The finding in this case presents the question, whether the promissory note of a third person, not payable to bearer, or so indorsed as to transfer the legal title by delivery merely, may be the subject of a donatio causa mortis.
Without going into a review of the authorities upon this question, it is sufficient to say, that the principles applicable to ordinary gifts inter vivos, were formerly applied to this species of donation ; consequently, choses in action were considered not to be the proper subjects of it. Gifts must be accompanied by delivery of possession. They must therefore be of something which is capable of delivery ; and as nothing incorporeal is, strictly speaking, capable of delivery, it is, says Powell, “ perfectly clear, that a debt, being a chose in action, cannot in itself be the subject of delivery; for it is an incorporeal thing.” From this doctrine, in connexion with the principle that choses in action are not, at law, assignable, it followed, that they could not be the subject of gift, either at law, or in equity. It appears to me, says the same author, that there can be no such thing as an equitable gift or donation, which is not also a legal gift or donation ; for if it be a contract, it is nudum pactum, and, for want of a consideration, gives no civil right that can be maintained in equity. Pow. on Mort. 119. 120.
Perhaps it would have been better, had the courts rigidly adhered to this ancient doctrine. Small pieces of paper, in the shape of bonds, bills, and notes, though the evidences of *414debt to a large amount, may sometimes be very easily obtained from a dying man, under such circumstances as to make it very difficult for courts to say, that they were not fairly obtained, while the persons, who, hgving obtained them, by a little artful importunity, are conscious that their efforts would have been ineffectual, had the donors possessed the vigorous exercise of their faculties. As a question of policy, therefore, it may be well doubted, whether the ancient doctrine is not the most satisfactory. But the policy of the law has but little to do with the question now. If we felt at liberty to enter into that, it might admit of a doubt whether it would not have been better never to have introduced into the law the doctrine of donatio mortis causa at all; or, perhaps, whether it would not now be better to abolish it.' There certainly seems to be much force in the suggestion, that it would have been better to have required, in all cases, the easy formalities of a written will, than to have adopted a species of will, so easily perverted, and fraught with so much danger of imposition and fraud. However this may be, the doctrine is now firmly established; and courts must administer it as they find it. There can be no benefit in incumbering it with arbitrary rules, inconsistent in themselves, and not founded in reason, or upon any practical principle.
By the modern English cases, bonds, mortgages and bank notes, are held to be proper subjects of this species of donation. It has not, to our knowledge, as yet been held, that the notes of third persons may be disposed of, in this way: but the principles upon which it is so held in regard to other chose s in action, appear to be as applicable to notes as to them. In one of the first cases on the subject, it was held, that a hundred pound bank bill was a good donatio causa mortis. Drury v. Smith, 1 P. Wms. 404. The reason of this is said to be, because the property in bank notes is transferred, by delivery merely: that is to say, the legal title to them passes by delivery. This reason obviously applies to all negotiable instruments payable to bearer, or indorsed in blank by the payee; and it is accordingly laid down in 1 Williams on Exrs. 548. that all such instruments may be the subject of this kind of donation. Lord Hardwicke afterwards held, that a bond might be disposed of in this way; and though he subsequently expressed his determination to stop there, and *415attempted to distinguish his decision from the case of receipts for South Sea annuities, and other choses in action ; yet his reasoning has never been satisfactory. He said, that though a bond was a chose in agtion, yet it was itself the only evidence of the debt; that it could not be sued without a profert of it in court; and the delivery of it, therefore, put it in the power of the donee, by destroying it, to prevent the donor from ever using it; and therefore, some property passed to the donee, by its delivery. Snellgrove v. Bailey, 3 Atk. 214. Ward v. Turner, 2 Ves. 431. 441. This reasoning seems at best to be artificial. It clearly does not show any real distinction between bonds and other choses in action, in the particulars mentioned. Undoubtedly, it is in the power of a donee to destroy a bond, or any other paper evidence of debt: and in regard to the necessity of making profert of the instrument, when sued upon, Lord Eldon, in Duffield v. Elwes, 1 Bligh N. S. 542. says, that the great judge who gave that reason, did not then foresee the change in the law in regard to suits on lost instruments, by which a person may now bring an action on a bond, without making profert of it.
In the case last cited, it was held, by the house of Lords, that a mortgage would pass as a donatio causa mortis ; and the doctrine of the earlier English cases, applying to this species of donation the principles applicable to ordinary gifts, seems to have been expressly repudiated. “ The question,” says Lord Eldon, “ is not, and never can be, what the donor can be compelled to do; but what the donee can call upon the representatives of the donor to do: in other words, whether the executor, in the case of a gift of personal property, and the heir, in the case of a gift affecting the realty, is not, by virtue of the trust, arising by operation of law, a trustee for the donee.” If this is so, then the true reason why a bond will pass to a donee causa mortis, is not because he has the power of destroying it; nor because profert must be made of it, when sued; nor even because it is a security of a higher nature than some other choses in action; but it is, because the donee has, in equity, a right to enforce payment of it, and to treat the executors of the donor as trustees for his benefit: in other words, it is because a bond, like the note of a third person, is assignable in equity; and the principle that courts of equity will not compel the completion of mere *416voluntary gifts or conveyances, does not apply to donations causa mortis. Hence, says the same judge, when speaking of a mortgage, “ The opinion which I have formed, is, that this is a good donatio mortis causa, raising by operation of law a trust — a trust which, being raised by operation of law, is not within the statute of frauds, but a trust which a court of equity will execute.”
It is true, undoubtedly, that this species of donation so far resembles an ordinary gift, that all the possession which the nature of the thing is susceptible of, should be delivered; (Raymond v. Selleck, 10 Conn. R. 480.) but it differs from a gift, and more nearly resembles a legacy, in respect to the right of the donee to the aid of a court, in order to make his donation available.
Notes and mortgages have, in this state, to a great extent, taken the place of bonds and mortgages as securities for permanent loans; and to make an arbitrary distinction between them, in respect to the power of the holders of them to dispose of them in this way, could subserve no beneficial object, and would be liable to cause much practical inconvenience, if not injustice. A person who should wish to dispose of a portion of his estate, in this way, would not be very likely to see, or to recognize in practice, the principle, that would enable him to give to one object of his bounty, a bond; to another, the note of some third person, because it was payable to bearer; and, at the same time, would preclude him from giving to a third, a note and mortgage of equal value, because it was so drawn as not to pass the legal title by delivery.
It is said, that in Raymond v. Selleck, the court manifested a disposition to adhere to the old law, regardless of the modern decisions which extend it. We do not so understand that decision. The note, in that case, was not given as a donatio mortis causa; but, if any thing, it was a gift inter vivos; it was a mere promise to pay, by the party himself; and, there being no consideration for it, it was of course void. We do not mean to say, however, that, had it been executed and delivered, as a donation causa mortis, it would have been good. In Massachusetts, such a gift of the donor’s own note, would not be good, while the gift of the note of a third person would be. Parish & al. v. Stone, 14 Pick. 198. *417Grover, admr. v. Grover, 24 Pick. 261. Indeed, the general current of decisions, in this country, is decidedly in favour of the conclusion to which we have arrived, in this case, and recognize notes as the proper subjects of this species of donation. Contant y. Schuyler & al. 1 Paige 316. Grover, admr. v. Grover, 24 Pick. 261. Wright v. Wright & al. 1 Cowen 598. 1 Sto. Eq. 563,4. Borneman v. Sidlinger, 8 Shep. (21 Maine,) 185.
For these reasons, we are of opinion, that the executor of Mrs. Newman has no interest in the note and mortgage jin question, which entitles him to a foreclosure ; and we so advise the superior court.
In this opinion the other Judges concurred.
Bill dismissed.