
    James A. Ridden, Resp’t, v. James H. Thrall et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 24, 1891.)
    
    Gifts—Causa mobtis.
    Where a gift causa mortis is made in the apprehension of death from some disease from which the donor did not recover, and the apparent immediate cause of death was some other disease with which he was afflicted at the same time, the gift becomes effectual.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff on trial by the court without a jury.
    
      Carlisle Norwood, Jr., for app’lts; John H. Corwin and Wm. H. Veeder, for resp’t.
    
      
       Affirming 27 N. Y. State Rep., 947.
    
   Earl, J.

On the 1st day of October, 1888, Charles H. Edwards had money on deposit in savings banks and kept the savings bank books in a tin box, and on that day he delivered the tin box to the plaintiff, informing him that he was about to go to St. Luke’s hospital in the city of Hew York to have an operation performed for hernia, and that he was apprehensive he might die from the results of the operation, and said to him that if he did not return he gave him the box and its contents. He went to the hospital on the next day, and on the 5th day of October an operation was there performed for inguinal hernia. The operation was not dangerous and was apparently successful. But on the 16th day of October he suddenly died from heart disease, with which he was afflicted when he went to the hospital. He had not returned from the hospital and had not recovered from the disease for which the operation was performed nor from the results of the operation.

The defendants claim that the circumstances were such that a valid gift was not made, mainly because Edwards did not die from the disease on account of which he went to the hospital, and from which he apprehended death might ensue.

The case is novel in some of its features, and interesting. I have carefully considered the able argument submitted on behalf of the appellants, and am satisfied that the judgments of the courts below upholding the gift are right

The gift was sufficiently proved. The facts which took place at the time of the gift on the 1st day of October were testified to by the plaintiff’s wife. There were sixteen bank books, and they represented about $40,000 of deposits. Such a gift should be proved by very plain and satisfactory evidence, and if the case depended upon the evidence of the wife alone, any court might well hesitate to uphold the gift. But on the previous day (September 30th) ¡Edwards wrote the following letter addressed to the plaintiff:

“ Friend Jim-—-Should I not survive from the effects of the operation about to be performed on me at St. Luke's Hospital, this is my last will and request, that you will take charge of my body and have it placed in my family plot in Greenwood Cemetery, and also that you will take full charge of all my personal effects of every kind, and to have and hold the same unto yourself, your heirs and assigns forever. You will find my papers and all my accounts in the box.
“C. H. Edwards.”

This was enclosed in an unsealed envelope, addressed to the plaintiff, and placed by Edwards in the bureau in the room occupied by him in plaintiff’s house, where it was found about a week after his burial by plaintiff’s wife and his aunt, both of whom proved the handwriting to be that of the donor. The genuineness of this letter was not disputed upon the trial. While standing alone it would not have been sufficient to establish the gift, it furnishes strong confirmation of the evidence of plaintiff’s wife as to the gift, and leaves no reason to doubt that it was made as she testified. It was competent as corroborating evidence, just as the oral or written declarations of the donor previously made would have been, showing the intention to give, and thus corroborating the evidence as to the actual gift subsequently made. I have found no authority condemning such evidence. In all cases where probate of a will is contested on the ground of undue influence, fraud, incompetency or forgery, the previous declarations or statements in any form of the testator, showing an intention in harmony with the instrument offered for probate, have always been held competent, not as sufficient standing alone, but as corroborating the other evidence offered by the proponent.

The gift was consummated by the delivery of the books, and no other formality was needed to constitute the actual delivery of the bank deposits needful to vest the possession and title in the donee. In savings banks in this state such deposit books are issued as evidence of the indebtedness of the banks.' Withdrawals of deposits are entered in the same books, so that the deposit book always, with the additioti of any interest, shows the actual state of the accounts between the depositor and the bank, and the whole indebtedness of the bank. It answers the same purpose in the case of a savings bank that is answered by a certificate of deposit in the case of other banks. The decisions are not entirely harmonious as to the sufficiency of the mere delivery of such deposit books to constitute a valid gift, either inter vivos or causa mortis. But the general rule in England and in this country, and particularly in this state, is that any delivery of property which transfers to the donee either the legal or equitable title is sufficient to effectuate a gift, and hence it has been held that the mere delivery of non-negotiable notes, bonds, mortgages or certitificates of stock is sufficient to effectuate a gift. 2 Redfield on Wills, 312; Westerlo v. De Witt, 36 N. Y., 340; Champney v. Blanchard, 39 id., 111; Penfield v. Thayer, 2 E. D. Smith, 305; Walsh v. Sexton, 55 Barb., 251; Johnson v. Spies, 5 Hun, 468; Allerton v. Lang, 10 Bosw., 362; Camp's Appeal, 36 Conn., 88; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 id., 418; Pierce v. Boston Savings Bank, 129 Mass., 425; Tillinghast v. Wheaton, 8 R. I., 536; In re Mead, L. R., 15 Ch. D., 651; Moore y. Moore, L. R., 18 Eq., 474.

But the learned counsel for the appellants calls our attention to one of the by-laws of the bank printed in the deposit book in question in this action, and claims that the delivery was not effectual without the written order of the donor. The by-law is as follows: “ Drafts may be made personally or by the order, in writing, of the depositor, if the bank have the signature of the party on their signature book, or by letters» of attorney duly authenticated; but no person shall have the right to demand any part of the principal or interest without producing the pass book, that such payments may be entered therein. If the person giving the order or power of attorney cannot write, he or she must make his or her mark, in the presence of a subscribing magistrate or some one whose signature is known at the bank, and any person presenting said order or power of attorney must be known or made known to the bank, as the one authorized to receive the money.”

This by-law requires an order or power of attorney when some one seeks to draw money for the depositor or the depositor’s money. But the depositor can draw the money without making 'an order simply by the presentation of the deposit book and so can any owner of the book. Suppose the plaintiff had purchased the book and had thus become the absolute owner thereof. He could have drawn the money as owner on presentation of the book and the bank could not have required as a condition of payment that he should procure a power of attorney or an order from one having no interest, legal or equitable, in the deposit. The owner in such a case should produce satisfactory evidence of his ownership of the book and if the bank refused to pay he would be obliged to establish such ownership by any competent evidence and nothing more; and his rights as purchaser would be no greater than his rights as donee. He has the same right to enforce payment that he would have had if he had been the donee of any non-negotiable chose in action or a certificate of deposit or unendorsed note. He could establish his right to payment in such a case by any proof showing that he was the absolute legal or equitable owner.

The claim is also made that the donor could not make the gift in the apprehension of death from a surgical operation to be performed in the future to which he intended voluntarily to expose himself. But, without taking a broader view, death from a surgical operation made necessary by a present disease is in a proper sense death from the disease, and the gift may in such case be upheld as made in the apprehension of death from the disease.

We now come to the question, was the gift invalid because the donor did not die of the same disease from which he apprehended death ?

Gifts causa mortis as well as gifts inter vivos are based upon the fundamental right every one has of disposing of his property as he wills. The law leaves the power of ‘ disposition complete, but to guard against fraud and imposition regulates the methods by which it is accomplished.

To consummate a gift, whether inter vivos or causa mortis the property must be actually delivered and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos the moment the gift is thus consummated it becomes absolute and irrevocable. But in the case of gifts causa mortis more is needed. The gift must be made under the apprehension of death from some present disease, or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the life time of the donor. It is not needful that the gift be made in extremis when there is no time or opportunity to make a will. In many of the reported cases the gift was made weeks, and even months, before the death of the donor, when there was abundant timé and opportunity for him to have made a will. These are the main features of a valid gift causa mortis as they are set forth in many text books and reported cases. Just Insts., Lib. 2, tit. 7, § 1; Mackeldey’s Roman Law, § 793; California Civil Code, §§ 1149, 1151; 1 Roper on Legacies, 26; 2 Shouler’s Personal Property, 157; 2 Kent’s Com., 444; Story’s Eq. Jur., §§ 606, 607; Pomeroy’s Eq. Jur., § 1146; Grymes v. Hone, 49 N. Y., 17; William's v. Guile, 117 N. Y., 343; 27 N. Y. State Rep., 251; Basket v. Hassell, 107 U. S., 602.

Counsel for the appellants would add one more pre-requisite to an effectual gift, and that is that the donor when the gift has been made in the apprehension of death from disease must have died of the same disease, and he calls our attention to expressions of judges to that effect. I have examined all the cases to which he refers, and many more, and find that these expressions were all made in cases where the donor died from the same disease from which he apprehended death when he made the gift, and that none of them were needful to the decisions made. The doctrine meant to be'laid down was that the donor must not recover from the disease from, which he apprehended death. I am quite sure that no case can be found, in which it was decided that death must ensue from the same disease and not from some other disease existing at the same time, but not known. There is no reason for this additional prerequisite. The rule is that the donor must not recover from the disease from which he then apprehended death. If he recovers, the gift is void; if he does not recover, and the gift is not revoked, it becomes effectual.

In this case the condition was that if he did not recover from the consequences of the operation and return from the hospital, the gift should take effect That was a perfectly lawful condition for him, as the owner of the property, to impose, and no reason can he perceived for refusing to uphold a gift made under such circumstances. A donor may have several diseases, and may in making a gift apprehend death from one and not from the others, and shall the gift be invalid if, before he recovers from the disease feared, he dies from one of the other diseases ? In such a case it might be, and generally would be, difficult, if not impossible, to tell what share any of the diseases had in causing the death. No medical skill could ordinarily tell that the donor would have succumbed to the disease feared if the other diseases had not been present. Here the immediate cause of death appeared to be heart disease, and the autopsy did not disclose that there was any connection between the hernia or the operation and the heart disease. But who could tell that the death would have ensued from the heart disease at that particular time but for the operation ? No medical skill can tell that the shock from the operation, and the debility and disturbance caused thereby, did not hasten death; and the death, therefore, in a proper .sense, may have ensued, and probably did ensue, from both causes.

Sound policy requires that the laws regulating gifts cama mortis should not be extended, and that the range of such gifts should not be enlarged. We, therefore, confine our decision to the precise facts of this case, and we go no further than to hold that when a gift is made in the apprehension of death from some disease from which the donor did not recover, and the apparent immediate cause of death was some other disease with which he was afflicted at the same time, the gift becomes effectual.

The judgment should be affirmed, with costs.

All concur.  