#### Charles Dexheimer, adm’r, &c. plaintiff and respondent, *vs.*Conrad Gautier, defendant and appellant.

1, In an action by an administrator to recover money, as belonging to the estate of his intestate, which had been the bounty paid to him upon enlisting in the army of the United States,- as a soldier in the recent war, "in which he was killed, where the defense set up by the answer was that such intestate gave the defendant such money, to be retained as a gift in case of the death of the *217donor; *Held*that an offer on behalf of the defendant to prove that the intestate gave him such money at the time he received it as a *donatio mortis cama,*and never revoked such gift, was properly rejected as not admissible under the pleadings.

2. A gift, in case of *death at any time*is either absolute, since the contingency is certain on which it is made, or is void. The offer of evidence did not tend to establish such a gift.

(Before Robertson, Oh. J., and Barbour and Garvin, JJ.)

Heard January 15, 1867;

decided October 21, 1867.

Appeal from a judgment entered upon a verdict rendered by a jury, in favor of the plaintiff, by direction of the court. The action was brought by the plaintiff, as administrator of, &c. of Jacob Dexheimer, deceased.

The complaint alleged: 1. That before and until about the month of August, 1864, one Jacob Dexheimer was lawfully possessed of the sum of five hundred and seventy-five dollars in bills of the United States, and of a lot of clothing of the value of about $50, all the property of the said Jacob Dexheimer, and amounting altogether in value to the sum of six hundred and twenty-five dollars.

2. That in about the month of August, 1864, the said sum and property came into the possession of the defendant.

3. That thereafter and on the 22d day of March, 1865, the said Jacob Dexheimer was accidentally killed, and died intestate, but, at the time of his death was entitled to the immediate possession of said sum of money and property as his own property; and that, on the fifth day of April, 1865, letters of administration upon the estate of said Jacob Dexheimer, deceased, were duly issued and granted to the plaintiff, by the surrogate of the city and county of New York, appointing the plaintiff administrator of all the goods, chattels and credits which were of said deceased, and that the plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of his said office.

4. That on the 8th day o'f April, 1865, the plaintiff, as such administrator, demanded from the defendant, the said *218sum of mone^ and property belonging to him as such administrator, but that the defendant would not deliver the same to him, but then, and ever since, 'wrongfully detained the same, and converted the same to his own use, to the plaintiff’s damage of six hundred and twenty-five dollars. Wherefore the plaintiff demanded judgment against the defendant for said sum of six hundred and twenty-five dollars, with interest from the 8th day of April, 1865, besides the costs and disbursements of this action.

The defendant, in his answer, alleged that in the month of August, 1864, the said Jacob Dexheimer, now deceased, was the owner and lawfully possessed of the sum of five hundred and seventy-five dollars in cash, eighty-three dollars • whereof he paid to the said defendant for a balance due and owing from him to the said defendant for board and lodging, and of the balance of four hundred and ninety-two dollars the said Jacob Dexheimer, at the same time made an actual free, voluntary and valid gift of the defendant, and delivered the same to him, with directions to keep the same as a gift in case of the decease to the decedent, and that the said Jacob Dexheimer, afterwards departed this life without having in any manner revoked the gift of said moneys made to the said defendant, as aforesaid, whereby the de-. fendant became the absolute owner of said moneys in his own right, and entitled to the sole possession and use of the same. The defendant also denied each and every allegation of the complaint, except as before admitted, and except also the allegation of demand made upon him of the sum of five hundred and seventy-five dollars ; and demanded judgment against the plaintiff, that the complaint be dismissed, with costs.'

Qn the trial, the counsel for the plaintiff, opened the case to the jury, allowed the defendant’s claim of eighty-three dollars for board and lodging, waived the claim of fifty dollars for clothing, and put in evidence letters of administration to the plaintiff upon the estate of Jacob *219Dexheimer, deceased, which were admitted by the defendant, as well as the fact that the plaintiff acted as administrator, and proved that the interest on $492 amounted at this date to $57.40, (making the whole amount of plaintiff’s claim $549.40.) The plaintiff’s counsel proposed to rest, subject to the direction of the court, as to whether he should now produce the evidence in the possession of the plaintiff, negativing the facts set up by the defendant in his answer, in relation to the gift therein mentioned, or whether he should reserve such evidence in rebuttal of the defendant’s case. The court called upon the defendant’s counsel to state the law and the evidence, upon which he relied, to maintain the defense set up in the answer in relation to the gift therein described. The defendant’s counsel proposed to prove that the gift referred to in the answer was a *donatio mortis causa*by the deceased to the defendant about the time the deceased went to the war, and that the deceased was killed in the war without having revoked the gift. The court, after perusing the answer and hearing argument of counsel on both sides, (upon which it was admitted that the money referred to in the pleadings was delivered by Jacob Dexheimer, deceased, to the defendant, at or about the time of Jacob Dexheimer’s enlistment into the army of the United States; and constituted a portion of his bounty money, received by him at the time of such enlistment,) refused to admit the evidence thus offered, and ruled further; that assuming all the facts stated in the answer, in relation to the gift to be true, it constituted no defense to the action; to which refusal, to receive evidence, and ruling, the defendant’s counsel duly excepted. Whereupon the court directed the jury to find a verdict for the plaintiff, for the amount proved; to which direction the defendant’s counsel duly excepted. The jury, pursuant to such direction, found a verdict for the plaintiff for $549.40.

The defendant’s counsel moved the court, on the judge’s minutes, for a new trial; which motion was denied.

*220■ *E. E. Hall,*for the appellant.

I. Ho consideration is stated in the answer, because it is not necessary to support a gift. (2 *Black. Com.*440. 2 *Kent’s Com.*437, 8. *Harris*v. *Clark,*3 *N. Y. Rep.*93.)

II. It is obvious from the answer that the gift in question was intended to be pleaded as a *donatio mortis causa.*An averment that it was made *in extremis*was not necessary.

1. *Mortis causa donatio est, quae propter mortis fit suspicionem, quum quis ita donat, ut si quid humanitus ei contigisset, haberet is, qui aecepit. (Institutes of Justinian, Liber*2, *title*7.)

2. Such gifts are conditional, like legacies; and it is essential to them that the donor make them in his last illness, or in contemplation and expectation of death; * * * The apprehension of death may arise from infirmity or old age, *or from external or anticipated danger.*(2 *Kent’s Com.*444. *Burrill’s Law Dict. Donatio causa mortis.)*

3. “I would therefore briefly define a *donatio causa mortis*to be a conditional gift, depending on the contingency of expected death.” *(Opinion of Ch. J. Gibson, in Nicholas*v. *Adams,*2 *Wharton’s Penn. Rep.*22.)

The answer sets forth the delivery, the contingency of death attached to the gift as a condition, and the happening of this contingency by the decease of the donor without revoking the gift. Hothing further was necessary. The condition is stated in the words *“in case of death.”*These terms are the most concise and correct that could have been chosen. *(Gardner*v. *Parker,*3 *Madd.*184.)

IH. But if the answer was defective, it was the duty of • the plaintiff to demur, or to move under section 160 of the Code to strike out, or to have the answer made more definite and certain. It is apparent on the face of the answer, that the fact of a gift is intended to be set up as a defense. The issue thus raised is material. There is no pretense of surprise, or that the court or the plaintiff’s counsel could not, or did not plainly see what the matter attempted to be pleaded was. It was therefore error in the court to reject the offer of evidence. It would have been *221error, even though, the offer, like the pleadings, had omitted an item of fact necessary to make the defence complete. Under the old practice, the court had no power to strike out pleadings on the trial, and the law on this point has not been altered by the Code. *(Seeley*v. *Engell,*3 *Kernan,*542. *White*v. *Spencer, 4 id.*247. *Wall*v. *The Buffalo Water Works Co.,*18 *N. Y. Rep.*119. *Smith*v. *Countryman,*30 *id.*655, 675. *Lawrence*v. *Williams, 1 Duer,*585. *S. C.*18 *N. Y. Rep.*119. *Farmers and Citizens’ Bank*v. *Sherman,*6 *Bosw.*181 ; *affirmed in*33 *N. Y. Rep.*69. *Currie*v. *Cowles,*6 *Bosw.*452. *Ayres*v. *O’Farrell,*10 *id.*143.)

TV". But if it should be held that the gift set out in the answer is a gift *inter vivos,*the discrepancy between the gift thus pleaded and that offered to be proved was technical, and was not such as to authorize the court to reject altogether the evidence offered, especially after the most material fact, to wit, the delivery, had been admitted by the plaintiff’s counsel. *(Bedell*v. *Carll,*33 *N. Y. Rep.*585.)

V. Section 159 of the Code requires that the allegations of a pleading shall be liberally construed with a view to substantial j ustice between the parties. Section 176 requires the court, in every stage of the action, to disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party. Either the one or the other, or both, of these requirements must have been overlooked by the court on the trial of this cause. The defendant has been denied a hearing on the merits, and the judgment should be reversed, and a new trial ordered.

*John J. Freedman,*for the respondent.

I. The defendant and appellant, at the trial waiving all other points, proposed to rest his defense exclusively upon the ground that the gift set up in the answer was a *donatio mortis causa,*but his offer of proof was insufficient in not showing that the gift was made by the donor, 1. In peril of death *at the time*it was made; 2. With relation to *222his decease by *illness*affecting him *at the time*of the gift; and 3. That it was conditioned to take effect on the death of the donor by his *disorder then existing.*These are essential to constitute a *donatio mortis causa,*and unless they'all concur, there is no valid gift. *(Dayton on Surrog. 3d ed. pp.*262, 263, *and cases there cited.)*Courts do not uphold such gifts unless they are attended by all the requisites which the law requires. The policy of the law is against the encouragement of such gifts. *(Dayton on Surrog. 3d ed. 266.)*The proof offered, on the contrary showed that the money was bounty money, and was delivered to the appellant by an able bodied man at the time of his enlistment into the army of the United States, in 1864, after having successfully passed the examination made by a surgeon with regard to his health and bodily fitness, as prescribed by the United States laws.

II. The answer does not set up facts sufficient to constitute a valid *donatio mortis causa,*and the appellant having failed at the trial to move for leave to amend his answer by setting up the necessary facts in this respect, he could not be permitted to give any evidence of them.

Robertson, Ch. J.

The only defense which the answer in this case sets up is, that the intestate (Jacob Dexheimer) of whose estate the plaintiff is administrator, gave the sum sued for to the defendant, *in case of the death of the former, at any time,*without reference to any specific imminent peril. The defendant’s counsel offered on the trial to prove that the gift was one “ *mortis causa*” and made “ about the time the intestate went to *the war,”*and that he was “killed in *the war”*without having revoked it. Thereupon, it being admitted that the money claimed was delivered to the defendant by the intestate, when he enlisted *in the army,*and was part of his bounty money, the court refused to receive such facts in evidence, and held that the facts stated in the answer did not constitute any defense, and directed a verdict for the plaintiff. To which *223refusal, decision and direction, exceptions were duly taken by the defendant.

Such a gift as that alleged in the answer was clearly either an absolute one or void. Death by any casualty, and at any time, did not render it a *il donatio mortis causa,”*because it was inevitable. No case of a *donatio mortis causa,*unless by some imminent peril, is to be found, and when that has passed away the giver has a right to revoke it; it is immaterial whether such a gift be regarded in law as a conditional one, dependent upon the escape of the donor from impending peril, or a revocable one dependent upon his death thereby, without any revocation ; or whether the peril be confined to sickness or may include the dangers of traveling, navigation, or battle. *(Justin. Inst. lib.*2, *tit.*7. 2 *Kent's Com.*444. *Dayton on Sur. 3d ed.*262, 263, *and cases cited.)*

The evidence subsequently introduced by way of admission, did not establish a gift at all. The answer, therefore, either did not contain a defense, or was unproved, and the direction to find a verdict for the plaintiff was proper. The • judgment, and the order denying a new trial should be affirmed, with costs.

Garvin, J. concurred.

Barbour, J. (dissenting.)

This action was brought to recover the sum of $625, alleged in the complaint to have belonged to the plaintiff’s intestate at the time of his being killed, in March, 1865, and to be unjustly detained, from such plaintiff by the defendant. The answer avers that such intestate was, in August, 1864, the owner of such moneys, and, then, “ made an actual, free, voluntary, and valid gift of .the same to the defendant, and delivered it to him, with a direction to him to keep the same, in case of the decease of the donor; that the said donor died without revoking such gift, and that, thereby the defendant became the absolute owner of the said money.”

Upon the trial, the plaintiff’s counsel waived - —— *224of the amount of his claim, and proved the interest on the remainder from the date of the demand; and the counsel for each of the respective parties thereupon admitted and agreed, in open court, *“*that the money referred to in the pleadings was delivered by Jacob Dexheimer, deceased, to the defendant, at or about the time of the said Jacob’s enlistment into the army of the United States, and constituted a portion of his bounty money, received by him at the time of his enlistment.” The court excluded the evidence which was offered by the defendant’s counsel to prove the fact that the gift was made, as set forth in the answer, and directed the jury to find a verdict for the plaintiff.

As the funds delivered to the defendant were the bounty moneys which had been paid to Jacob Dexheimer upon his enlistment, we may assume that when such delivery was made the latter was a soldier of the United States, and about to take his place in an army which was then employed in a most bloody war; a war in which probably, fully one-fourth of all who were actively engaged in it, laid down their lives. The enlistment, too, was at so late a period in the war that the hazards and dangers of the service were well understood and known by all; and it follows, that it was in view of those hazards, and of the uncertainty of his ever returning alive to claim his money, that the same was delivered by the soldier to the defendant. Why, then, was not the alleged gift, if made, a good and complete *donatio mortis causa?*

Homer tells us that Telemaehus when about to engage in a conflict with the suitors of Penelope, gave certain treasures, in case he should fall, to his friend Pemeus, (Odyssey, *B.*17, *v.*781,)—a case very similar to the one before us—which Sir William Blackstone says was a very complete *donatio mortis causa,*(2 *Bl. Com.*514, *n. m.*It is true, the text in the commentaries speaks of a gift of this character, as a death-bed disposition of property, as a delivery of goods by a person, in his last sickness, to keep in case of his death. But the note of Sir William, above *225cited, shows he did not design to be understood as saying that such donations could be made only during a last sickness, or upon the death-bed of the donor, but, merely, as an instance, and the most common one. Swinburne speaks of this class of donations as “those gifts which be made in *consideration*of death.” *(Swinb. part*1, § 6, *n.*4.) But he does not limit the power to make such gifts during a last sickness or upon the bed of death. Chancellor Kent says it is essential to such gifts that the donor makes them in his last sickness, *or, in contemplation and expectation of death;*and that the *apprehension*of death may arise from infirmity, or old age, *or, from external and anticipated danger.*(2 *Kent’s Com,*244.) Bouvier calls them gifts in *prospect*of death, and says such a gift must be made in *peril*of death, *or,*during the donor’s last illness, and to take effect only in ease he dies. (1 *Bouv. Inst. Am. L.*277.) Mr. Burrill, after citing the definition of Blackstone as above, says such definition is too narrow in so far as it confines this species of gift to cases of *last illness,*it being sufficient if the *apprehension'*of death arises from other causes, as from *infirmity, old age, or any external or anticipated danger. (Burr. Law Dic. art. Donatio Causa Mortis.)*See, further, *Walter*v. *Bodge.*(2 *Swanst.*97,) where the donor, although not in perfect health, was not dangerously sick, but well enough to go and return from the Bank of England; and *Tate*v. *Hilbert,*(2 *Ves. Jr.*112,) in which the giver was old' and infirm, but had no particular or dangerous illness.

If, then, a gift is valid as a *donatio mortis causa,,*when made in contemplation, expectation, consideration, apprehension, or prospect of death, arising from sickness, infirmity, old age, or any external or anticipated peril or danger, as seems to be fully established by the learned writers above mentioned and the authorities cited by them, there can be no good reason why an enlisted soldier of the United States might not, under the circumstances detailed in the pleadings and admissions of the parties, have made *226such a gift of his bounty money to another as'would constitute a good and complete *donatio mortis causa.*For the obligation assumed by such soldier, almost necessarily, exposed his life to extraordinary perils and dangers.

I am of opinion that if the gift had been proven the defendant would have been entitled to judgment upon the issues; and, therefore, that the learned justice erred in excluding the evidence offered and directing a verdict for the plaintiff. '>

The judgment should be reversed, with costs, and a new trial ordered.

Judgment affirmed.