
    John Caufield, as Executor, etc., Resp’t v. W. B. Davenport, as Administrator, etc., Appl’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    Gift—Question of fact.
    Where the mortgage is delivered, the question whether the donor intended to give the bond also, is one of fact.
    Appeal from a judgment in favor of the plaintiff.
    
      Charles II. Otis, for app’lt; Ullo, Ruebsamen & Cochran (Lorenzo TJllo, of counsel), for resp’t.
   Dykman, J.

The defendant is the public administrator of the county of Kings, and as such became possessed of certain bonds and mortgages, which he claims as a portion of the personal property of John Caufield, deceased. The plaintiff is the executor of Bridget Caufield, the widow of John Caufield, and he claims the bonds and mortgages as the property of his testatrix by virtue of a gift causa mortis from John Caufield. This action was brought for the recovery of such bonds and mortgages. A trial was had before a judge without a jury, and he found the evidence sufficient to sustain the gift of one of the bonds and mortgages, known as the Calhoun Mortgage,” and insufficient to sustain a gift of the others. Judgment has been entered upon such decision, from which the defendant has appealed, but the plaintiff has not appealed.

The sole question, therefore, involved upon appeal, has reference to the ownership of the Calhoun bond and mortgage only. We find the evidence sufficient to sustain the findings of the trial judge, and the rules of law which control the case have been so frequently stated, and are so thoroughly settled, that a restatement of them would be unprofitable, if not stale. This point is made, however, by the appellant: Assuming the evidence sufficient to show a compliance with all other requisites to a donatio causa mortis, there was no evidence of a delivery of the Calhoun bond, and, without such evidence, proof of the delivery of the mortgage is insufficient. That argument is based upon the theory that the bond is the principal, and the mortgage is the incident, of the debt it was intended to secure. The case of Merritt v. Bartholick, 36 N. Y. 44, is referred to as an authority, and it does recognize the principle as a general proposition; but, after saying that the principal shall not pass by the grant of the incident, the court says: “ unless we are authorized to say that such was the intent of the parties, we cannot hold that it did, [that is, thát the transfer of the mortgage did operate as a transfer of the bond also.] This is a question of fact.” Under that authority, therefore, whether the donee intended to give the bond as well as the mortgage to the plaintiffs intestate is a question of fact, and it was so treated by the trial judge. Upon that subject he found that John Caufield, in recognition of the equitable right of his wife, in view of impending death delivered to her, as a gift thereof and of the money secured thereby, the bond described as having been made by Annie E. Calhoun to John Caufield to secure the payment of the principal sum of $9,000, together with the mortgage therein also described, bearing the same date and executed by the same person, for the same sum, with the same conditions as the said bond. As a conclusion of law the trial judge found that the delivery of the Calhoun bond and mortgage, as aforesaid, by the said John Caufield to the said Bridget Caufield, and the acceptance thereof by her, as aforesaid, constituted a valid gift thereof for the purposes declared by the said John Caufield. The finding of fact of the trial judge is amply sustained by the evidence, and so his conclusion of law is justified also. Our conclusion is that the judgment should be affirmed, with costs payable from the estate in the hands of the defendant.

All concur.  