
    Richmond.
    Miller & wife v. Jeffress & als.
    
    (Absent Cabell, P.)
    1848. January Term.
    
    1. A delivery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, or of the means of getting the possession and enjoyment of the thing; or if the thing be in action, of the instrument by using which the chose is to be reduced into possession.
    2. It is not the possession of the donee, but the delivery to him by the donor, which is material in a donatio mortis causa. An after acquired possession of the donee is nothing; and a previous and continuing possession, though by the authority of the donor, is no better.
    3. F, in his lifetime, assigned bonds to J to be collected for F, but before they were collected F died. The administrator of F having permitted J to collect the bonds and appropriate the proceeds to his own use, this was a devastavit by the administrator, for which he was responsible out of his own estate to the distributees of F. And the administrator of F being dead, the distributees of F may have a decree against the representative of the administrator, without bringing an administrator de bonis non of F before the Court.
    
      Paschal Fowlkes, late of the county of Nottoway, died in December 1828, old, unmarried, and possessed of a considerable estate, both real and personal. In the same year in which he died he placed in the hands of E. T. Jeffress & Co. several bonds, which he assigned to them, and which they were to collect for him on certain specified terms. A small portion of these bonds was collected in his lifetime.
    On the morning of the day on which he died, and when he expected to die, Paschal Fowlkes, upon interrogatories put to him, made several specific bequests or gifts of property to different persons, which were after-wards reduced to writing in the form of certificates, by the witnesses thereto. Of these certificates there are six. The first certifies that in answer to questions asked him he made “a charitable donation or bequeathment of 100 dollars to a Bible society lately organized in the neighbourhood, and emancipated two favourite slaves.” The second certifies that on being asked, he expressed the wish that his relation and friend E. T. Jeffress should administer on his estate. The third is as follows: “ We the undersigned do hereby certify that Paschal Fowlkes during his illness of body, but of a sound mind, said that he wished his nephew L. Fowlkes to have two thousand dollars out of his estate, and that his friend Edward T. Jeffress should have all the bonds of his in his possession. and seals, this 20th day of December 1828. As witness and given under our hands
    (Signed)
    
      jEphraim Waller,
    
    ********* ! Seal. |
    
      George M. Fuqua,
    
    •¥*#***** | Seal. 1 tf-****-**#
    
      his John M Overstreet, mark,
    
    S Seal. $. ”
    The fourth certifies that he said he wished his physician and friend J. S. Swann to have 100 dollars extra to his fee for medical attendance on him. The fifth that he wished two slaves by name to be left to his nephew L. Fowlkes. And the sixth, that he said that his land he gave to L. Fowlkes his nephew.
    Some of these certificates were signed by two witnesses, others by three.
    After the death of Paschal Fowlkes, the papers aforesaid were offered for probat in the County Court of Nottoway, by L. Fowlkes and E. T. Jeffress, as containing his nuncupative will; but the County Court refused to admit them to probat; and upon appeal to the Circuit Court this judgment was affirmed.
    Pending this contest, E. T. Jeffress was appointed curator to collect and preserve the estate of Paschal Fowlkes deceased; and when the case was decided, 
      John Fowllces, a brother of Paschal, and the father-in-law of Jeffress, qualified as administrator upon the estate : He however did not himself attend to the administration, but it was conducted by Jeffress. The administration account was settled, and the estate distributed ; but Jeffress claiming that the bonds which had been assigned by Paschal Fowlkes to E. T. Jeffress & Co. had been given by said Fowlkes to him, did not transfer them as curator to the administrator, nor were they accounted for by the administrator; but Jeffress was permitted to retain and collect them, and appropriate the proceeds, without any effort on the part of the administrator to recover them for the estate during his life.
    Duritig John Fowlkes’ life, George L. Baynes, the administrator of Henry Fowlkes, another brother of Paschal, brought a suit against Jeffress, and John Fowlkes administrator of Paschal, to recover his intestate’s proportion of these bonds; but before the bill was filed, Jeffress made a compromise with him, and paid him 630 dollars, and received from Baynes a receipt in full of his intestate’s interest in the bonds.
    In 1839 this suit was brought by Edward B. Miller and Dicey his wife, who was a niece of Paschal Fowlkes, against Jeffress in his own right, and as curator of Paschal Fowlkes’ estate, and as administrator of John Fowlkes deceased, and the four sons of John Fowlkes, who were also his administrators, and the other heirs and distributees of Paschal Fowlkes. The bill stated the above facts, and charged that Jeffress had fraudulently appropriated the proceeds of the bonds to his own use. It is insisted that Jeffress is responsible to the distributees of Paschal Fowlkes for the amount of the proceeds of the bonds collected by him; and that if he is not, the estate of John Fowlkes, the administrator of Paschal, is responsible; and the prayer of the bill is, that Jeffress may be compelled to account for the proceeds of the bonds, and that the same may be properly distributed, and for general relief.
    
      
      Jeffress answered the bill; he denied the fraud; said he was advised by counsel that his claim to the bonds did not require the establishment of the nuncupative will of Paschal Fowlkes, but wishing that all the facts as to the gift of the bonds to him should be made pub-lie, he joined L. Fowlkes in his attempt to establish the will. That the bonds were given to him absolutely by Paschal Fowlkes, and that the Judge who decided the case upon the appeal, stated from the bench that his decision was not intended to operate against the right of said Jeffress to the bonds aforesaid.
    
      William J. and Paschal Fowlkes, two of the sons and administrators of John Fowlkes, answered the bill and disclaimed all right to the bonds. Thomas and Phineas Fowlkes, sons of Henry Fowlkes deceased, answered, and insisted that they were not to be precluded from receiving their share of the proceeds of the bonds by the receipt in full, given by Baynes, the administrator of their father, as Baynes had no other knowledge of the amount of the bonds but that furnished by Jeffress.
    
    Several of the subscribing witnesses to the papers above mentioned were examined as to the declarations of Paschal Fowlkes, which these papers profess to state. They vary somewhat as to the terms in which Paschal Fowlkes expressed himself, in relation to the bonds ; but they represent him as using words importing an absolute gift.
    When the cause came on to be heard, the Court below dismissed the bill; and thereupon the plaintiffs applied to this Court for an appeal, which was allowed.
    
      Robinson, and Stanard & Bouldin, for the appellants.
    
      Macfarland & Rhodes, for the appellees.
   Allen, J.

I think that as the witnesses examined to prove the alleged donation vary somewhat as to the precise words used by the decedent, the certificate written- an(i signed at the time and referred to and recognized by the witnesses when giving their testimony, can be more safely relied on as shewing what did actually occur, than the recollection of the witnesses after so great an interval. The facts as set out in the certificate, and I may add as proved by the witnesses, satisfy me that the decedent had no idea at the time of parting with all dominion over the subject. When a man in his last, illness attempts to dispose of his property, it is prima facie a testamentary act, unless the contrary be clearly shewn. So far from that being the case here, the words themselves import a future benefit. “ That his friend, Edward T. Jeffress, should have all the bonds of his in his possession,” imply not a present donation, but a future enjoyment. The words were also used in connexion with other words and declarations uttered and made about the same time, and all of which looked to dispositions to take effect at the death of the testator by way of last will and testament. There is nothing whatever to distinguish this from the other attempted bequests, except that in describing thé thing attempted to be bequeathed in this instance, it was referred to as being in the possession of the intended legatee.

Such was the contemporaneous construction given to these words by the party who claims under them. He attempted to set them up as a nuncupative will and failed. Yiewing the words as clearly testamentary, that they were so intended, and not as importing any present gift or parting with dominion over the thing, I am of opinion the appellee is not entitled to claim the bonds as a donatio causa mortis.

I am also of opinion, that the distributees of Paschal Fowlkes had a right, under the circumstances of this case, to maintain a suit in equity, and are entitled to a decree declaring that the bonds in question, or their proceeds in the hands of said Jeffress were a part of the estate of Paschal Fowlkes, according to the principles established in Samuel v. Marshall, 2 Leigh 567, and Hansford v. Elliott, 7 Leigh 79.

But I do not think it will be regular to decree distribution until an administrator de bonis non of Paschal Fowlkes is appointed and brought before the Court; and the appellants, the plaintiffs in the Court below, should, after the right to recover is ascertained, be required to make the representative of Paschal Fowlkes a party.

We cannot, as it seems to me, treat any thing done by John Fowlkes deceased, the administrator of P. Fowlkes as amounting to a conversion of these bonds as assets by him in his character as administrator, so as to make him and his sureties responsible for the amount and interest. Because in the first place no such issue is made by the pleadings in this cause. It is not averred that John Fowlkes as administrator has collected the bonds; on the contrary it is distinctly alleged that they never were in the possession or under the control of the administrator; that they had been assigned to the firm of Jeffress & Co., were in the possession of Jeffress when the testator died, were claimed by Jeffress as his own, and collected, and the proceeds held by him as his individual property. The only claim asserted against the administrator John Fowlkes, is for his breach of trust or negligence in not having during his lifetime received the bonds into his possession.

If the debtor was insolvent, and the debt had been lost by the negligence of the administrator, though he would have been responsible to the distributees, the measure of his responsibility would not have been the same as where he had done acts amounting to an actual conversion of the assets. If this is to be considered as an actual conversion by John Fowlkes as administrator in his lifetime, then in the event of Jeffress proving insolvent, the distributees would be entitled to charge John Fowlkes and his sureties with the whole aggregate amount of the bonds, with accruing interest thereon, as for money received by him. This would not only be unwarranted by any thing in the pleadings, but directly aBa'nst the allegations of the bill. If we look beyond the pleadings to the proof, there is nothing to warrant the pretension of an actual conversion of these assets by John Fowlkes. The bonds were never in his hands; he was not legally entitled to them. They had been assigned and delivered to the assignees by the testator himself. The assignees had the legal control of them, and the right to collect them without resorting to the administrator for aid. According to the opinion of this Court the assignees were trustees for the administrator. If they were about to abuse their trust, a Court of Equity might have compelled a surrender of the bonds; but unless the extraordinary jurisdiction of equity had been invoked to protect the estate from some injury of this kind, the bonds were under the legal control of the assignees. Jeffress collected them as assignee, claiming the proceeds as his own. He held them however as trustee. As such he could have been made responsible by the administrator. If through his negligence to call upon the trustee and enforce payment, the debt had been lost, the administrator might perhaps have been made responsible for the amount so lost without interest. But the trustee Jeffress was and still is the debtor to the estate of Paschal Fowlkes deceased. So far from having paid it to the administrator John Fowlkes, he has been resisting the recovery up to the present moment; and he can only be required to make payment to the regular representative of Paschal Fowlkes. Suppose he is decreed to pay the money to these distributees, and does so, and is sued the next day by the administrator de bonis non of Paschal Fowlkes as a debtor to the estate, this decree would afford him no protection. It would not even be evidence in the cause, as Paschal Fowlkes' estate is not represented. He might be, and in my opinion upon the facts disclosed by this record, would properly be subjected to a decree in favour of the administrator for the amount due to the estate.

I think, therefore, the decree should be reversed and a decree entered affirming the liability of said Jeffress to the estate of P. Fowlkes deceased, for the bonds in question or the proceeds; and remanding the cause with leave to the appellants to amend by making the administrator de bonis non of P. Fowlkes deceased a party, and for further proceedings in order to a settlement of the administration accouut, and collection of the amount of the said bonds, and distribution of the estate amongst those entitled.

Baldwin, J. delivered the opinion of the Court.

The Court is of opinion, that the appellee Jeffress has shewn no right to the bonds assigned to and placed in the hands of Jeffress & Co. (of which firm he was a partner,) by Paschal Fowlkes dec’d, in his lifetime, for collection; the subsequent parol gift to said Jeffress, under which he claims, having never been perfected by delivery, which was not the less essential to its validity because the gift was in the donor’s last sickness, and in contemplation of approaching death. A donatio mortis causa is of a mixed character, being partly testamentary and partly donative : from an indulgence to the nature of the emergency, the law dispenses with the solemnities of a testament; and for that very reason requires the essentials of a gift. A delivery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, as of a watch or a ring; or of the means of getting the possession and enjoyment of the thing, as of the key of a trunk or a warehouse in which the subject of the gift is deposited ; or, if the thing be in action, of the instrument by using which, the chose is to be reduced into possession, as a bond, or a receipt, or the like. In regard to such, a gift of a chose in action, distinctions founded upon the operative nature of the instrument, need not be noticed here; for, in the present case, there was no delivery of any thing. It is the naked case of an abor- ' • ^ tive nuncupative will, which the disappointed legatee is now seeking to convert into a donatio mortis causa.

’ It is not the possession of the donee, but the delivery to him by the donor, which is material in a donatio mortis causa: the delivery stands in the place of nuncupation, and must accompany and form a part of the gift: an after acquired possession of the donee is nothing ; and a previous and continuing possession, though by the authority of the donor, is no better. The donee by being the debtor or bailee or trustee of the donor, in regard to the subject of the gift, stands upon no better footing than if the debt or duty were owing from a third person. - A debt or duty cannot be released by mere parol, without consideration; and where there is nothing to surrender by delivery, the only result is, that in such a case, there cannot be a donatio mortis causa ; and the release, without valuable consideration therefor, must be by testament, or by some instrument of writing which would be effectual for the purpose inter vivos.

To allow a debtor, or one holding the property of another, to shift his relation and acquire the ownership of the subject, by parol evidence of mere words importing a voluntary donation, would introduce in such cases all the mischiefs of fraud, perjury and surprise which the law seeks, as far as practicable, to guard against, by requiring a solemn testament or an executed gift. Here, there being no delivery, the gift was in no wise executed, but only executory and ambulatory,- and might have been revoked by a subsequent testament; which shews that it was in itself merely testamentary, and occasioned in no respect a transfer, extinguishment or suspension of the donor’s dominion and ownership.

And the Court is further of opinion, that John Fowlkes deceased, the administrator of said Paschal Fowlkes, having authorized the collection of said bonds by the appellee Jeffress for the benefit of the latter, and having permitted him to convert the proceeds thereof to his own use, this was a devastavit on the part of said administrator, which rendered him and his representatives responsible therefor, out of his own estate, to the distributees of his intestate, and the same not having been accounted for in any settlement of his administration, his representatives are properly chargeable therewith: and that the appellee Jeffress having been a party to such diversion of so much of the assets from their proper destination, for his own benefit, is also properly chargeable therewith; and ought to be primarily subjected therefor in this suit.

The Court, therefore, without deciding whether the administrator and distributees of Henry Fowlkes deceased, one of said distributees of Paschal Fowlkes deceased, are precluded by the compromise with the appellee Jeffress, or on any other ground, in the proceedings mentioned, from obtaining relief in regard to the subject of this suit; or whether the defendants William J. Fowlkes and Paschal J. Fowlkes are so precluded by the disclaimer in their answer — questions which seem not to have been adjudicated in the Court below — is of opinion that the said decree of the Circuit Court, dismissing the bill of the plaintiffs, is erroneous. It is therefore adjudged, ordered and decreed, that the said decree of the said Circuit Court be reversed and annulled, with costs against Jeffress and John Fowlkes’ adm’rs. And the cause is remanded to the Circuit Court, to be there proceeded in according to the principles of the foregoing opinion and decree, and the rights of the parties, in conformity therewith.  