no question of which we can take cognizance

under section 709 of the Revised Statutes. No right, title, privilege or immunity which could be claimed under the authority of the United States was involved, and the validity of no treaty or statute of or any authority exercised under the United States was drawn in question. Neither was there any statute or authority of the State relied on, which was in conflict with the Constitution, treaties or laws of the United States.

The motion to dismiss for want of jurisdiction is granted.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

MARTIN BASKET, Appt.,

v.

APPEAL from the Circuit Court of the United On motion to dismiss, for want of necessary parties.

States for the District of Indiana.

The history and facts of the case appear in the opinion of the court.

For the opinion of this court on a petition for a rehearing, see, post.

Charles Denby, for appellant:
Messrs. P. Phillips, W. H. Phillips and

How the last sickness has been treated by shown by the following citations: the courts as affecting the validity of a gift, is

Miller v. Miller, 3 P. Wms. 356; Walter v. Hodge, 2 Swanst., 100; Nicholas v. Adams, 2 Whart., 17; Grymes v. Hone, 49 N. Y., 17; Gass V. Simpson, 4 Cold., 288.

That Chaney intended, by the indorsement and delivery of the certificate, that his nephew should receive the money evidenced by it, is too plain to justify argument. The inquiry

CHANEY, Deceased,

(See S. C., 17 Otto, 602-616.)

Necessary parties to appeal-donatio mortis causa-executed transfer-certificate of deposit

-restricted indorsement.

1. Parties to an action who have no legal interest, either in maintaining or reversing the decree, are not necessary parties to the appeal therefrom. 2. A donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vivos, subject to be devested by the happening of any of the conditions subsequent; that is, upon actual revocation by the donor, or by the donor's surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor.

3. If the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will. 4. A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds and other securities, so that a delivery of it, as a gift, constitutes an equitable assignment of the money for which it calls.

5. A delivery of a certificate of deposit to the intended donee with an indorsement thereon which limits and restrains the authority of the donee in

the collection of the money, so as to forbid its payment until the donor's death, is not valid as a donatio mortis causa.

vokes.

[No. 170.]

NOTE.-Gifts causa mortis, requisites of; what reDonatio causa mortis cannot be made by parol; a delivery of the thing given is essential. Bradly v. Hunt, 5 Gill & J., 54; S. C., 23 Am. Rep., 597; Priester v. Priester, Richardson Eq. Cas., 26; S. C., 23 Am. Dec., 191: Tate v. Hilbert, 2 Ves. Jr., 120; Miller v. Miller, 3 P. Wms., 356; Hall v. Howard, Rice's Law, 310; S. C., 33 Am. Dec., 115; Borneman v. Sidlinger, 15 Me., 429; 8. C., 33 Am. Rep., 626.

The delivery necessary in such cases is the same as in other cases of parol gifts. McDowell v. Murdock, 1 Nott. & McC., 237; 8. C., 9 Am. Dec., 684.

In some cases a symbolical delivery is held sufficient. Toller's Law of Executors, 234; Bailey v. Ogden, 3 Johns., 420: S. C., 3 Am. Dec., 509; Wilkes v. Ferris, 5 Johns., 335; S. C., 4 Am. Dec., 364; Cooper v. Burr, 45 Barb., 9: Ward v. Turner, 2 Ves., 443; Miller v. Jeffress, 4 Gratt., 472.

To constitute a valid gift causa mortis, four things

are necessary:

1. It must be made with a view to the donor's death. Duffield v. Elwes, 1 Sim. & Stu., 240; Champney v. Blanchard, 39 N. Y., 111; Grymes v. Hone,

be construed by some rigorous rule of law so as to defeat his intention. It hath this extent;

no more.

When the intent of the donor is proved under his own hand, as in this case, the courts have presumed delivery in support of the gift on slight evidence.

Brinkerhoff v. Lawrence, 2 Sandf. Ch., 406; Grover v. Grover, 24 Pick., 261; Chase v. Red92; Story, Eq. Jur., sec. 607; see, also, Camp's ding, 13 Gray, 418; Sessions v. Mosely, 4 Cush., Appeal, 36 Conn., 88; Turpen v. Thompson, 2 Met. (Ky.), 420; Waring v. Edmonds, 11 Md., 424; Pierce v. Bank, 129 Mass., 430; Hill v. Stevenson, 63 Me., 364; Tillinghast v. Wheaton, 8 R. I., 536; Grymes v. Hone, 49 N. Y., 17.

The unwillingness of the early decisions to sustain gifts causa mortis of choses in action. arose from the fact that no legal transfer could be made of them at all, because they only represented rights, but were not, of themselves, intrinsically valuable. Since the equitable doctrine has prevailed that they can be assigned by delivery, they are placed with all other chattels as subject to gift.

The certificate of deposit was, in all respects, the negotiable promissory note of the Bank. Bank v. Ringel, 51 Ind., 393; Miller v. Austen, 13 How., 218.

49 N. Y., 17; S. C.. 10 Am. Rep., 313; Edwards v. Jones, 1 Myl. & C., 233; Walter v. Hodge, 2 Swanst., 97.

2. The donor must die of that ailment. Irish v. Nutting, 47 Barb., 370, and cases last cited: Weston v. Wight, 17 Me., 287; S. C., 35 Am. Dec., 250.

3. There must be a delivery of the thing given. Brink v. Guild, 43 How. Pr., 289; Cooper v. Burr, 45 Barb., 9; Champney v. Blanchard, 39 N. Y., 111; Grymes v. Hone, 49 N. Y., 17; Taylor v. Staples, 8 R. I., 170; Case v. Dennison, 9 R.I., 88; S. C., 11 Am. Rep., 222; Jones v. Lock, 1 L. J. Ch., 25; Egerton v. Egerton, 17 N. J. Eq., 419; Singleton v. Cotton, 23 Ga., 261; Cutting v. Gilman, 41 N. H., 147.

4. There must be an acceptance by the donee. Brink v. Guild, 43 How. Pr., 289; Delmotte v. Taylor, 1 Redf., 417.

The title does not vest until death of the donor. The gift may be revoked during his life. Jones v. Brown, 34 N. H., 439; Sessions v. Moseley, 4 Cush., e Rhodes v. Childs, 64 Pa. St., 18; Johnson v. Spies, 5 Hun, 468; Doty v. Willson, 47 N. Y., 580; Bunn v. Markham, 7 Taunt., 224.

On well settled decisions, its delivery, with or without an indorsement, will confer a good title.

Messrs. Asa Iglehart and Jno. E. Iglehart, for appellee:

Delivery is essential to a gift, and whether it be inter vivos or causa mortis, there must be an actual handing over, with the intent to transfer the right of property and possession.

Johnson v. Stevens, 22 La. Ann., 144; Hanson v. Millett, 55 Me., 184; Carleton v. Lovejoy, 54 Me., 445: Edgerton v. Edgerton, 2 C. E.Green, 419; Dilts v. Stevenson, 2 C. E. Green., 407; Buschian v. Hughart, 28 Ind., 449; Peeler v. Guilcey, 27 Tex., 355; Curry v. Curry, 30 Ga., 257; Carswell v. Ware, 30 Ga., 71; 1 L. Cas. in Eq., 1233, 4th Am. ed.

Again; "A gift, mortis causa, is as much within this rule as if it were absolute. There must be a present delivery passing the right of property and possession." Irons v. Smallpiece, 2 B. & Ald., 551; 1 L. Cas. in Eq., 1244, 4th Am. ed.

Again; "Though subject to defeasance by the donors' restoration from danger, and in other ways, the property must pass at the time; and not be intended to pass at the giver's death." Duncan v. Duncans, 5 Litt., 12, 13; Walden v. Dizon, 5 Mon., 170, 171; 1 L. Cas. in Eq., 1243, 4th Am. ed.

These authorities simply establish the principle that a donatio causa mortis is an executed gift inter vivos, upon an implied condition subsequent. And this proposition is well sustained in the States generally and particularly in the State of Tennessee, where the gift is alleged to have taken place.

Nicholas v. Adams, 2 Whart., 17; Chase v. Redding, 13 Gray, 422; Parish v. Stone, 14 Pick., 203; Mitchell v. Smith, 10 Law T. (N. S.), 520; 8. C., 10 L. T. (N. S.), 800.

A donatio causa mortis must pass such a title to the donee, in the lifetime of the donor, as will prevent any title from passing to the executor or administrator of the donor. In other words, that which is in legal effect a legacy cannot take effect as a gift causa mortis.

In the case at bar, the indorsement rebuts the inference of a present gift by postponing the payment until the death of the donor. The transfer cannot operate as a present gift of the money and cannot operate to transfer the title to the money at all, except it be executed and probated as a will. The language is a good

A vague impression that death may occur is not sufficient. A soldier about to join his regiment cannot make a gift causa mortis to take effect in event of his death during the war. Smith v. Dorsey, 38 Ind., 451; S. C., 10 Am. Rep. 118; Dexheimer v. Gautler, 34 How. Pr., 472; S. C., 5 Rob., 216; Irish v. Nutting, 47 Barb., 370; Gourley v. Linsenbigler, 51 Pa. St., 345.

No particular form of words is necessary. Keniston v. Sceva, 54 N. H., 24.

A mere promise to give made by one on his death bed is void for want of consideration. Chevallier v. Wilson, 1 Tex., 161.

Merely marking packages with the name of the donee is not sufficient. Bunn v. Markham, 7 Taunt., 224; Hawkins v. Blewitt, 2 Esp., 663.

A gift causa mortis is subject to debts of deceased, If there is not other property sufficient to pay the claims. 2 Kent, 448; Chase v. Redding, 13 Gray, 418; Mitchell v. Pease, 7 Cush., 350; Marshall v. Berry, 13 Allen, 43; Michener v. Dale, 23 Pa. St., 59; Borneman v. Sidlinger, 15 Me., 429; S. C., 33 Am. Dec., 624; Drury v. Smith, 1 P. Wms., 406. See 17 OTTO

conditional will and is, therefore, not a good donatio causa mortis of the money evidenced by the certificate. 1 Redf. Wills, 176-179, notes.

Mr. Justice Matthews delivered the opinion of the court:

This is a bill in equity, filed by the appellee, a citizen of Tennessee, to which, besides the appellant, a citizen of Kentucky, The Evansville National Bank of Evansville, Indiana, Samuel Bayard, its president, and Henry Reis, its cashier, and James W. Shackelford and Robert D. Richardson, attorneys for Basket, citizens of Indiana, were made parties defendant. The single question in the case was, whether a certain fund, represented by a certificate of deposit, issued by the bank to Chaney in his lifetime, belonged to Basket, who claimed it as a gift from Chaney, having possession of the certificate, or to the appellee, as Chaney's administrator. Basket asserted his title, not only by answer but by a cross-bill. The final decree ordered the certificate of deposit to be surrendered to the complainant, and that the bank pay to the complainant, as its holder, the amount due thereon. The money was then tendered by the bank, in open court, and the certificate was deposited with the clerk. It was, thereupon, ordered, Basket having prayed an appeal, that, until the expiration of the time allowed for filing a bond on appeal, the bank should hold the money as a deposit, at four per cent interest; but if a bond be given, that the same be paid to the clerk, and by him loaned to the bank on the same terms. Basket failed to give the bond required for a supersedeas, but afterwards prayed another appeal, which he perfected by giving bond for costs alone. To this appeal, Basket and the appellee are the parties respectively, the co-defendants not having appealed, or been cited after severance. And, on the ground that they are necessary parties, the appellee has moved to dismiss the appeal.

It is apparent, however, that the sole controversy is between the present parties to the appeal. By the delivery of the certificate of deposit to the clerk, the attorneys of Basket are exonerated from all responsibility; and the payment of the money by the bank, to the appellee, equally relieves it and its officers; for, not being parties to the appeal, and the execution of the decree not having been superseded, the decree will always furnish them protection, whether affirmed or reversed; because, if re

It may be revoked by the donor at any time before his death. Wigle v. Wigle, 6 Watts, 522; Merchant v. Merchant, 2 Bradf., 432; Bunn v. Markham, 7 Taunt., 224.

It is revoked by the death of the donee before the donor, or if the donor recover. Wells v. Tucker, 3 Binn., 366; Merchant v. Merchant, 2 Bradf., 432; Stainland v. Willott, 3 Mac. & G., 664; Parker v. Marston, 27 Me., 196.

It is revoked by the recovery of the donor from the illness from which he was suffering at the time he made the gift. Weston v. Hight, 17 Me., 287; S. C., 35 Am. Dec., 250.

The delivery of savings bank books has been held a sufficient delivery to make a gift causa mortis of the deposit. Sheedy v. Roach, 124 Mass., 472; S. C., 26 Am. Rep., 680; Camp's Appeal, 36 Conn., 88; S. C., 4 Am. Rep., 39: Tillinghast v. Wheaton, 8 R. I., 536; 8. C., 5 Am. Rep., 621; Gardner v. Merritt, 32 Md., 78; S. C., 3 Am. Rep., 115; Minor v. Rogers, 40 Conn., 512; S. C., 16 Am. Rep., 69; Hill v. Stevenson, 63 Me., 364; S. C., 18 Am. Rep., 231; Ray v. Simmons, 11 R. I., 266; 8. C., 23 Am. Rep., 447.

passes, with a right to use the name of the administrator of the promisee, to collect it for the donee's own use," citing Sessions v. Moseley, 4 Cush., 87; Bates v. Kempton, 7 Gray, 382; Parish v. Stone, 14 Pick., 203.

In the case last mentioned, Parish v. Stone, the same distinguished Judge, speaking of the cases which had extended the doctrine of gifts mortis causa to include choses in action, delivered so as to operate only as a transfer by equitable assignment or a declaration of trust, says further, that "These cases all go on the assumption that a bond, note or other security is a valid subsisting obligation for the payment of a sum of money, and the gift is, in effect, a gift of the money by a gift and delivery of the instrument that shows its existence and affords the means of reducing it to possession." He had, in a previous part of the same opinion, stated that "The necessity of an actual delivery h's been uniformly insisted upon in the application of the rules of the English law to this species of gift." P. 204.

In Camp's Appeal, 36 Conn., 88, the Supreme Court of Errors of Connecticut held that a delivery to a donee of a savings bank book, containing entries of deposits to the credit of the donor, with the intention to give to the donee the deposits represented by the book, is a good delivery to constitute a complete gift of such deposits, on the general ground that a delivery of a chose in action that would be sufficient to vest an equitable title in a purchaser is a sufficient delivery to constitute a valid gift of such chose in action, without a transfer of the legal title. That was the case of a gift inter vivos. But he court say, referring to the case of Brown v. Brown, 18 Conn., 410, as having virtually determined the point: "It is true that was a donation causa mortis, but the principle involved is the same in both cases, as there is no difference in respect to the requisites of a delivery between the two classes of gifts." And so Justice Wilde, delivering the opinion of the court in Grover v. Grover, 24 Pick, 261264, expressly declared that "A gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale: that the title passed and the gift became perfected, by delivery and acceptance; that there was, therefore, No good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase;" and showed, by a reference to the cases, that there was no difference in this respect between gifts inter vivos and mortis causa.

In respect to the opinion in this case, it is to be observed, that it cites with approval the case of Wrightv. Wright, 1 Cow., 598, in which it was decided that the promissory note, of which the donor himself was maker, might be the subject of a valid gift mortis causa, though the concurrence was not upon that point. That case, however, has never been followed. It was expressly disapproved and disregarded by the Supreme Court of Errors of Connecticut in Raymond v. Sellick, 10 Conn., 480, Judge Waite delivering the opinion of the court; had been expressly questioned and disapproved in Parish v. Stone, 14 Pick., 198-206, by Chief Justice Shaw, and was distinctly overruled by the Court of Appeals of New York, in Harris v.

Clark, 3 N. Y., 93. In that case it was said: Gifts, however, are valid without consideration or actual value paid in return. But there must be delivery of possession. The contract must have been executed. The thing given must be put into the hands of the donee, or placed within his power by delivery of the means of obtaining it. The gift of the maker's own note is the delivery of a promise only, and not of the thing promised, and the gift therefore fails. Without delivery, the transaction is not valid as an executed gift; and without consideration, it is not valid as a contract to be executed. The decision in Wright v. Wright was founded on a supposed distinction between a gift inter vivos and a donatio mortis causa. But there appears to be no such distinction. A delivery of possession is indispensable in either case."

The case from which this extract is taken

was very thoroughly argued by Mr. John C. Spencer for the plaintiff, and Mr. Charles O'Conor for the defendant, and the judgment of the court states and reviews the doctrine on the subject with much learning and ability. It was held that a written order upon a third person, for the payment of money, made by the donor, was not the subject of a valid gift, either inter vivos or mortis causa; and the rule applicable in such cases, as conceded by Mr. O'Conor, was stated by him as follows:

"Delivery to the donee of such an instrument as will enable him, by force of the instrument itself, to reduce the fund into possession, will suffice, is the plaintiff's doctrine. This might safely be conceded. It might even be conceded that a delivery out of the donor's control of an instrument, without which he could not recover the fund from his debtor or agent, would also suffice."

The same view, in substance, was taken in deciding Hewitt v. Kaye, L. R., 6 Eq., 198, which was the case of a check on a banker, given by the drawer mortis causa, who died before it was possible to present it, and which was held not to be valid. Lord Romilly, M. R., said: "When a man on his deathbed gives to another an instrument, such as a bond, or promissory note, or an IO U, he gives a chose in action, and the delivery of the instrument confers upon the donee all the rights to the chose in action arising out of the instrument. That is the principle upon which Amis v. Witt, 33 Beav., 619, was decided, where the donor gave the donee a document by which the bankers acknowledged that they held so much money belonging to the donor at his disposal, and it was held that the delivery of that document conferred upon the donee the right to receive the money. But a cheque is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is at a banker's or anywhere else. It is an order to deliver the money, and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing."

Accordingly the Vice-Chancellor, in In re Beak's Estate, L. R., 13 Eq., 489, refused to sustain as valid the gift of a check upon a banker, even although its delivery was accompanied by that of the donor's pass-book.

The same rule, as to an unpaid and unaccepted check, was followed in Nat. Bk. v. Williams, 13 Mich., 282. The principle is that a check

Contrary decisions have been made in respect to donations mortis causa of savings bank books, some courts holding that the book itself is a document of title, the delivery of which, with that intent, is an equitable assignment of the fund. Pierce v. Bank, 129 Mass., 425; Hill v. Stevenson, 63 Me., 364; Tillinghast v. Wheaton, 8 R. I., 536. The contrary was held in Ashbrook v. Ryon, 2 Bush, 228, and in McGonnell v. Murray, Ir., Rep., 3 Eq., 460.

That a delivery of a certificate of deposit, such as that described in the record in this case, might constitute a valid donatio mortis causa, does not admit of doubt. It was so decided in Amis v. Witt [supra]; in Moore v. Moore, L. R., 18 Eq., 474; Hewitt v Kaye, L. R., 6 Eq., 198; Westerlo v. De Witt, 36 N. Y., 340. A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equitable assignment of the money for which it calls.

The point, which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to devest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in case of a gift mortis causa; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift. Further illustrations and applications of the principle may be found in the following cases: Powell v. Hellicar, 26 Beav., 261; Reddel v. Dobree, 10 Sim., 244; Farquharson v. Cave, 2 Colly. Ch., 356; Hatch v. Atkinson, 56 Me., 324; Bunn v. Markham, 7 Taunt., 224; Coleman v. Parker, 114 Mass., 30; Wing v. Merchant, 57 Me., 383; Mc Willie v. Van Vacter, 35 Miss., 428; Egerton v. Egerton, 17 N. J. Eq., 420; Michener v. Dale, 23 Pa., 59.

The application of these principles to the circumstances of the present case require the conclusion that the appellant acquired no title to the fund in controversy, by the indorsement and delivery of the certificate of deposit. The certificate was payable on demand; and itis unquestionable that a delivery of it to the donee, with an indorsement in blank, or a special indorsement to the donee, or without indorsement, would have transferred the whole title and interest of the donor in the fund represented by it, and might have been valid as a donatio mortis causa. That transaction would have enabled the donee to reduce the fund into actual possession,

But the actual transaction was entirely different. The indorsement, which accompanied the delivery, qualified it, and limited and restrained the authority of the donee in the collection of the money, so as to forbid its payment until the donor's death. The property in the fund did not presently pass, but remained in the donor, and the donee was excluded from its possession and control during the life of the donor. That qualification of the right, which would have belonged to him if he had become the present owner of the fund, establishes that there was no delivery of possession, according to the terms of the instrument, and that as the gift was to take effect only upon the death of the donor, it was not a present executed gift mortis causa, but a testamentary disposition. The right conferred upon the donee was that expressed in the indorsement; and that, instead of being a transfer of the donor's title and interest in the fund, as established by the terms of the certificate of deposit, was merely an order upon the bank to pay to the donee the money called for by the certificate, upon the death of the donor. It was, in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in præsenti, unless paid or accepted while the donor is alive; how much less so, when, as in the present case, it is made payable only upon his death.

The case is not distinguishable from Mitchell v. Smith, 4 De G., J. & S., 422, where the indorsement upon promissory notes, claimed as a gift, was, "I bequeath-pay the within contents to Simon Smith, or his order, at my death." Lord Justice Turner said: "In order to render the indorsement and delivery of a promissory note effectual they must be such as to enable the indorsee himself to indorse and negotiate the note. That the respondent, Simon Smith, could not have done here during the testator's life." It was, accordingly, held that the disposition of the notes was testamentary and invalid.

It cannot be said that the condition in the indorsement, which forbade payment until the donor's death, was merely the condition attached by the law to every such gift. Because the condition, which inheres in the gift mortis causa, is a subsequent condition, that the subject of the gift shall be returned if the gift fails by revocation; in the meantime, the gift is executed, the title has vested; the dominion and control of the donor has passed to the donee. While here, the