
    Morrison’s Ex’ors v. Grubb.
    March Term, 1873,
    Richmond.
    1. Case at Bar — Bill for Discovery — Averments Insufficient. — W. executor of M. flies a hill against G. in which he says that his testator in his lifetime owned a number of bonds or notes amounting to about $4,000, which were drawn payable to him, and were in his possession a few days before his death. That after his death they were in the possession or under the control of said G., and were not assigned to him; and that G. gave no consideration for them. The averments do not make a case against G., and do not entitle the plaintiff to any discovery or relief against him.
    2. Same — Same—Answer Denies Allegations of Bill— Latter Must Be Proved. — The bill further alleges that the bonds, &c„ were the property of M. at his death, and became assets of said estate which should come to plaintiffs’ hands: that he is entitled to know what bonds of said M. said G. holds, and to recover them for the said M.’s estate. And he calls for a full answer. G. answers and denies that he had in his possession or under his control, at the time of M.’s death, or at any time since, . any bonds which were at his death his property, or to which plaintiff as his executor or otherwise had any right, title or interest. These averments of the bill are facts, and necessary to sustain it, and being positively denied by the answer, must be proved.
    3. Same — Same — Same — Whole Answer Taken To° gether. — The defendant, having denied the allegations of the bill, proceeds to state that the bonds were the property of M. and were given to him by M., and when and how it was done. The whole statement must be taken together as his answer.
    
      In March 1860 Archibald J. Wightman and Joseph Wightman, executors of Joseph Morrison, deceased, filed their bill in the Circuit court of Boudoun county against Jos. P. Grubb, in which, after stating the death of said Morrison in March 1856, his will, and their qualification as his executors, they charge that their testator *owned a considerable number of bonds which he had in his possession within a few days of his death, and that after his death they were found to be in the possession of a certain Joseph P. Grubb, ■who still retains them. That with the exception of a few of the bonds they are unable to ascertain from the defendant, or in any other way, any account thereof. They charge, however, that there are now, or have been, since the death of said Morrison, about $4,000 worth of bonds in the said Grubb’s possession, drawn by the obligors therein, payable to said Morrison, and that Grubb has no assignment and gave no consideration for them. They claim the said bonds as of the estate of said Morrison; that the same was the property of said Morrison at his death, and became assets of said estate which should come to their hands. And making said Grubb defendant they call upon him to answer specifically as if each allegation of the bill were the subject of a special interrogatory; and they pray that he may be compelled to produce with his answer all the bonds in his possession payable to the late Joseph Morrison; and that the court will decree the delivery of them to the plaintiffs; and for general relief.
    Grubb answered the bill. He says: That he had not in his possession, or under his control, at the time of the death of the said Joseph Morrison, or at any time since his death, any bonds which were at the death of said Joseph Morrison his property, or to which the complainants as his executors or in any other character have any right, title or interest. It is true Joseph Morrison died on the 8th of March 1856, having made his will; by which it will be seen he gave to the complainants a large portion of his estate, worth, as respondent charges, from eight to ten thousand dollars at least. They were his nephews, as was the respondent, and as he avers his favorite nephew; and yet nothing is left *him by the will. He says he had rendered many services to his uncle Joseph Morrison, and it was his declared intention long before his death to make a provision in his lifetime for respondent to an amount something like equal to that which by his will he made to each of the complainants. He at one time authorized a neighbor of his to purchase for respondent a tract of land adjoining the lot on which respondent lived, at a cost of about $4,000, but the negotiation was not closed because the owner declined selling at that time.
    A very short time before his death, and when satisfied he had but a short time to live, he requested one of his neighbours who was with him, to overlook one of his drawers and hand him a tin box; he unlocked the box and took out a bundle of papers, and requested his neighbour to selqct from it the bonds and notes which were in it; which he did, and handed them to Morrison, who then handed to him his pocket-book and the same notes he had handed to him, and told his neighbour to put the notes in his pocket-book; which was done, and the pocket-book with its contents was handed back to Morrison, who put it in the tin box and locked it up, saying I will keep them till Joe Grubbs comes, and then I will give them to him.
    Joseph Morrison died on Saturday. On the Saturday preceding he had a severe hemorrhage. On the Tuesday before his death respondent paid him a visit. He remained until late in the evening, and just before he left him his uncle unlocked his drawer and took out of it the pocket-book into which the bonds and notes had been put as above stated, and handed it to respondent, saying as he did so, “here Joe, take this, take it home with you, and keep it. ’ ’ Respondent did not open the book until he arrived at home, when he opened it in the presence of his family, when he found it contained bonds and notes including interest to about the amount *of $4,000. He declines to produce and file the bonds unless expressly ordered by the court so to do.
    The plaintiffs excepted to the answer, because the bonds were not produced with it; and 2d: Because it does not furnish any description of them or any discovery of the several bonds, the amounts and obligors in each, or to whom they are severally payable. They also filed an amended bill; but the allegations as to the bonds seem to be about the same as in the original bill.
    The court sustained the exceptions to the answer; and the defendant thereupon answered, setting out a description of the bonds, and brought them into court.
    Many witnesses were examined by both the plaintiffs and defendant. The defendant introduced the evidence of Joseph R. Moore, the neighbour referred to in his answer, who stated what occurred between Joseph Morrison and himself, as it is stated in the answer. There is some other evidence which goes to show a purpose on the part of Morrison to give some bonds to the defendant; and there is proof of his having authorized the purchase of a piece of land with the intention to give it to the defendant.
    The plaintiffs introduced a number of witnesses to show by circumstances, that the statement of the answer, and of Moore should not be credited; but it is impossible to give them; and they were met on the part of the defendant, by other witnesses to disprove the plaintiff’s conclusions.
    The cause came on to be heard on the 9th day of March 1868, when the court dismissed the bill; but without costs. And the executors thereupon applied to this court for an appeal; which was allowed.
    
      *M. Harrison, for the appellants.
    „ Hunton and R. T. Scott, for the appellee.
    
      
       Answer in Chancery. — See monographic note appended to Tate v. Vance, 27 Gratt. 571; foot-note to Corbin v. Mills, 19 Gratt, 438.
      Gifts — Possession—Inter Vivos — Mortis Causa. — In Yancey v. Field, 85 Va. 762, 8 S. E. Rep. 721, the court said: “In Lee v. Boak, 11 Gratt. 182, the gift was held good, because there the bonds and other evidences of the debts forgiven in that case were actually delivered by the donor to the donee; and so in Morrison v. Grubb, 23 Gratt. 342, where the donor delivered to the donee a pocket-book containing the bonds in question, saying, ‘Here, Joe, take this, take it home with you and keep it’; these words being construed as importing a gift, although the word ‘give’ was not used."
      See also, Thomas v. Lewis, 89 Va. 79, 15 S. E. Rep. 389, which cites Lee v. Boak, 11 Gratt. 182, as authority for the proposition that all valid gifts, except by will, must be attended by delivery of possession; and which cites Lee v. Boak, 11 Gratt. 182, and also the principal case, as authority for the proposition that as far as the delivery of possession is concerned there is no distinction to be made between donations inter vinos and mortis causa, but that the same kind of delivery of possession which is necessary to make good the one is necessary to make good the other.
    
   ANDERSON, J.,

delivered the opinion of the court.

Joseph Morrison was the owner of a considerable real estate, which he disposed of by will, and appointed appellants his executors, whom he made also devisees, and his residuary legatees. They filed their bill, and afterwards an amended bill, in the Circuit court of Eoudoun county, against Joseph P. Grubb, the appellee, in which they allege that their testator in his lifetime owned a number of bonds or notes amounting to about $4,000, which were drawn payable to him, and were in his possession a few days before his death. That they were, after his death, in the possession or under the control of said Grubb, and were not assigned to him; and that he gave no consideration for them.

Thus far the, bills do not make a case against the appellee. The averments do not show them entitled to any discovery or relief against him. Interest in the subject of the suit, or a right in the thing demanded, are essentially necessary to sustain a bill; and if they are not fully shown by the bill itself the defendant may demur. Mitford’s Eq. Plead, top p. 177, Eibrary Edition. It might be true that the decedent, in his lifetime, was the owner of bonds which he had in his possession a few days before his death; and that those bonds came into the possession of the defendant without assignment, and that he paid no consideration for them; all of which may be true, and not incompatible with his right of property in them. Indeed, he having the possession without the imputation of any fraud or unfairness in its procurement, it is prima facie evidence of his right of property. The bills do not, therefore, thus far upon *their face, show a right in the plaintiffs to the possession of the bonds in question, or a right to call upon the defendant concerning them; and without further averments they are consequently demurrable. But they do allege further, that they “were the property of said Morrison at his death, and became assets of said estate which should come to their hands.” And they allege that they “are entitled to know what bonds of said Morrison said Grubb holds, and to recover them for the said Morrison’s estate.” And they call upon the defendant to answer their bill as specifically as if each allegation were the subject of special interrogator}': And their prayer is that he be compelled to produce with his answer all the bonds in his possession payable to the late Josph Morrison ; and that the court may decree the delivery of said bonds to them; and for general relief.

The defendant, in his answer, denied that he had in his possession, or under his control, at the time of Joseph Morrison’s death, or at any time since his death, any bonds which were at his death his property, or to which the complainants, as his executors, or in any other character, have any right, title or interest. This is a positive denial of, and directly responsive to the last allegation above mentioned, as contained in the bill. And it is a material allegation; so material that without it the bill would have been demurrable.

But it is contended that it is not an allegation of a fact, but only an inference of law from the facts previously alleged. But we have seen that the facts previously ál-leged do not justify such an inference of law. If it had been alleged only as an inference of law, it would have raised this question of law, whether, upon the facts alleged, the bonds were the property of the decedent at his death, and became assets to which his executors *were entitled? And in that case, for reasons before given, we think the bill would have been demurrable. But we do not regard it as merely the allegation of an inference of law from the facts before alleged, but as a distinct substantive allegation, that the bonds were the property of the decedent at his death/and that his executors were entitled to them as assets. And the facts before averred are relied on as tending to sustain that allegation. But they are not sufficient of themselves. There is an important link in the chain wanting; the averment that the appellee did not acquire the title or beneficial interest in these bonds, by the transfer and delivery to him by the decedent in his lifetime. That deficiency is not supplied by the averments, that they were “not assigned to him, and that “he gave no consideration for them,” because the right might have passed, as well by transfer and delivery, as by assignment, and by gift as well as by sale. But the defect we think is supplied by the general averment under consideration, which negatives the idea that they passed by gift or otherwise to the appellee, by the act of the decedent in his lifetime.

The allegation in the bill that the bonds in question were the property of the decedent at the time of his death, is not only an averment of the inference of law, but it includes all the facts necessary to such an inference. It is in fact an averment that the decedent did no act in his lifetime, by which his right of property in said bonds was extinguished, or transferred to the defendant by gift or otherwise. And this allegation is positively denied by the answer. And whilst it admits that the decedent was the owner of the bonds and had possession of them until a few days before his death, it says uno fiatu that he transferred and delivered them to him shortly before his death, as a gift. We think the *whole should be taken together as the answer of the defendant, responsive to the allegations of the bill; just as if evidence had been offered to prove that the defendant had admitted that he had the bonds in possession, by gift from the decedent shortly before his death. It would be improper to allow the first part of his declaration as to the possession, and to exclude the latter part as to the means by which he obtained it. Fletcher & al. v. Froggatt, 2 Car. & Payne, 568; Randle v. Blackburn, 5 Taunt, 245 ; Blount v. Burrow, 1 Vesey, jr., R. 546; Hill v. Chapman, 2 Bro. ch. C. 612; Tate v. Hillbut, 4 Bro. ch. C. 286.

The answer also, in confirmation of its direct responses to the allegations of the bill, avers affirmatively what occurred between decedent and others bearing on the subject of the gift, and the fact of his having possession of the bonds being known to others before the death of decedent; also that he and the plaintiffs were equally near of kin to decedent, being his nephews; that he was his favorite nephew; and that decedent had some time previous to this gift, authorized a friend to purchase a tract of land for him, at a cost of about the amount of said bonds, who failed to effect the purchase in consequence of the owner declining to sell; and that it was the purpose of his uncle to give him what he intended to give him, in his lifetime; and to give to plaintiffs by his will what he intended for them ; and that his bequests to each of them were at least equal in value to the bonds he gave to him.

The court is of opinion, that the weight of the testimony is in support of these affirmative allegations, and that it is corroborative of so much of the answer as is responsive to the allegations of the bill; and that the answer is evidence so far as it is responsive, though the bill is not a pure bill of discovery; and according to the *well established rule, so far as it is responsive, it is to be taken as true, unless it be contradicted by two witnesses, or one witness and -corroborat g circu instances. Fant v. Miller & Mayhew, 17 Gratt. 187.

But if the answer is not so responsive to the bill, as to throw upon the plaintiffs the onus of disproving the statement in the answer that the bonds were delivered to the defendant by the decedent in his lifetime as a gift, by two witnesses, or by one witness and corroborating circumstances, it at least traverses the allegation of the bill, that the said bonds were the property of the decedent at his death, and are assets of his estate belonging to the plaintiffs. And the defendant having possession of them under a claim of ownership, (it is not material that it should be by donatio causa mortis, if it is inter vivos,) which possession he is proved to have had before the death of decedent, and no fraud or unfairness being shown or alleged in the procurement of the possession, the onus is upon the plaintiffs to prove their allegation that they were the property of the decedent at his death; which we think, in this case, is not proved by showing by the admission of the defendant or otherwise, that they were property of decedent several days before his death. The admission that they were the property of the decedent several days before his death, cannot be taken to be an admission of the allegation of the bill that they were the property of the decedent at his death, because it is accompanied with the declaration of the defendant, that they were afterwards, in the lifetime of the decedent, delivered to him as a gift. And it matters not whether it was a gift, causa mortis or inter vivos.

The statement in the answer that the said bonds were delivered to the defendant by decedent as a gift is supported, we think, by the preponderance of evidence in the record. Although in delivering the pocket-book containing *the bonds, to the defendant, he did not use the word “give,” but according to the averment of the answer accompanied the delivery with these words: “Here Joe, take this, take it home with you, and keep it,” we are clearly of opinion that these words, taken in connection with the other evidence of the previous acts and declarations of intention by the decedent, and surrounding circumstances, must be interpreted to import a gift. Upon the whole, we are of opinion that there is no error in the decree of the Circuit court to the prejudice of the appellants.

Decree affirmed.  