#### RICHARD SMITH, ADM’OR &c. vs. SAMUEL S. DOWNEY, ADMINISTRATOR &c.

f A donation causa mortis cannot be by deed, without delivery of the thing, i even where the death of the party takes place.

Whore there is no delivery of the thing, nor any intended to be made, nor any dominion over the thing intended to be parted with, by the donor dur- | ing his life, the gift is not good as a donation causa mortis.

A donation causa mortis cannot take effect, if the party recover from the illness under which he is then laboring.

Where A. expecting to die, endorsed upon a bond duo to her for $900 that B. was entitled te $600 out of it, but mado no delivery of the bond, and after-wards recovered from her then illness, held that this was an invalid gift.

An administrator, who honestly defends a suit, is to be protected by the judg- ■ mont obtained against him per testes and in invito, although the claim, on which the judgment was founded, may have been unjust.

But where an administrator manages a suit against himself, is personally concerned in interest with the plaintiff and suffers a judgment to be obtained without the examination of any testimony, such judgment shall not be received as evidence that the debt was due and that he was bound to discharge it.

This cause, having been set for hearing, was transmitted by consent from the Court of Equity of Granville county, at Fall Term, 1843, to the Supreme Court.

*269The facts alleged in the pleadings are as follows:

The defendant is the administrator of Miss Ann Smith deceased ; and the bill was filed in September, 1842, by the plaintiff, as administrator of Maurice Smith, the residuary legatee in her will, for an account of the estate and payment. It sets forth, that the defendant pretends to have lent a small sum due to the plaintiff, and particularly, that he insists on a credit in his account for the sum of $1044 35, as having been paid by him in discharge of a judgment recovered against him by Mrs. Ann A. Smith, administratrix of Alexander Smith deceased. The bill charges, that the judgment .was recovered by collusion between the plaintiff in that suit and the defendant, for a sum not due, and without any real •defence.

In support of the charge, the bill states, that the residuary legatee and executor of the will proved it, and lived for several years thereafter in the immediate vicinity of Ann A. Smith and of the defendant; who was her general agent and son-in-law, and entitled to one-half of the personal estate of Alexander Smith, and that no suit was brought against the executor, or claim for this debt preferred in his life-time: That after the defendant obtained administration, he sued out a writ, against himself in the name of his mother-in-law, Ann A. Smith, administratrix of Alexander Smith, returnable to a County Court, and employed counsel for the plaintiff therein, and made no defence, but by a formal plea, which was intended only to give to the proceeding the appearance of an adversary suit, when in fact it was not, and that he permitted a verdict to be rendered against him, without the examination of a witness, and upon a statement by the defendant himself, whereby this large sum was recovered, when no part was due. The bill further states, that in fact the judgment was for the benefit of the defendant himself, although in the name of Mrs. Smith ; for that he has never paid any part of it, but got a receipt therefor as having been .paid into the clerk’s office, when in truth it was not, but Mrs, Smith gave her acquittance therefor without payment, which *270the clerk accepted as money, and for which he gave his re«“p4-

The answer insists on the correctness of an account, tpe defendant had rendered to the plaintiff, but submits to an account in the cause. With respect to the item of $1044 35, the answer states, that in 1827, the testatrix, Miss Ann Smith, held a note of T. & H. Young for $900; and thereon was an endorsement, signed by the testatrix, in these words: “ Six hundred dollars of the within for Alexander Smith and that a judgment was in that year obtained on the note, and upon the execution issued thereon, an endorsement appears, that $600 dollars of the judgment was transferred to Alexander Smith. Alexander Smith was a brother of the testator, and died in December, 1827, intestate, leaving Sally P. Smith, (the wife of the defendant,) and Ann Smith the younger, his only children, and a widow, Mrs. Ann A. Smith, the latter of whom administered on his estate. Soon afterwards, Ann, the daughter, also died intestate and without issue, being very young. The answer states, that Young, the debtor, paid to Mrs. Smith, the administratrix of Alexander Smith, the sum of $139 25, on account of the debt; and that, after the death of Ann, the daughter, the testatrix, Miss Ann Smith, professed much anxiety to have the sole control of the debt, as she was a relation and friend of Mr. Young, and wished to have the power of indulging him, and applied to Mrs. Ann A. Smith, and to the defendant, to give up their interest in the debt, and promised, if they would do so, that she would by her will make up the amount to the said Ann A. and Sally P; and they agreed thereto, and by endorsement on the execution, Mrs. Ann A. Smith and the defendant severally relinguished their claims to the testatrix, who, afterwards, received the whole debt, and in 1831, made her will, and gave all her property to the plaintiff’s intestate and other persons. The answer admits, that no demand was made on M. Smith, the executor of the will, in his life-time, for the money, and states, as the reason therefor, that there wasanothersnbjectoflitigationbetween thesaidM. Smith and *271the defendant, in which the defendant expected a recovery against him, and expected in the settlement thereof to use this claim ; that the said M. Smith died before that con troversy terminated, and that then the defendant took administra7 tion on Ann Smith’s estate, in order to get payment of the demand in question.

The answer further states, that, after the defendant had administered, he took the advice of counsel, as to the manner in which the claim should be asserted, and was advised, that an action should be brought in the name of Mrs. Ann A. Smith, as administratrix of Alexander Smith, against the defendant, as administrator of Miss Ann Smith, with the will annexed. The defendant admits, that he was the agent of the plaintiff therein, and long had been, and that as such he retained counsel for her, but he states, that he retained other counsel for himself. He also admits, that the verdict passed without the examination of a witness; and he says, that he stated the foregoing facts to his counsel, as being known to himself, and was advised that, as the right came within his own knowledge, it would be idle to examine witnesses to prove it; and that accordingly, he allowed the judgment to be taken for the balance of the $600, and interest, after deducting the before mentioned sum of $130 25. The answer further admits, that no money passed in settling the debt, but that Mrs. Smith, his mother in law, gave the defendant an order on the clerk for the money, with which the defendant paid the debt, and then took the clerk’s receipt.

The answer then avers, that, within the defendant’s personal knowledge, the debt was justly due, and that in all the transactions before stated, he acted from pure motives, and with the sole purpose of doing what he knew to be just and equitable, and was advised to be legal. Upon the hearing, it was admitted by the defendant’s counsel, that there must of course be a reference to state the administration accounts of the defendant. But each of the parties desired, that the reference should be made with instructions as to the sum of *272$;1044 45, claimed as a credit for the judgment of Alexander Smith’s administrations.

The defendant produced several depositions. The first' wag 0£ j)r Qra^am, the minister, at the time, of the congregation of which all those persons were members. He states, that Miss Smith desired him to use his influence with Mr. Downey and Mrs. Smith, to induce them to relinquish their right in the bond of Young, and said, if they would, they should lose nothing by it; by which, he understood, that she intended to repay the amount in her will, though she did not say so. That argument he made to the other parties, and they did relinquish. The deposition of Mrs. Ann A. Smith states, that she relinquished the claim to Miss Ann Smith, under a promise from her, that her brother, Alexander Smith’s estate should not lose any thing, and she wished the control of the debt, that she might indulge the debtor; that she understood Miss Smith to mean, that she would at least compensate the estate in her will, and indeed, that she promised so to do, and had it not been for that, she would not have relinquished. She further states, that Miss Smith in like manner applied to the defendant to relinquish, saying it would be no loss to him and his wife, and the defendant, after at first refusing, finally made a relinquishment.

John It. Hicks states, that he advised the defendant to make the relinquishment desired by his aunt, because it would prevent an alienation of her affections from him, and, as he was a great favorite with her, the witness believed she would be sure to leave him a large portion of her estate ; and the defendant always informed the witness, that he made the relinquishment from the belief, that his aunt would more than compensate him therefor.

The deposition of James Beasley, a brother of Mrs. Ann A. Smith, states, that in 1828, he lived with his sister, and had various conversations with Miss Smith and Mrs. Smith, upon the subject of the death of Young. Miss Smith stated, that at the time she made the memorandum on the note in *273favor of Alexander Smith, she was sick and expected to die, and that she wished to give her brother Alexander that much more than she had given him in her will, and that she regarded that transfer as a part of her will; and then, at the conversations with the witness, wished to make a different disposition of her property. In all her conversations heard by this witness, Miss Smith distinctly claimed the whole-bond as her property, and she said Mrs. Smith and Downey, by refusing to relinquish the bond to her, would act morally wrong, and be endeavoring to prevent her from doing as she pleased with her own property. Miss Smith mentioned to the witness, that she did not wish Mrs. Smith to relinquish the claim to the debt without consulting her friends and being sensible of the propriety of it, and she requested the witness to give his advice to his sister on the subject, remarking also, that if she and the defendant did not relinquish, they would lose more than they would gain. He says, that he held conversations with his sister accordingly, in which he advised her not to relinquish the bond, hut she informed him afterwards, that she bad relinquished her interest, as she wished to keep peace in the family, and if Ann chose to take back what she had once given, she could live without it. The witness understood that Miss Smith then had a will, in which she gave to Mrs. Smith and Mr. Downey, move than the bond of Young, and he supposed that by the expression, “ they would lose more than they would gain,” she meant, that if they did not relinquish, she would alter her will and cut them off.

The deposition of Mrs. Mary Smith, on the part of the plaintiff, states, that Miss Ann Smith resided with her brother Alexander, as a member of his family: that in the latter part of the year, 1825, she was extremely ill, and expected by herself and her friends to die ; that the witness was her relation, and attended on her as one of her nurses in her illness : that Alexander Smith had been her agent in her business with Young, who was then expected to become insolvent, and that some apprehension was expressed by some *274person, that, if she died, and Young should fail, her brother Alexander, might be held liable to her estate upon some ground, which the witness did not understand. This witness states, then sai¿? she would provide against that, and directed the witness to bring her the bond, which she did, and Miss Smith wrote on it the memorandum in favor of her brother, and then the bond was put back. Miss Smith said, if she died, she wished her brother Alexander to have that much of the bond, but not otherwise, as she did not intend to give her property away in her life time. The witness further states, that Mrs. Ann A. Smith, and all the family of Alexander Smith, knew that the memorandum had been made on the bond, and the purpose for which it was made, as it has been already stated by the witness.

The deposition of James W. Smith, a brother of the testator, in behalf of the plaintiff, states, that he frequently heard her say after recovery, that she had transferred $600 of Young’s bond to Alexander Smith, by making a memorandum on it, when she expected daily to die, and that she made the transfer with the intention that her brother Alexander should have that sum in case she should then die ; that shr recovered, and her brother never claimed any part of the bond, but that after his death, his widow and Downey claimed it, and that she refused to let them have it, because she had received nothing for it, and had intended the benefit to Alexander, only in case of her death in that illness, and that Mrs. Ann A. Smith and Downey well knew that, and all the facts of the transaction: That she claimed the bond as her own, and had collected the money and kept it as her own.

Saunders for the plaintiff.

Badger for the defendant.

Ruffin, C. J.

The answer and the deposition of Mrs. Ann A. Smith, in support of it, state the original transaction, out of which this controversy arose, as if the right of property in Young’s bond vested in Alexander Smith, at least *275to the amount of $600. Upon that supposition, they out that the surrender of their interest in the bond was a valuable consideration for the promise, which, they say, was made to them by the testatrix, to leave them an equal sum in her will.

Upon that statement even, it would be a question, whether what Miss Smith said was intended, or was understood by the other parties as a promise, amounting to a binding contract, or was not merely a vague declaration of an intended bounty, on which the other parties, from their relation to this single lady, and their intimate association with her, relied for a more valuable acquisition than the bond itself, or her promise, strictly speaking, to leave them as much at her death.

The latter is rendered extremely probable, as the truth of the case, from the testimony of Dr. Graham and Mrs. Hicks; especially the latter, who says, that the defendant expected a large part of his aunt’s estate by her will, unless he alienated her affection. In that belief, and with the view to please and keep in with her, he probably made the relinquishment, and, if so, he ought not to set up the expectation of a bounty on his part, as an obligatory contract on the part of the aunt. Had such a contract been intended, it can hardly be supposed that ■ some distinct and permanent evidence of it by a written memorandum, would not have been framed at the time, or, or at least, a disinterested witness called to it.

But if it were otherwise, and the most precise parol promise had been proved to have been made by Miss Smith, it would not have supported the action the defendant brought against himself in the name of his mother-in-law, if it had been duly defended. It is a mistake to suppose, that any right in the debt is vested in Alexander Smith, in virtue of the memorandum, on the bond or on the execution. As to the latter, nothing appears except the statement in the answer, that on the execution an endorsement appears, “ that $600 of the judgment was transferred to Alexander Smith.” Even if that be true, it would transfer no legal interest, nor *276be obligatory, in Equity, as it would be an assignment without consideration. But a clear answer is, that the answer does not intimate that the entry on the execution was the act 0f -^jsg gmith, or by her authority. Of course, then, that amounts to nothing. Then, as to the memorandum on the bond itself. It is clear from the testimony of Mrs. Mary Smith, who was present when it was made, took the bond out of the repository of the testatrix, for the purpose, and replaced it after the memorandum was made, that it was without any valuable consideration, and, at most, was intended as a donation causa mortis, and that even that failed from an intrinsic defect in point of law, and also from the recovery of the donor from the illness in which the gift was made. The better opinion seems to be, that donatio causa mortis cannot be by deed, without delivery of the thing, even where the death of the party takes place; because, the instrument is to be considered testamentary, and may be proved as such, and delivery is indispensable, either actual or implied, to complete such a gift. Williams’ Ex’ors. 504. 1 Roper Leg. 12. Here the gift was certainly not intended to take effect but on condition of the death of the donor, and in the illness under which she then labored. For that reason, it failed. Tate v Hilbart, 2 Ves. jr. 120. The donor did not part with the dominion over the bond, nor did she intend to do so during her life. For that reason, also, this gift failed, as a clonatio causa mortis. Bunn v Markham, 7 Taunt. 231. There a person wrote on the parcels of property, the names of the persons for whom they were intended, and requested a person to see them delivered to the donees, from which appeared a clear intention, that they should pass; yet it was held that they did not, for want of delivery. There was no delivery to this donee, nor to any person for him, nor was any intended in the life-time of the donor, but only after her death. Therefore, also, the gift could not be valid. In truth, then, the botid in question belonged wholly to Miss Smith without the assent of Mrs. Smith and the defendant, and to use the expression of Miss Smith, as proved by Mrs. Smith, those per*277sons have lost nothing by their relinquishment, although they got no legacy from Miss Smith. Tf she made such a promise as the defendant alleges, it was clearly upon an ignorance and mistake of her rights, and without the color of a consideration; for she was without any relinquishment from the other parties, the undoubted absolute owner of the bond in equity as well as at law. Such is the law, upon the supposition, that Mrs. Mary Smith gives a true account of the transaction. That she does, no doubt can be entertained. She had full knowledge of the transaction throughout; and there is no attempt to discredit or contradict her. She is supported by the evidence of James W. Smith as to the statements of it by the testatrix herself, and, most especially, by the testimony of Beasly, a brother of Mrs. Ann A. Smith, and a witness for the defendaut, who states, that the testatrix constantly claimed the bond as her own,' on the ground that she had only given it upon the condition of her death in that illness, and that Mrs. Smith knew it, and the latter made no denial of the statement, but afterwards told her brother that she had relinquished, contrary to his advice, because she could live without it, if the testatrix chose to take back what she had once given. Now it is remarkable, that, although Mrs. Mary Smith states positively, that Mrs. Ann A. Smith and all the family knew the purpose of making the memorandum on the-bond, and although Beasly states Miss Smith’s declarations on that point, and Mrs. Ann A. Smith’s admissions of their truth, yet neither the defendant in the answer, nor Mrs, Ann A. Smith, in her deposition, gives the least intimation of the occasion or intention of making that transfer, as they call it. Neither of them ventures on the slightest denial of the testimony of the other witnesses, as to those facts, but are themselves entirely silent on them, We cannot but impute their silence to their inability to deny those facts; since it cannot be supposed that they deemed them unimportant, or had forgotten them after they had entered so frequently into the discussions between the parties, touching their rights to the bond.

*278The court holds, therefore, that the bond of Young, or any interest in it, never belonged to Alexander Smith or any other person but the testatrix; and, consequently, that the gUpp0ge(j promise of the testatrix, on which the action was brought against the defendant, if such promise was made, was not sufficient to sustain the action, but was merely void.

. It is however said, that the defendant is protected by the judgment against him. Certainly, an administrator who honestly defended a suit is to be protected by the judgment obtained against him per testes and in invito, although the claim, on which the judgment was founded, may have been unjust.

For the administrator has done all he could to have justice done to the estate, and was compelled to pay the debt.

It may likewise be true, that an administrator may be justified by allowing a judgment to pass against him upon his own knowledge, since the creditor might compel a discovery by filing a bill against him. But that must necessarily be, when the debt is due to another person and not to a trustee for the administrator, and when the conduct of the administrator was bona fide, and not with the view of giving to the claim the form of a judgment, merely for the purpose of con-concluding or embarrassing those to whom he is to account for the estate.

■ Even in that case the judgment is, to some extent, but a formality; for the administrator might as well pay on his personal knowledge, without suit, as to let judgment go on his personal knowledge, without the oath of a witness or even oí himself. It is certainly better in such a case to leave the creditor to his bill for a discovery. But neither of those favorable views can be taken of the conduct of this defendant in procuring judgment against him. The claim appears to be not only unfounded, but without a plausible color. The defendant himself was the beneficial owner or claimant of half of it, and probably the whole. The answer states, that the defendant administered to enable him to collect the claim, and the first act of his administration was to consult *279counsel', how the claim might be asserted against him. In this he certainly was not acting for the estate, but for himself and the other pretended creditor. He brought the action and managed the case against himself, and for his own benefit, and let the verdict go upon his own statement of the facts to the jury, not on oath, which we must suppose to be like that contained in his answer; and that in it was kept back a most important fact, which was within the knowledge of both the plaintiff and himself; that is to say, that the supposed transfer of the bond to Alexander Smith had been made on condition of the death of Miss Smith of the disorder then existing, and, therefore, was no gift at all. We cannot but deem the whole proceeding collusive. Even that is not the correct expression; for the defendant seems to have been the sole actor, and might as well claim credit for a judgment in a suit brought in his own name against himself as administrator. A judgment thus suffered, is a mere empty form, and does not establish the debt. It was incumbent on the defendant to establish it, therefore, by proof in this cause. That he has attempted, by giving his own testimony in his answer, and that of the other claimant, Mrs. Smith. But neither of them states a case in which there appears any valid gift of the bond, and it turns out, on other proof, that in fact and law, there was no gift of it, and that both of these persons must have known. Whether they purposely suppressed the fact, it is not for us to say. It is enough that they knew the facts, and, that, if they had been fully laid before the counsel and the jury, no such verdiet could have been rendered, as that of which the defendant claims the benefit. In taking the accounts, therefore, the court directs that the Master shall not credit the defendant with the said sum of $1044 75, or any part thereof, or with any sum paid as costs or charges touching the same.

Per Curiam, Ordered accordingly.