declarations made by the testator after the date of his will, I think they amount to very little. They may have been made for the purpose of misrepresenting what he had actually done; but at all events cannot be taken as counteracting the effect of what had been done. The evidence of his declarations before he made his will are of more weight," but still not to be regarded in the same light with respect to authority, with those which passed at the time of making the will, since they are, at the most, explanatory of what was his particular intention at the moment of pronouncing them. In such cases, therefore, the best evidence is the contemporary evidence; and all the rest weighs very little in the scales."

If upon the will the intention to exclude the executor is unequivocal, as where a legacy is given to him for his care and pains, which is said to be beyond all proof, evidence is not admissible; for this would be to contradict the will. And so on the other hand, if there is no bequest to the executor; or if a legacy is so given to him, that it is not inconsistent with his taking the beneficial interest in the residue, evidence shall not be received to show that he shall not take it. In a legacy to one of two executors for his trouble, evidence was admitted in favour of the other, who was an infant; the gift to one being considered to afford only an inference for the exclusion of the other. And where there was a bequest to the executor of the furniture in a certain house, plate only excepted; it was held that the

exception of the plate was not such a necessary implication that the executor should not take the residue, into which it would. fall, as to prevent the admission of evidence."

b

Although the next of kin cannot originally read evidence, they may do so in answer to, and to take off the effect of that read by the executors: and if in such case it can be shown that the testator, at the time of making his will, intended to dispose of the residue, notwithstanding he does not afterwards do it, the executor will be excluded. There is no instance of an issue directed to determine the question between the executor and the next of kin.d

SECTION IV e Lean & Longlands star 71. 20-Fuld & Sluty B. NR. 497. Edwards nimes India. 226. Reda defr donce Of Donations mortis causâ. Ami. 244. Farquharson

Llave 2 CM. 356

BESIDES these formal legacies contained in a man's will, there is another disposition of property, derived from the civil law, called a donatio mortis causâ; which is, where a man delivers or causes to be delivered to another the possession of any personal effects to keep in case of the donor's decease. It is so far in the nature of a legacy that it only takes effect in the event of the death of the giver, and is revocable during his life, being made in contemplation of death; it may be made to the wife

a

Langham v. Sanford, 17 Ves. 435. 2 Mer. 6. 19 Ves. 641. b 2 Ves. 95. 1 Ves. J. 360. Nourse v. Finch, Ves. J. 344. 4 Bro. 239. Hornsby v. Finch, 2 Ves. J. 78.

d 14 Ves. 323.

e 2 Bl. Com. 514. Swinb. P. 1. S.7. Pr. Ch. 270. 303. 2 Swanst. 99. 102. N.; and see Tate v. Hilbert, 4 Bro. 286. 2 Ves, J. 111.

C.

of the donor; it fails by the death of the donee in his lifetime, and is liable to debts, and subject to the duties imposed by act of parliament on legacies. On the other hand, it differs from a legacy, as it need not be proved in the spiritual court as part of the testator's will; for the property vests absolutely on the death of the donor, and the donee may take it without the assent of the executor.

It appears to have been considered that a donatio mortis causâ must be made in the last sickness of the donor, or under the apprehension of danger. Where, indeed, a thing is given in extremis, and in contemplation of death, 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." mis. Yet if the thing be given upon condition only to take nerd. 40%. effect in case of the death of the giver, it seems to be a valid donation mortis causâ at whatever time the gift is made. In a case in the Exchequer in Ireland, two out of three Barons held a gift to be void in consequence of the donor having desired the donee to pay an annuity out of it to another for life; for that in every case a donation mortis causâ must be unfettered, and free from every condition. modern work remarks that this doctrine seems inconsistent with later cases; and it has been held

A

* 2 Bl. Com. 514. Gilb. Eq. R. 13. 3 P. W. 357. 1 Ves. J. 547. Pr. Ch. 269. 2 Swanst. 95. N.

h Gardner v. Parker, 3 Mad. 184. See Hill v. Chapman, 2 Bro. 612. Jones v. Selby, Pr. Ch. 300; and 2 Swanst. 100.

Bibby. Coulter, Ridgw. Ca. T. Hard. 206. N.

1 Prest. Leg. 158; and see Shanley r. Harvey, 2 Ed. 126..

that a gift for a particular purpose, as to the executor for carrying on a suit in which testator is engaged, does not prevent it being a donation mortis causâ.a

d.

An actual delivery of the thing given is the essential requisite to this species of legacy. The possession must be transferred in point of fact. If the delivery will not execute a complete gift inter vivos, it cannot create a donation mortis causâ;" and by the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee. To prove the fact of delivery, the authorities appear not to require a plurality of witnesses, as in the civil law, but only that the proof be satisfactory. A ring, a purse of gold, and suchlike articles, that are capable of being delivered, will, when delivered, be good as a donation mortis causâ. But where a man on his deathbed gave his wife his coach and a pair of his coachhorses, bidding three witnesses take notice of it, who accordingly made a memorandum thereof in writing: it was held that this was not a valid gift, there having been no delivery. Nor will the delivery of a mere symbol in the name of the thing be sufficient." But the delivery of the key of the place where bulky goods are, has been allowed as delivery of the possession, because it is the way of coming at the possession. So the delivery of the key of a trunk

b

Blount v. Burrow, 4 Bro. 72.

2 Ves. 442. 2 B. and A. 553.

1 Sim. and St. 245.

2 B. and A. 552.

• 2 Swanst. 100.

f Lawson v. Lawson, 1 P. W. 440.

Miller . Miller, 3 P. W. 356. The reporter adds a query, why the wife could not be entitled to them, as by a nuncupative will.

h 2 Ves. 443. 3 Mad. 185.

i 2 Ves. 443.

seems to have been considered a valid gift of what could be proved to have been in the trunk at the time; and it has been said that the delivery of the bill of sale of a ship would be good. The delivery of the receipts for the consideration money for the purchase of South Sea Annuities was held not to amount to a donation mortis causâ; for that of stock there can be no such gift without a transfer, or something amounting to it. In a case also in which the wife of a testator by his direction took certain securities out of a drawer, and put them distinctly and by themselves into another, of which she afterwards kept the key, for and as the property of the testator's infant daughter; and they remained in that state till his death, and were several times spoken of by him as his daughter's own, and the interest which arose on them, subsequent to the gift, paid to her by his direction: it was held that this was not a sufficient delivery.d

Gifts of bank-notes may be good, but not perSouhrhaps of promissory notes, nor checks on bankers." 7.48, A bill, indeed, drawn by a man in his last sickness upon a goldsmith, to pay 100l. to his wife to buy her mourning, was held a valid donation, operating as an appointment. Lord Hardwicke, however, remarked" upon this decision, that he could not say upon what it depended: it was a kind of compound gift; so