Walter v Hodge
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 1818 |
| Date | 21 July 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 549
HIGH COURT OF CHANCERY
S. C. 1 Wils. Ch. 445. See Ashworth v. Outram, 1877, 5 Ch. D. 930.
[92] walter v. hodge. Rolls. June 29, July 1, 6, 21, [1818]. [S. C. 1 Wils. Ch. 445. See Ashworth v. Outram, 1877, 5 Ch. D. 930.] A gift by a husband to his wife, either as a donatio mortis causa, or as a donatio inter vivos to her separate use, must be established by evidence beyond suspicion : a claim of that nature negatived. A defendant by her answer having claimed a gift from her husband as an absolute donatio inter vivos to her separate use, whether evidence can be received to establish it as a donatio mortis causa, queers. The decree in this cause, dated the 14th of May 1816, declared that the will of R. P. Hodge ought to be established, and the trusts thereof carried into execution, and directed a reference to the Master to take the usual account of the testator's personal estate not specifically bequeathed, against the Defendants, Martha Hodge, Edward Dadley, and Thomas Hudson, his executrix and executors. An order of the 22d of March 1817, on the application of the Defendant Martha Hodge, directed that the Master should be at liberty to make a separate report at her expense, as to the personal estate of the testator, possessed by her. By his separate report of the 8th of May 1817, the Master charged the Defendant Martha Hodge, with receipts to the amount of 337, 18s. Id. To this report the Plaintiff excepted, on the ground that the Master had not charged the Defendant Martha Hodge, with the sum of 600, being the amount of sundry bank-notes, belonging to the testator at the time of his decease, and possessed by her. The evidence on the subject of the exception, consisted of the answer of Martha Hodge to the original bill, and the deposition of Alice Mason. By her answer the Defendant stated, that the testator, some short time before his death, gave to her a book [93] containing bank-notes to the amount, in the whole, of 600 or thereabout, but she could not recollect the exact amount; and the testator at the time he gave the bank-notes to the Defendant, informed her they were for her own private use, and that he gave them to her to be at her own disposal, or used expressions to that effect : the answer also stated, that during the life-titne of the testator the Defendant expended in various ways some part of the bank-notes, and at the time of his death some of them remained in her possession ; and that she considered such bank-notes as her own separate property, and expended them for her own private use, and was wholly ignorant tha.t they legally were the property of the testator at the time of his death. Alice Mason, the niece of Martha Hodge, deposed, that she, being upon a visit at the house of the testator, about eleven days prior to his death, saw him take out of his coat pocket, and deliver into the hands of the Defendant Martha, Hodge, a black leather note-case, containing some Bank of England notes, but the amount thereof she did not know ; that the testator, when he so delivered the note-case, and Bank of England notes, told Martha Hodye, iti the hearing of the witness, that if any thing should happen to him, the contents of the note-case were hers, or expressed himself to that effect; that she coiild depose that the contents of 550 WALTER V. HODGE 2 SWANS. 94. the note-case consisted of Bank of England notes, by reason that upon Martha Hodge opening the note-case, almost immediately afterwards, to put in other Bank of England notes, the witness saw some Bank of England notes in the note-case ; that the testator, on the day oti which he delivered the note-case, and the first-mentioned Bank of England notes, to Martha Hodge, had been to the Bank of England for the purpose of selling out, and [94] the witness helieved that he did sell out, some part of his property in the public funds ; and it being then a rainy day, and the testator being wet with the rain, he took his coat off and delivered it to the witness, immediately after he had delivered the note-case, and first-mentioned Bank of England notes, to the Defendant Martha Hodge ; that instantly after he had so delivered his coat to the witness, he took some Bank of England notes, but the amount thereof she did not know, out of his said coat pocket, and delivered the same to the defendant Martha Hodge, at the same time saying to her, in the hearing of the witness, " These " (meaning the Bank of England notes), " are to be yours also," or expressed himself to that or the like effect; and the Defendant Martha Hodge thereupon, in the presence of the witness, opened the note-case, and put the Bank of England notes therein. The witness also stated, that the testator was not at the time when he so delivered the note-case and Bank of England notes to the Defendant Martha Hodge in good health, but was then and for some time previous thereto had been in an indifferent state of health ; nevertheless, as appeared to the witness, and as she believed, the testator was in his perfect senses and knew what he was doing, and was not from illness, or any other cause, insensible, or incapable of distinguishing what he did ; and that she understood from the expressions addressed by the testator to the Defendant Martha Hodge, at the time he so delivered the note-case and the Bank of England notes to her, that he intended that the Defendant Martha Hodge, should keep the note-case, and all the Bank of England notes, for her own use in case of his death. Mr. Hart and Mr. Wing field, in support of the exception. There is no evidence that the gift was made [95] in contemplation of death. It is therefore a mere donatio inter vivos, and void as an immediate gift by a husband to his wife for her separate use. Mr. Bell, Mr. Shad-well, and Mr. Girdlestone, for the report. - The gift is a donatio mortis causa. Justinian Inst. lib. "2, tit. 1. Bracton, lib. 2, c. 20.(1) It is not ne [96]-cessary that such a gift should be made in extremis ; the donor died on the eleventh day after the transaction, and his expression " in case any thing should happen to him," refers the gift explicitly to the probability of his approaching decease. Hill v. Chapman (2 Bro. C. G. ( 12), Ward v. Turner (2 Ves. Hen. 431). July 1. The Master of the Rolls [Sir Thomas Plumer]. I collect from the proceedings in this case, that the Plaintiffs were not able to prove the receipt of these notes by Mrs. Hodge except from her answer, and were therefore under the necessity of reading it: the decree is drawn up on reading tlie answer. All the passages which it contains, therefore, must be taken, as well those in her favour, as those against her. The question of the validity of the gift depends on the account given by the Defendant in her answer, and by the witness Alice Mason, in her deposition. There is no other material evidence. The account which the Defendant has given is, that it was an absolute gift to take effect immediately : not a word is introduced to make it a conditional gift, depending on the testator's living or not living, and postponing the enjoyment till after his death. It is expressed to be a present absolute gift, vesting immediately, over which she had an instant right of disposition, and of which she did in part dispose during the life of the testator. This statement in the answer differs materially from the depositoin of Alice Mason. One re-[97]-presents the whole of the gift to consist of the book containing ( 00, as one entire gift ; the other represents two distinct gifts, with an interval, during which the testator took off his great coat, and afterwards delivered notes not contained in any book. A more material variation is, that Alice. Mason introduces words which make the gift conditional, that is, " in case any thing should happen to him " ; qualifying it riot as an absolute gift in all events, but only, for so the expression must be understood, in case of his death. The question is, whether from the accounts so given, the master'sjreport has drawn the right conclusion '! 2 SWANS. 98. WALTER V. HODGE 551 On principle, it is quite clear, that a claimant insisting on a parol gift of this nature, not contained in any will as a legacy, must establish a clear and satisfactory case. If the claim rested only on the account given by Mrs. Hodge, it is an absolute gift from a husband to his wife during coverture, without the interposition of trustees; handing over property which she was to apply to her separate use, and which she considered herself at liberty so to apply immediately. There is great difficulty in establishing such a transaction. But the gift is claimed as a donatio mortis causa ; a claim which seems to be advanced subsequently to the answer ; for that contains not a word intimating that the wife understood the gift to be conditional, which is essential to a gift mortis causa ; but on the contrary she claims it as an absolute gift, and accordingly disposes of some part of it. A witness has however been examined in the cause, and one difficulty is, whether it is competent to the Defendant to prove a case at variance with the statement in her answer 1 The conditional gift described in the deposition, is a totally different case [98] from the absolute gift claimed in the pleadings. In limine therefore occurs the difficulty of receiving the evidence of Alice Mason without a basis laid for it in the pleadings. How that can be permitted I do not immediately see. But what is the account which she has given 1 Her evidence, if taken alone, cannot possibly sustain this claim. She proves only the delivery of some notes, she knows not the amount; she says there were two separate and distinct gifts. Supposing the second gift postponed the right to the notes till the event of death, and gave it only in that event, the question would be whether this falls within the authorities on the subject of donations mortis causa. I have looked...
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