
    Frank J. Partridge, as Guardian ad Litem of Frank and Clinton Partridge, Infants under the Age of Fourteen Years, Respondent, v. Mary A. Kearns, as Administratrix of Ellen Donnelly, Deceased, Appellant.
    
      Gift causa mortis — what delivery to a third person is insufficient to sustain it.
    
    The delivery of a promissory note by the owner into the custody of a friend for safe-keeping, at a time when the former contemplated, not her death, but a visit to her relatives in another city, accompanied with proof that two days prior to her death she told her friend to deliver the noté when she was dead to the mother of two infants for them, does not constitute a valid gift causa mortis, there being no sufficient delivery of the note nor formal acts necessary to pass the title thereto.
    Appeal by the defendant, Mary A. Kearns, as administratrix of Ellen Donnelly, deceased, from a judgment of the Supreme Court in favG.yqf the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1898, upon-the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term, the court reserving the final decision until thé presentation of findings; and subsequently, having found certain facts and conclusions of law, the court directed judgment in favor of the plaintiff for the sum paid into court.
    
      William W.. Vaughan, for the appellant.
    
      William Van Wyck, for the respondent.
   Woodward, J.:

The evidence in this case establishes that Ellen Donnelly, defendant’s intestate, about four weeks prior to her death, gave into the possession-of Mrs. Cecilia Conroy a certain note, or writing for $200, to be safely kept until the said Ellen Donnelly,'who then resided in Astoria, should be able to go to Brooklyn. There was some evidence tending to establish, that she at- this time declared her intention .to give the said note to Mrs. Partridge, mother of the infants, for their benefit, but no directions were given to Mrs. Conroy at this time, except that she was to hold the note until the said Ellen Donnelly should be able to go to Brooklyn. Two days prior to the death of the said Ellen-Donnelly the-evidence is that the deceased told Mrs. Conroy that two of her nieces were searching for the note; that “ they were searching high and low for it, her nieces were, Mary A. Kearns and Lizzie Kearns, a sister of Mary, not one of the makers of the note. She told me they were searching high and low for the note, for me to give it to no one but to Nellie, and that when she was dead for me to give it to her for- Frank and Clinton. I gave it to Nellie, Ellen Partridge.” In answer to a question by the court, whether this conversation occurred at the time of the delivery of the note the witness answered : No, sir; she was able to go around, and she came into my house with, the note. Q. But she was then sick ? A. She was sick; yes, sir. Q. And said she thought she-' wouldn’t recover ? A. Not at' that time, when she brought the note-in to me ; she expected to come to Brooklyn.”

There is no dispute as to- the facts, and the only question necessary to decide in. this case is whether the facts, as.established, are-sufficient to constitute a gift causa mortis. We are of Opinion that they do not. It is probably ferae that Ellen Donnelly' intended that this note should be delivered to the mother of these infants for their benefit, but something more than an intention is necessary to establish a gift causa mortis. It is necessary to show not only the-intent, but the acts which carry out and consummate the intention. To constitute a valid gift,” say the court in The Matter of Bolin (136 N. Y. 180), “ there must have been the intent to give and a. delivery of the thing. The evidence must show that, the donor intended to divest herself of the possession of her property, and it should be inconsistent with any other intention or "purpose.” -In the case at bar there was no .“ delivery of the thing.” It was given into the custody of Mrs. Conroy for safe-keeping at a time when the intestate contemplated, not her death, but a visit to her relatives. in Brooklyn. Subsequently, and two days prior to her death, she told Mrs. Conroy to deliver “ the note ” to Mrs. Partridge, but this direction to deliver was not accompanied by any delivery to Mrs. Conroy, who was, at best, but a mere agent of the intestate; and the transaction is utterly lacking in the essentials of a valid gift causa mortis-.

An intention to give, evidenced by a writing, may be most satisfactorily. established,” say the court in the case of Wadd v. Hazelton (137 N. Y. 219), “ and yet' the intended gift may fail because no delivery is proved. And where an intention to give absolutely is evidenced by a writing which fails because of its non-delivery, the court will not and cannot give effect to an intended absolute gift by construing it to be a declaration of trust and valid, therefore, without a delivery.”

The same doctrine is held in the case of Beaver v. Beaver (137 N. Y. 59), where the court (at p. 67) say.: “As the present case stood, upon the findings and the evidence, only the intention to make a gift was proved. That was an element in the. transaction which, however satisfactorily established, was rendered -of no effect by a failure of any" proof of delivery to, or of acceptance by, the intended donee. There was not a fact to support a conclusion of the creation of a trust, nor a fact to show the existence of a mutual disposition of the minds of the parties at any time in relation to the matter, from which the idea of a gift, perfected by some act of delivery or of acceptance, could be formed.”

In the case at bar, Mrs. Conroy was holding a certain note, subject to the order of the intestate. Just prior to the death of the principal, Mrs. Conroy was directed to give the note to Mrs. Partr ridge for .the use of her children, after the death of the intestate. This was not a consummated gift; there was no delivery of the thing .directed to be given, and none of .tlie formality necessary to pass title. That Mrs. Conroy had a certain nóte in - her possession is of no consequence; there is nothing to show that this dying woman had tins particular note in mind, and, even if she did, a direction to deliver it after her death did not constitute a gift. It was within her control up to the moment of her. death ; she could at any time have given a different direction, and after her death it became a part of her estate, to be administered, in the absence of a valid will, as the law directs.

“ Delivery,” say the court in the case of Jackson v. Twenty-third St. Railway Co. (88 N. Y. 526), “is essential to constitute a valid gift. The delivery must be such as to vest the donee with the control and dominion over the -property, and to absolutely divest the donor of his dominion cmd control, .and the delivery must be made with the intent to vest the title of the property in the donee.”

. The only distinction between .the two classes of..gifts is that a gift ■ eausa-mortis is liable to revocation by the donor if he survives-; in other'respects, to be .valid, they must have .essentially the same elements. , "•

- There was no delivery in . the case at bar; the only direction given to the custodian of the note was that it was to be delivered after the death of the donor, thus clearly indicating ai determination to keep the property within her control until her death; and this intention is inconsistent with the idea of a gift and comes within the scope of a will, which the law demands shall be executed with due "formalities.

The judgment of. the trial court should be reversed;

All concurred.

Judgment reversed and a new trial granted, costs to-abide the event.  