#### Henry Jayne, Executor, etc., v. James L. Murphy et al.

*Administration—Gift*Causa *Mortis—Wills—Revocation.*

*. i*AL gift *causa mortis*may be revoked by the donor before death. A will jluUsequently made amounts toa revocation.

[Opinion filed February 21, 1889.]

Appeal from the Chancery Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.

Messrs. H. M. Vandeveer and John G. Drennan, for appellant.

Messrs. J. C. McBride and G. L. Zink, for appellees.

Wall, P. J.

This was a bill in chancery by Julius C. Maeliler, administrator of Bridget Foran, deceased, to- foreclose a mortgage.

The mortgage was executed by James L. Murphy, to secure payment of a certain bond for §700, also executed by said Murphy, dated October 8, 1884, payable to said Bridget Foran three years thereafter, bearing interest at eight percent. per annum.

The bill made said Murphy and Henry Jayne, executor of Matthew C. Long, deceased, parties defendant. Murphy answered, admitting the indebtedness, and his willingness to pay when it should be ascertained who was entitled to the money. Jayne answered, claiming that the bond and mortgage belonged to said Long, and that he, as executor, had the right to collect the debt. He filed a cross-bill also, asking that the mortgage be foreclosed for the benefit of said estate. On a final hearing the cross-bill was dismissed, and a decree was entered according to the prayer of the original bill.

*29The present appeal was prosecuted by Jayne, and the on question is as to the ownership of said bond and mortgage..

It appears from ihe evidence that said Bridget For an had for several years, worked in the capacity of a domestic servant for the said Matthew C. Long, who was the keeper of a public house. She had accumulated the money in question, and it had been in the charge of ih r, .Long, by whom it was loaned ¿o said Murphy.- For some time prior uJ the loan Miss Foran had be\n in poor health, and had not been ah'1- to work since about the 1st of- April, 1S84-. She mmr -xi to be much attached to Mr. Long and his wife, who hac, been very kind to her while she lived with them, in frvqv.enfc msu, ces of sickness, when she was suffering with a disease of a peeuiu.vlyl distressing nature. It was proved that she sahi, ol severer occasions, that they had treated her better than her vv i relatives had, and that she intended to give them all Er...'possessed. Shortly after the mortgage was made she was at Mr. Long’s house, and, at her request, he showed her the bo.id ami mortgage, and after giving it some examination she handed the papers back to him saying, in substance, that she wanted him to -keep them, and if she died that he must see that she was decently buried, and what was left should he hi=„

We do not attempt to state in detail the testimony oí the witnesses as to the language used by her. It is apparent from the examination and cross-examination that they can not give the precise words, but in substance, it was as stated. There was no assignment of the bond or the mortgage. ^fte$ward she made her will, in which, after providing for her funeral expenses, she made various bequests, amounting to §810. The will contained the following final clause: “With the understanding that the majority of my property is in money loaned, and that the bequests herein made are to be paid as soon as the money can he realized from the persons to whom it is loaned.” This will was drawn by the priest who attended her j in her last illness.

It does not appear that she had any considerable sum of money aside from that loaned to Murphy, which was eviently the matter referred to in the clause above quoted. *%3*died on or about December 1, 1884.

*30t is now contended that she gave, i represented

this bond to Mr. Long. We are clear! • of opinion it was a gift *inter vivos.*It can hardly ad-,.It of a doubt that she did not intend to divest berso' Í unconditionally of this chose in action, which was all ?lv' possessed, and without which she would be a pauper., and by reason of her failing health, unable to gain her support.

Probably she tin-a Intended, in case of her death, to give Mr-Long what should remain alter pajnnent of burial ex’ uses.

A gift *eavea, 7f07'tie*may be defined as a gift of personal estate, made in prosject of death at no remote period, and which is dependent upon death occurring substantially as expected by the donor, and that the same he not revoked 1 'ore death. It must be accompanied by delivery. 2 Kent’s nu. *ííí;*liodfield on Wills, Part 2, p. 297. t may be doubted whether there was in this case such ... poeta tion of death as contemplated by the law, or whether de: ;!i occurred substantially as expected ; but whether the^e conditions were present or not, there was unquestionably a re ío cation.

The will, made five or six weeks after the supposed gift, indicated the clearest purpose to change the disposition of the property. The suggestion that the will was designed to operate upon other estates, finds no support in the proof. She had nothing else, and the reference in the clause above quoted, was beyond question to this, the only such property she had.

It follows that the relief prayed in the cross-bill was properly denied, and the decree should be affirmed.

*Decree affirmed.*