trust, and if the trustee withdraw the amount his personal representative will be liable for it. The courts adopting these views rest them upon the grounds: that by enter ing the deposit to the credit of the depositor as trustee for another, a plain declaration of trust is made; accompanied by a formal transfer of the money which is the subject matter to himself as trustee, that thereby the title passes; and that retention of the pass-book by the self-constituted trustee is not inconsistent with the intention to give the deposit to the cestui que trust, because the legal title remains on the trustee, although the beneficial interest has been transferred; that the pass-book is not the property, but only the voucher for it; and that the trust is valid, although unknown to the beneficiary. If the trust so declared rests upon a legal obligation, and probably if upon a moral obligation, it should be supported, and it is not needful to the validity of the trust that notice be given to the beneficiary. The intention of the trustee to pass the title must be clearly manifested, and if shown not to have existed, it would be defeated. A number of the cases turn rather upon the principles that control voluntary settlements than upon the peculiar doctrines of donatio mortis causa. But where the declaration of the trust is plainly made, as by an entry in a pass-book to the credit of the depositor as trustee for another, and it is shown to have been the depositor's intention that at his death the deposi tor should take the deposit, then, as it seems to us, it should be supported as a valid donatio mortis causa. De

1 Martin v. Funk, 75 N. Y., 134; Minor v. Rogers, 40 Conn., 512. See cases cited in Central L. J. for January 6th, 1882, vol. 14, p. 17, and Willis v. Smyth, S. C. of N. Y., Dec. 19, 1881, Central L. J., Feb. 3, 1882, p. 97.

"Minor v. Rogers, 40 Conn., 512.

Martin v. Funk, 75 N. Y., 134, Church, C. J.

'Ray v. Simmons, 11 R. I., 266; 23 Am. Rep., 266; Martin v. Funk, 75 N. Y., 134.

Brabrook v. Boston, etc., S. B., 104 Mass., 228.

• Brabrook v. Boston, etc., S. B., 104 Mass., 228. 'Brabrook v. Boston, etc., S. B., 104 Mass., 228. 8 Clark v. Clark, 108 Mass., 228.

livery to the donee, or some other person for him, is requisite to a valid donatio mortis causa; but delivery may be symbolically or constructively made. And when the depositor causes the sum in bank to be credited to himself as trustee for another, it is deemed a sufficient delivery, as we have already seen.3

§ 25. The donee's own note may be made a gift mortis causa, and its destruction by the donor, with intent that it be extinguished and released in the event of his death, would suffice to effect it. But the gift of the donor's own note as donatio mortis causa would not be valid, as his representatives might prove that it was without consideration; and so the draft of the donor on a third person who holds his funds it has been held is not an assignment thereof

'Hill v. Stevenson, 63 Me., 364; Dole v. Lincoln, 31 Me., 422; Wells v Tucker, 3 Bin., 366.

See post, §§ 63, 67; Burney v. Ball, 24 Ga., 565; Darland v. Taylor, 52 Iowa, 503.

The cases on this subject are too numerous, and their refinements too various and subtle, to admit of amplification in this work. Discussion of the subject may be found in Central Law Journal for January 6th, 1882, vol. 14, pp. 16, 18; 31 Am. Rep., 453; 26 Am. Rep., 684; and in following cases: Gerrish v. New Bedford Institution for Savings, 128 Mass., 159; Brabrook v. Boston, etc., Bank, 104 Mass., 228; Clark v. Clark, 108 Mass., 522; Powers v. Provident Ins., 124 Mass., 377; Stone v. Bishop, 4 Clef. (U. S. C. C.), 593; Blasdell v. Locke, 52 N. H., 238; Howard v. Windham Bank, 40 Vt., 597; Kerrigan v. Rantigan, 43 Conn., 17.

'Darland v. Taylor, 52 Iowa, 503. In this case a lady holding her grandson's notes destroyed them, stating that she did not expect to live long, and in case of her death did not desire that he may be compelled to pay them. Held a valid donatio mortis causa. To same effect see Gardner v. Gardner, 22 Wend.. 525.

* Parish v. Stone, 14 Peck, 198; Warren v. Durfee, 126 Mass., 338; Irish v. Nutting, 47 Barbour, 370; Sheldon v. Best, Holley v. Adams, 16 Vt., 206. In Hamer v. Moore, 6 Ohio St., 239, the note ran: "For value received, I promise to pay to Mrs. Hamer, wife of John Hamer, the sum of $300, as a small recompense for the kindness shown to me by her. The executors of my last will and testament are hereby directed to pay the above to Mrs. H. or her sons, Moses and John, after my decease." Signed and attested. It was held invalid as a gift causa mortis. In Helfenstein's Estate, 77 Penn. St., 328, H. made his note for the sum of $4,000, payable one year after date, to Treasurer of Theological Seminary, and delivered it to the chairman of the seminary library committee; subjoined to it was a statement that it was a donation, the interest of which was to be applied to the purchase of books for the seminary. Shortly afterward the maker died. Held that the note, being without consideration, and not having been accepted by the trustees before the maker's death, was revoked thereby, and a subsequent acceptance of it was ineffective.

until accepted, and is not a valid mortuary gift.1 The theory of the law is to throw the salutary checks which are found in the formal execution of wills around those who are associated with the donor in his dying condition; and to hold these dispositions valid would, in effect, dispense with the guards against fraud and imposition which are found in the rules which govern the authentication and probate of last testaments. "The very circumstance," as has been said, "which sometimes renders a will suspicious, is the living principle in a donatio mortis causa."2 But it would scem that the payee even of an undelivered bill could recover, in England, if it were attested in terms of the wills act.3

26. Whether donor's check is valid DONATIO MORTIS CAUSA. If a check of the donor be delivered to the donee as donatio mortis causa, and the donee transfers it for a present valuable consideration, or in discharge of a debt, or if it be paid by the bank before it is apprised of the drawer's death, it seems to be conceded by the authorities that no court should or would take it from the donee, and that the gift would be sustained as a valid donatio mortis causa. But where none of these circumstances exist the gift is regarded as incomplete and invalid, the check being considered a mandate revoked by death, and the bank not being justified in paying it, if it is apprised of the drawer's death. The better opinion, as we think, is that the bank would be justified in paying, unless in addition to knowing that the drawer was dead, it also knew that the check was

1 Harris v. Clark, 3 Comst., 93; Craig v. Craig, 3 Barb. Ch. R., 76, overruling Wright v. Wright, I Cowen, 598; Billing v. Devaux, 3 Man. & Gr., 565; see Bayley on Bills, 348, intimating the contrary. See Lawson v. Lawson, i P. Wms., 441, and post, § 26.

2

Holley v. Adams, 16 Vt., 206.

Gough v. Findon, 7 Exch., 48.

'Tate v. Hilbert, 2 Vesey, Jr., 118; 4 Bro. C. C., 291; Rolls v. Pearce, 5 Ch. Division, 730 (1877); 22 Moaks' E. R., 432; see § 1618a, post.

Ibid. Burke v. Bishop, 27 La. An., 465. In Simmons v. Savings Society, 31 Ohio St., 530, the bank was notified after drawer's death not to pay, and did not pay the check. Held that check was revoked by drawer's death, and payee could not recover of his estate.

a mere gift;1 and even if it knew the latter fact we do not think that should change its right to pay. It is observed by Vice-Chancellor Malins that the law on the question considered here "seems to be in a very curious state," and that "the result of the authorities appears to be that a gift of a bill of exchange, which is by its very nature payable at a future day, may be a good donatio mortis causa, but the gift of a check is not valid unless it is presented for payment, or paid before the death of the donor," and in respect to the case then under adjudication he expressed his opinion to be, that "when a man gives his wife a check it is in substance as complete a gift as if he had handed her the cash."2

Where a bill was drawn by the donor, in his last illness, on a goldsmith, to enable his wife to purchase mourning, it was held in an early case that it was valid as donatio mortis causa, and would operate like a direction of the testator touching his funeral, which ought to be observed though not in his will,3 and, as said by the Vice-Chancellor in the case already cited, we "can see no reason why, if a bill drawn on a goldsmith would be a valid donatio mortis causa, a check should not be so too."4 It is clear that no donatio mortis causa can prevail against the creditors of the donor when his assets would be otherwise insufficient to satisfy their claims, nor unless delivered; but when no such question arises, we see no reason why a check should not be supported as a valid disposition-as checks are generally regarded as the equivalent of cash. And consistently with the general principles that prevail as to donationes mortis causa, the rule should be that bills or checks should be sup

2

1See post, § 1618a, and notes.

'Rolls v. Pearce, 5 Ch. Div., H. C. J., 730 (1877); 22 Moaks' E. R., 436.

'Lawson v. Lawson, 1 P. Wms., 440 (1718).

'Rolls v. Pearce, 5 Ch. Div., 730; 22 Moaks' E. R., 432.

'Chase v. Redding, 7 Gray, 418.

Ward v. Turner, 2 Vesey, Sr., 431. See Southern Law Review for April, 1875, p. 145, and ante, § 24.

VOL. I.-3

ported as such as to all parties, except in so far as to authorize suit against the decedent's estate. Being executory contracts as to the decedent and his estate, they are without consideration, and might he defended on that ground; but as to the drawees and other parties, they should be upheld.1

'See ante, § 24.