Henschel v. Maurer

Cassoday, J. The evidence is to the effect that September 22,1881, the plaintiff’s intestate at first requested one Charles Heins to draw his will, and to give all his property, except $25 mentioned, to his brother, Conrad, and his sister, Mrs. Adolph Henschel; that, when informed that it would probably cost $60 or $70 in the probate court, he declined to make a will; that he then asked if such distribution could not be made in some other way, and was told by Heins that it could, and accordingly the satisfaction piece was drawn and executed, and then, with the note and mortgage, delivered, first to Conrad, then to the uncle, and subsequently to Conrad, as found; that at the same time he executed a deed of 160 acres of land in Marathon county to his sister, Mrs. Adolph Henschel, and delivered that to her; that lie thereupon directed her to deliver the deed to his uncle, and she did so; that at the same time he gave to his uncle an .order for the personal property, with directions to keep all the papers until he ascertained the value of the Marathon county lands, and then divide the personal property, so that his said brother and sister should each, have one-half of all his property, except that he should give Mrs. Herman Hen-schel $25; that in executing the papers he wrote his own name, and was at the time physically weak, but of sound mind, with no hope of recovery, but, perhaps, with an expectation of reclaiming the property if he did recover; and he died five days thereafter. Upon these facts it is urged by counsel that the whole transaction, when taken together, was simply an attempt by the intestate to dispose of all his [580] property by will, or to delegate to his uncle the power to do so upon his death, or both together. There can be no question but what a person of sound mind, even in extremis, may make a partial as well as a total disposition of his property by will. The same is true in case of a gift as to any property which is the subject of gift. The mere fact that he attempts at the same time, and as a part of the same transaction, to dispose of the whole •of his property, but for some cause the disposition is ineffectual as to a part of it, will not prevent its being effectual as to the other part. Here the matters of conveying the land to the sister, and the directions for disposing of the personal property, are not within the issues, and hence no| before us for determination. No question of creditors or other claimants is involved. The only question presented is whether what was said and done by the intestate constituted a complete satisfaction and extinguishment of the note and mortgage. A mortgagee may undoubtedly, by way of gift to the mortgagor, completely satisfy the debt, and discharge the mortgage. Moore v. Darton, 4 DeGex & S. 517; Lee's Ex'r v. Boak, 11 Grat. 182; Darland v. Taylor, 52 Iowa, 503; Carpenter v. Soule, 88 N. Y. 251; S. C. 42 Am. Rep. 248. "Where a gift of personal property is made with intent to take effect immediately and irrevocably, and is fully executed by complete and unconditional delivery, it is certainly binding upon the donor as a gift inter vivos, even if the donor at the time is in extremis, and dies soon after. Tate v. Leithead, Kay, 658; McCarty v. Kearnan, 86 Ill. 292. But where such intent is not manifest, and the gift is otherwise made, under such circumstances it will ordinarily be regarded as a gift causa mortis. Rhodes v. Childs, 64 Pa. St. 23, 24; Grymes v. Hone, 49 N. Y. 17. But even such a gift is not complete without delivery. Ibid.; Wilcox v. [581] Matteson, 53 Wis. 23; Brunn v. Schuett, 59 Wis. 260. Such a gift may be defined as one made by the delivery of personal property by the donor in bis last sickness, and in expectation of death then imminent, and upon condition that it shall belong to the donee if the donor dies, as anticipated, without revoking the gift, leaving the donee him surviving, and not otherwise. Rhodes v. Childs, supra; Grymes v. Hone, supra; Ogilvie v. Ogilvie, 1 Bradf. Surr. 356; 2 Quar. Law Rev. 446; 21 Am. Law Rev. 734, and cases there cited. But even such a gift is defeated if the donor survive such sickness. Staniland v. Willott, 3 Macn. & G. 664. Here the intestate, as mortgagee, actually delivered the note, mortgage, and satisfaction to the mortgagor personally as a present. True, the intestate subsequently directed the mortgagor to deliver them to the uncle, as he directed Mrs. Adolph Henschel to deliver the deed she had received from him to the uncle. But this was apparently done in order that the uncle might the better ascertain the value of the land conveyed, and thus ascertain the difference in the value of the two gifts thus made, and then divide the personal property so as to make the gifts equal. Under such • circumstances, and in view of the apparent absence of any hope of recovery, it would seem that the note, mortgage, and satisfaction may be regarded as so delivered to the mortgagor as an absolute gift in prmenti. But even if there was an absence of such intent to make a then present and unconditional gift, yet as the delivery by the donor was complete, and he was at the time in his last sickness, and died soon thereafter, without revoking the gift, we must regard it as a valid and binding gift causa mortis. See note to this case in 34 N. W. Rep. 926.— Rep. By the Court.— The judgment of the circuit court is affirmed.