
    ROBERTS, ET AL. v. WILLS, EXECUTOR OF ROBERTS.
    1. Delivery is essential to tbe validity of a gift donatio mortis causa.
    
    
      2. A verbal direction by a testator during his last illness, that after his death his -widow should have a certain wagon, then unfinished and not paid for, will not authorize the executor after the testator’s death, to deliver the wagon to the widow ; and if he make such delivery, he will be charged with the value of the wagon.
    8. A trust in a will, in relation to devises and bequests previously given, and by the words of the will restrained to property “ devised and bequeathed, os aforesaid,” will not extend to different bequests subsequently given by codicil, in lieu of those given by the will.
    This was a Certiorari to the Orphans’ Court of the county of Gloucester, to remove the decree of that court settling the aecounts of the defendant as executor of the last will of Joseph Rogers, deceased. The decree complained of was made at the June term, 1843, of that court, on ' exceptions filed to certain items of the executor’s account by the plaintiffs in Certiorari.
    
    But two errors were urged on the argument: 1st. The refusal of the Orphans’ Court to charge the executor with the value of a carriage alleged to have come to his hands and possession. 2d. The allowance of an item of $933, paid by the executor to one Allen Rogers, as the guardian of the exceptants, and styled in the accounts “ testamentary guardian ” of the exceptants. The plaintiffs, William R. Roberts, Joseph E. Roberts, and Nathan S. Roberts, were minors, and the exceptions below were filed, and this Certiorari brought in their behalf, by their father as their next friend.
    In relation to the carriage, it was proved before the Orphans’ Court, on the hearing of the exceptions, that the carriage was built by the order of the testator, but was not completed until after his death, when it was delivered by the builder to the executor. The builder received part of the price from the testator, and was paid the balance by the executor. It was also proved, that during his last illness, and shortly before his death, the testator gave this carriage, or directed it to be given, to his wife; he then stating to Mr. Wills, whom he had appointed his executor, that he wanted his wife to have the carriage that was then building. This was about five weeks before the testator’s death; he was then in bed, and no person was present but the executor and the witness, who testified as to the alleged gift; his language was, he wanted his wife to have the carriage then building. The carnage was brought by the builder to the premises of the testator after his death; and by the assent of the executor was taken into the possession of the widow, who offered it for sale, at the vendue made by the executor of the personal effects of the testator. It further appeared, that the testator had agreed to give for the carriage, his old carriage and the sum of $160 ; and that by a codicil to his will, dated the 11th December, 1834, he had given “ to his wife the proceeds of the sale of his new light wagon then building, for her sole use and disposal;” and that this was the same wagon, which he had agreed to give in exchange for the carriage in question.
    
      The propriety or otherwise of this payment of the item of $933 depended upon the construction of the will and one of the codicils. The will was dated the 31st of August, 1833, and with five codicils made subsequently, was proved shortly after the testator’s death, which occurred on the 13th of October, 1840. Both the will and codicils will be stated, so far as is necessary to a proper understanding of the point in question.
    After certain provisions made for his widow, the testator, by the 5th item of his will, bequeathed one thousand dollars of bank-stock to his three grandsons, Joseph, Theodore 'WVand Allen Rogers.
    By the 6th item he devised four separate parcels of land, therein particularly described, to his grandson, Allen Rogers, in fee.
    In a subsequent part of his will, he then devised and bequeathed in substance, as follows, viz: “ 13th item — All the rest and residue of my estate, both real and personal, or mixed, I order and direct my executor to sell, and all the nett proceeds arising from said sales,-after payment of debts and legacies, and all moneys due me, I give and bequeath to my said six grandsons, to be equally divided between them, share and share alike; that is to say, first set off to and pay Joseph Rogers, Theodore W. Rogers, William R. Roberts, Joseph E. Roberts, and Nathan S. Roberts, $3,500 each, in order to make them equal with Allen Rogers, for the land heretofore devised to him, and the residue to be equally divided between them, share and share alike, (subject nevertheless to the guardianship and trust as hereafter directed) ; and I order and direct my executor to pay to the trustee and guardian hereinafter appointed, all said moneys in manner and proportion as aforesaid, which I direct him to keep at interest on safe security.
    
      “ 14th item — I do hereby nominate and appoint my nephew, Allen Rogers, of Evesham, guardian of all the estate, both real and personal, of my said grandsons, as devised and bequeathed as aforesaid, hereby reposing full faith,” &o. In this item, the testator further proceeded to direct the trustee to retain the share of the moneys, bequeathed to his grandson, Joseph Rogers, until that grandson should attain the age of twenty-three years; and then, under certain contingencies, to pay them to him; otherwise to retain them during his natural life, and to pay him the interest annually.
    The testator, by the 5th codicil to his will, dated the first of June, 1840, after reciting that since making his will and the prior codicils, he'had thought proper to make some alterations in his will; and that his feelings had changed in regard to two of his grandsons, whom he named, proceeded to dispose as follows, viz: “ Whereupon I do hereby revoke, make null and void the fifth item of my said will, wherein I bequeathed to my three grandsons, Joseph, Theodore, and Allen Rogers, one thousand dollars bank stock, after the death of their mother ; and I do hereby order and direct the same to go into the residue of my estate, to be disposed of as hereinafter directed; and I do hereby revoke, make null and void the 6th section of my will, devising four several tracts and parcels of land therein described to my said grandson, Allen Rogers, and I do hereby give and devise all the said four several tracts and parcels of land to my grandson Joseph Rogers, his heirs and assigns forever. And I do further revolee, malee null and void that part of the said, thirteenth item, wherein I bequeathed $3,500 to each of my grandsons, Joseph and Theodore Rogers, and William, Joseph and Nathan S. Roberts; and also all that part of the thirteenth item wherein I bequeathed the residue of my estate to my said grandsons, (naming the six grandsons) share and share alike; and I do hereby give and bequeath to my grandsons Theodore W. and Allen Rogers the sum of $2000 each, provided they execute certain quit claims ; and further, I do hereby revoke, make null and void that part of the fourteenth item, wherein I have directed my grandson Joseph Rogers’ share to be paid to Allen Rogers, my nephew, and I do hereby direct and order the same to be paid to Joseph Rogers himself; and further, I give and bequeath all the residue of my estate not heretofore disposed of, to my four grandsons, the said Joseph Rogers, William R. Roberts, Joseph E. Roberts, and Nathan S. Roberts, share and share alike, and to their heirs.”-
    
      A. Browning for the plaintiffs in Certiorari.
    
    
      1st. The alleged gift of the carriage to the widow is not good, as a donatio mortis causa, because there was no delivery. 2 B. Com. 514. Toller’s Ex. 233. Bunn v. Markham, 7 Taunt. 224. Ward v. Turner, 2 Ves. 431, 438. 4 Harr. Digest, “ Wills,” p. 2200. The risk was in the builder until delivery, and the interest, which Mr. Rogers the testator had in his lifetime, was a mere inchoate right, and not the subject of a gift mortis causa.
    
    2nd. The executor paid $933 to Allen Rogers, who is styled “ testamentary guardian ” of the exceptants. Tt will however not be pretended, that the grandfather could by will appoint a guardian for them; and if he had any authority to receive this money, it must have been as trustee under the will, and not as guardian. Allen Rogers applied to the Orphans’ Court of Gloucester, and procured letters of guardianship; but these letters are void, the father of these children being living. Opinion of Chancellor Williamson, cited Elm. Digest 226, notes. Griff. Law Reg. “New Jersey” 1278, 1280. Elmer’s Forms 152, note. Chancellor Pennington, on the 18th of January, 1843, upon petition, appointed Izry Roberts, the father of the plaintiffs, their guardian, by whom, in their behalf and in their names, the exceptions were filed in the court below, and this Certiorari brought.
    The intention of the testator is to be gathered from the whole will. 4 Kent 534, 5th ed. 1 Greenleaf’s Ev. § 289. Under the will and the codicil taken together, I contend there is no trustee. By the 13th item of the will, the testator directed the residue of his estate, after a sale of the real estate not otherwise disposed of, to be divided among six grandsons named, the plaintiffs under that provision being entitled to one-half thereof. By the 14th item, he appointed his nephew Allen Rogers guardian and trustee of the estate real and personal of his said grandsons. Some years after the dale of the will itself, by a fifth codicil, dated the 1st of June, 1840, the testator materially changed the disposition of a largo portion of his estate. He revoked the 5th item, and directed one thousand dollars there given to go into the residue. He revoked the sixth item, and made a different disposition of certain real estate. He further revoked that part of the 13th item, wherein he bequeathed $3500 to each of his grandsons Joseph and Theodore W. Rogers and to William, Joseph and Nathan S. Roberts; and also that part of the 13th item, wherein he bequeathed the residue of his estate to his six grandsons equally, and in lieu thereof, he bequeathed and directed as follows, viz : He gave $2000 to each of his two grandsons, Theodore W. and Allen Rogers; and then, after expressly revoking the trust in the 14th item in relation to his grandson Joseph Rogers, he further bequeathed as follows, viz : “ Further, I give and bequeath all the residue of my estate, not heretofore disposed of, to my four grandsons, the said Joseph Rogers, William , R. Roberts, Joseph E. Roberts and Nathan S. Roberts, share and share alike, &c.” By this codicil, so far as regards the residue of his estate, and so far as regards the plaintiffs, the testator revoked his previous provision in their favor, and made a new one, independent of and unconnected with the.trust. He largely increased the residue, and then, in lieu of one-half of the residue given by the 13th item, in the codicil he gives the plaintiffs three-fourths of the residue so enlarged. When the original devises and bequests were revoked, the trust dependent thereon was revoked also. The trust in the 14th section was in relation to estate real and personal of the grandsons, “ as devised and bequeathed as aforesaid f’ expressly referring in terms, to the provisions for these grandsons in the'prior clauses of the will. By its terms, the trust could not apply to bequests made subsequently, even to subsequent bequests in the will itself, had there been such, much less to an independent and entirely new provision in a codicil, made some years afterwards.
    There is a farm in the county of Salem, devised by the 11th item of the will, to William R. Roberts, one of the plaintiffs, which doubtless is subject to this trust. The trust can attach to that farm, but Allen Rogers is not trustee of the property given by the codicil of the 1st. of January, 1840. •
    There can no implication arise from the mere fact, that the trust was expressly revoked in relation to one grandson Joseph Rogers.
    
      W. N. Jeffers, contra.
   The opinion of the court was delivered by

Carpeípfer, J.

With every disposition to carry out the intention of the testator in favor of the widow, in relation to the carriage, so far as it can be done consistently with the rules of law, yet in the present case it is difficult to see how the intended gift can take effect, in accordance with those rules. Established rules are of vastly more importance titan the hardship of any particular case. I am of the opinion that the intended gift cannot take effect as a donatio mortis causa, no delivery having been made of the article by the testator. The case of Spratly v. Wilson, 1 Holt. N. P. Cas. 10, seems something like the present. The testator, on his death bed, desired B. to call at a certain place, and fetch away a watch, adding that he would make her a present of it; but no possession was resumed by the testator and no delivery made to B., the watch remaining at its place of deposit with a silversmith, until after the death of the' testator. Although this was not held to bean absolute gift, yet Gibbs G. J., before whom the cause was tried, seemed to hold it good as a donatio mortis causa. This ease from Holt’s Reports was subsequently cited in the Court of Common Pleas, but was disclaimed and overruled. When cited, Gibbs G. J. immediately desired that it should be laid out of consideration; adding that the doctrine then broached had been improvidently thrown out, and that that case could not be supported because delivery was wanting. See Bunn v. Markham, 7 Taunt. 224. Delivery is essential to such gift; there was none in the present case, either symbolical or actual. Indeed it would seem incapable of delivery, and consequently of being the subject of such gift, as the article was in the process of manufacture, and the risk remained in the maker until subsequently delivered. As I understand the evidence taken before the Orphans’ Court, the article was, after the death of the testator, delivered to the executor, he paid the maker the balance of the price still due him ; and by his assent, it then went into the hands of the widow. I feel constrained to say that the executor was bound to account for its value, and that the decree is in this particular erroneous.

Neither do I aprehend the allowance of the item of $933, paid by the executor to Allen Rogers, as guardian or trustee of the plaintiffs, to be correct. The trust, in the fourteenth item of the will, was only in relation to property, “ devised and bequeathed as aforesaid.” In terms it only applied to the previous clauses of the will, in which certain devises and bequests had been given ; and it cannot, by implication, be extended to subsequent provisions in a codicil, executed several years after-wards. The last codicil, in 1840 expressly revokes the provisions made for these plaintiffs in the 13th item of the will, and then in lieu thereof makes an increased and different bequest. In this latter and new provision, no reference is made to the trust directed in the will, which, expressly restricted in terms to particular and specified subjects, when the subject matter failed, has necessarily failed also. The executor having paid this money in his own wrong, should not be allowed therefor. In this particular the decree of the Orphans’ Court is likewise erroneous and should be corrected.

Nevius, J.

Upon the state of facts presented to this court, I think the Orphans’ Court was right in refusing to charge the defendant with the value of the carriage. Although it was not in the actual possession of the testator in his life time, yet, by virtue of his contract with the builder and the payment of the purchase money in part, he had acquired such an interest in it, that he could legally dispose of it, by sale, by gift, or by will. Did he then make such a disposition of it, in his life time, as will legally discharge the defendant from liability to account for it? A man in his last illness, and apprehensive of death, may by gift dispose of any article of his personal property, to be kept by his donee, in the event of his death, and such gift is called a donatio mortis eausa, and a wife is as capable of being such donee as any one else. But it is said that it is necessary to the validity of such gift, that it should be accompanied with actual delivery. 1 admit there must be a delivery, to make such gift effectual; but it need not always be an actual delivery, or transfer of the possession of the thing given, into the hands of the donee. If it be a delivery consistent with the nature and situation, or condition of the property, and the only kind of delivery of which the property is susceptible at the time, it will be sufficient. In this case there could be no actual transfer into the hands of the wife, for the carriage was yet in the hands of the builder, in an unfinished state. If a man go as far as he can in such case towards transferring the possession, his bounty shall prevail. Tol. on Ex. 233. Here eould be no symbolical delivery, nor a delivery of part in the name of the whole, nor a transfer by the delivery of a key of a coach or warehouse. The most that the testator could have done to carry out his intention, would have been to send for the builder, and in the presence of a witness, make the gift and direct him to make the delivery to his wife in case of his death, as soon as the property could be delivered. This I apprehend would have been within the spirit of the rule, that requires delivery of such a gift. And what he did was equivalent t® this. He verbally made the gift, correspondent with the clause of his codicil, above referred to, and instructed his executor, (the man who after his death he had entrusted with the settlement of his estate), to execute and carry it out. What he said to the defendant, was in the nature of a declaration of trust, which I think he was bound both in law and equity to perform ; and whether the property, after the testator’s death, came directly into the hands of his widow, or of the defendant, will not in my opinion affect her rights, or his liability. If he received it, he was bound to deliver it to her in the execution of his trust. Assuming then that the testator had such an interest in the carriage, in virtue of his contract with the builder, and the payment of part of the purchase money on that contract, as would warrant his disposing of it by sale, gift or will, I think he exercised that power in a lawful and effectual way, and made a legal and valid gift by way of donatio mortis oausa. If he could do so at all, he could do it in the way in which it was done. But even if, according to the strict and stern rules of law, this gift could not be sustained, I am nevertheless of opinion that the defendant ought not to have been charged by the court below, with the value of this property. The evidence shows, that he acted in no bad faith, but with that reason and discretion which would have led any intelligent and conscientious mind to the same result. If he made a mistake according to a strict construction of the law, it was a natural one, for which he ought not to be held accountable opon a final settlement of his accounts. 2 John. Cases 376. Though generally speaking, an executor, compounding or releasing a debt, must answer for the same, yet if he does so for the benefit of the estate, it will be an excuse. 3 Pe. Wms. 381, This shows that the courts, to which the executor is to respond for the faithful performance of his trust, have the power to save him from the operation of a strict legal principle, which would be attended, if the plaintiffs’ position is true, with the most glaring injustice. But I apprehend no principle of law is violated, or even strained in the conclusion, at which I have arrived in the present case.

As to the second exception, taken to the decree of the Orphans’ Court, to wit, the allowance to the defendant, of the sum of f 933 paid to Allen Rogers, I think the court committed no error. By the 13th section of his will, the testator directs his executor to sell all the rest and residue of his estate ; and after payment of his debts and legacies, he gives the proceeds of said sales and all moneys due to him, to his six grand-sons, to be equally divided between them ; “ that is to say, first set off to and pay Joseph Rogers, Theodore W. Rogers, William R. Roberts, Joseph E. Roberts, and Nathan S. Roberts, .$3500 each, in order to make them equal with Allen Rogers for the land heretofore devised to him, and the residue to be equally divided between them, subject nevertheless to the guardianship and trust, as hereinafter directed.” And in the same clause of his will, he orders and directs his executor, to pay to the trustee and guardian, so to be appointed, the said moneys; and then directs the said trustee and guardian to keep said moneys at interest, on good land or other good and sufficient security. ■

By the 14th section of his will, he appoints his nephew Allen Rogers, guardian of all the estate real and personal of his grandsons devised and bequeathed as aforesaid, with an expression of great confidence in his integrity and faithfulness; and directs him not to pay Joseph Rogers’ share to him, till he arrives at the age of 23 years; and then only in case the said Joseph is sober, industrious and careful, and if not so, to pay him the interest only for 'his natural life. In the 17 th section, he directs “ the said Allen Rogers, guardian as aforesaid, to appropriate such parts of the interest arising out of the moneys given to Joseph, Theodore and Allen Rogers to school and educate them, as may be necessary to give them a liberal education, during their minority; and when they arrive at the age of 21 years, to pay to the said Theodore and Allen Rogers, each his share, &c.; also in like manner, to the said William, Joseph and Nathan Rogers.” This will, in part recited, bears date on the 31st of August, 1833, to which are annexed five codicils executed at different times. By the 5th codicil, dated the 1st of June, 1840, he says, that, since making his will and the foregoing codicils, ho has thought proper to make some alterations in his will. And whereas my grandsons Theodore and Allen Rogers, have not treated me with the respect due to a grand parent, I revoke the 5th section of my will wherein I bequeathed to my three grandsons, Joseph, Theodore and Allen Rogers my bank stock after the death of their mother, and I order the same to go into the residue of my estate, to be disposed of as hereinafter directed.” Then, after revoking the 6th section of his will, wherein he had devised certain lands to his grandson Allen Rogers ; and devising the same lands to Joseph Rogers, he proceeds, “ I do further revoke, make null and void that part of the 13th item, wherein I bequeathed $3500 to each of my grandsons, viz: Joseph and Theodore Rogers, William, Joseph and Nathan Roberts; and also that part of the said 13th item, wherein I bequeathed the residue of my estate to my said grandsons, (meaning then) share and share alike; and I do hereby give and bequeath to my grandsons, Theodore and Allen Rogers, the sum of $2000 each provided they execute such release to my executor, as is directed in the 15th section of my will; and further, I revoke that part of the 14th item, wherein I have directed my grandson Joseph Rogers’ share to be paid to Allen Rogers my nephew, for Joseph’s benefit; and I order the same to be paid to Joseph himself, provided,” &a., (naming a condition.) “And I further give and bequeath all the residue of my estate, not heretofore disposed of, to my four grandsons, Joseph Rogers, William, Joseph and Nathan Roberts, share and share alike.”

It further appears that, after the death of the testator, Allen Rogers, the guardian and trustee named in the will, declared in writing his acceptance of the trust, and executed a bond pursuant to the statute; whereupon letters were granted to him, as such testamentary guardian of Theodore and Allen Rogers and William, Joseph and Nathan Roberts; and that afterwards upon the petition of William, Joseph and Nathan Roberts to the Chancellor, Izry Roberts their father was appointed their guardian on the 18th of January, 1843.

As far as I can ascertain from the case presented to us, for it is not distinctly stated, I infer that the payment to Allen Rogers, by the defendant, and which is complained of, was made, before, the appointment of Izry Roberts as guardian, by the Chancellor. Upon the foregoing state of facts, the question is fairly presented, whether the defendant was lawfully authorized to make this payment to Allen Rogers. Our statute recognizes the power to appoint a guardian, and also a trustee by last will and testament. Elm. Dig. 225, Id. 600. And if such will be proved and recorded, and the guardian so appointed declare his acceptance of the guardianship, and give bond approved by the Orphans’ Court, he shall execute the office. Such an appointment was made by the will of the testator in this case. The will was proved and recorded, the appointment accepted, and the bond given pursuant to the statute. It is not necessary to inquire into the right of the Orphans’ Court to issue letters of guardianship, nor the validity of those letters. The office of guardian and trustee was created by the will of the testator, and the action of the Orphans’ Court was no further necessary than to approve the bond, which the statute required. These letters, therefore, will in no wise affect the right of Allen Rogers, to the office of guardian and trustee under the will; for his acceptance of them was no evidence of such right. But it is contended, that the appointment, made by the will, was revoked by the codicil above cited. I do not so understand it. By the 13th clause of the will, the testator directed the residue of his estate to be liquidated ; and then gives the proceeds, and all moneys due to him, to his six grandsons, subject to the guardianship and trust after mentioned; and orders his executor to pay such residue to said guardian and trustee, who is enjoined to vest the same at interest, till such time as it shall be payable to his legatees ; and by the next clause appoints his nephew guardian of all the estate so bequeathed, directing him not to pay Joseph’s share till he attain the age of 23 years. By the last clause, he imposes upon his said nephew, guardian as aforesaid, thefurthe duty of appropriating a part of the interest arising out of th moneys so given to three of his grandsons, to give them a liberal education, and when five of them respectively arrive at lawful age, to pay them their legacies. The codicil does not revoke this trust, nor in any wise change the powers and duties of the executor, except as regards the payment of Joseph Rogers’ share. By the will, the executor was to liquidate the estate, and pay it over to the trustee. The codicil does not alter or modify this direction, with the exception above mentioned. The fund to be paid to the guardian is the same, is derived from the same source, raised by the same means, and to be paid by the same person who is named in the will. The codicil only changes the distribution of th'at fund, after it comes to the hands of the guardian and trustee. The testator has not discharged his executor from the duty of liquidating the residue of his estate, and paying it over, with the exception of Joseph’s share, to the guardian ; nor has he discharged the guardian from the duty and trust of investing this fund, at interest on good security, and appropriating a part of the interest towards the education of some his grand children; nor of paying them their respective shares, when they attain lawful age. All these instructions, contained in his will, remain in full force, wholly unrepealed and unaffected by his codicil, By this codicil, the testator in express terms revokes the 5th and 6th sections of his will, that is the whole of these sections, but as to the 13th section he only revokes that part of it, wherein he bequeathed 03500 of the residue of his estate to five of his grandsons, and the balance to his six grandsons, in equal proportions; and instead of this, gives to Theodore and Allen Rogers 02000 each, leaving the remaining part of this section of his will in full force. And so he revokes only that part of the 14th clause of his will, wherein he had directed his nephew to pay his grandson Joseph his share, when he attained the age of twenty-three years, and directed the same to be paid to himself and not to the guardian ; and then gives the residue of his estate to his four grandsons, Joseph Rogers, William, Joseph and Nathan Roberts, evidently meaning not to interfere with the trust created by that section of his will, farther than to change the direction of his bequests. In this alteration of his will by the codicil of 1840, he makes no reference whatever to the 17th section of it, which also contains instructions to the guardian and trustee. The will and codicil are to be construed together, and every provision contained in them is to prevail, if they can stand together and are not inconsistent with each other; and from a careful examination of the case before us, I cannot preceive even an implied, much less an express revocation of the trust in the will. On the contrary, it is clear to my mind, that the testator intended to leave it in full force, except so far as he altered it by express terms. I find nothing in the codicil to warrant the assumption, that the testator intended to revoke this trust. I think therefore, that the defendant was legally justified in making this payment to Allen Rogers, and that he was lawfully entitled to receive it.

I deem it unnecessary to advert to the appointment of a guardian, by the Chancellor; or to inquire into the validity of that appointment; or whether it divested the testamentary guardian of his rights and powers ; for the money was paid by the defendant to the guardian named in the will, before such appointment was made by the Chancellor; and was therefore rightfully paid, and the decree of the Orphans’ Court ought to be affirmed with costs.

Decree of the Orphans’ Court set aside.

Hornblower C. J. concurred with Carpenter J.

Whitehead , and Randolph J. J. did not hear the argument, and gave no opinion.

Cited in Egerton’s Ex. v. Egerton, 2 C. E. Gr. 421.  