demand, and gave it to her husband. He afterward applied to the bankers for £1,000 of the money, which was paid to him, and he received the interest on the remainder during his life, but never was paid any more of the principal. He died and his wife survived him. A bill was filed praying that the'£9,000 might be declared to be part of his personal estate, but the Vice Chancellor held that the note survived to the wife.

In Roman Catholic Orphan Asylum v. Strain, (2 Bradf., 34,) the husband deposited $1,400 of his own money, and took a certificate of deposit in the joint names of himself and wife. This was held to be prima facie a gift by the husband to the wife, in case she survived him, and that not having been disturbed in his lifetime, it became, on his decease, the absolute property of the wife.

All the cases to which we have here referred, clearly establish the right of the wife to take by survivorship, in cases where the security is taken in the joint names of the husband and wife. One of them, Nash v. Nash, and the text from Bright’s H. & W., applies the same rule where the security was taken in the name of the wife alone.

It would be difficult to discover a difference between the two cases. Where the husband, intending to make the gift, takes the security in her name, instead of their joint names, it furnishes stronger and more satisfactory evidence of the intention; and the fact that it remained undisturbed by him, is proof of the irrevocability of the gift, he not having done any act tending to defeat the right of the wife to an absolute property in the notes after his death. The receipt of the accruing interest by the husband was not an appropriation of the principal. In Burr v. Sherwood, (3 Bradf., 85,) it was held that the receipt of dividends on stock standing in the name of the wife, only reduces the dividends into possession, and not the stock. And see Nash v. Nash, (supra.)

Upon a full consideration of the facts in this action and of the cases to which I have referred, it appears clear to me that this was a gift to the wife; that the delivery, so essential to a valid gift, was complete; that the possession by the husband was the possession of the wife, and that he not having done any act signifying a different intention, or by which he revoked the gift and regained the property, upon his death the notes became absolutely her’s.

Upon this view, it follows that the learned Justice erred in his conclusion that the plaintiff was entitled to a return of the notes, or to a judgment for their amount.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Robertson, J.

The civil status of a married woman is not lost, but only in abeyance during marriage. In equity she always could have' a separate status from her husband’s ; and she now has, at law, in this State. Husbands, in equity, have always been capable of being trustees for their wives, and contracts could always be made with married women jointly with their husbands, or separately, to be enforced by their husbands during the marriage, or by the wife afterward. Thus in Day v. Pargrave, (cited in 2 Maule & Selw., 396,) Ch. J. Lee held that an action on a bond to a wife survived to her after her husband’s death. In Gaters v. Madeley, (6 Mees. & W., 423,) Parke, B., held the same doctrine in regard to a promissory note to a wife In Scarpellini v. Atcheson, (7 Ad. & El., N. S., 864,) a plea of an election by a husband to take a note to his wife in his marital right, was held bad. In Christ’s Hospital v. Budgin, (2 Vern., 683,) a bond to a husband and wife was held to survive to the wife. In Nash v. Nash, (2 Mad. C. C., 133,) a promissory note to a married woman was held to survive to her, though she had delivered it to her husband, and he had received part of the sums due on it and interest to his death. In Roman Catholic Orphan Asylum v. Stiam, (2 Bradf., 34.) a certificate of deposit in favor of a husband and wife, was held to survive in favor of the latter.

These cases show that a married woman is not disabled from being the beneficiary of a promise during coverture; she is merely a promisee for her husband’s benefit during his life, if he chooses to enforce it. But if he neglects to do it, the moment she becomes sui juris by the termination of the matrimonial relation, she can enforce her rights in her own name.

It is by force of the form of the contract in such cases, that the married woman is entitled, after her husband’s death, to the performance of it in an action at law, and not by virtue of any supposed assignment of it by her husband to her. The doctrine of gifts of chattels or choses in action in his name, is entirely different. In such cases equity must step in to enforce and complete an imperfect gift. Where a complete trust and trustee is created by a writing, there can be no doubt that, if a married woman is the cestui que trust, she has a right to the proceeds, but the action must be in the name of the trustee.

In the case of an executed transfer of stock or chattels, it may be necessary to have recourse to the presumption of an intended gift by the husband, by taking it in the joint names of himself and wife. (Per Ld. Elden in Wilde v. Wilde, cited in 1 Bright, Hus. & W., 32; Kingdome v. Bridges, 2 Vern., 67; Glaister v. Heever, 8 Ves., 99; Dummer v. Pitcher, 5 Simmons, 35.) An executory contract by its mere form survives to the wife, when made in her name, or the joint names of herself and her husband.

There was but one mode of putting an end to the wife’s right, which was by the husband’s reducing the chose in action into possession in his life. The receipt of the mere interest is not sufficient for the purpose. (Burr v. Sherwood, 3 Bradf., 85; Nash v. Nash, ubi sup.)

I concur in the view that judgment should be given for the defendant, with costs.  