The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1875-12-29


cords statement is substantially in accordance with
the latter statement of her husband and she adds
that her two daughters were present in the room at
the time, and she said to them, "Girls remember
that your father has given me these claims.' The
testimony of the daughters who were then quite
young, one who has since married being then only
fifteen substantially agree with the mothers state
ment, and they also testify that Capt. Cocord fire.
quently spoke in the family of the claim his wifes
and would alude Jokingly to the large sums she
would receive from it.
Opposed to this testimony is the statement of Capt
Cocord in his deposition given before the register in
July 1873. in which he says she gave the claim to bis
wife shortly after the vessel burnt, but he did
not recollect whether it done in writing not.
Colcord tends to establish, from the admissions of
Mrs. Colcord that her husband long subsequently
this alleged gift, undertook to manage and control
objection thereto. Mrs Berry testifes that at one
time Mrs. Colcord told her 'that her husband had
said .that they had had talk of selling but did not
SELL" In the last conversation Mrs. G. said 'that
the witness mistaken about hearing her say that
Capt Cocord had sold the claims positively, that he
talked of selling them had an idea of it," Alex.
ander Staples states in his deposition that Capt Col
cord told him. in the presence of Mrs. Colcord that
he had sold out his caim-sold to Western parties"
Mrs. Cocord then said, 'You have just owned up"
and seemed to express some surprise that he had not
told her before.
When we consider the failure of memory of Capt
Colcord, in his not being able in 1873 to remember
whether he had or not executed any writing to perfect
this gift and also that his first statement in his deposit
tion was that he told his wife he would give her the
claim. and the subsequent admissions of both him
and bis wife, that he had exercised acts of ownership
over it, by claiming that he had sold it. or talked Of
selling it, it may not be unreasonable conclusion
for the court to draw from all the evidence that all
that was in fact declared by him at thatItme, was
purpose and intent his part to give to his wife
whatever he might thereafter realize from this claim,
and that he was still to retain his control over it and
enforce it, in such manner as circumstances might
subsequently render proper and that it not his
intent to cast upon her the whole responsibility OF
prosecuting and maintaining the claim in the future
might be requisite. ALI the facts to sustain the
claim were peculiarly within his own knowledge,
and it would be much less difficult for him to pro-
cure the required proof when wanted. And the Ian
guage then employed, without any great restraint.
may be considered of promissory nature simply,
to her. instead of actual present gift it is quite
evident the examining counsel understood was i'm
portant should be established If the fair import of
what then took place was mere agreement and
promise his part that when he should realize the
amount he would give it to his wife it would remain
simply promissory arrangement, and would not
constitute a complete and perfect gift, and would
not be obligatory on him or his assignee in banK-
ruptcy, in court Of equity.
The case of Jones v, Locke, L. R. I, Chancery APP
peal Cases. rs, is certainly stronger one than the
present. as establishing gift. In that case father
put check of $500 into the hands Of his son, zine
months old, saying to his nurse, "Look you here;
give this to baby; it is for himself, and am going
to put it away for him. and will give him great deal
tear it;' and he answered, Never mind if he does;
it is his own, he may do what he likes with it," he
then took it away, saying to the nurse: g" am going
iron safe. Shortly after he died. and the check was
found amongst his effects. 1t held by Lord Chan
celor Cranworth that there had been no gift to,
valid declaration OF trust for the son.
Waving this view of the evidence and conceding
that the intention of Capt Colcord at the time
to divest himself of all right of redress which he
might have for these losses and to vest the same in
his wife, am nevertheless of the opinion that as
there was no valuable consideration therefor and
kind all resting on mere words on his part, he had
not by what then took place perfected and accom-
pshed his purpose, that there was still remaining
the locus peFietide, and that he might at any time
afterwards, before the wife had received the fruits
Of the intended gift, convey OF transfer the same to
the courts created for that purpose in his own be-
half and for his sole benefit, and that such right
passed to his assignee in bankruptcy.
Where the assignment from its own nature or that
of the subject matter assigned, does not pass the
legal title, it can only be good as executory con-
tract and requires the assent of both parties and the
support of consideration. In the present the
only consideration from the relation of the par
ties husband and wife, which is good and merito-
rious but not valuable one. M. q Craig, 226. Ed
wards jones. In Ellis Nemmo. Lloyd VS. Could
1888 Lord Chancellor Sugden held that the merito-
rious consideration of providing for child suf
Gent to authorize court Of equity to enforce an
executory contract for that purpose against the dom
or, but this decision was subsequently abandoned by
and cit is now the Settled law Of England that an
exec utory agreement founded on meritorious con-
sideration, will not be enforced against the DONOR"
Perry on Trusts a.
Levin Trusts p. SO, states sat the present day.
it seems to be established that even as against vol
unteers claiming under the settler whether with or
without any possession Gtiande a voluntary agree
ment, whether under seal or not, whether coupled
with valid trust of other property settled at the
same time or not cannot be enforced on the mere
ground ofmeritorious consideration"
In Perry on Trusts 109 it is said ''that the ten
dency in the United States is to sustain and carry
into effect an executory trust in favor of wife
child, founded on meritorous consideration if the
instrument is under SEAL though the rule is not fully
established, and perhaps upon thorough considera-
Ia I'm mon
Perry says that the courts say, that they will not
execute voluntary execntory agreement, unless it
is under SEAL" He cites in support of this, Barr
AS. Kennedy v. Ware. in which it was decided
THAT an equitable assignment of chose in action
to daughter by her father in consideration of love
1 Bailey Eq. 175, opinion of Harper, Chancellor who
says, $50 me agreements, which are termed volun {
tary are executed in this court, when made in favor
of wife or children, but these are always agree
ments by deed or covenant, agreements under SEAL
which imposts consideration and renders them
being enforced which is not only voluntary in the
equity sense of the word but is also mudana pactam
In 2 @ and j. 2eS Pennington v. Cuttings, it wasi
held, that mere executory contract cannot be SUPP
port on the consideration Of love and affection and
gift under such circumstances cannot be made good
in equity See also Barr. 175 Dennison v. Goehrng.
In l. L. c. in Eq. 1872 it is sad 'sthat the doctrne
appears to be, that there must exist valid and obs
igatory contract at law, as preliminary basis to
any equitable interference, and then, that equity
grants its extraordinary aid, only when there is an
ACTUAL CONSIDERATION ValuaDl6 or mer1COrl0uS.'
70. 334) when instead of present gift or trans
fer, there is a promise or covenant to give, or a
mere expression of intention that the donee shall
have that subsequently, which the donor reserves to
himself keeps within his control disposition for
the time being, the question becomes one of con-
tract, and consideration becomes essentially neces-
sary to give force to that which would otherwise be
an uncompleted gift hence the assignment of debt
not sustained by consideration by the delivery of
the instrument, by which the debt is evidenced will
be invalid both at law and equity 20 vt $685. Mary
land Oh. 266. Hatch v. Davis unless an instrument
of gift be executed and delivered as substitute for
the delivery of the evidence of the debit; in the
Maryland case, there was a'meritorious considera-
ton, hesaleged gift having been made by the father
to the daughter and sought to be enforced against
In II N. j. Oh. 407 the marginal note is elm equi-
ty where widow seeks to establish gift from her
beyond suspicion, and nothing less will do than
clear rrevocable gift, either to person trus-
tee by clear and distinct act Of his by which
he dvest ed himself of thu property and engaged to
hold it as trustee for the separate use of his wife
To constitute perfect gift the donor must part
with the possession and dominion of the property and
If the thing be chose in action the law requires
assignment, or some equivalent instrument and the
transfer must be actually executed" /
This being an imperfect gift, it cannot to carry out
the intention of the parties be construed as declar-
alton of trust so as to make the donor trustee for
the donee. This was decided by the Lord Chan
cellor Lyndhurst in Phillips, 342, Meek VS.. Kettle
WE'LL and he declares the authorities are conclusive
on this question.
1t but simple justice to state that nearly all the
dutuolles vi GeSe SUBJECTS OF voluntary uru6tS anu
equitable assignments, will be found collected in
Smith q Tudor's notes, to Leading Cases in Equity,
to the cases of Ellison Ellison and Rowe Davi-
son. They are carefully analysed by the learned au
thors and the court has been greatly assisted its
examination of this cause by their labors.
The objection was taken to this transfer that it fell
within the provisions of c. 81 of Acts of 1853 VOL TO-
p no. by which transfers of claims against the Unit
ed States are made absolutely null and void, unless
after the allowance of the claim, etc. 1t is sui-
Gent to this objection that the time of the
alleged transfer there claim against the Unit
within that act.
And it has been also decided by Court of Claims
VOL 8, p. 253 Lawrence and Crowels case, that the
purpose of the act must be restricted to matters be-
fore the treasury, and not to matters coming within
the jurisdiction Of other courts. Decree for COM
plainants.
Reed for Compliments. Hale for Respondents.
The case has been appealed.
Superior Court.