On the final accounting of the executor William H. Merchant, the legatees seek to charge him with three thousand dollars, the amount of three Erie Railroad income bonds, which they allege were the property of the deceased.
To prove this, the claimants produced the inventory; but, the entry thereon showing that the executor claimed the bonds as a gift from the testator, the proof was insufficient. Mr. Dodge then testified that the executor, after the testator’s death, called at his office and stated that he had taken the bonds in question out of the box containing the securities of the estate, on the morning after the decease of his father—the executor alleging as a reason, that he claimed them as his own, as a gift from his parent.
It was then proved on the part of the executor, by the evidence of his co-executor, Mr. Reading, that two of the legatees had stated that the testator gave to his son, William, the bonds in question, some short time previous to the *442making of his last will—within a month before ; that it was a full and free gift, and William had handed the bonds to his mother; that subsequently and after the testator made his last will, his wife took the bonds, conversed with him about the will as it then stood, and, holding the bonds in her hand, said, “ ISTow, that the will gives each child alike, shall I hand over to each child a thousand-dollar bond ?” The testator said, “ ISTo, put them back in my tin box.” It also appears that, the day before the testator’s death, he directed one of his daughters to bring the box, open it, and see if the bonds were there. She opened it and shewed him the bonds; and he said it was all right, and told her to put them back in the box, keep the key, and at his decease deliver it to Mr. Beading, one of his executors—that she kept the key till after her father’s death, when she gave the key, at her mother’s request, to her brother William, the other executor.
It is certain that the bonds in question once belonged to the testator, and they were entered by him on a schedule of his assets. The testator having made a will by which his son had not been placed on an equal footing with his daughters, and having subsequently become reconciled to his son, made the gift of these bonds, when his will remained in that condition. He afterwards revoked that will and executed another, in which his children were treated alike, except that the daughters were given the use of his dwelling-house and furniture in common with their mother. After the new will had been made, Mrs. Merchant brought the bonds to the testator, and the conversations and circumstances occurred which I have before stated.
1. Was the gift to the son a donation inter vivos or mortis causa ? It is proved, that the testator was at the time in his last sickness, and that during the whole course of his illness, he did not expect to recover. In such a case, the presumption of law is that the gift was intended as a donatio mortis causa. (1. Roper on Leg., 22.)
*4432. It having been shown, that after the gift the testator resumed possession, it is urged on one side, that the gift was revoked; and on the other, that possession having been obtained by the donor without the consent or privity of the donee, the gift was not legally revoked. The last point involves the proposition that the donor cannot revoke the gift without the consent of the donee.
I would remark, in the first place, that if this be so, it is a solitary exception to dispositions of property made in view of death, by the voluntary bounty of the donor. '
It is true that a will does not revoke a donatio mortis causa ; but the reason is that the will does not speak till the testator’s death—till the very moment the donation by its terms has become absolute—when of course it is too late to revoke it. On the donor’s death, the donee’s title becomes absolute, and therefore irrevocable by a will, which from its nature is inoperative during the donor’s life time, the only period during which the donation could be revoked.
It is insisted, however, that, inasmuch as the entire dominion of the donor over the property is transferred to the donee, no right of revocation exists. But this rule, as I understand it, does not mean that the donor reserves no right of revocation—but only that he parts with the control and possession of the property (Williams on Ex., 654)— that there is not a partial but absolute delivery and change of possession. If such an absolute delivery is inconsistent with a power of revocation by simple reclamation, it is just as inconsistent with a revocation in case of the donor’s re. covery. Such an argument would destroy the peculiar character of this class of donations, and transform them into pure irrevocable gifts inter vivos.
The truth is, that the whole of this doctrine of revocation is a rule of law. The law declares that a donation mortis causa, is revocable in case the donor recover—and that, too, notwithstanding the gift was in express terms absolute, and the delivery was absolute. I do not see in any case *444that the power of revocation is inconsistent with absolute dominion in the donee, existing under a condition annexed by the law to the gift, that the donor may resume the property. An attorney in fact, for the time being has full authority and absolute dominion within the scope of his power; and yet the power may be revoked at any instant. In the sense contended for by the counsel of the executor, a donee has not absolute dominion over the subject of the gift: though his possession for the time is absolute, his title does not become perfect till the donor’s death. Before that period, he cannot dispose of the property. If that event should not happen, the donor may resume his gift.
It is conceded on all hands, that if the donor recover the gift will be defeated. This is a condition the law implies ; and if the law likewise implies that the gift may be reclaimed at the pleasure of the donor—the latter condition is no more incongruous with the possession and dominion of the donee than the former.
It is admitted that the gift may be revoked in the donor’s lifetime, by resumption of possession; but if that means, that the subject of the gift must come back into the possession of the donor by the consent of the donee, it amounts only to the simple truism, that both parties can by mutual agreement annul the transaction. But if by resumption of possession, a reclamation of possession is intended, then the gift can be revoked at the option of the donor. This seems to be the view taken in Bunn vs. Markham, 7 Taunton, 224, where Gibbs, C. J., says, “ It is in the power of the donor at any time to revoke the donation before his death.” In Ward vs. Turner, 2 Vesey, sen., 433, Lord Hardwicke does not declare that an actual resumption of possession is necessary to constitute a valid revocation; but on the contrary he cites the Commentary of Yinius to the effect, that the donor where the gift was defeated by “ recovery or revocation,” had his action against the donee. (Ibid.,p. 439.)
Suppose the donee dies before the donor, does the gift *445stand ?. In the case of a will, the prior decease of the legatee causes the legacy to lapse. This was the rule of the civil law in respect to donations mortis causa; and in the same breath this was declared, the power of the donor to revoke was likewise expressed. The terms or conditions on which the donor can recover the subject of the gift are thus stated in the Institutes : Sin autem supervixisset is qui donavit, reciperet; vel si eum donationis poenituisset, aut prior decesserit is cui donatum sit. (Inst., lib. 2, tit. 7, § 1.) Again, in the Digest, it is laid down, Mortis causa donatio, etiam dumpendet an convalescere possit donator, revoca/ripotest. (Digest, l. 39, tit. 6, § 16, item$ 30.)
The three conditions annexed to the gift by the civil law, which on happening defeat the donation, are: 1st, The ' recovery of the donor; 2d, His repentance of the gift; 3d, The death of the donee before the donor’s decease. These are separate and independent conditions. Ayliffe says, The gift “ may be revoked by the donor’s repenting thereof. (Parergon, 331. Bracton, lib. 2, cap. 26, § 1.) In Jones vs. Selby, Prec. Ch., 300, the Chancellor said, “ You agree that a donatio causa mortis is a gift in presentí, to take effect infuturo after the party’s death, as a will; and that it is revocar ble during Ms life, as a will is.” Chancellor Kent speaks of these gifts as “ conditional and revocable and of a testamentary character.” (2 Com., 445.) In Wells vs. Tucker, 3 Binney, 370, Justice Tilghman says, “ it is contended on the part of the plaintiff, that a gift of this kind passes the property immediately, and is not subject to revocation by the donor. Without absolutely committing myself, I incline to the opinion, that in this as in several other particulars, it partakes of the nature of a legacy, and is revocable.” In the same case, Justice Yeates describes the donation as “ subject to countermand and revocation.” In Nicholas vs. Adams, 2 Wharton, 22, Justice Gibson states accurately the three modes of defeasance acknowledged by the civil law. His language is, that it is “ de*446feasible by reclamation—the contingency of survivorship— or deliverance from the peril.”
I find nothing against this doctrine—unless it be the language of the Vice Chancellor, in Reddel vs. Dobree, 10 Simons, 244, who, speaking of an alleged donation, characterized it as a gift which “ was always liable during the lifetime of the testator to be recalled by him;” and “ therefore the very essence of a donatio mortis causa,” was wanting. The gift in that case, was of money that might happen to be in a certain box at the testator’s death, and on condition that up to the time of his death, he should retain “ the complete dominion over whatever might be placed in the box.” The opinion of the Vice Chancellor is, substantially, that the reservation of this dominion is inconsistent with the essence of a donatio mortis causa. If no more than that was intended, the doctrine is but another form of stating that there must be a complete delivery. If it was designed to declare that when there had been a complete delivery, the donor could not revoke the gift, such an opinion was not called for by the case in hand, and is not agreeable with the authorities. There are several cases besides that of Reddel vs. Dobree, which might be supposed to imply that the donor had no right to revoke (4 Dru. & W., 159, 285; 2 Coll. 356; 8 Mee. & W., 401); but I think they proceed on the ground that there must be an absolute delivery, a change of possession and dominion, so as to vest the full possessory title in the donee, subject only to such rules as the law applies to this class of gifts. That a donatio mortis causa cannot be revoked at the will of the donor, I find no where decided, or distinctly asserted ; while the rule of the civil law, that it could be revoked if the donor repented, even while it was uncertain whether or not he would recover, is clearly laid down in the Digest, and has been admitted to be the rule at common law, by a number of distinguished *447judges, although. I am not aware the point has expressly arisen as the subject of distinct decision.
Applying this rule to the facts in evidence, I am of opinion that the testator conceived this gift to be revoked. After making the donation, he made a change in his will, and substantial alterations as to the disposition of his property, in favor of the donee. When that act was accomplished, his wife brought these bonds to him, and asked whether she should distribute them among his children. He said, “ Ho,” and directed them to be placed in the depository where he kept his valuable papers. That direction was not only a resumption of the possession, but an indication of a change in his views in respect to the disposition of the property. His subsequent conduct, in calling for the box, inquiring whether the bonds were there, and directing his daughter to lock the box, and give the key not to his son, but to the other executor, after his death, confirms the idea of revocation, and shows he intended the bonds to come into the possession of his executor, after his decease, as a part of his estate. I think, therefore, that the revocation has been sustained.
The jurisdiction of the Surrogate to try this question, has been questioned by the counsel of the donee. The Surrogate has jurisdiction to try every question necessary to the settlement of the accounts of the executor. It is competent for the legatees, on the accounting of the executor, to produce evidence to charge him with more assets than he acknowledges in his accounts to have received. They may prove the testator had assets which the executor should have collected, or which he has received and not brought into his accounts. In the present case, the legatees assumed the last position. They sought to charge the executor with the amount of these bonds, and shewed the bonds had belonged to the testator in his life-time, and that the executor had admitted they were in the possession of the testator at the time of his death.. Had the case stopped *448there, it would have been my duty to have charged the executor with the amount of the bonds. But he sets up a gift by the testator; and in order to decide whether he is liable or not for the bonds, the question of gift must be determined. The .executor himself raised this point, to exonerate himself from liability; and it is necessary to decide it in order to settle his accounts, and make a final decree for the distribution of the estate. If an executor can retain assets on the plea of a gift causa mortis^ and then successfully impeach the Surrogate’s jurisdiction to inquire into the validity of this plea, the power of this court in respect to the settlement of accounts and the adjustment of estates is at an end.
I am very clear that this objection is not tenable—and must therefore decree distribution, in accordance with the conclusion to which I have arrived, respecting the revocation of the donation by the testator before his decease.