
    *Jacob Esswein and Nancy Esswein vs. John Seigling, Executor of Theodore Esswein.
    A gift executed by delivery is binding. Actual manual delivery is not necessary ; it is enough that the donee have possession with the assent of the donor; and therefore where the defendant was an executor in possession of an estate, the management of which required extraordinary trouble, and the legatees wrote to him to retain one thousand dollars of the funds in hand as a present, which he accepted, and afterwards filed a bill for an aecourt: Held, that the plaintiffs were bound and defendant was allowed this sum in making up the accounts. [*U01J
    Heard before Chancellor Johnson, Charleston, May Term, 1836.
    Theodore Esswein, of Charleston, by his will dated llth March, 1830, gave all his estate to his parents, Jacob Esswein and Anna Maria Esswein, and his sister, Nauey Esswein, of Manheim, Germany; and named Dr. Benjamin Simons and John Siegling, of Charleston, executors. Anna Maria died before the testator, and he died in Cuba, oil the 28th June, 1830.
    Seigling, one of the executors, who "was in Cuba, removed the property there to Charleston — which was not effected without some difficulty — and proved the will here.
    Jacob and Nancy Esswein, in December, 1830, wrote to Siegling, among other things, as follows : “ The compensation which the law allows does not appear to us an adequate indemnity for a man of business, nor will we limit ourselves to it, but beg- you to make use of our gratitude to any extent you may deem proper.” And again, on the 6th March, 1832, “ In acknowledgment of the great pains you took in these affairs, we, with a deep sense of gratitude, intreat you to accept, besides the legal commission or provision as executor, $1,000, both as a present from our part, and a token of memory of your late friend, which sum you will please deduct from the proceeds in hand.” And on the 13th June, 1832, “ The precaution you display in the management of our affairs, leaves us more indebted to you, but we hope hereafter to find occasion to return to you, or some member of your respectable family, part of our obligations. Let us entreat you, esteemed friend, not to judge us wrongfully on that account, nor suspect us of a desire to pay off a friendship which has obliged us forever, and bids us to avail ourselves of every opportunity to prove by deed the sincerity of our sentiments.”
    They afterwards found fault with the administration, and filed this bill.
    The Commissioner made his report of the balance in defendant’s hands. The plaintiffs excepted to the allowance of the $1000.
    Johnson, Chancellor. In assuming the administration of the estate, the-defendant incurred the obligation imposed by law, to *pay the r^gQ-^ plaintiffs what should remain of the estate after paying the debts L of the testator, and the necessary expenses and charges of administration ; and as a compensation for his services, the Act of the Legislature authorizes him to retain a commission of two and a-half per cent, on all moneys received, and provides the like commission on all sums paid out; and the Act of 1145 (Pub. Laws, 203,) provides, that if the executor shall have extraordinary trouble in the management of an estate, he may bring an action in the Court of Common Pleas, in which a jury may allow him a further compensation, not exceeding five per cent, on the amount which may have passed through his hands. In stating the accounts, the Commissioner credited the defendant with two and a-half per cent, for receiving, and the same for paying out the funds. So that he became indebted to the plaintiffs on the balance of the estate; and the question is, whether the defendant is entitled to credit for the additional sum of $1000, which the plaintiffs tendered to him, and authorized him to deduct from the funds in hand, and which he agreed to accept as further compensation. If it be regarded as a mere voluntary offer to give, I think very clearly that he is not. No executory contract is binding, unless it is founded on a good or valuable consideration, and the discharge or dissolution of a subsisting debt or obligation is as obviously the subject matter of a contract, as an undertaking to pay money, or to do any other act, and necessarily requires the same consideration to support it. Hooper v. Goodwin, 1 Swan. 485 ; Bryson v. Brownrig, 9 Ves. 1; Byrn v. Godfrey, 4 Ves. 6; Reeves v. Brymer, 6 Ves. 516. No declaration of any intention to give, however solemn and formal, even although the terms import a present gift, will be binding, unless it be accompanied by a delivery or transfer of the thing intended to be given. But it follows necessarily, that a gift executed by a delivery of the thing intended to be given, is binding on the donor, however improvident it may have been on his part, or however unworthy the donee. Gotteen v. Missing, 1 Mad. Rep. 103. I do understand, however, that an actual manual delivery is indispensible. It is enough, that the donee obtained the possession of the thing given, under the authority and with the assent of the donor. Thus, if the gift be of a horse in a stable, and the donor say to the donee, “ I give you that horse and authorize you to take him,” and he take him accordingly ; so of money in a drawer, or goods in a warehouse.
    *Herethe defendant was in possession of a fund which belonged r^pno to the plaintiffs, and in their letter of the 6th March, 1832, they L entreat him, "to accept, besides the legal commission, or provisions as executor, $1000, both as a present on our part, and a token of memory of your late friend, which sum you will please deduct from the proceeds on hand ;” a most clear and decided declaration of an intention to give. The answer of the defendant to this letter, is not before the Court; but in their letter of the 1st September, 1832, they say, they rejoice “ at the acceptance of the gratification we offered to you, as a feeble effort of our gratitude,” &c.; and it is obvious that in his reply to the first letter, defendant had consented to accept the tendered gratuity, and in conformity with their request, had deducted it from the fund in hand, and appropriated it to his own use. So that the gift was perfected to the whole extent of which, from its nature it was capable; and the question is whether the plaintiffs are bound ? I think they are. The circumstances well warranted the defendant in treating this sum as his own, and the necessary inference is, that he did so. He may have adventured it in hazardous and losing speculations, or dissipated it in folly. If he has made a profit in it, and is bound to account for the principal, he must also account for the profits; and it would be unreasonable to call him to such an account at this day. If it had been lost, or dissipated in folly, the plaintiffs are chargeable with throwing this temptation in the way of the defendant.
    There is another view of this matter. The Act of 1745, before referred to, allows an executor additional compensation, not exceeding five per cent., when he shall have had extraordinary trouble in the management of the estate. The defendant had extraordinary trouble with this estate. A part of it was in Cuba, and a part here, and necessarily involved the trouble and expense of travelling to and fro ; he was under the necessity of remitting the funds to Germany, by means of bills of exchange ; his diligence and prudence in the managment of it is again and again admitted, and commended in the plaintiffs’ letters ; and although the tender of the $1000, is put on a footing of a voluntary donation, yet it is obvious that this extraordinary trouble, is the basis of the gift, and entered largely into the considerations ; so that, in truth, the donation was not merely gratuitous : and I apprehend, that the Court would not enter very minutely into the *6031 inT’iiyi whether the compensation *fell short, or exceeded, the com- -* pensation allowed by law. As in Trimmier v. Trail, 2 Bailey, 480, where a legatee agreed not to charge the executor interest on her legacy, because he had not charged her commissions on her legacy, and had boarded her gratuitously for a short time; and it was held that the consideration was good, and the promise binding, without an inquiry into the exact state of the accounts. The exceptions is therefore overruled.
    From this decree the plaintiffs appealed.
    
      Petigru, for plaintiffs.
    Delivery is essential to a gift, and a consideration to a promise. Neither delivery or consideration is made out. But even if the gift had been' executed, the defendant could not insist on it. The rule is against allowing a person standing in a fiduciary relation, to practice upon the confidence of his constituent, so as to make an advantage of his bounty, till the relation is at an end. Thus a gratuity from a client to his attorney, may be recalled. Walmsly v. Booth, 2 Atk. 25; Newman v. Payne, 2 Yes. jr. 199; Welles v. Middleton, 1 Cox, 112. So the principal has been enforced against a guardian, Hylton v. Hylton, 2 Yes. 547 ; Pierse v. Waring, 1 P. Wms. 121, n. Against an agent, Cray v. Mansfield, 1 Yes. 379; Fox v. Macreth, 2 Cox, 158 ; Gibson v. Jeyes, 6 Yes. 266. Against trustees, Campbell v. Walker, 5 Yes. 678 ; Ex parte Hughes, 6 Yes. 617.
    All these were cases perfectly free from fraud. The gifts or contracts had been executed; but on the principle of protecting against an abuse of confidence, the transactions were not allowed to stand. This case is fully within the principle, and is a very weak one for the claim, which is certainly not stronger than a receipt without satisfaction. A receipt in full would not have bound the plaintiffs. Corbett v. Lucas, 4 M’Cord, 323. The claim of the $1000, is, therefore, certainly bad at law. A fortiori 
      it is bad in equity, which never assists a volunteer, but sets aside actual gifts from a cestui que trust to his trustee, as against policy and justice.
    
      Eckhard, for defendant.
    In all cases of a gift the real question is, whether the donor has parted with his dominion over it. M’Dowall ads. Murdoch, 1 Nott & M’Cord, 231. Where the subject will not admit of a corporeal delivery, if the party goes as *far as he can'towards transferring the possession, his bounty will prevail. Toller, 234. *- A gift may be by deed, in word, or in law. All goods and chattels personal, may be given without deed. A free gift is good without consideration, and it is not in the donor’s power to retract it, though he made it without any consideration. 2 Tomlin’s Law Dictionary, Title Gift. Though a Court of Equity will not assist a volunteer, yet if the, act be completed, though voluntary, the Court-will'act- upon it. 18 Yesey, 150. To complete a gift, there must be an actual or constructive delivery of possession. Pitts v. Mangum, 2 Bailey, 588. There may be eases where the Court will establish an agreement made with a trustee for extraordinay allowance. Ayliffe v. Murray, 2 Atkins, 59; Brocksopp v. Barnes, 3 Maddock, 61. The appointment of an executor in India, constitutes him agent for the management of the estate. Poole v. Larkins, 4 Yesey, 12; Cockerell v. Barber, 2 Russel, 585. The Act of 1145, recognizes the principal of additional compensation to executors, beyond commissions. Logan v. Logan, 1 M’Cord’s Chancery, 5. As to the rule of guardian and ward, that applies where a gift is required as a condition of accounting. 1 Maddock’s Chancery, 123. The parties being of full age, are prima facie bound by their contracts. The inquiry is, has any supposed influence which an attorney has over a client, been used to his prejudice. Ervin v. Miles, 1 M’Cord’s Chancery, 541.
   Per Curiam.

The case depends on testimony, and we are satisfied with the conclusion of the Chancellor. The decree is affirmed. Parties to pay their own costs.

Chancellor Johnston, dubitante.  