Benjamin Grover, Administrator, versus Charles W. Grover, 24 Pick. 261

Wilde J. delivered the opinion of the Court. The jury have found, that the deceased intended to give the property in the note, and in the mortgage made to secure it, absolutely, to Blanchard ; and the question is, whether by the rules of law this intention can be carried into effect. It is objected, that no valid gift of a chose in action can be made inter vivos, without writing, and this objection would be well maintained, if a legal transfer of a chose in action were essential to give effect to a gift.

But as a good and effectual equitable assignment of a chose in action may be made by parol, and as courts of law take notice of and give effect to such assignments, there seems to be no good foundation for this objection. It is true that the cases, which are numerous, in which such equitable assignments have been supported, are founded on assignments for a valuable consideration ; but there is little, if any, distinction in this respect, between contracts and gifts inter vivos ; the latter indeed, when made perfect by delivery of the things given, are executed contracts. 2 Kent’s Comm. (3d ed.) 438.

By delivery and acceptance the title passes, the gift becomes perfect, and is irrevocable. There is, therefore, no good reason why property thus acquired should not be protected as fully and effectually as property acquired by .purchase. And so we think that a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale.

The cases favorable to the defence do not depend on the question, whether an assignment must be in writing, but on the question, whether a legal transfer is not necessary to give validity to a donation of a chose in action.

The donation of a note of hand payable to bearer, or of bank notes, lottery tickets and the like, where the legal title passes by delivery, is good ; for by the form of the contract no written assignment is necessary ; but as to all other choses in action, negotiable securities excepted, it has been held in several cases, that they are not subjects of donation mortis causó, on the ground undoubtedly, for I can imagine no other, that a legal assignment is necessary to give effect to such donations ; and the same reason would apply to donations inter vivos. The leading case on this point is that of Miller v.

Miller, 3 P. Wms. 356, in which it was held, that the gift of a note, being a mere chose in action, could not take effect as a donation mortis causa,, because no property therein could pass by delivery, and an action thereon must be sued in the name of the executor. But in Snellgrave v. Bailey, 3 Atk. 214, Lord Hardwicke decided, that the gift and delivery over of a bond was good as a donation mortis causa, on the ground that an equitable assignment of the bond' was sufficient. It seems to be very difficult to reconcile these two cases. The distinction suggested by Lord Hardwicke in the case of Ward v.

Turner, 2 Ves. sen. 431, in which he adheres to the decision in Snell-grave v. Bailey, is technical, and, to my mind, unsatisfactory ; and certainly has no application to our laws, which place bonds and other securities on the same footing. We cannot, therefore, adopt both decisions without manifest inconsistency ; and we think, for the reasons already stated, that the decision in Snellgrave v. Bailey is supported by the better reasons, and is more conformable to general principles, and the modern decisions in respect to equitable assignments.

We are, therefore, of opinion that the gift of the note of hand in question is valid ; and in coming to this conclusion, we concur with the decision in the case of Wright v. Wright, 1 Cowen, 598, wherein it was held, that the gift and delivery over of a promissory note, mortis causa, is valid in law, although the legal title did not pass by the assignment. It is not necessary to decide whether the gift of the mortgage security is valid, although it is reported to have been said by the vice chancellor, in the case of Duffield v.

Elwes, 1 Sim. & Stu. 243, that a mortgagor was not compellable to pay the mortgage debt without having back the mortgage estate ; and for that and other reasons he decided, that a mort gage was not a subject of a gift, mortis causa. This decision, however, was afterwards overruled in the House of Lords, Duffield v. Elwes, 1 Bligh’s New R. 497, on the ground, that the gift of the debt operated as an equitable assignment of the mortgage. But as we think it clear, that the right to maintain this action does not depend on that question, we give no opinion in regard to it.

Another objection is, that if the gift was valid and complete, by the delivery of the note, it was annulled by the redelivery to the donor. We think this objection also is unfounded. In the case of Bunn v. Markham, 7 Taunt. 230, Gibbs C. J. lays it down as a well settled principle, that if after a donation mortis causa, the donor resumes possession, he thereby revokes and annuls the donation. This is the law no doubt.

Whether there may not be an exception to this rule, when the donor takes back the thing given at the request of the donee, for a particular purpose, and agrees to act as his agent under circumstances negativing every presumption that he intended to revoke his gift, is a question which it is not necessary now to consider ; for the principle has no relation to a donation inter vivos. When such a donation is completed by delivery, the property vests immediately and irrevociDiy in the donee ; and the donor has no more right over it than any other person.

But a donation mortis causa, does not pass a title immediately, but is only to take effect on the death of the donor, who in the mean time has the power of revocation, and may at any time resume possession and annul the gift. The last objection to the maintenance of this action by Blanchard, in the name of the administrator, has been sufficiently answered in considering the first objection. It is contended, that the consent of the administrator is necessary.

But if an equitable assignment is sufficient to complete the gift, it follows that the administrator is' trustee, and cannot set up his legal right in order to defeat the trust. This is fully estab lished by the case of Duffield v. Elwes, 1 Bligh’s New R 497 ; Hunt v. Beach, 5 Madd. Ch. R. 351 ; and Duffield v Hicks, 1 Dow, 1. Judgment for plaintiff for the use of Blanchard.