Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-01-08

IH0HA' a '0lDvEll' AiT0nsEE dEssnAl AND nrronraa


This cause was heard upon bill and answer in the Chan
ing compainants BILL from which he has appealed this
The bill charges that some tine in the month Of August
so one George Carter forced leave his home svoid
Of the rebel CONSUMPTION laws then being enforced
East and went to the State OF Kentucky wher
he joined the Union army from whence he never re-
suTned having died at Louisville in that State in 1863
before stated said Carter placed the hands Of one Daniel
simpson or safe keeping and until such time as be could
return none an amount OF money notes Of hand and other
vsluab papers the precise and description OF which
complainant did not know and could not give.
The bin further charges that compansnt had in
formed said money notes and receipts delivered to
child of said simpson and Of his wife Mary who was
the sister OF said Carter and that the by these par
who had been appointed and qualified the administrator Of
the estate Of said Carter, deceased.
Daniel Simpson and his wife Mary Myers guardian
Of George NJ simpson, were made parties defendants and
the Of the bill is that they be required to s
the material allegations contained in the BILL according to
the practice Of Court Of ohanoery and that they show
eo5tF ana , % az sn Sae f1C
said, aad that the be surrendered to copanazts
hone the respondents the 18th ofAugust
1852 the State Of Kentucky for the purpose join
and believed died Louisville ths ID dag Of Janua
r 1858 ntestate leaving neither wife or children That
the day before he left at respondents house. nc placed N the
hands of respondent Mary Simpson, $50 % in gold and
s4t 90 in paper money, together with notes. receipts
&C. and stated to her at the time he returned he
wanted it all o be given to her son, George n simpson,
who at that time six old, and the day he
left he stated respondents that he returned be
wanted little George to have what he had left in respond
Respondents say they procured appointment of Myers
guardian for their and admit hey delivered said mo-
plsinant to any portion Of the same.
Tae defendant Myers answers and says he had been a
epTe 70 him tbe same had been left IN tSeT hands bT
George Carter deceased Cor their son. George NJ and that
he now holds the same as guardian.
bill was fled September 1eh 1866 The answers
filed the 18th Of November as at the wing May Term
of the Court 1866 the set for hearing by the Mas
sides as appears from the record And at the following
September Term, nearly after the were fled
Two questions presented in argument 1t is insisted
the matters stated in the answers Of Simpson and wife, shows
complainant and paid the to their oodefendsnt Myers
y responsive TO the allegations or nterrog atores IN the
p ana are therefore matters In avoidance ana must pc
proved, while il insisted the other side that in this re-
Pect the responsive to the bill and therefore
need not be proved.
The bill expressly upon defendants aad
said money notes. &e from complanants and
disposal administrator aforesaid and equivalent
title authority they wi thhod said money notes &C., from
the complainant and therefore the such nerrog
Hu 446 10th Yerger 05 I'd Daniels Chancery Pleading
and Practice s5s, note ?,
1t insisted argument by the solicitor for the defendants
that the facts thus established constitute valid doHa easa
morris in the money, notes, &c. to George NJ Simpson the
nephew OF the intestate and consequently defeat the Sh
Of the complainant.
cation Of which furnishes wide field for the display Of legal
learning but we will content with the simple effort to aeer
tain II We can from the authorities to which we have
been referred what is necessary tOconstute valid s Of
It will remembered in the outset of this Investigation
that the English law upon this subject wholly derived from
the Roman civil Law, which, Chancellor Hard
wcke said in the Ward vs. Turner " there great
variety and several passages which difficult reconcile
donations norris cause divided into three kinds.
First where person not terrified by the spprehensons Of
any present peril but moved by the general consideration Of
man mortality, makes a gift.
IN such manner that the subject is Immediately made his
to whom it is given.
somethng though that should be presently his who
received i, but in only the giver die.
there much contest to the real nature Of gifts
oit We're they gifts faterrros to take effect before the
death of the Donor they in the nature of legacy
taking effect only at tbs death Of the donor1
At the termination Of this contest to have been
settled that gift norris ambulatory and incomplete
during the donors life, and therefore reyocabe by him
subject debts upon deficiency Of assets not
the gift testamentary or in the nature of legacy
but because such is the condition annexed it, and because
would otherwise be fraudulent to creditors for no man
may give his property who unable pay his debts and all
now agree that It has no other property in common with
sacy Inc property must pass at the tme and not Dc m
tended to pass at the giyr death Yet the party making
certain event. and until the event occurs which Is to dvest
him. the title remains in the donor The donr vested
with an neohote title and the intermediate ownership is in
NM put his title Is deteasibie until the happening o.
event necessary to render 1t ION IN : e.
the executor administrator but is taken against and not
from him. Upon the happening OF the event upon which
the gift dependent the title Of the donor becomes by Tea
ton complete nd absolute from the time of the delivery and
without any consent other act on part the
ecut0r administrator, consequently the gift is ategi0
We contest the results attending it, for
that much the apparent conflict Of authority touching the
question under discussion has grown out Of the differ
OF doRao nor and that the opinions Of
those who insisted the gift only took effect at the death OF
donor, aud consequently in the nature OF legacy
be valid must be made under such circumstances as
would re nder valid nuneupatOn have now no force or ap
In treating Of the several kinds of gifts ausa norris as re-
cognzed by the Roman law Mr. Roper says: st appears
upon consideration that the third before mentioned is the
proper donation morris easa the other two being nothing
NOR han Gifts riroS.f
Lord Chancellor Hardwicke in speaking Of this thrdkn
Of gift in the Of Ward Turner, thus defines il
Where person. thoughhe moved with the danger yet
thinking it immediate to invest the property mme
day in the but put it in the possession of the
ncohate gift to take effect in he boald die" Mr.
Roper his treaties iegaces vol page B. 1.-THE
circumstances required for the constitution Of eoHao
are before appears ls that the gift be made by
the donor in peril Of DEATH or during his last Illness and to
take effect in the giyer die
commenting upon this definition chief Justice Gibson
IN very v a ~ a9 20 onlon III tne
correct, not redundant in particular and too
peril death be induced by sickness any other cause
thus, the peril Of death Lassed the gift of soldier male
when going to execution battle; but this position IL
sion Of death necessarily operative TO make gift cond
onal as if the danger were real
cred 90 be idea, and which, for before
stated had prevailed to great extent that TO make valid
gift Eu0rti, 1t be made ers, and under such
circumstances requisite TO give effect Duncupa
which sustained from necessity merely where the do
nor was prevented from making formal bequst by the ur
gency Of dissolution An idea whoh, as we have before
under mistaken apprehension OF the true
nature Of gift eaua morris, the learned Judge says Per-
haps definition Of this species donation the books
Of the civil law and the which best corresponds to the
best impressions the subject has received from the Anglo
urss, who to DO returning the point from
sutes Lib 2 Tit 7, which it as follows; Mors do
nao g quo pptr morris G sapicoHem cum gus ia donat IT
fa lhHleHs habe Is qt accept an agte HpeTutrisset Is
gee doaae6 oPsret rsl % cum doHatoH pan d prior de-
ctz,efc s chi d0nafu1l ST."
Tho Judge after making this quotation from Jus
sickness Grst Contested deathbed donations are Of
such Courts suspended all others
and to have grown in the apprehension Of the Judges from
species to genus ana hence ths notion that they are r'ra
If made sickness, it necessarily
is health this notion seems
o be yielding to comprehensive principles"
New, 10 Of conditional gift, when death is
pected the condition must be expressed and the contingency
upon which it is 20 take effect specified But in gift
norris both the condition and tho contingency i'm
piled from the occasion and need not be expressed specified
the donor recover from his illness IL be resume the
session Of the gift it will be defeated.
The Judge, in the before mentioned Of Nicholas Vs.
saVs. would therefore brsSv ds6pe esat oys ef
20 Be conditional gilt dependent upon the contingency Of
expected death"
Mr. Kent vol 2 page a. says IN discussing ihi question:
sueh gifts conditional like egacies and essential
them that the donor make them in his last Illness,
their effect after his death, and he She gt be-
void The apprehension Of death may
nifty old age, from external and anticipated danger
Then donations IN effect amount to revocation pro aafo
Of written wills and not being subject the forms prsscrb
cd Tor nunenPeuYe wills they are certainly Of dangerous
character and too much cannot be taken In insisting
authorities agree that delivery validity Of
the gifs and that it i said wise principle Of laws,
because delivery strengthens the evidence Of the gift
cetaay very powerful fact for the prevention Of frauds
and perjury.
u Is however not necessary that the delivery be do
IL is sufficient IL II be 20 another for him.
After view aud careful analysis Of all the authorities
which have had conclude upon principle
and in accordance with What be the weight q author
ity the essential requisites Of or that
be made during the sickness Of the donor whilst under
he belief that he Is in PeEi Of death Or surroanded y
threatened dangers from which be has immediate existing
apprehension q DEATH and 10 contemplation 81 death from
such sickness peril danger il thereby moved % make the
donation,
But DO NOT mean By his that The donor BE- in
~ moved BY the apprehension Of immediate DEATH bat