The testimony shows, that the notes claimed in this suit, were formerly the property of the intestate, and that they must still be regarded as belonging to his estate, unless he made a legal disposition of them during his life.
To constitute a donation inter vivos, there must be a gift absolute and irrevocable, without any reference to its taking effect at some future time. The donor must deliver the property, and part with all present and future dominion over it. Grover v. Grover, 24 Pick. 261.
The testimony dearly shows, that the intestate did not intend to make a gift of the notes to take effect immediately, without reference to his decease.
To constitute a donatio mortis causa, the gift must be *429made in contemplation of the near approach of death to take effect absolutely only upon the death of the donor. Ward v. Turner, 2 Ves. Sen. 431; Tate v. Hilbert, 2 Ves. Jr. 111; Borneman v. Sidlinger, 15 Maine, 429; Parish v. Stone, 14 Pick. 198; Raymond v. Sellick, 10 Conn. 480.
There must be a delivery of the property; but a delivery to the donee, or to some other person for his use, will be sufficient. Drury v. Smith, 1 P. Wms. 104; Wells v. Tucker, 3 Binn. 366; Contant v. Schuyler, 1 Paige, 316; Borneman v. Sidlinger, 15 Maine, 429.
The donor must part with all dominion over the property, so that no further act is required of him, or of his personal representative, to vest the title perfectly in the donee, if it be not reclaimed by the donor during his life. Hawkins v. Blewitt, 2 Esp. 663; Bunn v. Markham, 7 Taun. 224; Reddel v. Dobree, 10 Simons, 244. An essential difference between a legacy and a donatio mortis causa, consists in the independence of the title of the donee of any act or consent of the legal representative. 1 Roberts on Wills, 7, note 5. Such donations “ are properly gifts of personal property by a party, who is in peril of death, upon condition, that they shall presently belong to the donee in case the donor shall die, but not otherwise. 1 Story’s Eq. § 606.
To establish a valid donatio mortis causa, the testimony in this case must prove, that the intestate parted with all dominion over the notes, by a gift of them to the persons named as donees, to belong to them presently as their own property, in case he should die without making any change.
William Stickney, one of the donees, called by the plaintiff, testifies, that the intestate, on June 3, 1847, requested him to make a schedule of notes, “ which he wanted to give, or had given, for benevolent purposes ; rvhether he said he had placed them or given them into the hands of Lincoln, (defendant,) cannot say, to be distributed by certain persons named, as they thought best, after his decease.”
The witness produced the schedule then made by him, and stated, if instead of the words, “wish to have deposited,” used *430in the schedule, the paper had stated, “my notes and Page’s notes were in the hands of Lincoln, the ideas, he communicated to me, would have been as accurately expressed in the paper, as I can recollect them.” By making the change of language proposed by the witness, as nearly as may be, the language of the paper preceding the list of notes, would read as follows: — “The following is a list of notes which I, Ebenezer Dole, so far as it respects the notes of William Stickney and Simon Page, have placed in the hands of R. G. Lincoln, the proceeds of which to be distributed according to the discretion of Rev. David Thurston, Austin Willey, R. G. Lincoln and William Stickney to objects of benevolence, which in the judgment of all or a majority of the above named persons, think it will accomplish the most good.”
It will be perceived, that the word placed, and not the word given, has been substituted for the word deposited, used in the schedule. The reason for this is, that the witness states, that he cannot say, whether the intestate said, he had “ placed them or given them into the hands of Lincoln.” The burden of proof to establish a gift is upon the defendant, and Avhen the witness is uncertain, which word, was used, there is no proof, that the word given was used, and no authority is therefore found for its use, to correct the written paper. And when the witness states how it should be corrected, he says, it should state, instead of then being deposited, that they “ were” in the hands of Lincoln. The paper, therefore, with the change of language made, will state the whole legal effect of the testimony of the witness, and the intentions of the intestate at that time, will be better and more satisfactorily ascertained, than by the Avitness’s recollection of his words spoken.
Austin Willey, called by defendant, testifies in substance, that tAvo or three weeks before his death he was in the chamber of the intestate, who asked the defendant to hand him a file of papers from his desk, that after it was handed to him, he took out a note bearing date on April 15, 1846, for $500, signed by William Stickney, and payable to the intestate, and indorsed his name upon the back of it and *431delivered it to the defendant, to be added “ to those that had previously been given.” That the intestate at that time said, “ he had given certain notes to Mr. Lincoln, as one of several trustees named, to be appropriated to purposes of benevolence or charity according to their own judgment of his wishes and feelings, as he would do, were he living.” He also states, “ at an interview a short time before, he told me he had placed notes in Mr. Lincoln’s hands for the purposes before stated.”
The intestate died on June 9, 1847, this transaction must therefore have taken place before the schedule was made by Stickney.
Simon Page, called by defendant testifies, that he had a conversation with the intestate a few days before his death, when he said “ he wished to leave a certain amount of property for charitable purposes, and wished me to consent to be one of the trustees.”
It was agreed, that a certificate signed by the Rev. David Thurston, respecting his consenting to act as one of the trustees should be received as evidence. He states in that certificate, that he had a conversation with the intestate on July 27, 1846, when,he stated, that “he had made suitable provision for his family, and had set apart a portion of his estate, for the promotion of the same objects which he had been accustomed to promote: viz. the cause of truth and righteousness.” “ As I understood his views, he requested me with a few others, whom he named, to receive in trust such property, as he might leave for this purpose, and that we should appropriate the avails of it to the furtherance of such objects, as we might judge he would approve, if living.”
If this testimony were all to be considered as legal, when considered together, the effect is rather to prove, that he designed to entrust the property to them, to be used after his decease, for the purposes selected by them, than to be held by them as their own property, as a free gift from him. Several considerations strongly operate to convince the mind, that his intention was not to make a. donation to them as men, but *432to place so much of his property in their hands, as trustees, to be distributed. They are uniformly spoken of, or referred to by him, as trustees. According to the statement of Mr. Thurston, many months before his decease he expressed an intention “ to leave a certain amount of his property for charitable purposes.” There is no proof from any person, that he at any time actually made a donation, of the notes to the persons named. At most it can only be inferred that he had done so, from his declarations of what he had done. The word, give or given, as ordinarily used in conversation, does not necessarily convey the idea of a voluntary transfer of the title of the thing spoken of as given. That is only the primary signification stated by lexicographers, among more than twenty others ; while the second is, that of transferring or delivering a thing from one person to another. The sense, in which the word is used, must often be ascertained by the connection in which it is used.
The declaration of the intestate to Mr. Willey, that he had given the notes to Mr. Lincoln, as one of several trustees named, does not, when considered alone, fairly convey the idea, that he had made a gift of them to him and others as their own property. But it must be considered in connexion with the language used before, to the same witness, that he had placed notes in Lincoln’s hands for those purposes; and with his language used to Mr. Thurston, at an earlier, and to Mr. Page, at a later time; and also in connection with his latest and most authentic declaration reduced to writing, as it would be corrected by the witness, and which clearly indicates a disposition of his own property after his decease, by the agency of trustees. There are other considerations leading to the same conclusion, that he did not intend to make a donation to those persons to be held by them as their own property, and that he had not done it. It appears, that he had not fully completed his purpose. Mr. Stickney testifies, that all the notes contained in the schedule, and designed to constitute the fund, had not been placed in the hands of the defendant, that the paper was not signed by him, “ because he *433wanted to make the sum exactly $5000, and he became more sick soon after and never completed it.” The written paper provides, that the proceeds should be distributed according to the judgment “of all or a majority of the abope named persons,” and the minority might thereby be deprived of all right to any portion of the property, for any purpose. After he had spoken to Mr. Willey of having given the notes to Lincoln, he assumed to exercise a control over the disposition of their proceeds, by the paper made by Mr. Stickney. It is quite certain, that he did not intend, that the persons named as trustees should take any beneficia I interest in the property. They were to be the almoners merely of his bounty.
It is said in argument, that “ gifts to charitable uses are highly favored in law, and will be most liberally construed, in order to accomplish and carry into effect the intent and purpose of the donor.”
This doctrine may apply to gifts, properly of that character, but not to donations made, not in conformity to the statutes of wills and of frauds, but suited to contravene them. Such donations are not favored by the law, but are admitted with the greatest caution. Ward v. Turner, 2 Ves. Sen. 431; Wells v. Tucker, 3 Binn. 366; Contant v. Schuyler, 1 Paige, 316; Raymond v. Sellick, 10 Conn. 480.
It is also said, that if “ the object of the trust be vague and uncertain, it will be declared in ordinary cases, a resulting trust for the heirs-at-law, or distributees; but in case of a gift to charitable uses, this will never be done. In all such cases the legacy will be sustained.”
The statute of charitable uses, 43 Eliz. chap. 4, enumerates the devises and bequests, for which it provides ; and it is well settled, that such as are not comprehended in that enumeration, are not aided by that statute. Morice v. The Bishop of Durham, 9 Ves. 399, and 10 Ves. 522; Saunderson v. White, 18 Pick. 328.
In the former case, the testatrix bequeathed all her personal *434estate to the Bishop, upon trust, to pay her debts and legacies, and to dispose of the ultimate residue to such objects of benevolence and liberality, as the Bishop in his own discretion shall most approve of. The case was like the present, in leaving the objects of the charity to the unlimited discretion of the donee. It was decided, that the objects of the trust not being within the statute of Elizabeth, the trust faded. Upon a hearing of the appeal before Lord Eldon, he came to the conclusion, that “ it was the intention to create a trust; and the object being too indefinite, failed. The consequence of law is, that the Bishop takes the property upon trust to dispose of it, as the law will dispose of it; not for his own benefit or any purpose this court can effectuate.” He had before stated, “ if the testator meant to create a trust, and not to make an absolute gift; but the trust is ineffectually created, is not expressed at all, or fails, the next of kin take. On the other hand, if the party is to take himself, it must be on the ground accord-? ing to the authorities, that the testator did not mean to create a trust, but intended a gift to that person for his own use and benefit; for if he was intended to have it entirely in his own power and discretion, whether to make the application or not, it is absolutely given.”
In this case, therefore, if it could be considered, that the intestate did intend to part with the dominion of the property absolutely and to create a trust, it could not be supported, even if there had been a declaration of it made in writing. The objects of it would have been too vague and uncertain, and it could have derived no aid from the statute of Elizabeth. If the persons named as trustees could take the property as an absolute gift, they would be directly interested in the event of this suit, and their testimony introduced by the defendant, must be excluded. This would leave the case to rest upon the testimony of William Stickney alone, and that clearly fails to establish any title to the notes, in the defendant, and those for whom he claims to hold them.
In whatever aspect the case may be viewed, either as presenting a gift inter vivos, or a donatio mortis causa, or as an *435attempt to make a testamentary disposition, without the requisite forms of law, the defence fails.
Defendant defaulted.