The defendants John Edwards and George Edwards gave a bond to one James McCarthy for $100, in 1843, and in 1845 McCarthy died intestate in South Carolina, where he then resided. The bill states that, a few days before his death and in his last illness McCarthy gave the bond, by way of donatiomortis causa, to one John Baber, with whom he resided, and that Baber afterwards disposed of the bond, and that, for a valuable consideration, it came to the plaintiff, without any recourse on his assignors. Afterwards the defendant John Edwards took administration of McCarthy's effects in this State, and the present bill was filed to obtain payment of the bond.
The answer denies any knowledge or information of the alleged donation to Baber, but submits to pay the money to the plaintiff if he should establish the gift, after discharging certain debts which the intestate, McCarthy, owed. A witness for the plaintiff states that in McCarthy's last illness, and five or ten days before his death, he was called on by McCarthy to witness a power of attorney from him to John Baber, and also a verbal gift from McCarthy to Baber of all his effects, after (203) payment of his debts. The plaintiff also examined Baber himself, who states that McCarthy gave him "all his notes, bonds, and accounts, and all his land, during his last illness, and requested him to pay all his debts; and that the bond of Edwards was in his (the witness's) possession at the time McCarthy died, and was among the notes and accounts McCarthy gave him." The bill does not state that the transaction between McCarthy and Baber derived any peculiar efficacy from the law of South Carolina; and, in the absence of such an allegation, we must assume that it did not, and are at liberty to suppose that the validity of the gift depends upon the same rules of the canon or common law which all the States of English origin received from the mother country. By that *Page 153 law the alleged gift is clearly ineffectual, for the want of the delivery of the bond, express or implied. 1 Rop. Leg., 12. The transaction did not purport to be a present conditional gift, dependent upon the death or recovery of the donor; but it seems to have been rather a disposition, after the death of the donor, for the payment of debts and also for a bounty, in the nature of a nuncupative will, and, consequently, it cannot be executed in this Court until the fact and validity of such a disposition have been established by the judgment of a court of probate.
PER CURIAM. Bill dismissed with costs.
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