Sanborn v. Goodhue, Ex'r, 28 N.H. 48

Eastman, J. There is no suggestion, either in the case or the argument of counsel, that any fraud was practised upon Paddleford, in disposing of the notes in the manner in which he did; so that the distinct question is presented whether a man can give away his personal property to his children, in anticipation of his death, when such gift will reduce the amount which would otherwise fall to his widow.

It is well settled that a gift of personal property, accompanied by delivery, is valid and even irrevocable, unless it be prejudicial to creditors, or the donor was under a legal incapacity, or was circumvented by fraud. 2 Kent’s Com. 440 ; Smith v. Smith, 7 C. & P. 401; Marston v. Marston, 1 Foster’s Rep. 573. Delivery is essential, both at law and in equity, but when the

article is once delivered the gift becomes perfect. 2 Kent’s Com. 438; Cook v. Husted, 12 Johns. 188; Marston v. Marston, before cited. The delivery must be actual, so far as the subject is capable of delivery; and it must be the true and effectual way of obtaining the command and dominion of the property. If the thing is not capable of actual delivery, there must be some act equivalent to it. Not only the possession but the dominion of the property must be parted with. 2 Kent’s Com. 439; Noble v. Smith, 2 Johns. 52; Hawkins v. Blewitt, 2 Esp. 663.

If the thing given be a chose in action, incapable of transfer without an assignment, the law requires that an assignment, or some equivalent instrument be made, and the transfer must be actually executed. Hooper v. Goodwin, 1 Swan. 486; Picot v. Sanderson, 1 Dever. 309; 2 Kent’s Com. 439. According to the authorities, the gift, in this ease, lacked no element of perfectness.

The notes were duly assigned by an instrument, in writing, stating the object of the trust, and they were indorsed and delivered to the trustee; and it seems to us that, in principle, it is difficult to distinguish this case from that of Marston v. Marston, in which it was held that where property in chattels passes by a gift, accompanied by delivery, it cannot be reclaimed by the subsequent execution of a will by the donor, bequeathing the property to another person. Paddleford had no creditors to interfere with the trust, and there is no complaint from that source.

Neither was there any necessity for a consideration; and the natural love and affection of a father for his children would, in ordinary cases, be a sufficient reason for the gift. There is, however, something rather unusual in the course pursued in regard to this property; still, there is nothing disclosed in the case from which we can infer the reason that induced it. Had the assignment not been made, about $1,000 of the property, put into Mr. Westgate’s hands, would have gone to the appellants.

Perhaps Paddleford thought that his-children, being very young, would not be any better provided for, even with the aid of the trust property, than his; wife would be with her third of the balance. Perhaps his wife was incapable of transacting business judiciously, and-he was apprehensive that the property might be squandered, or lost, for the want of good management or proper care. Or there may have been other reasons that would induce an affectionate father to take the step he did, to provide for. his tender and almost helpless offspring.

We are aware that this principle, carried out, would put' it into the power of a husband to deprive his wife of all share of his personal property after his decease; and we are not prepared to say that a husband might not take such a course with his personal property, by depriving his wife of all share in it, as would justify a court in holding, upon very slight evidence, that he must have been circumvented by fraud, or been under some aberration of mind. But it will be time enough to pass upon such a question whenever it shall arise, which, happily for the marriage relation, will very seldom, if ever, occur.

No husband, who has received from his wife that treatment which the relations between them deserve, and who witnesses her anxious solicitude and untiring watchfulness, as sickness prostrates his frame and threatens to terminate his existence, will fail to make all that provision for her which his ability shall permit, and which his judgment shall dictate. In addition to these considerations, which go to the merits of the appellants’ claim, there is another difficulty under which they labor, in attempting to charge the executor with these notes.

The claim for them was certainly very doubtful, according to the adjudged cases in our own State, and it was not the duty of the executor to endeavor to collect them at the expense of the estate, without being indemnified for the costs. An executor or administrator is not bound to enforce a doubtful claim merely because some of the heirs, or those interested, may think it well founded. Griswold & a. v. Chandler, 5 N. H. Rep. 492; Andrews v. Tucker, 7 Pick. 250. We are all of opinion that the executor acted correctly in the premises, and that the decree of the judge of probate must be affirmed.