To constitute a valid gift causa mortis, there must be a delivery of the property to the donee, or to some third person for the donee.
The declarations of the deceased to Thais Stoddard, as shown by the defendants in her testimony, are not competent evidence to establish the alleged donatio causa mortis. The fact of delivery must be proved by other evidence than by mere declarations of the deceased to a person disconnected with the transaction, of the character stated in the report of the evidence in the present case. The language used by the deceased to this witness would seem rather to indicate that she had the purpose to dispose of her property by a will. Such gifts being really of a testamentary character, and operating in favor of the donee much as a legacy, and yet without the safeguards that the statute has thrown around wills, are not to be sustained, unless clearly established by the proof of all the facts essential to their validity.
Whether a married woman can make a valid gift causa mortis of her whole property without the assent of her husband, under the provisions of our statute restricting a testamentary disposition of her sole property to one half the amount thereof, we have not thought necessary in the present state of this case to decide; or to consider the question whether deposits in savings banks can be subjects of such donation by a mere delivery of the bank books. Verdict set aside, and new trial ordered.