Ward v Turner
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 1752 |
| Date | 21 July 1752 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 234
HIGH COURT OF CHANCERY
Mews' Dig. Will, III. See S. C. Wh. & T. L. C. 7th ed. Vol. i. p. 390; Moore v. Moore, 1874, L. R. 18 Eq. 474; 43 L. J. Ch. 617; 30 L. T. 752; Re Harcourt, Danby v. Tucker, 1883, 31 W. R. 579.
tks^. .c& .ft. ward v. turner. 21 July 1752. 2 Ves. 431, S. C. Donatio mortis causa. The plaintiff, as representative of John Mosely, brought his bill to have a transfer of 600 new South Sea annuities, and "several specific parts of the personal estate of William Fly, delivered to him ; and to have an account of what was due to Mosely for services done to Fly. It appeared, that Fly in his lifetime had expressed great kindness for the plaintiff's, testator ; and in the presence of one Mounsey, a witness, had taken three transfer receipts for 600 South Sea annuities, and declared he would give them to the plaintiff's testator ; and in the presence of one Greentree, another witness, taking the key of his scrutore, took out three papers, and said, " Here Mosely, I give you these three * Isaac v. Gompertz, 23 July 1792. Legacy given to a Jewish charity not being permitted to take place, the legacy paid in moieties, pursuant to his Majesty's sign manual ; one moiety to the Magdalen Hospital, the other moiety to thej London. Infirmaryi DICKENS, 171. WARD V. TURNER 235 papers : these are for South Sea stock, and will serve you, when I am dead"; and in the presence of one Taylor declared, he gave the plaintiff's testator all the goods and plate in his house, save his sword, gun, and books. [171] Lord Hardwicke, C.-Suppose the facts above sworn to were well proved, what is the law arising on these facts 7 First, as to any part of the things given, except the 600 South Sea annuities, I am of opinion the gift is not good, there being no pretence of any delivery, and it is too general. If they prove any thing, they must prove a nuncupative will. Then for argument's sake, take the gift or the 600 South Sea annuities, as an independent donation; the question is, whether it be such a gift as the law of England will allow as a donatio causa mortis. And first the fact of the gift is proved only by Greentree ; whereas the civil law requires five witnesses, and limits it in point of value. Vide Justinian's Institutes. The express gift sworn by Greentree is of the three receipts only, which the plaintiff would construe as a gift of the South Sea annuities. The question that arises is : whether the delivery of the thing, given by way of donatio causa mortis, is necessary; and if necessary, if this delivery of the three receipts is a sufficient delivery. I am of opinion a delivery is necessary, and that the delivery of the three receipts is not sufficient to validate this act. In the Eoman law there are three kinds of donatio mortis causa : First, where the property in the thing doth not vest, until the death of the donor : Second, where the property immediately passes, but is defeasible, in case the donor recovers : Third, where the donor moved with present danger, doth not think it so immediate as to give the party a vested interest in them, but only to take effect, when the donor dies. [172] Now as to the second, the civil law requires a delivery; but as* to the first, and third, not an absolute delivery, because the property doth not completely pass till the death of the donor. But the civil law is not binding in this county, farther than it hath been received, and allowed here, and that must be determined by authorities; and the result of the authorities is, that the civil law hath been received in England, only so far as the gift had been attended with delivery (Swinburne, Part 1st, sect. 6 ; Drury v. Smith, 1 P. Wms. 404; Lawson v. Lawson, ibid. 441; Jones v. Selby, Precedents in Chan. 300; Hedges v. Hedges, ibid. 269; Snellgrove v. Bailey, March 1744; 3 Atk. 214; Miller v. Miller, 3 P. Wms. 356). Then I come to the question, whether the delivery of the three receipts is a delivery of the thing : I am of opinion it is not, and find no authority for it; the delivery of the thing given, is what is relied on in all the cases; the only case where a symbol was held good, was in Jones v. Selby; the key of the trunk wherein the thing was kept (Exchequer Tallies), but I am of opinion that amounted to a possession in the donee of the tallies, for the donor was restrained from making use of them, without the consent of the donee, and the donor could not rightfully come at them, without the key. I think in like manner, as to a key of a warehouse for goods, or of a wine cellar. But as to the delivery of the receipts for the stock, it amounts to nothing; they being of no use after the acceptance of the stock, and are seldom kept. Suppose a mortgage, and a separate receipt taken for the consideration money, and the receipt is deli-Q73]-vered over, it could not be a delivery of possession. Upon the whole I am of opinion this gift is not valid, without a transfer, or something that amounts to a transfer, and it being unaccompanied with a delivery is merely legatory, and amounts to a nuncupative will, and allowing it would be a breach of the Statute of Frauds (see sect. 19, 20, 21, and 22 of that statute). Therefore let the bill be dismissed as to the gifts claimed. [Mews' Dig. Will, III. See S. C. Wh. & T. L. C. 7th ed. vol. i. p. 390; Moore *, Moore, 1874, L. R. 18 Eq. 474 ; 43 L. J. Ch. 617 ; 30 L. T. 752; Be Harcourt, Danby v. Tucker, 1883, 31 W. K. 579.]]
English Reports Citation: 28 E.R. 275
HIGH COURT OF CHANCERY
S. C. 1 Wh. & T. L. C. (7th ed.) 390, Dick. 170. See Walter v. Hodge, 1818, 2 Swanst. 98; Duffield v. Elwes, 1827, 1 Bligh, N. S. 536; In re Harcourt, 31 W. R. 579; Moore v. Moore, 1874, L. R. 18 Eq. 483; Mustapha v. Wodlake, [1891] W. N. 201.
ward v. turner, July 20, 1752. [S. C. 1 Wh. & T. L. C. (7th ed.) 390, Dick. 170. See Walter v. Hodge, 1818, 2 Swanst. 98; Duffield v. Elms, 1827, 1 Bligh, N. S. 536 ; In re Harcourt, 31 W. R. 579 ; Moore v. Moore, 1874, L. R. 18 Eq. 483 ; Mustapha v. Wodlake, [1891] W. N. 201.] In the case donationum mortis causa, an actual delivery is indispensible to vest the property, if the subject matter is capable of delivery. // it be not so, there must be a delivery of what is equivalent to it at law. (As to donationes mortis causa,, see 1 Roper on Legacies, 1, 2, &c.; and particularly Tate v. Hilbert, 2 Ves, jun. Ill: and 276 WAfeD D. TURNER 2 VES. SEN. 432. Snelgrove v. Bailey, 3 Atk. 214. A similar rule prevails also as to gifts inter vinos. Vide in Tate v. Eilbert, 2 Ves. jun. Ill, &c.; and Antrobus v. SmifA, 12 Ves. 39, &c. See also in Tomkyns v. Ladbrooke, post, 591, 594, 595. Supplement, p. 421. See also the observations of Lord Eldon, C., in Lewis v. Madocks, 8 Ves. 154, &c.) In the case of stock, &c., delivery of the receipts, &c., not sufficient to constitute such a gift, though strong evidence of the intent. Formerly, there could be no action at law on a bond without a profert. (See in Walmesley v. Child, 1 Ves. sen. 341, 345, and Askew v. The Poulterer's Company, 2 Ves. sen. 89, with the observation in the Supplement, p. 163, 284.)-{Supplement, 378.] The end of the bill was to have a transfer of 600 new South Sea annuities made to the plaintiff as executor of John Mosely, and to have certain specific parts of the personal estate of William Fly, dead intestate, delivered or made over to the plaintiff. Another prayer of the bill was to have an account of what was due to Mosely for services performed to Fly, against whose estate this demand was made. The case, the plaintiff made, was this : he was executor of Mosely, who was related to Fly by affinity, having married his aunt; that Fly had great obligations to Mosely, who took care of him in his infancy; and at his house Fly used to come from school, when it broke up : and afterward Mosely, who in the latter part of his life appeared to be in very mean circumstances, lived with Fly as his servant until Fly's death ; had his victuals there; performed services to him ; and had now and then a shilling given him : from thence Fly made profession of a strong intent to do for him at his death, and had great kindness for him; in pursuance of which, as Fly drew near his end, being in a very bad state of health, during that time he made Mosely several donations mortis causa in prospect of death. Four times were fixed on by the witnesses, of which several were examined in the cause, speaking of actual gifts and declarations supporting them. First, 18^ January 1746, which was spoken to be by the porter of Furnival's Inn. The second 6th February 1746, which was the principal proof relied on by the plaintiff to support the gifts of these annuities, and was proved by Fly's barber; who being sent for by Fly found Mosely with him, and no [432] other; and swore to the particular words used, and declarations made, that Fly said to him; vie. " I intend to give him " (speaking of Mosely) Longford estate for his life : but I have considered of it; and " that which is worth 40 a-year to another, is not worth so much to him; for if the " tenants wanted an abatement for repairs, he would allow it; and therefore I will do " better for him." That thereupon Fly went to his escritoir, and taking three papers said, " I give you Mosely these papers, which are receipts for South Sea annuities, and " will serve you after I am dead." The third 23d February, which was proved by one, who swore, that in his presence Fly said, " Mosely, I give you all the goods and plate in " this house.'' Fourthly, 3d March by the said barber, who swore, that Fly declared to him and to another person, who alone were present, that he gave to Mosely all his household goods, money, arrears of rent, and every thing that should be found in his house, except his sword, gun, and books; and that this together with those three receipts would make 2000 ; that he wished...
To continue reading
Request your trial
-
McWey, Re; Ryan v Cashin and Costello
...D. 76. (2) [1902] 2 Ch. 394. (1) 2 Esp. N.P.C. 663. (2) 10 Sim. 244. (3) 44 Ch. D. 76. (4) [1902] 2 Ch. 394. (5) [1902] 1 Ch. 680. (6) 2 Ves. Sen. 431. (7) L.R. 18 Eq. (8) [1899] 1 I.R. 405. (1) 4 De G. & Sm. 517. (2) [1902] 1 Ch. 680. (1) [1902] 1 Ch. 680. (1) 2 Ves. Sen. 431. (2) 1 Bli. (......
-
Sen v Headley
...Tate v. Hilbert (1793) 2 Ves. 111, 119. With regard to the third requirement, the judgment of Lord Hardwicke L.C. in the leading case of Ward v. Turner (1752) 2 Ves Sen. 431 shows that the necessity for a delivery in every case and the acts sufficient for that purpose are developments of En......
-
Duckworth v Lee
...M. & W. 216. Moore v. Darton 4 DeG. & Sm. 517. Moore v. MooreELR L. R. 18 Eq. 474. Porter v. WalshELR L. R. 6 Eq. 198. War v. TurnerENR 2 Ves. Sen. 431. Wilson v. Marshall I. R. 2 C. I. 356. Witt v.AmissENR 1 B. & S. 109. THE IRISH REPORTS. [1899. Legislature is disregarded. This, according......
-
Moore v Darton
... ... S.), 530), Burnt v. MarJcham (2 Marsh. 532; 7 Taunt. 224), [519] Eeddel v. Dobree (10 Sim. 244), Hawkins v. BlevAtt (2 Esp. 663), Ward v. Turner (2 Yes. sen. 431), Gardner v. Parker (3 Madd. 184), Tate v. Hilbert (2 Ves. jun. Ill), and Cross v. Sprigg (6 Hare, 552). 4DEG.&SM520 ... ...