
    Gano v. Fisk.
    
      Gifts causa mortis — Delivery—Promissory notes — Assets of estate.
    
    1. -Gifts ccuysa mortis have tlio nature of a legacy, and tlie policy of our law does not favor them while there is provision, by the statute of wills and the law of descents, for the transmission of all property rights.
    2. G. was a man of advanced age, having a wife and daughters by a first wife, and, by the present wife, a son, with whom he boarded; his property consisted partly, of a farm and stock thereon, but mostly of promissory notes of various amóunts; before his last sickness he had,expressed a desire “ that his children should have his notes and his son should haves liis farm; ” on the morning of the day of his death, and in the presence of a daughter’s husband, herself and a sister, G., called the daughter and said to her: “ My notes are in a little box on the bureau there; I want you to take them and divide them equally among you children.” He told her to get the key to the b'ox, and shg got the key and tried it in the box, and gave the key to her husband for safe-keeping. After his death intestate, she took the box and did not divide'tke notes, but returned them to the administrator, and they were appraised and held as part of the estate. In an action by the daughters, claiming for themselves and the son, the notes and their proceeds, as against the administrator and the widow. Meld: 1. These facts do not show such a delivery as constitutes a valid gift causa mortis. 2. These notes and their proceeds are assets of the estate, and the widow is entitled to hqf proper part thereof.
    Error to the District Court of Morrow county.
    Samuel Gano died intestate June 11,1880. His property consisted of one hundred and forty-one acres of land in Morrow county, a few hundred dollars’ worth of live stock and farming implements, etc., and about $7,000.00 in promissory notes. There were thirty-eight notes, of various amounts, from $5.00 to $750.00, and interest, and bearing divers dates, from August 7, 1867, to July 20, 1830, as set forth. He left surviving him his widow, Elizabeth A. Gano, the plaintiff in error; Chloe J. Eisk, who intermarried with I. J. Eisk, the administrator; Caroline O. Pearson, who intermarried with B. J. Pearson; and Sarah A. Coomer, who intermarried with C. D. Coomer, children of his first wife; and Erank ~W. Gauo by his second wife and present widow.
    On June 14,1880,1. J. Eisk was appointed administrator of decedent’s estate, and entered upon the discharge of his •trust. Appraisers wore appointed, and on July 9,1880, the personal property of the deceased, including the notes, was duly appraised as assets of his estate. The administrator collected a large part of the notes. On November 23,1881, the children of the first wife filed a petition in the court of common pleas of Morrow county against I. J. Eisk, as administrator of Samuel Gano, Elizabeth A. Gano, the widow, and Erank W. Gano, setting up ownership in themselves and Prank W. Gano to all the promissory notes; and they asked that on the final hearing of the cause I. J. Pisk be by the court ordered to deliver up to. the plaintiffs and Prank W. Gano all the notes and claims that remain uncollected, and also to deliver in like manner all the moneys that have been by him collected on the same, and that the notes and claims, with the money collected on the same, may be adjudged by the court to be the money and-property of the plaintiffs and Prank W. Gano, or that they may have judgment for the same and for such other further and different relief as is equitable in the premises.
    To the petition the administrator answered “ that he can not deny the statements and allegations in the plaintiff’s petition; that he has collected a portion of the claims, and now holds the same, and those claims that are uncollected are also in his hands ; that he is ready and willing to pay the moneys so collected and to deliver the claims as the court shall direct, and he asks that the court make such order and judgment and decree in this action as will fully protect him.”
    Prank W. Gano did not answer. Elizabeth A. Gano denied that the possession or the ownership of the promissory notes, at the death of Samuel Gano and prior thereto, was in the heirs; and she averred that they were assets of the estate to be administered upon.
    On trial in the court of common pleas there was a finding and decree in favor of Elizabeth A. Gano. A motion for a new trial was oven’uled and a bill of exceptions taken. Plaintiffs also gave notice of their intention to appeal the case to the district court, and the appeal was perfected.
    At the trial in the district court in July, 1883, on request the court found the facts to be as follows:
    “ 1. We find that Samuel Gano died intestate June 11, 1880, leaving surviving him his wife, Elizabeth Gano, and Chloe J. Pisk, who intermarried with I. J. Pisk, and Caroline O. Pearson, who intermarried with B. J. Pearson, aud Sarah Coomer, children of his first wife, and Prank W. 
      Gano, the child of his second wife, defendant in this case, his heirs at law and legal representatives.
    
      “ 2. That his property consisted of one hundred and forty-one (141) acres of land in said county, and his stock, consisting of horses, cattle, and sheep, amounting in value to a few hundred dollars, and about seven thousand dollars in promissory notes, the .property in dispute, and of the value of seven thousand dollars.
    “ 8. That before his last sickness he had expressed a desire that his children aforesaid should have his notes and that his son Frank should have his farm.
    “ 4. That on the day before his death he said he could not get well, and called the attention of his daughter, Mrs. Fisk, to his notes. He said they were in the cabinet; that he wanted her to take them and divide them among the children.
    “ 5. That on the morning of the day of his death, in the presence of I. J. Fisk, Mrs. Fisk, and Caroline Pearson, he called Mrs. Fisk and said to her, “ my notes are in a little box on the bureau there; I want you to take them and divide them equally among you children; ” that the key to the box is in a little draw.er, and to go and get the key; that she did go and get the key, and tried it in the box, and that it was the key belonging to the box; that she gave the key to her husband, I. J. Fisk, to whose care of for him for fear she might lose it; that Gano died the same evening about 5 o’clock, .of the same illness; that after her father’s death Mrs. Fisk took the box containing the notes home with her ; that she never did divide the notes before or after her father’s death; that on the 14th day of June, 1880,1. J. Fisk was appointed administrator of the estate of said deceased; that at the same time appraisers wei’e appointed, who, after being qualified on the 9th day of July, 1880, on the premises of said deceased, inventoried and appraised the personal property of said decedent, including said notes; that the box containing said notes was brought back by Mrs. Fisk, and by the administrator turned over to the appraisers as assets of said decedent, to be inventoried and appraised as part of his estate; that Mrs. Fisk and the other heirs at law of said decedent never relinquished their claim upon said notes, claiming the notes as a gift from their father.”
    And thereupon the court said:
    “We find and declare the law to be upon the findings of fact aforesaid.
    “1. That there was a delivery of the promissory notes in question by the donor during his lifetime, in apprehension of death from his then present illness, and that such delivery constitutes a good gift, causa mortis, subject only to the donor’s implied power of revocation during life.
    “2. That the delivery by the donor of the key of the box containing the notes to his daughter, with instructions to take them and divide equally with herself and his other children, and trying the key to the lock on the box by her, is taking possession of the property for the purposes named, and that it is not essential to the validity of the gift that such division be made during the donor’s life.”
    A motion for a new trial was overruled, and the court ordered the administrator to deliver the promissory notes, to Chloe J. Fisk, Caroline O. Pearson, Sarah Ann Coomer, and Frank W. Gano, in equal proportions, and also that he pay to them, in equal proportions, all the moneys he had collected upon the notes.
    To all which Elizabeth A. Gano excepted, and she now seeks a reversal of that judgment and decree.
    
      S. G. Kingman'^and T. E. Duncan, for plaintiff in error.
    A gift donatio causa mortis is defined to be a gift in apprehension of death.
    “ It is indispensable to its validity that it be accompanied by a present delivery of the subject of the gift, according to the manner in which it is capable of being delivered.
    . . . It must be actual delivery so far as the subject of the gift is capable of delivery.” 2 Kent’s Com. 566, 567. And see Burr. Dict. 514, 515; Will. Eq. Jur. 554; Sto. Eq. Jur. (10th ed.) § 607a ; 3 Red. Cas. Wills (2d'(ed.), 348, par. 20; Hamor v. Moore, 8 Ohio St. 242; Starr v. Starr, 9 Ohio St. 74; Simmons v. Savings Society, 81 Ohio St. 461; 2 Par. Con. 236; Champney v. Blanchard, 39 N. Y. 111; Craig v. Craig, 3 Barb. Ch. 76; Huntington v. Gilmore, 14 Barb. 244.
    To transfer title to personalty by gift, possession of the property must pass from the donor to the donee during.the life-time of the donor. Wilcox v. Matteson, 53 Wis. 23; Curry v. Powers, 70 N.Y. 212; s. c., 25 Am. Rep. 577; Young v. Young, 80 N. Y. 422; s. c., 36 Am. Rep. 634; Taylor v. Henry, 48 Md. 550; s. c., 30 Am. Rep. 486 ; Case v. Dennison, 9 R. I. 88; s. c., 11 Am. Rep. 222.
    Symbolical delivery will not suffice in this case because the notes were capable of actual delivery. Symbolical delivery can only be effective to pass a gift when the nature of the gift, such as weight, bulk, condition, or position, is not susceptible of actual delivery. 2 Rent’s Com. 566, 567; 1 Par. Con. (6th ed.) 236; 3 Red. Cas. Wills (2d ed.) 348, note; Turner v. Brown, 6 Hun, 331.
    An absolute delivery and continued change of possession are essential to make a valid donatio causa mortis. Craig v. Craig, 3 Barb. Ch. 76; Harris v. Clark, 2 Barb. 94; s. c., 3 N. Y. 93; Logan v. Deshay, Clark’s Ch. 209 ; Brinckerhoff v. Brinckerhoff, 2 N. Y. Leg. Obs. 424.
    The policy of the law is to discourage such gifts, as the temptations and opportunities to defraud and to divert property from its natural channel of descent and to defeat the intent of the statute of wills, written as well as nuncupative, are very great. And the proof of such gifts must be clear and of an unequivocal character. Delmotte v. Taylor, 1 Red. Sur. Rep. 417; 3 Red. Cas. Wills, 348, par. 20; 1 Par. Con. (6th ed.) 236.
    The notes wore never divided before the donor’s death. If the directions were to divide them after his death, they can not be followed, for the reason that such authority can only be conferred by last will and testament. Phipps v. Hope, 16 Ohio St. 586; 1 Par. Con. (6th ed.) 234.
    Property owned by a resident of this state can only be disposed of at his decease either by will or by descent. Needles v. Needles, 7 Ohio St. 432.
    A gift can not be maintained by the evidence of the donee alone, although the donee may be in possession of the alleged gift. Kenney v. Public Administrator, 2 Brad. 319.
    The pretended gift operates as a gross fraud upon the widow’s rights. She sustains the relation of a quasi creditor to the estate of her deceased husband, ahd, as such, her rights can not be defeated or impaired by any gift, grant, or testamentary devise of the property. Revised Statutes, sec. 4196; McCammon v. Summons, 2 Disney, 596.
    
      Andrews $ Allison, and James Olds, for defendants in error.
    The bill of exceptions does not purport to contain all the evidence, and hence the questions sought to be made by the assignments of error that the findings are not supported by, and are against the weight of, the evidence can not be considered. Reid v. Sycks, 27 Ohio St. 285, 287 ; Railway v. Probst, 30 Ohio St. 104; Armleder v. Lieberman, 33 Ohio St. 77; Meyer v. Shroeder, 10 Am. L. Rec. 309; s. c., 6 Week. L. Bull. 698.
    The facts, as found by the court, contain all the elements of a perfected gift. Gardner v. Merritt, 32 Md. 78; s. c., 3 Am. Rep. 115; Tillinghast v. Wheaton, 8 R. I. 536; s. c., 5 Am. Rep. 621; Grymes v. Hone, 49 N. Y. 17; s. c., 10 Am. Rep. 313; Hill v. Stevenson, 63 Me. 364; s. c., 18 Am. Rep. 231; Martin v. Funk, 75 N. Y. 134; s. c., 31 Am. Rep. 446; Kellogg v. Adams, 51 Wis. 138; s. c., 37 Am. Rep. 815; Harris v. Hopkins, 43 Mich. 272; s. c., 38 Am. Rep. 180; Carpenter v. Soule, 88 N. Y. 251; s. c., 42 Am. Rep. 248; Ross v. Draper, 55 Vt. 404; s. c., 45 Am. Rep. 624; Reed v. Copeland, 50 Conn. 472; Druke v. Heiken, 61 Cal. 346; s. c44 Am. Rep. 553; Camp’s App., 36 Conn. 88; Minor v. Rogers, 40 Conn. 512; Ray v. Simmons, 11 R. I. 266; Burke v. Bishop, 27 La. Ann. 465; Sheedy v. Roach, 124 Mass. 472; Davis v. Ney, 125 Mass. 590; s. c., 28 Am. Rep. 272; Darland v. Taylor, 52 Iowa, 503; s. c., 35 Am. Rep. 285; Gerrish v. New Bed. Inst. Savings, 128 Mass. 159; s. c., 35 Am. Rep. 365; Fletcher v. Fletcher, 55 Vt. 325; 1 Par. Con. 201; 1 Burr. Dict. 633; 2 Rent’s Com. 439; Martrick v. Linfield, 21 Pick. 325; s. c., 82 Am. Dec. 265; Wheelwright v. Wheelwright, 2 Mass. 66; s. c., 8 Am. Dec. 66; Hatch v. Hatch, 9 Mass. 307 ; s. c., 6 Am. Dec. 67; Merriwether v. Morrison, 78 Ky. 572; Mitchell v. Ryan, 3 Ohio St. 377.
    In the case of McCammon v. Summons, 2 Disney, 596, relied upon by counsel for plaintiffs in error, which was an action to enforce a trust, it was alleged and proven that the object for which the real and personal estate was transferred was to prevent the wife from receiving her share of it. But in the case at bar no question of fraud is made. Eor aught that appears upon the record, the wife was well and amply provided for.
   Eollett, J.

These promissory notes are claimed as gifts causa mortis.

The principles and laws that govern the rights of ownership and control of property are fundamental to man’s enjoyment and civilization. The rules and laws for the transfer or • transmission of such rights are carefully guarded, and should be strictly enforced.

Gifts causa mortis are not favored, and such gifts must be clearly proved. The civil law sought to prevent fraud in such gifts, and required their execution in the presence of five witnesses, to render them valid. Great strictness and clear proof to establish such gifts have been required by the English courts, and litigation as to them has been extensive and hostile.

Such a gift can be upheld only when the intention of the donor is definite and certain, and such intent is expressed as to a proper matter of such gift, and such gift is executed.

Whatever property Samuel Gano had at his death could be disposed of only by his will or by the law. Needles v. Needles, 7 Ohio St. 433; Crane v. Doty, 1 Ohio St. 283.

This court held, in Phipps v. Hope, 16 Ohio St. 586, that “ directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as the law would prescribe in case of intestacy, are of no validity unless made through the medium of a last will and testament.”

Directions alone are not sufficient. A gift causa mortis has the nature of a legacy. It is a gift in prospect of death, and it may be revoked before death, and it is not complete during the donor’s life, but takes effect only upon his death. Such a gift is liable to the debts of the donor. Such is the holding of both English and American courts. '

In Lawson v. Lawson, 1 P. Wins. 441, a husband upon his death bed gave to his wife a purse of 100 guineas and bid her apply it to her own use, and the court held, “ This is a donatio causa mortis and a good legacy to the wife, and shall not go to the executors or administrators of the husband if there is sufficient to pay his debts.” But we need not cite other decisions, as the statute 8 and 9 Yictoria, c. 76, declares, that such a gift is a legacy within the meaning of the acts in England and Ireland, which impose duties on legacies.

“ A donatio causa mortis is of .the nature, of a legacy.” Jones v. Brown, 84 N. H. 439.

“ Gifts causa mortis are of a mixed nature, resembling gifts inter vioos, in the essential requisite of delivery, and resembling legacies in being subject to the debts of the deceased, and in being ambulatory or revocable, and contingent on death.” Bloomer v. Bloomer, 2 Brad. 340. Also see Rhodes v. Childs, 64 Pa. St. 18, Rop. Leg. 2 ; 3 Red. Wills, § 42, and cases cited.

Look at the “ facts ” in this casé as found by the court. Decedent left a widow, three girls who were children of a first wife, and a boy the son of his widow. These promissory notes constituted the larger part of his estate. Before his last sickness he had expressed a desire that his son Frank should have his farm, and that “ his children aforesaid” should have the notes. Do the words “his children aforesaid” include only the “children of his first wife,” or do they include his son Frank? Give the words either meaning, and his expressed desire was not carried out, and is not asked to be carried out.

At his death bed, though boarding with his son Frank, there were present only two of his children, the married daughters of his first wife, and I. J. Fisk, the husband of one of these children; and on the morning of the day he died, in the presence of this husband, and Caroline Pearson, her sister, “he called Mrs. Fisk, and said to her, my notes are in a little box on the bureau there ; I want you to take them and divide them equally among you children.” There was but one person present who is not a beneficiary of this claimed gift, and he is the husband of the chief actor, who got the key and tried it in the box, and, “ for fear she might losé it,” gave the key to this husband. It does not appear that a word was'said to the other daughter, or that he told her to take any thing.

"We will not stop to consider whether this husband should testify in such a case, or what effect should be given to his statements.

The father died the same evening, on Friday, and was buried the next day, on Saturday.

“After her father’s death, Mrs. Fisk took the box containing the notes home with her.” What else was in the box we do not know. The notes were never divided. On the next Monday, I. J. Fisk was appointed administrator, and took these notes, and they were appraised as part of the estate, and have ever been so held.

The validity of each gift, causa mortis, depends upon the facts of each case.

“ The gift of the maker’s own note is the delivery of a promise only, and not of the thing promised; and upon the death of the maker, leaving the promise unfulfilled, the gift fails.” Starr v. Starr, 9 Ohio St. 74.

“ The drawer of a cheek delivered it to the payee, intending thereby to give to the payee the fund on which the cheek was drawn. Held, that until the check was either paid or accepted, the gift was incomplete, and that, in the absence of such payment or acceptance, the death of the drawer operated, as against the payee, as a revocation of the check.” Simmons v. Savings Society, 31 Ohio St. 457.

In each above case there was something more to be done, either by the donor or by the donee, before the gift could be enforced.

To constitute a vailid gift the transfer must be consummated, and not remain incomplete, or rest in more intention ; and this is so whether the gift is by delivery only, or by the creation of a trust in a third person, or in the donor; enough must be done to pass the title.” Martin v. Funk, 75 N. Y. 134.

The words, found by the court to constitute the gift of the notes, were, “ I want you to take them and divide them eqnally among you children.” Suppose he thus intended the four children, what was Mrs. Eisk to do ? Was she to collect the money due on the notes, and then divide the proceeds equally among them ? If so, the gift was not complete, and no title passed. His death revoked the gift.

Or was Mrs. Eisk to divide the notes into four equal amounts in value, and then deliver to each child a definite parcel of these thirty-eight notes ? This was never done, and these notes, it seems, could not be so divided. So there never was a separation of the notes made so as to vest in each donee an ownership in particular notes.

But, had the notes been so that they could be equally divided, how could the doubtful or worthless notes be disposed of? Who would take them ? Or should she disregard them ? Gano did not hand the notes to Mrs. Eisk, and say, “ I give these notes to you four children;” neither did he say, “ I give these notes to you children equally, one-fourth part to each.” Something more must be done to complete the gift.

But the delivery must be as perfect and complete as the nature of the thing given will admit of. Par. Con. *326, and cases cited; 3 Wait. Act. & Def. 505.

To establish a gift, causa mortis, the common law requires clear and unmistakable proof, not only of .an intention to give, but of an actual gift perfected by as complete á delivery as the nature of the property will admit of.” Hatch v. Atkinson, 56 Me. 324. See also 3 Red. Wills, 348 (20).

The facts found by the district court show there was no delivery of the alleged gifts; and the court erred in holding, upon such finding of facts, that there was such a delivery of the promissory notes as constitutes a good gift, causa mortis.

We need not examine how far the courts will protect a widow from an intended fraud upon her rights as such widow, neither to what extent a father may disinherit his children by gifts made during the last few hours or days of his life. Our laws relating to written and nuncupative wills, and our laws of descent, should not be defeated by such gifts, unless in a very clear case.

Cases of donations, causa mortis, are exceptions not to be extended by way of analogy. Headley v. Kirby, 18 Pa. St. 326; also cited in 1 Am. Law Reg. 25.

This attempt to make a will for the father, and to dispose of his property, “ different from such as the law would prescribe in case of intestacy,” is “ of no validity.”

Judgment reversed and cause remanded.  