
    Samuel T. Champney, Admr., etc., Appellant, v. Fidelia Blanchard, Respondent.
    Gifts mortis causa, though not favored in law, are sustained in cases where the essential conditions are fulfilled, which are, contemplation of death, clearly expressed intent to give in presentí, delivery of the subject-matter, and death of the donor without revocation of the gift.
    A general objection, made before a deposition is read, to all such parts thereof as involved matter of opinion of the witness on the subject of capacity, etc., cannot avail the party. The court cannot be called upon to scrutinize the testimony of witnesses, and decide for the party, to what particulars his objections shall apply.
    This was an action by the plaintiff, as administrator of Mary Ohampney, his deceased wife, to recover from the defendant, who was a sister of the intestate, certain moneys alleged to have been loaned to her by Mrs. Ohampney a few months before her death.
    The intestate gave up business, as keeper of a boardinghouse in Brooklyn, in April, 1863, and sold her furniture and plate, the former for about $2,800, received by one Hegeman, and the latter for $500, received by one Foster. In the same month of April she went to ¡New Hampshire in feeble health, and died there on the 26th of June of the same year. On the 30th of April she wrote the daughter of defendant as follows: “ Mr. Hegeman has orders to pay all moneys to Mrs. Blanchard. * * * Say to mother that I have no will (destroyed it in John B. Stewart’s presence the day before I left); she knows, or can know, how the law runs. As I am not out of the clutches of “ the estate of Eli Merrill ” I think she best put the money to Fosters in her own name at present. When she comes here she can give me her notes. By that time you may look about and see if it is best to use it in saving mother’s. Do as you think best. Mr. Foster’s advice is good, and so is Mr. A. Robins’; none better. So I leave it, and do not feel any anxiety at all.”
    On the 14th day of May Mrs. Ohampney addressed an order to Mr. Hegeman directing him to pay to the defendant whatever snm of money might he in his hands arising from the sale of her furniture, deducting his charges, and upon the same paper the defendant, May 21st, wrote her receipt to Mr. Hegeman for $2803.50, in full for proceeds of furniture as above. On the 1st of June she received $500 from Foster, and about the same time deposited both sums, in‘her own name, at the Atlantic bank, Brooklyn, where they remained intact until after the death of Mrs. Champney. Shortly after the 1st of June the defendant signed and forwarded to Mrs. Champney, by mail, the following paper.
    
      “ Received, Brooklyn, May 21st, 1863, from J. Hegeman, twenty-eight hundred and three dollars and fifty cents, also, June 1st, five hundred dollars from A. S. Foster, both of which sums are on account of and belonging to Mrs. Mary Champney, and are to be disposed of in any manner she may direct, as paid to her individually, together with whatever interest I may obtain for their use.
    $2803 50 F. BLANCHARD.”
    500 00
    $3303 50
    There was no revenue stamp attached.
    This paper was in the possession of Mrs. Champney on the day of her death, and, on the morning of that day, she handed it to the defendant, at her bedside, saying, that she gave that to her, the defendant; that it was the avails of her furniture; she also mentioned the amount at the foot of the paper, saying, she gave the defendant that amount. The defendant at the same time received the paper from the hands of Mrs. Champney, and retained it.- The disease of which Mrs. Champney died was complicated and of long standing, and had reduced her to a condition of great debility. The physician who attended her during her last sickness testified, that he did not think she had a sound mind during the last two days of her life; that he did not consider her deranged; but, in his opinion, the debility of her mind rendered her unfit to transact business. On the other hand, the testimony of her nurse and of two other unprofessional witnesses tended to show, that, though greatly prostrated in bodily strength, her consciousness and intelligence were unimpaired; these witnesses were with her during the last days of her sickness-were all persons of mature age, and had known the decease^ for many years. The testimony of these witnesses was taken on commission, and when tide depositions were introduced, counsel for the .plaintiff objected to such parts thereof, as involved matter of opinion on the subject of mental capacity.
    The referee found, as' facts proved, the handing of the paper to the defendant by the deceased, and her accompanying declarations, as narrated above; that it was in contemplation and expectation of death, and with a view of giving the defendant the moneys received by her, as aforesaid f and that the deceased, at the time of the transaction, was of sound and disposing mind and memory, and of sufficient rapacity to make a disposition of her property by will or gift. And he decided, as matter of law, that the transaction amounted to a valid gift to the defendant, mortis causa, of the sums so received by her, or to an extinguishment of any claim upon her therefor, taking effect at the death of Mrs. Champney; and that her administrator could not recover the same. Judgment was entered, on the report, in favor of' the defendant, which was affirmed at the General Term, and, from which, the plaintiff appeals to this court.
    
      M. S. Bidwell, for the appellant.
    J. M. Van Cott, for the respondent.
   Dwight, J.

The referee has found, as facts, the intent of fLhe decedent to give the moneys in question to the defendant, her' acts and declarations designed to effect such intention and her capacity to ihake the gift, and each of these findings must be held conclusive unless seen to be wholly unsupported by the evidence. In respect to the last, it is claimed, on the part of the appellant, that there is no legal and competent evidence to sustain it. It is said that the three witnesses, relied upon by the defendant to establish mental capacity, were incompetent to give an opinion on that subject; and that, excluding their testimony, thus incompetent, there is left only the un contradicted evidence of the physician, who testifies, that, in his opinion, the decedent was not of sound mind, nor of capacity to transact business during the last two days of her life. But such is not the true state of the evidence on this question: the three witnesses referred to, do more than express opinions; they narrate the facts and occurrences of the day; they describe the appearance and condition, and relate the words of the deceased. The narrative of the very transaction in question, the giving of the paper to the defendant and the accompanying words of the deceased, was evidence on this point, which the referee had a right to consider, and which, had he been sitting as a judge at the circuit, he could not have withheld from the jury. But they gave other evidence, equally admissible. They say: “ She distinguished persons about her as usual.” She appeared to comprehend what she said and did, and what was said and done by others.” “ Whatever she said was rational and clear, and, if I spoke to her, her answers were correct and clear.” “ Her expressions were as intelligent as usual.” “ I did not observe any peculiarities in appearance, conduct or conversation; she grew gradually weaker, but her mind held out wonderfully,” — and much more to the same effect. These are not expressions of opinion, but statements of facts, as they were observed by the witnesses; and they constituted evidence which must have been submitted to the jury, had there been one, and upon which the referee was warranted in finding competent mental capacity. I do not examine the question, raised upon the argument, whether persons not experts in the phenomena of the mind are competent to give an opinion on a question of mental capacity, because if there were any expressions of opinion in the testimony of these witnesses, which I doubt, the objection on the part of the plaintiff was.not specific enough to raise the question. That objection was made before the depositions were read, and was to all such parts thereof as involved matter of opinion on the subject of capacity. Such an objection cannot avail the party anywhere. The ccrtnot be called upon to scrutinize the testimony of vrkVp,.. os and decide for the party to what particulars his chjcM shríl apply. In this case, there was ample evidence < ‘ itiopcd competency to support the finding of the refere - i- the intestate was of sufficient mental capacity to maé v of her property by will or gift.

There remains to be examined, therefor .. wth - rvoree’s conclusion of law, that "such transaction am valid gift to the defendant, mortis causa, of the sums ' oo.-n eU ,y her, as aforesaid, or to'an extinguishment of any eKim rpon her therefor.” It may be observed, that the refereik-h her in this finding, nor elsewhere in his report, undertaken íu decide whether the original transaction, by which the mom came into the hands of the defendant, was a loan or a deposit, and, probably, it was unnecessary to decide that question ; but, to my mind, it is clear, that here was no loan, and no debt at the time of the gift. The letter of the intestate, of April 30th, clearly imports that the money was to be held by the defendant as a deposit; it advises, for reasons growing out of some circumstances of Mrs. Champney’s own affairs, how tíre deposit should be kept, and indicates a probable future use of the money to be determined upon when the parties should come together; while the receipt or memorandum of the defendant, which was accepted by the deceased, and retained by her till the day of her death, distinctly characterizes the fund as a deposit to be held by the defendant subject to the order of the deceased, and to be accounted for with only such interest as the defendant might receive for its use. In this view of the case, the question is not presented whether a valid gift can be made of a debt, from the creditor to the debtor, by delivery of the evidence of the debt, without release or acquittance, though, both upon principle or authority, I think that question must be answered in the affirmative; but, in this case, the money of the decedent, of an amount ascertained by the memorandum, then in her hands, was in the possession of the defendant, held by her subject to the order of the decedent. Snell being the case, what more was necessary or possible to effectuate a gift of this money to the defendant, than a delivery' to her of the memorandum evidencing the amount aiu'i identity of the fund, accompanied by a clear and explicit, declaration of the donor that she gave her those moneys? Delivery of the subject-matter is, no doubt, essential a gift, either inter vivos or mortis causa; but the object of delivery is to give possession, and, in this case, possession was already complete in the donee. No further delivery was necessary, nor was it possible, without first returning the property to the donor, that it might be redelivered to the donee, an idle and unmeaning ceremony.

I am, therefore, of opinion, that the objection, that there was no delivery of the subject of the gift, is not well taken; and this, to my mind, disposes of all the questions in the case. Gifts, mortis causa, if not favored by the law, are at least amply sustained by authority, in cases where the essential conditions are clearly fulfilled. These conditions are contemplation of death, clearly expressed intent to give in presentí, delivery of the subject-matter and death of the donor without revocation of the gift, all of which seem to me to have been fulfilled in this case. The objection that the paper, delivered by the decedent to the defendant, was void, for want of a stamp, is without pertinency, especially in the view of the case taken by me, viz.: that this paper was not the evidence of a debt, but simply a memorandum, evidencing the amount and identity of the fund, which was the subject of the gift.

The judgment of the Supreme Court should be affirmed.

All concur.

Judgment affirmed.  