#### Sarah Gilmore, Administratrix, v. Thomas Whitesides, Administrator, and others.

To constitute a delivery, the owner must part not only with the possession, but with the dominion of the thing.

A man cannot grant an authority to be executed after his death.

The delivery of an instrument to the agent of the donor,-with instructions to keep it until after the donor’s death and then deliver it to a third person for the donee, the donor retaining the dominion over it during his life, is not such a delivery as will make the instrument valid as a deed, "and a delivery by the agent, after the death of the donor, would be void.

Admitting that a *donatio mortis causa*may be by deed, the deed must be delivered, and it seems, must import a *donatio mortis causa*on its face.

*Tried before Ms Honor, Chancellor JOHNSTON, at YorJc.*

The bill of the complainant set forth that Joshua Gilmore departed this life intéstate, leaving as his heirs at law the complainant Sarah Gilmore, his wife, and their son Francis Gilmore. That the said.Francis Gilmore died shortly after the said Joshua, *15under the age of twenty-one years, and intestate, leaving no distri-butee hut his mother, the complainant, who had administered upon his estate. The complainant alleged that the said Joshua died seized and possessed of a considerable real and personal estate, specified in the bill, and that he made no disposition of it whatever, except such as was contained in the following instrument of writing:

“Know all men by these presents, that I, Joshua Gilmore, of York District, and state of South Carolina, in consideration of the natural love and affection which I bear to my son, Francis Gilmore, of the district and state aforesaid, and also for divers other good causes and considerations, me the said Joshua Gilmore, hereunto moving, have given, granted, and confirmed all my real and personal estate, to have and to hold, or enjoy the said estate forever, unto the said'Francis Gilmore,' his heirs, executors or assigns, forever; and I, the said Joshua Gilmore, do warrant and forever defend the said estate from any person or persons, having a just right or claim thereunto. N. B. Provided the said Francis Gilmore comes to the years of maturity, and if he should not, the said estate shall go to the following legatees: To my sister Jane Monks, one thousand dollars, and the rest of my estate to be equally divided among my brothers and sisters; my wife Sarah Gilmore, shall have her support out out of the estate during her widowhood, or good behaviour. And I want a,ll of my estate to remain together, until the said Francis Gilmore comes of lawful age. In witness hereof I have hereunto set my hand, this 25th November, 1834.

Joshua Gilmore.

Test, *Starling Westmoreland.*

*William Edmonds.*

N. B. The said Joshua Gilmore wishes Thomas Whitesides to be his executor — of Brown’s mill.”

The bill charged the said instrument to be imperfect, informal, incomplete and as conferring no title whatever. The complainant alleged that she was entitled to one-third of the property of which *16the said Joshua died seized and possessed, as his heir at law, and to the remaining two-thirds as administratrix and distributee of the said Francis G-ilmore, deceased. She called upon Thomas White-sides, (one of the defendants,) who had administered upon the estate of said Joshua, for an account of the same; and upon the other defendants, who were the brothers and sisters of the said Joshua, and to whom his estate belonged, provided the said instrument was valid, to exhibit their claims to the property.

The defendant, Thomas Whitesides, in his answer, submitted to the Court the question, who was entitled to the property, and prayed to be protected from the conflicting claims of the parties.

The other defendants were made parties by publication, and it did not appear that any of them were alive at the time the instrument of writing was executed, except James Gilmore. The said defendant James Gilmore, in his answer, said that by the instrument of writing already referred to, the said Joshua conveyed his whole estate, both real and personal, to his son Francis, and if his son should not arrive at the years of maturity, that the said estate should belong to the brothers and sisters of the said Joshua, to be equally divided amongst them, after having first allowed therefrom, one thousand dollars for his sister Jane Monks, and a support for his wife. That the said Francis Gilmore died before arriving at the years of maturity, and therefore according to the limitations of the said instrument, the brothers and sisters of the said Joshua were entitled to the property. The said defendant said he believed that at the time the said instrument was executed, none of the sisters or brothers of the said Joshua were alive, except himself. He averred the said instrument of writing to be good and sufficient in law to convey an interest in the said property to him in remainder; and that however informal and inaccurate in legal technicality, he submitted that he had acquired a vested right under it, and that the Court would supply any formal defect therein, so as to carry into effect the intentions of the donor. He prayed that the said instrument might be set up, and the property delivered to him, and any other surviving brothers and sisters of the said Joshua, and that the defendant, Thomas Whitesides, might account for the same, &c.

*17The case came on for hearing at June Term 1837, before Chancellor Johnston, on the bill, answers, and the evidence of William Edmonds, who stated that he wrote and witnessed the instrument, and drew it as near as he could, according to the instructions he received from Joshua Gilmore;; that he desired to be drawn a deed, giving the property to his child Francis; he accordingly drew this paper, as far down as the “N. B.” in the body of the instrument, and read it to him. Gilmore then bethought himself that it was necessary to provide for what should become of the property, in case the child should die a minor; and he gave the witness further instructions, in conformity with which, he drew that part of the instrument beginning at the “N. B.” in the body of it. This latter part was never read to, or by, Gilmore; they were in a hurry, and as soon as it was drawn, he signed it. The witness did not know a seal was necessary, nor did he suppose Gilmore did.

Gilmore told the witness to keep the paper, and the day after he should die, to give it to Thomas Whitesides, whom he wished to take possession of it, and take care of the property for the child. The witness did so.

The “N. B.” following the body of the instrument, was added by the witness after the paper was signed, by way of memorandum. He received no instructions about it, nor did Gilmore know of it.

Starling Westmoreland was present when the paper was given to the witness to keep; but the witness did not know whether Westmoreland heard any part of Gilmore’s conversation with the witness, as stated above. Gilmore desired the witness to keep secret the contents of the paper. Neither the property or the child was present on the occasion, nor was either the deed or the property delivered.

Gilmore remained in possession of the property until his death, which took place the last day of December following the date of the deed- The deed was dated 25th of November, 1834. Gilmore disposed of part of the property before he died. The witness stated that he would have restored the paper to Gilmore, if he had requested it.

*18The witness further stated, that the contents and execution of the instrument, were satisfactory both to Gilmore and himself, and was in the condition they wished it. It was intended that the child should have all, at Gilmore’s death; but if he died under twenty-one, that his brothers and sisters should have it.

Examined by James Gilmore. The witness stated that he did not know that Gilmore was uncommonly ignorant; Gilmore stated he did not wish to make a will, for he had been apprized that his wife would break it.

Johnston, Oh. The only impediment in the way of the complainant, is the instrument executed by Joshua Gilmore. It is contended that that paper is good,

1st. As a testamentary disposition;

2nd. As *donatio mortis*causa; or

3rd. As a Deed.

1st. The instrament wants the formalities required in testamentary papers, by the act of the Legislature, and cannot, therefore, stand on that ground.

2nd. As *donatio mortis causa,*it could, at most, be supported only as to the personalty. But my impression is, that it cannot stand on this ground at all.

There is no evidence that Joshua Gilmore was in ill health when he signed it; or that he signed it in prospect of death, with a view that it should be void, if he should survive the danger. 2 Ves., jr. 121, 546; 1 P. W. 404; 2 Kent Com. 444.

There was no delivery of the property. The leading case on the necessity of such delivery, is that of Ward vs. Turner, decided by Lord Hardwicke, in 1752. 2 Ves. sen. 431. 2 Ves. jr. 112.

The Lord Chancellor, in that case, appears to go the length that even in cases where the terms of the donation are expressed in writing, the delivery of the instrument will not dispense with delivery of the property, and mentions two cases very much resembling the one at bar.

In Ouseley vs. Carroll, the first of them, an instrument was left, not in the form of a will, but of a deed, viz: “I have given and granted, and give and grant, to my five sisters, &c. their heirs, &c. *19in case they survive me, all my real and personal estate.” The other case, Shargold vs. Shargold was upon a deed of gift, of Doctor Pope, not to operate till his death; and there was some attempt at delivery of property, six pence having been delivered by way of symbol, to put the grantee in possession. Both these papers were admitted to probate as testamentary, notwithstanding strenuous objections that they were *donatione&mortis causa.*

In Tate vs. Hillbert, (2 Yes. jr. 120,) Lord Loughborough questions, I think justly, the soundness of the doctrine that actual delivery of property is necessary in all cases. After stating the import of Lord Hardwicke’s opinion, he observes, “It is not necessary in the case before me to discuss, whether delivery is necessary in all cases. Perhaps it might not be difficult to conceive that it might be by deed or by writing; it might be considered, if the case should arise, whether there would be any objection to a formal deed. I should think it not within the jurisdiction of the Ecclesiastical Court; and that the property so given, is not to be possessed by the executor. It is bad against creditors, and therefore, within the reach of creditors, but does not regularly fall within an administration, nor require any act by the executor to constitute a title in the donee.”

When we consider the real purpose of delivery, (2 Hill, 587,) I think we shallhave freed ourselves from nearly all difficulties on this subject. The object of delivering property, is to give a control over it. Whatever invests one with such control, is a delivery. An actual delivery has never been required, other than such as the nature of the property intended to be transferred was susceptible of. A symbol will not do. But the delivery of a key, under which goods are, is a delivery of the goods; “because,” as Lord Hard-wicke observes, (2 Ves. sen. 443,) “it is the way of coming at the possession, or to make use of the thing.” Upon this principle, when a deed is delivered, which by its terms, authorizes him who receives it to take possession and control the property, it is as good as if there had been an actual tradition of the property itself.

I think that a *donatio mortis causa*may be declared, as well in writing as orally, and that if a writing be delivered, declaring the terms of such gift, that is sufficient. But I hold when a donee *20is driven to depend on such writing, it is essential that it'should set forth in explicit terms, a *donatio mortis causa.*In the present case the paper relied on is deficient in this respect. In its terms, it is a gift *in prcesentv,*not dependant at all on the recovery of the donor. The only condition on which the first donee’s title is to *be*defeated, is his failing to arrive at full age; and even that does not re-vest the title in the donor, but carries it over to other persons named in the instrument. The delivery of such a deed, if good at all, is good as an absolute parting from all title by the grantor. This brings me to consider the third question stated; which is,

3d. Is the instrument good as a common deed? And I think it must fail for want of delivery. If it had been duly delivered, it could not have carried the realty, for want of conformity to the act in such cases. But the delivery was not such as, in my opinion, can give it effect, even as to the personalty. .

No cases were quoted on this point; nor was it sufficiently argued. My impression, therefore, has been formed without the advantage of authority. But such as it is, it may be expressed in few words. The delivei-y was to an agent of the donor, to *be perfected*by a further act of delivery, by the agent, after the donor’s death. Now, although a delivery to one person, for another, may be good, this can only be the case, I think, where it is an unconditional delivery; or where it is upon a condition over which the grantor can have no further control; as for instance where an escrow is placed in the hands of a third person, to operate upon the payment of money, or some other act of the grantee, over which the grantor has no control, and the performance of which, by the grantee will entitle him, even against the grantor’s will, to the possession of the paper and of the property. In such case the act done by the grantor is not revocable by him. But here, it is not pretended but that Gilmore might, at any time, have resumed the paper and recalled the gift. The title was, then, in him, ’till his death, and could not pass but by a testamentary disposition. All authority previously given hy him, to his agent, expired ' at his death; nor could the agent, after his death, do any thing whatever, to perfect a title from him, any more than he could have made a deed or will in his name.

*21***It has been argued that Equity will supply defects, in order to effectuate the intention of the parties; but this is not done in cases • like the present. It may be done in favor of a wife or child; not for collaterals, and certainly not for collaterals against the wife.

I think, however, the costs must come out of the estate.

It is decreed that the plaintiff, as distributee of her late husband and child, named in the pleadings, is entitled to the whole of the realty of which the said husband died seized; and that as distribu-tee of her husband, she is entitled to one-third; and as administra-trix of her said child to the other two-thirds of the personalty whereof her said husband died possessed, or entitled unto; and that the administrator of her said husband do account to her accordingly. The costs of the suit be paid out of the said husband’s estate.

From this decree the defendants appealed, on the following grounds:

1st. Because the instrument of writing executed by Joshua Gilmore, in his life time, was valid as a deed, and conveyed his whole estate, both real and personal, to the parties therein named.

2d. Because said instrument was sufficient, at all events, to convey the personal property.

3d. Because, if the deed was imperfect in its execution, the Court should have supplied the defect, and carried into effect the intention of the donor.

4th. Because the disposition' of his property, by Joshua Gilmore, in said instrument of writing, was good as *donatio mortis causa.*

*G. W. Williams,*defendant’s attorney.

*Rogers Of Dawkins,*for complainant.

Curia, per Harper, Ch.

The reasoning of the Chancellor is so conclusive on the several points involved in the case, that it is hardly necessary to add any thing to it. A single case, however, has been quoted in opposition to his conclusion, which would be in point, if the paper before us were a deed. It was quoted from 4th Dane’s Abr. 9, and is to be found in 4 Day’s Rep. 66, Belden *22v. Carter. In that case, the donor delivered that which purported to be a deed, to a third person, saying “ Keep it, and if I do not call for it, deliver it to the donee after my death.” After the donor’s death, it was accordingly delivered to the donee, and the Court held this to be a good delivery. But upon the best consideration we have been able to give it, we do not perceive that the conclusion of the Court is sustained by authority or argument. The argument of the counsel (Roger Minott Sherman) in opposition to the view of the Court, seems to us a satisfactory exposition of the law, and entirely conclusive. It is conceded that a man ma.y deliver a deed by his agent, and the delivery will be good, if the agent have sufficient authority and pursues it.

But a man cannot grant an authority to be executed after his death. Littleton’s text is referred to, sec. 66, in which it is said, that if a man make a deed of feoffment, and a letter of attorney to deliver seisin, if livery of seisin be not executed in the life time of him that made the deed, the deed is void, and the lands descend to the grantor’s heirs; and also Coke’s Com. 526, that a letter of attorney to deliver seisin after the grantor’s death is void.

It is urged on the same reasoning as is used in the case before us, that the deed was not in the agent’s hands as an escrow. “In every case of an escrow there is a contract and privity between the grantor and grantee; the person to whom the deed is delivered, is by mutual agreement the agent of both parties ; he does not hold the deed subject to the control of the grantor; he has no power over, and can no more countermand the delivery of an escrow, than of an absolute deed. It is always in the power of the grantee to entitle himself to the deed, and to the estate by performing the stipulated condition. And when performed, the deed takes its whole effect by force of the first delivery without any new delivery.” Perryman’s case, 5 Co. 84 b. is referred to also. See also Com. Dig. Tit. Fait. A. 3. In addition to the authorities relied upon by the Chancellor in this case, other authorities (Hawkins *v.*Bluett, 2 Esp. Rep. 663,) are referred to, to shew that to constitute a delivery, the donor must part, not only with the possession, but the dominion of the thing. •

In opposition to this; reasoning, it is said, in the opinion of the *23Court, “The grantor delivered the deed to Wright, with a power to countermand it; but this makes no difference, for it was in the nature of a testamentary disposition of real estate, and was revocable by the grantor during his life, without an express reservation of that power.” — That is to say, although the statute of that State, like ours, requires three witnesses to a will of real estate, yet, by varying the form of the instrument, the testator might make a will attested by only two ; and such manifestly would be the effect, if such‘a transaction could be sustained with us. Wills might in effect be made with two witnesses, or one witness, or without a witness.

In this case the witness with whom the instrument was deposited, and who best understood the donor’s intentions, states that he held it as his agent, and would have delivered it upon his demand. That which is in the possession of a man’s agent, is in his own possession ; and can one be said to have delivered that which remains in his own possession *1*

It is hardly necessary to say that if this purported to be a *donatio mortis*causa; and admitting that a *donatio mortis causa*may be made by deed, still the deed must be executed and delivered, so as to give the present dominion over the property, as in the case of any other deed.

The third ground is entirely misconceived. The objection is not that the instrument was defective, but that no instrument was ever executed at all, delivery being a part of execution.

The decree is affirmed.