Staniland v. Willott.

shares in the defendant, in the event of the plaintiff recovering from his attack, and that the payments made by the defendant were not made, and do not appear to have been made, on account of any annuity, and that the same were in fact made by the defendant as payments on account of the plaintiff out of money in the defendant's hands, received on account of the dividends of the shares.

The defendant having put in his answer, and the cause being at issue, evidence was given on the part of the plaintiff and the defendant; and the cause came on to be heard before the Vice-Chancellor, Wigram, who made a decree to the effect I have before mentioned.

I have maturely considered the evidence in the cause, and the arguments urged on both sides at the bar, and I am of opinion that the decree ought to be reversed, and that a decree ought to be made in accordance with the prayer of the bill, except so far as it prays a declaration that the transfer was improperly obtained.

It is unnecessary for me to decide whether or not the plaintiff was at the time of the transfer in a state competent for such a transac tion, or whether the transfer obtained at such a time and under such circumstances was properly or improperly obtained; but in reference to these points, I think it right to observe that I think the defendant has no just reason to complain that the transaction has been the subject of great suspicion, because the defendant knew who was the plaintiff's solicitor, and the situation of the plaintiff at the time of the transfer was such, that it could not be deemed to be a proper course of conduct to obtain a transfer of property of the value of 20,000l. without calling in that solicitor or giving the plaintiff the protection of some other advice as to the real character of the transaction besides that which he appears to have had.

When property is obtained by way of alleged gift from individuals who suppose themselves about to die, it is the duty of a court of justice to watch the evidence of the transaction most narrowly; at the same time upon the evidence as it stands in the cause, I am not prepared to say that the defendant was guilty of any fraud or misrcpresentation in obtaining the transfer of the shares.

The substance and general result of the evidence given in the cause is, that in the year 1843 the plaintiff was possessed of eightyfive shares in the East London Waterworks Company; and on the 1st November, 1843, was seized by a fit of apoplexy or epilepsy so severe that he was in extreme danger of death. He could not be removed from the sitting-room in which he was attacked, and was put to bed on the floor, where he remained some days in a serious state of illness. The medical attendant had desired the servant to send for the plaintiff's friends; he does not, however, appear to have had many friends, and none who visited him. The defendant was a second cousin, and the servants sent for him, and he immediately came and continued to visit the plaintiff almost daily until the 4th November. On that day the plaintiff told him he did not think he should get better, and that he wished to give the defendant more than he had already bequeathed to him, and that he wished to give him the shares he had in the East London Waterworks Company, and requested him to

Staniland v. Willott.

attend to his funeral, and then gave the defendant his watch to wear for his sake, and also took two mourning rings from his purse and gave them to him.

On the 6th November the defendant gave directions at the office of the East London Waterworks Company, that a transfer of the eightyfive shares might be prepared to himself. On the same day the defendant called on the plaintiff in company with a friend of his, a Mr. Walker, who does not appear to have visited the plaintiff before; and Mr. Walker then (according to the evidence) told the plaintiff that the defendant had informed him that he (the plaintiff) intended to give to the defendant his shares in the East London Waterworks Company; and being asked if it was his wish to give the shares to the defendant, the plaintiff said that it was, adding that the defendant was a fine fellow, and he had a great regard for him.

On the evening of the same day the secretary of the company, in consequence of the transfer not having been ordered by the plaintiff himself or through a broker, called at the plaintiff's house, and, upon stating that he desired to see him on particular business, was admitted to his room, where he was in bed upon the floor, and told him that a transfer of the shares had been ordered, and asked him if it was all right, or words to that or the like effect, whereupon the secretary left the transfer with the plaintiff. On the following day the defendant, accompanied by Mr. Walker, called upon the plaintiff, and Mr. Walker handed the transfer to the plaintiff as he lay in bed, who signed it. Mr. Walker attested it, and in his evidence states that the plaintiff said to him "don't you think I have behaved liberally to William," meaning the defendant. The plaintiff continued confined to his bed in the room where he had been seized by the fit, under very severe remedies, his head resting upon a bag of ice when he executed the transfer of the shares. On the 23rd October 1838, the plaintiff made his will, whereby he gave the defendant and the defendant's brother 10,000l. each, and the residue he gave to his own brother Hugh William Staniland, who died in the year 1841. Evidence has been given, that, in speaking of these shares, the plaintiff has been heard to say that he would not sell them to any one, but that he intended to give them away.

The plaintiff's brother Hugh William Staniland having died, the children of Matthew Howitt, who were his nephews and neices, thereby became his nearest relations; the defendant was his second cousin. Evidence is given to prove that the plaintiff had a great dislike to Matthew Howitt and his children, and that he professed a great regard for the defendant.

The testator was confined to his house for three or four weeks after the attack. At the end of November or beginning of December, the plaintiff recovered sufficiently to go abroad, and for a short time after this period, up to the time of the commission of lunacy issuing, the plaintiff was perfectly competent to the management of his affairs. But, unfortunately, here again there is no evidence as to what took place, between the plaintiff and defendant after the plaintiff's recovery, but the defendant's own statement.

Staniland v. Willott.

The account the defendant gives of the subsequent transactions is, that at the end of November, or in the beginning of December, the plaintiff called on him, and that the defendant then returned the watch to the plaintiff, and proposed to transfer the shares; that the plaintiff received the watch, but refused to have the shares retransferred, stating as his reason that he might have another attack, and if he had, he might not be able to return them to the defendant, and that he should be quite satisfied if the defendant allowed him 680l. per annum during his life, that sum being the amount of dividends upon the shares; that the defendant agreed to pay the plaintiff an annuity of that amount; that such agreement was merely verbal; that no annuity was otherwise granted, nor was ever secured or evidenced by any written instrument or memorandum, and that no third person was present at the time when it is alleged to have been made; that the shares remained in the defendant's name, and that he afterwards sold a part of them; that during the interval that occurred between the transfer of the shares and the issuing of the commission the defendant paid most of the current expenses of the plaintiff, and made to him various small advances, and upon two or three occasions invested money in the purchase of stock in the plaintiff's name, but that no account was ever rendered by the defendant on account of the plaintiff, or settled between him and the plaintiff, and that the payments made by the defendant amounted to 1,3891. 5s. 4d., and that the defendant invested the sum of 500l. 19s. 6d. in the plaintiff's name, in bank stock.

The regard which the plaintiff undoubtedly had for the defendant, and the disposition which he made by his will in favor of the defendant, and the subsequent death of the residuary legatee, and the exclusion of the Howitts from the will, and the dislike which the plaintiff seems to have had for them, all tend to raise the presumption that the testator was extremely likely to exercise his generosity in the defendant's favor; at the same time he appears to have been a man attached to money, and the shares in question constituted one half of his fortune.

Conceding, however, that the plaintiff was in a fit state to enter into the transaction, conceding that the gift of so large a property from a man in such a deplorable condition without any legal adviser or friend to consult with beforehand was not improperly obtained, conceding that it was the intention of the plaintiff to transfer the shares to the defendant, conceding that it was an unimpeachable beneficial gift to him, still the question remains to be considered, what was the real legal character of the gift, whether it was an absolute gift inter vivos, or a gift of the character of a donatio mortis causâ, and therefore avoided by the recovery of the donor.

A question might arise, whether this transaction would have been. a valid donatio mortis causâ, if the illness during which it was made had proved fatal; and I propose to consider first, whether the transfer of the shares constituted a donatio mortis causâ, and, secondly, if it did, whether the legal character of the transaction was afterwards altered by contract between the parties.

Staniland v. Willott.

With regard to what constitutes a donatio mortis causâ the definition by Justinian in his Institutes, is thus stated:-" Mortis causâ donatio est, quæ propter mortis fit suspicionem: cum quis ita donat, ut, si quid humanitus ei contigisset, haberet is qui accepit; sin autem supervixisset is, qui donavit, reciperet; vel si eum donationis pænituisset, aut prior decesserit is, cui donatum sit." Just. lib. 2, tit. 7. s. 1.

Swinburne referring to the Digest, lib. 39, tit. 6., notices three kinds of donatio mortis causa, first, where a person not terrified by the apprehension of any present peril, but moved by the general consideration of man's mortality, makes a gift; secondly, where a person moved by imminent danger, gives in such a manner that the subject is immediately made his to whom it is given; and, thirdly, where a person being in peril of death, gives something, yet not so that it should be presently his who received it, but in case only the giver die. These definitions will also be found stated by Mr. Roper in his treaties on the law of Legacies, vol. 1, p. 2; he there says, "It appears that the third alone is the proper donation mortis causa, the other two being nothing more than pure irrevocable gifts inter vivos. This also is apparent from the definition of a donation mortis causa given by Justinian after the contest which prevailed upon the subject had subsided." Remarks to the same effect were made by Lord Loughborough in Tait v. Hilbert, 2 Ves. jun. 111.

With respect to the condition contained in Justinian's definition, "sin autem supervixisset is qui donavit reciperet," it is not necessary that this should be expressed. In Gardner v. Parker, 3 Madd. 185, Sir John Leach said, "the doubt here is that the donor has not expressed that the bond was to be returned if he recovered. This bond was given in the extremity of sickness, and in contemplation of death; and it is to be inferred, that it was the intention of the donor that it should be held as a gift only in case of his death. If a gift is made in expectation of death, there is an implied condition that it is to be held only in the event of death."

As to the gift being made by an actual transfer in such a way as to pass the complete legal interest as much as if a purely irrevocable gift inter vivos had been intended, I would observe that the plaintiff may have thought that an actual transfer was necessary to the completeness of the donatio mortis causa; and, indeed, so far from this being a reason against construing the gift to be a donatio mortis causa, it was at one time thought that a complete legal title was necessary to the perfection of such a gift. In Duffield v. Elwes, 1 S. & S. 239, Sir John Leach held, that where delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causa, because it will not prevent property from vesting in the executor; and as a court of equity will not inter vivos compel a party to complete his gift, so it will not compel the executor to complete the gift of his testator. This decision was overruled by the House of Lords; Lord Eldon on that occasion remarking, that, "in a case where a donatio mortis causa has been carried into effect by a court of equity, that court of equity has not considered the interest as vested by the gift, but that the

Staniland v. Willott.

interest is so vested in the donee, that that donee has a right to call on a court of equity, and, as to the personal estate, to compel the executor to carry into effect the intention manifested by the person he represents." 1 Bligh. N. S. 534.

But it has never been held, that, because the act of delivery is such as would in the case of a gift inter vivos confer a complete legal title, the gift cannot be a donatio mortis causa. The act of delivery, or that which is equivalent thereto, is one thing, and the gift partly made thereby is another thing, and, when Lord Cottenham in Edward v. Jones, 1 Myl. & Cr. 235, said "a donatio mortis causa leaves the whole title in the donor, unless the event occurs which is to divest him," he was speaking of the gift itself, and not of the mere act of delivery, or that which is equivalent thereto; and his decision is not at all at variance with that to which I have come in the present case. He expresses himself in these terms; "Here is an instrument purporting to be a regular assignment, exactly in the same form as where the purpose is absolutely and at once to pass the whole interest in the subjectmatter. A party making a donatio mortis causa does not part with the whole interest, save only in a certain event; and it is of the essence of such a gift that it shall not otherwise take effect. A donatio mortis causa leaves the whole title in the donor, unless the event occurs which is to divest him. Here, however, there is an actual assignment by which the donor, Mrs. Custance, transfers all her right, title, and interest in the subject to her niece." "There is also a

defect of evidence to show that, at the time at which the transaction took place, Mrs. Custance was in such a state of illness or expectation of death as would warrant a supposition that the gift was made in contemplation of that event.

Having stated the authorities by which the character of the gift must be decided, that is, whether the legal result is that of a donatio mortis causa, I will consider what in my judgment is the correct judicial inference, from the evidence in the cause, of the plaintiff's intention in relation to the gift.

The evidence shows that the plaintiff at the time of the transfer was in a dangerous state, and the defendant's statements establish, that at the very moment of the gift he thought he was about to die, and that he stated he should not recover from his illness. He delivered his will to the defendant, and told him to take care of it, as, in the event of his death, he feared the Howitts might come and remove it. The plaintiff also said he wished to do more for the defendant than he had done by his will; he also gave the defendant his watch, desiring him to wear it for his sake, and likewise the mourning rings which he used on his purse; and requested him to attend to his funeral, desiring that it might be respectable, but not ostentatious.

Such was the communication between the plaintiff and defendant which accompanied the gift; and considering that a watch is an article for which men have occasion during their lives, and that there was a gift of it, accompanied with directions as to the conduct of his funeral, and with the delivery of the will, and mourning rings off his purse, attended with a statement from the party that he should not