#### Lewis’s Estate. Baldwin’s Appeal.

An acknowledgment, upon an obligation, by the obligee, of the payment of the interest thereon, is a valid execution of a gift of interest to the obligor, although the obligee retained possession of the instrument.

A valid execution of a gift of interest to a stranger to the instrument is accomplished by a similar acknowledgment, entered, by direction of the obligee, upon the obligation, by the donee, who was the wife of the obligor, with the knowledge of the obligor.

*Query,*whether the doctrine of novation is involved in the decision stated in the second proposition of the above case.

Feb. 12, 1891.

Appeal, No. 205, Jan. T., 1891, by George Clarence Baldwin, an heir, to review a decree of the O. C. Chester Co., sustaining exceptions to the report of an auditor on exceptions to the account of Anna M. Bruner, administratrix of Mary Lewis, deceased. McCollum and Mitchell, JJ., absent.

The facts were found as follows, by the auditor, William T. Barber, Esq.:

Mary Lewis, the decedent, died March 6, 1889, intestate, leaving to survive her two daughters, Emma Rachel Bruner, widow of Isaac B. Bruner, deceased, and Anna M. Bruner, the accountant, wife of David J. Bruner; a^on, D. Darlington Lewis; and a grandson, George Clarence Baldwin, son of a deceased daughter.

Among the effects which came into the hands of the administratrix were the following obligations:

1. A bond and mortgage executed by Isaac B. Bruner and Emma Rachel, his wife, for $5,000, dated March 25, 1875, payable one year from date, with interest from April 1, 1875, secured on real estate owner by Emma R. Bruner. Upon this mortgage were endorsed receipts for the annual interest from April 1, 1876, to April 1, 1888, inclusive.

*6662. A bond and mortgage, given by the same parties, upon the same property, for $i,ooo, dated April i, 1879, payable one year from date, with interest. Upon this mortgage were endorsed receipts for the annual interest from April x, 1880, to April 1, 1888, inclusive.

3. A mortgage given by Albert B. Moore to the administrators of James Moore, deceased, for $2,887, upon real estate now the property of David J. Bruner, dated April 1, 1865, and assigned to Mary Lewis May 28, 1879. This was satisfied April 30, 1886, by Annie M. Bruner, attorney-in-fact for Mary Lewis. Upon this mortgage and assignment appear receipts for the annual interest from April 1,1880, to April 1, 1888, inclusive.

4. A judgment bond executed by David J. Bruner to Mary Lewis, for $2,887, dated April 30, 1886, payable on April 1, 1887, with interest at five per cent, from April 1, 1886. This bond appears to have been given as a substitute for the indebtedness represented by the mortgage next above.

The accountant charged herself with interest upon these three obligations, calculated from the date of Mrs. Lewis’s death to the date of filing the account. Exceptions to these charges appear below.

The auditor further reported as follows :

“ Isaac B. Bruner, a brother of David J. Bruner, died on Sept. 21, 1879, leaving a widow, Emma Rachel Bruner, and three children. With the exception of some personal property on the farm of his wife, he left no estate. After the death of Isaac B. Bruner, Mary Lewis, then living with Anna M. Bruner, paid a visit to Isaac’s widow, at her farm in West Nantmeal township, and remained from September until the following April. During this visit, and probably in the month of September, Mrs. Lewis, in discussing the financial prospects of Emma Rachel Bruner, informed the latter that she need no longer pay interest upon the $5,000 and the $1,000 mortgages, but that she would give the interest to her to live on. Anna M. Bruner says that the words her mother used upon that occasion were substantially as follows: ‘ I must do something for Emma. I think the best I can do is to give her the interest on that mortgage on the farm ; then she’ll have the farm to live off of.’ She says her mother addressed these words to her, but that all three were present.

“ A short time after Isaac B. Bruner’s death, Mary Lewis called at the house of her brother, George O. James, in Philadelphia, and, upon the inquiry being made by him, ‘ How Rachel would be fixed,’ she replied that she ‘ Had given that a great deal of thought and had concluded to give Rachel the benefit of the interest on the farm, and this would enable her to educate the children.’ Upon Mr. James remarking that this might cause some jealousy on the part of the rest of the heirs, she said: ‘ She didn’t see how they could object to it, she had the right to spend the interest as she saw proper, if she left them the principal.’ Subsequently, she frequently said to Mr. Janies, that ‘She was a little short by reason of giving the *667interest to Rachel.’ The last time she said this wás Within two years of her death.

“Upon one occasion, during the autumn of 1879, Mrs. Lewis, in speaking to David J. Bruner in relation to this matter, said that she had given the interest to Emma, that she was a very poor business woman, and a very helpless woman; that she wanted Emma to have the farm to live off of, and that was why she gave her the interest ; that ‘ she would do this during her time; ’ that Emma had three children, and could live and educate the children off of the farm. She frequently reiterated this language to David J. Bruner; the last time being within a year of her death. Mrs. Lewis also said at different times to her daughter, Anna M. Bruner, that ‘ now Emma ought to get along, she has the farm to live off of, and she ought to do it; ’ that her idea in giving her the interest was because she would be left so helpless with these little children; and that she would do this as long as she lived.

“ About the same period at which Mrs. Lewis first spoke of giving Rachel the interest on her mortgages — the latter part of the year 1879 — she also told Rachel that she intended giving Anna the interest upon the mortgage for $2,887, which she held against the farm of Anna’s husband, David J. Bruner. She said, ' I have given you yours, and I feel as though I couldn’t take that from Anna.’ These words she repeated to Rachel on various occasions. ■

“ To D. Darlington Lewis, her son, she frequently said that she was giving both Anna and Rachel their interest; that she was giving the interest to Rachel on account of her situation, and that she wanted to do as much if not more for Annie, because she had been more trouble to Annie than to Rachel; and that she intended to give the interest to them as long as she lived. The last time, he heard his mother refer to it was in the. winter before her death, when she. told him that they were still getting the interest.

“ It is conceded that no interest upon any of the above recited obligations has been paid since the death of Isaac B. Bruner, in 1879, either by David J. Bruner or by Emma Rachel Bruner. Interest was, however, paid by Isaac B. Bruner upon the $5,000 mortgage-from April 1, 1876, to April 1, 1879.

“ The receipts for interest upon the three obligations are all in' the handwriting of Anna M. Bruner, and were placed thereon by her mother’s direction. Mrs. Lewis always retained the papers in her own possession. About the first of April in each year, she would produce them and request her daughter, who did all her writing, to receipt them for her, Mrs. Lewis wording the receipts. When receipted, the papers were re-wrapped in the white cloth from which they were taken, and returned to her. Upon the first day of April succeeding Isaac B. Bruner’s death (April 1, 1880), Mrs. Lewis handed the papers to Anna, saying ‘ Annie you put that receipt on the mortgage, just as you have been doing, for fear of trouble.’ Anna then endorsed receipts upon all three obligations, and return*668ed them to her mother. On a subsequent occasion, Mrs. Lewis told Mrs. Rachel Bruner that she was always having the memorandum placed on the papers for fear it might make trouble hereafter if she did not.’ Every recurring April the receipts were placed on the obligations by Anna, in her mother’s presence, and at the latter’s request. After the year 1884, the receipts, as endorsed, were reduced to five per cent, by the decedent’s direction, so that, as she said, they might be ‘just the same as she was charging others.’ ■

“ It is clear from the above evidence that the decedent intended to relieve both her daughter and her son-in-law from the payment of interest upon these obligations after April 1, 1879, and that both she and they believed that, by the endorsements thereon, she had accomplished that object. The accountant, taking this view of the transaction, has charged herself only with interest which has accrued since the decedent’s death: The exceptor, however, now attempts to surcharge the accountant with interest upon all of the above obligations from April 1, 1879, to March 6, 1889, upon the “ground that a legal liability for interest exists thereon, which the accountant is bound to enforce.

“ Inasmuch as these bonds and mortgages, as originally written, disclose a continuing liability for the payment of interest until the principal is paid, the burden rests upon the accountant to show that this liability has been discharged, and this discharge can only be effected in one of three ways: either (1) by proof of payment; or (2) by proof of a gift; or (3) by proof of a release or satisfaction. Actual payment of interest not being suggested, we come to the. second question, to wit: Was there a valid gift of this interest by the decedent?

“ A gift is more than a purpose to give, however clear and well settled the purpose may be. It is- a purpose executed: Walsh’s Appeal, 122 Pa. 186.

“ It was undoubtedly the purpose of the decedent to make a gift of this interest. Was her purpose executed ?

“ A purpose to give must be executed by the actual delivery of the thing given to the donee, or some one for his use. It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and therefore irrevocable contract: Walsh’s Appeal, supra.

“ To constitute a gift, it must have been consummated by delivery. It cannot be made by words in futuro, or by words in praesenti unaccompanied by such a delivery of possession as makes the disposal of the thing irrevocable: Trough’s Estate, 75 Pa. 117.

“ To constitute a valid gift there must be a delivery of the property to the donee, or to some person for his use. . . . Without delivery, it is only a contract to give, not binding for want of consideration: Scott Lauman, 104 Pa. 595.

“ It frequently happens that the thing given is incapable of actual delivery, as in the case of a chose in action. In such a case, *669Chancellor Kent lays down the rule as follows: Delivery, in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed : 2 Kent’s Com., 430; Bond *v.*Bunting, 78 Pa. 218.

“ There are a number of cases in the books where an intentio n to give-has been frustrated by the want of delivery.

In'Trough’s Estate, 75 Pa. 115, Trough, in consideration of $1, and love and affection for his children, executed under seal an assignment of his life insurance policy to John W. Hicks in trust for them ; put the policy and assignment into an envelope addressed ‘John W. Hicks, Plumber, Second street, etc.’ ‘ Please send this to him-at my death, H. Trough,’ and placed the envelope in a safe. He paid the premiums until his death. Held, that the assignment was invalid for want' of delivery, and the proceeds belonged to Trough’s estate.

“ In Scott *v.*Lauman, 104 Pa. 593, Wm Scott executed an assignment of a certificate of deposit to his brother, Andrew Scott, by endorsement thereon under seal, and instructed his attorney ‘ that he should take it with him, and put it in his safe; that it was for Andrew Scott.’ The attorney retained the certificate until after Wm. Scott’s death, and then delivered it to Andrew Scott. Held, that it was invalid as a gift for want of delivery.

“ In Campbell’s Estate, 7 Pa. 100, it was held that, to discharge a debt due on promissory notes by way of gift to the debtor, a release, under seal, or for a consideration, or an actual delivery, or cancellation of the notes, is essential. An intent to do so, or instructions given for the delivery up or destruction of the notes, will not suffice, though shown to have existed when the creditor was making distribution of his estate, and the debtor was a favorite nephew.

“ In Zimmerman *v.*Streeper, 75 Pa. 147, Streeper held a bond against Zimmerman. He endorsed on it, ‘ I request my executors to give this' bond to Anna for her great kindness she has sliown to me and her grandmother.’ This was signed and sealed. Anna was the granddaughter of the obligee, and the wife of the obligor. The bond was not delivered to Anna, but remained in the obligor’s possession with his other securities until his death. Held, that the bond did not pass to Anna; that the endorsement indicated a prospective gift, and, there being no delivery, it was without operation. In this case, the testator frequently expressed to the defendant that the bond was to be a gift, through defendant, to his wife, for her kind attention during life.

*670“ In Albert’s Exrs. *v.*Ziegler’s Exrs., 29 Pa. 50, John Ziegler executed to his father-in-law, Jacob Albert, a bill-single for the payment of the interest on $1500 yearly until the said Jacob Albert’s decease. Jacob Albert’s son, John E. Albert, by his father’s direction, placed upon the obligation the following endorsement: 1 This written obligation after my death shall be of no effect, but till then to be and remain in full force and virtue.’ Jacob Albert frequently declared to Ziegler, to Ziegler’s executors, and to others, that he did not claim the interest stipulated in the writing, and never would claim it. The bill-single was executed on April 1, 1833; John Ziegler died on March 4, 1844; his estate was settled, and releases obtained from the legatees, which were witnessed by Jacob Albert. Jacob Albert died on Sept. 5, 1851, having never made any claim for the interest. Held, there being no delivery, the plaintiff was entitled to recover interest from April 1, 1833, to Sept. 5, 1851.

“ In Gray *v.*Barton, 55 N. Y. 69, plaintiff had an account against defendant of above $800, and, with the intention of making a gift thereof, received from defendant $1, and balanced the account by the entry ' Gift to balance accounts.’ He also gave defendant a receipt in full. Held, a valid gift, and that the plaintiff could not afterwards maintain an action to recover the unpaid balance. The court, however, say: ‘ In this case, the plaintiff balanced the books by gift to the defendant. Had he stopped there, making no delivery of anything to the defendant, the act would not have been of any effect; nothing would have been delivered to him; and the books continuing in the possession of the plaintiff, the gift would not have been executed. But when, to complete his purpose of giving the debt, he executed and delivered to the defendant a receipt in full for the account, to effect the intention of the parties, the law will construe the instrument, if necessary, as an assignment of the account, and of the right of action thereof, to the defendant.’

“ The above authorities sufficiently illustrate the principle, which is well established, that a purpose to give, an expressed intention to give, or even a positive declaration that a gift has been made, is of no force whatever, in the absence of a delivery, or of some act equivalent to a delivery. There must be such a delivery as will place the thing given beyond the dominion, and control of the donor, and beyond the power of the donor to revoke the gift.

“ Did Mrs. Lewis conform to this requirement? The evidence of her intention to give is found alone in the endorsements upon the mortgages, which remained in her possession. Did she, by virtue of these endorsements, place the collection of interest thereafter beyond her dominion and control? Without doubt, a delivery could have been affected, or an act equivalent to a delivery performed. The interest could have been paid to her in cash, and she might have returned it. A receipt in writing for the interest might have been signed by her and delivered to the mortgagors. In the case of David J. Bruner’s bond, an assignment of the interest might have *671been executed by her, and delivered to Anna M. Bruner. In all these cases, the law would have recognized a complete and valid gift. On the other hand, if she had endorsed upon the mortgages that she had given the interest to her daughters, of if she had placed thereon an assignment of the interest, or even of the principal, or if she had endorsed upon the obligations that interest was not to be collected thereon, it is clear, under the authorities above cited, that the liability of the mortgagors would still continue, — that the donor, in retaining possession of the paper, retained entire control over the gift, and that she might have cancelled or destroyed the endorsement at any time, and proceeded in the collection of the indebtedness : Pringle *v.*Pringle, 59 Pa. 286.

“ How, then, can the endorsement ‘ interest paid ’ be of any more binding force than those above suggested? Such an endorsement does not amount to a cancellation of the interest: Albert’s Exrs. *v.*Ziegler’s Exrs., 29 Pa. 50.

“ Neither does it come within the rule which makes parol testimony inadmissible to vary the terms of a written instrument, and estops a party from proving the falsity of the entry in point of fact, since it constitutes no part of the instrument itself, but is merely a memorandum made by the donor without consideration and without delivery, and which she could at any moment have erased.

“ The conclusion of the auditor, therefore, is that the receipts upon these several mortgages cannot be sustained as a valid gift.

“ The third method, whereby the liability of the mortgagors could be discharged, is by a release. Do the facts as above found operate as a release from the obligation to pay interest ? In the judgment of the auditor they do not. In order to effect a valid release it is well settled either that the writing alleged to constitute the release shall be under seal, or that a consideration for the contract shall be proved: Campbell’s Estate, 7 Pa. 100.

“ A release under seal .... is self-sustaining, the release implying a consideration. Not so is it with the release not under seal. There a consideration of some sort is necessary to sustain it: Kidder *v.*Kidder, 33 Pa. 268.

“ It is not enough that it is in writing if without a consideration. . . . If they be merely written, and not specialties, they are parol,

and a consideration must be proved : Whitehill, Adm., *v.*Wilson’s Exr., 3 P. & W. 405.

“ There is here no instrument under seal. Even if there were such, a delivery would be necessary in order to make it effective: Pringle *v.*Pringle, 59 Pa. 286.

“ Neither was there any consideration for the agreement not to charge interest, other than natural love and affection, which it is held in numerous cases is not a sufficient consideration upon which to base a release: Campbell’s Est., 7 Pa. 101; Kennedy’s Exrs., *v.*Ware, 1 Pa. 450; Albert’s Exrs. *v.*Ziegler’s Exrs., 29 Pa. 58.

“ The satisfaction of the $2,887 mortgage, as a necessary conse*672quence, discharged David J. Bruner from liability thereon for both principal and interest; but the principles above discussed apply with equal force to the judgment for $2,887, dated April 30, 1886.

“ Upon the whole case as presented, the auditor is of opinion that Emma Rachel Bruner is still liable for interest upon her two mortgages from April 1, 1879, to March 6, 1889, and that David J. Bruner is liable under his judgment bond for interest from April 1, 1886, to March 6, 1889, and that it is the duty of the administratrix to collect and account therefor. Inasmuch, however, as there is no evidence before the auditor as to the value of the farms covered by these mortgages, nor as to the proportion of interest that is collectible, the auditor would not be justified in surcharging the accountant with this interest at the present time. It is better to treat the account filed as a first and partial account. It then becomes the duty of the accountant to proceed at once in the collection of this interest; and, in the event of any neglect or unnecessary delay upon her part, she can be reached by citation.”

The following exceptions were filed to the auditor’s report, which were sustained by the court, in an opinion, published in 139 Pa. 640, by Hemphill, J.:

“ i. The auditor has erred in not reporting that the 1st exception to said account should be dismissed, which said exception is as follows: ‘ The accountant has failed to account for all the interest due and collectible on the Rachel Bruner mortgage of $5,000.’ ”

“ 2. The auditor has erred in not reporting that the 2d exception to said account should be dismissed, which said exception is as follows: ‘ The accountant has failed to account for all the interest due and collectible on the Rachel Bruner mortgage of $1,000.’ ”

“ 3. The auditor has erred in not reporting that the 3d exception to said account should be dismissed, which said exception is as follows: ‘ The accountant has failed to account for all the interest due and collectible on the David Bruner mortgage of $2,887.’ ”

“ 4. The auditor has erred in his conclusions that Emma Rachel Bruner is liable for interest upon her two mortgages of $5,000 and $1,000 to said estate from April 1st, 1879, to March 6, 1889.”

“ 5. The auditor has erred in his conclusion that David J. Bruner is liable to said estate for interest upon his judgment bond from April 1, 1886, to March 6, 1889.”

A decree was entered accordingly. George Clarence Baldwin then took this appeal.

*The assignments of error*specified, 1-5, the action of the court in sustaining the exceptions, quoting them, as above.

*J. Franje E. Hause,*with him *TJiomas W. Pierce*and *R. Jones*Monaghan, for appellants.

The court below evidently overlooked the fact that, as respects the Emma Rachel Bruner obligations, the alleged gift was to the obligor, while, as respects the David J. Bruner obligation, the alleged gift was to a third person.

*673The facts surrounding the transaction between the decedent, and her daughter, Emma Rachel Bruner, are undisputed. It was admitted before the auditor that although the $5,000 and the $1,000 obligations had endorsements on each averring the receipt of interest, yet no money had been paid, and the endorsements were placed there because the mother had attempted to give the interest to her daughter, and to avoid trouble in the future. The endorsements were not offered to prove payment, but the whole transaction was shown by the accountant in the first instance. It was also shown by the accountant that the obligations never left the possession of her mother, and that she never executed and delivered to her daughter a receipt, a release, an assignment, or a paper of any kind, to evidence the gift, or discharge the interest. Nor was it pretended that there was any consideration for the transaction. Therefore, do the facts constitute a gift within the requirements of the law ?

A gift is the voluntary transfer of a chattel completed by the delivery of possession : Walsh’s Ap., 122 Pa. 177. And, whether the gift be inter vivos or mortis causa, the essentials to complete it are the same: Scott *v.*Lauman, 104 Pa. 593. In every valid gift, a present title must vest in the donee, irrevocable in the ordinary case of a gift inter vivos, revocable only upon the recovery of the donor in gifts mortis causa: Walsh’s Ap., above. The gift of a bond, note or any other chattel, therefore, cannot be made by words in futuro, or by words in prassenti unaccompanied by such delivery of the possession as makes the disposal of the thing irrevocable: Campbell’s Est., 7 Pa. 100; Kidder *v.*Kidder, 33 Pa. 268. It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and therefore irrevocable contract: Walsh’s Ap., above.

Tested by these well settled principles, it is apparent that the intended gift from Mrs. Lewis to her daughter was not completed for want of delivery. If she had it within her power to cancel or destroy any writing she executed to evidence the gift, then the delivery of the subject-matter of the gift was incomplete: Scott *v.*Lauman, 104 Pa. 593; Zimmerman *v.*Streeper, 75 Pa. 151; Trough’s Est., 75 Pa. II5-

In the case in hand, the court below apparently distinguished these cases on the ground that, as the interest was already in the do-nee’s hands, delivery was excused. But this reasoning would apply as well to the principal due upon the obligations as it would to the interest. The principal is in the donee’s hands, as well as the interest, and if the interest can be given by a parol declaration, the principal could also. But as respects the principal due, Campbell’s Estate, 7 Pa. St. 100, rules otherwise. To the same effect are Albert’s Ex’rs *v.*Ziegler’s Ex’rs, 29 Pa. 50; Kidder v.. Kidder, 33 Pa. 268; Horner’s Ap., 2 Penny. 289.

No distinction can be drawn between the gift of the interest and the gift of the principal. The obligations held by Mrs. Lewis called for the payment of principal and interest. The interest is a part of *674the debt. It belongs not to it by tacking — it is not an incident of the debt, but, pro tanto, it is the debt itself: Bank *v.*Chester, 11 Pa. 282. Where the terms of the obligation comprehend interest, it is inaccurate to say that interest is added by way of damages ; for it is a substantive part of the debt, as much as the principal is, and is subject to the same remedies : Hummel *v.*Brown, 24 Pa. 310 ; Adams *v.*Palmer et al., 30 Pa. 346 ; McCalla *v.*Ely, 64 Pa. St. 254 ; Moyer *v.*Garrett, 96 Pa. 376.

[Clark, J.: What would you suggest that the obligee should do to effectuate the gift ?]

The most obvious thing to do would be to give a receipt, release, or memorandum signed by the obligee, which the obligor could hold. Otherwise the value of sealed instruments will be greatly impaired.

Nor is it valid as an assignment. Delivery is as essential in that case as in the case of a gift. Where there is a voluntary bond, or a gift of a security, or other chose in an action, and the donor executes an assignment, whether under seal or otherwise, and retains the paper in his possession, he retains at the same time entire control over the gift; he may cancel or destroy the transfer: Pringle *v.*Pringle, 59 Pa. 286.

It cannot be seriously argued that the gift of the interest, on the obligation of David *J.*Bruner, to his wife, was completed. The facts simply show that Mrs. Lewis declared that she had given this interest to her daughter, Mrs. Bruner. As in the former case, so here, the obligation never ieft the possession of the donor. No assignment to the donee was executed, and there are no facts upon which even a pretense of a gift can be sustained, except the naked declaration of Mrs. Lewis that she had given the interest to the wife of the obligor. This branch of the case is on all fours with Zimmerman *v.*Streeper, 75 Pa. 151. There is no allegation of any delivery of anything by the donor to the donee, and the subject-matter of the gift was not, and never had been, in the donee’s hands.

*D. Smith Talbot*and *Alfred P.*Reid, for appellees,

not heard. When a man has the power to do a thing and means to do it, the instrument he employs shall be so construed as to give effect to his intentions: Bond *v.*Bunting, 78 Pa. St. 219; Madeira’s Ap., 17 W. N. C. 202; Malone’s Est., 8 W. N. C. 181; Book *v.*Book, 104 Pa. 245 ; Crawford’s Ap., 61 Pa. 52.

Mrs. Lewis retained the ownership of the principal of these obligations. Hence she could not deliver over the obligations themselves. The interest was not represented by any separate obligation, which could be handed over. It was but an incident to the mortgage debt. It was a right belonging to her, growing out of the obligations, and a liability upon the part of the obligor. So far as it had substance, it was already in the possession of the obligor. To have handed the interest to Mrs. Lewis, only to be handed back to her daughter, was useless. The law does not require the perform*675anee of idle and useless ceremonies: Adams Express Co. *v.*Lyons, 7 W. N. C. 421.

So far as the subject-matter of the gift was a chose, it called for only such delivery as would be the usual and effectual way of obtaining dominion of it. The character of the gift dictates the manner of delivery: 2 Kent’s Com. 440; Boyd *v.*Bunting, 78 Pa. 210.

A gift inter vivos must be delivered to make it valid. But actual delivery is not necessary; it is enough that the donee or alienee has possession with the assent of the grantor or donor, and whatever would authorize the donee to take possession without committing a trespass may be regarded as delivery: Smith *v.*Smith, 5 Pa. 25 7-

Where the vendee is in possession of the goods, no formal delivery is necessary: Riddle *v.*Stewart, 4Penny. 113. The object of delivery is to give possession; and when the donee already has the money in his custody, possession is already complete; no other delivery is possible or necessary: Champney *v.*Blanchard, 39 N. Y. hi.

On a sale, no such delivery is required as will defeat the fair and honest purpose of the parties: Crawford *v.*Davis, 99 Pa. 578; Cessna *v.*Nimick, 113 Pa. 81.

A title to the gift must vest in the donee, which does not require any further act by the donor to complete. “ A gift is a contract executed.” “ And an executed contract is one which has been fully performed; in which both parties have done all they are required to do ”: 1 Bouvier, Law Diet. 554. It is a purpose executed. A present title must pass to the donee. There must nothing remain for the donor to do : Walsh’s Appeal, 122 Pa. 187.

If the interest had been paid Mrs. Lewis, the usual and effectual way to discharge the liability and complete the transaction, would have been to have the payment entered upon the obligations. There could be no stronger evidence that the right to interest had been satisfied. No assignment, receipt or release was needed. The obligation which creates the liability would always thereafter carry upon its face the evidence that the interest was paid. The contract is thus fully executed. No more is required when the interest is given instead of being paid. What is sufficient in the one case determines what is required in the other. The entry upon the obligation, in such case, is the act equivalent to delivery. It gives the donee dominion of the right to the interest, by discharging the liability for it. The title passed to the donee. There was nothing more for the donor to do. It was an executed contract. Neither party could be called upon to do anything more. It was a cancellation of the mortgage, to the extent of the interest. Cancellation of the bond discharges the debt: Licey *v.*Licey, 7 Pa. 251; Lehn *v.*Lehn, 9 S. & R. 57-

A receipt delivered to the donor, could not be more effective *676to discharge the liability. It would be no more than a written statement of the gift. A release was not appropriate, for the reason that a release is a conveyance of a right for value. If the gift was executed, the donor could not lawfully cancel or destroy the entries made, although in her possession. They would be irrevocable. A voluntary gift, made perfect by delivery, becomes an executed contract, and irrevocable, for it is founded upon the mutual consent of the parties in reference to a right or interest passing between them: 2 Kent’s Com. 438; Walker *v.*Dixon Crucible Co., 20 Atl. 885.

Here the right to the interest had been discharged by the mutual agreement of the parties, and was perfected by all the delivery practicable or possible. The donor could not revoke the entries, any more than she could have done had they evidenced actual payments.

The following cases are decisions in point: “ A memorandum of the intention not to exact payment was endorsed on the note, which was the cause of action, and was held to be a cancellation of the note.” Aston *v.*Bye, 5 Vesey, Jr., 534.

In Ferry *v.*Stephens, 66 N. Y. 321, Stephens entered into a written contract with Ferry to sell him a tract of land for the stipulated consideration of $1,100. Subsequently Stephens endorsed on this contract a receipt in full for the purchase money, but no money was ever paid, but the receipt was intended to operate as forgiving, and in satisfaction of, Ferry’s obligation under the contract. It was held that the receipt operated as a valid and complete gift of the debt due by the contract.

In Carpenter *v,*Soule, 88 N. Y. 251, a father held a bond and mortgage against his son. With the intention of giving to the latter a portion of the mortgage debt, the father executed and delivered to his son a receipt for $2,000, on account of said mortgage. Held that this was a valid completed gift which operated to extinguish so much of the debt.

This very question was ruled in Green *v.*Langdon, 28 Mich. 221. Langdon and his wife had given a mortgage for $1,500 on Aug. 25, 1870, to secure the payment of a note of that amount with interest. The mortgagee died Nov. 11, 1870. After the execution of the mortgage and before his death, the mortgagee directed his grand-daughter, who was one of the mortgagors, to endorse on the mortgage $1,000 paid, which she did in his presence, for the purpose and with the intention of forgiving or donating so much of the mortgage debt and to extinguish it to that extent. The mortgagee retained possession of the mortgage and note. It was claimed there must have been delivery of the paper, or a receipt, or a release for the portion of the debt intended to be giv^n, because, without something of the kind, it would have been in the power of the donor to retract. But the court held the gift complete.

As to David J. Bruner’s obligation: This might be supported as a contract. Mrs. Lewis lived with her daughter Anna. One of *677the considerations for this was the trouble she had been to her daughter Anna. She paid no board.

But as a gift of the interest on David J. Bruner’s obligation to his wife, it was also, under the circumstances, an executed contract, requiring nothing more to be done by the donor. It had been the understanding of all parties that the interest thereon was to be given Anna. It was not the intention of Mrs. Lewis, that her daughter should hold part of the mortgage against David J. Bruner, to secure this interest. To have done so would have lessened her security for the principal. It was intended that her son-in-law should pay his wife the interest, and be relieved by Mrs. Lewis from its payment to her upon the obligation. In other words, there was a novation of the debt, which was assented to by the three parties: Shafer’s Ap., 99 Pa. 246.

Mrs. Lewis discharged the debt she held against her son-in-law by the entries on the obligation. In consideration thereof, the son-in-law became liable to pay the same to his wife. David J. Bruner knew his wife was to have the interest on his obligation. He knew that, to accomplish that purpose, Mrs. Lewis had discharged him from liability therefor, by the acknowledgments she placed upon his bond. He knew the consideration for this discharge was his assumption of the payment of the interest to his wife. With such knowledge, and especially as between husband and wife, a promise to pay the latter the interest thus discharged would be presumed: Johnston *v.*Johnston’s Adm’r, 31 Pa. 450; Bergey’s Ap., 60 Pa. 408.

The transaction was, in effect, the placing by Mrs. Lewis, every year, in David J. Bruner’s hands, the interest, for the purpose of paying the same to his wife. Thereafter she was the only party interested in its payment. She alone could relieve him or enforce payment: Adams *v.*Kuehn, np.Pa. 76; Gregg *v.*Allen, 130 Pa. 611.

It was money which, in good conscience, he ought not to retain. The law implied a promise that he would pay it over: Hind-march *v.*Hoffman, 127 Pa. 284; Pugh *v.*Powell and wife, 11 Atl. 570.

Anna Bruner, when, by direction of her mother, she made those entries, knew that the way her mother purposed to execute the gift was by discharging her husband’s liability upon the bond, and by her husband assuming the payment of the interest to her. Making these entries with this knowledge was an acceptance of her husband’s assumption for the same. The agreement was carried into execution in the only way it could have been done, in view of what was intended and of the subject matter.

The test as to the sufficiency of delivery in gifts inter vivos is what was requisite to a completed transaction in case of a sale. If Mrs. Lewis had agreed, for a valuable consideration, to transfer to her daughter her claim to the interest, due by her son-in-law, the contract would have been wholly executed by the receipt of the consideration by Mrs. Lewis, and the extinguishment of her claim against David J. Bruner, with his knowledge of the whole transaction *678and implied consent thereto; the title to the interest in the daughter would have been complete. No more was required in a gift of the interest. With the purpose of fulfilling her promise to give the daughter the interest, which was known to all parties, and with their knowledge and consent, Mrs. Lewis cancels the liability of the husband to her, and leaves the interest in his hands to be paid his wife, making the gift complete.

Feb. 12, 1891.

Per Curiam,

Judgment affirmed.

Note. — It is suggested that the supreme court overlooked the second proposition involved in the above case. That branch of the case was only briefly argued by counsel for plaintiff in error, and counsel for defendants in error were not heard. That point was not noticed in the opinion of the court below.