Opinion by
GREEN, Judge:The principal object of the plaintiff, Louisa Seabright, in the institution of this suit was to surcharge the ex parte settlements of Charles W. Seabright the executor of her deceased husband, Louis Seabright, which had been made before James 0. Morris, a commissioner of the county court of Marshall, and one of which had been confirmed by said court. She sought to charge said executor with certain bonds and notes, which, she elaiméd, belonged to the estate of her deceased husband,- which said commissioner had failed to credit the estate with in these ex parte settlements. The principal of these bonds amounted exclusive of all interest to upwards of $22,000.00. In the settlement made during the progress of this suit by Commissioner Forbes he charged the executor with these bonds and notes. This action of the commissioner was excepted to, and by the final decree in this cause the court sustained the exception in effect and decided, that said bonds and notes wrere not a part of the estate of Louis Seabright at the time of his death, but that before that time they had been delivered to the defendant, Charles W. Sea-bright, m the lifetime of Louis as a gift to the said Charles W. Seabright and Henry Seabright. Therefore the court dismissed the plaintiff’s bill at her costs.
Before considering the merits of this cause we must first decide, whether it is so presented by the record as to justify us in expressing any opinion on its merits, or whether the errors committed prior to the rendition of this final decree were such, as require this Court to reverse the decree and remand the cause without any expression of opinion on the merits of the cause. Before reviewing these proceedings with this view I propose to consider, what proceedings are necessary to surcharge and falsify an ex parte settlement ot an executor’s accounts made before the commissioner of the *433county court, before whom the executor qualified, after such ex forte settlement has been approved by such county court, and the report and ex parte settlement have been recorded in the clerk’s office of such county. There was no statute in Virginia prior to the Code of 1849 declaring the effect and weight of such ex parte settlement of an executor, though from a very early day there were statutes in Virginia, which declared, that such ex parte settlement of a guardian and also inventories and appraisements returned by executors should be regarded as prima facie correct but subject to be surcharged and falsifed. For these acts see E. C. of 1819, ch. 104, sec. 45, vol. 1, p. 387, and ch. 108, sec. 7, p. 407. A stated account is an account, which has been examined by the parties and the balance admitted as the true balance without having been paid. Such stated accounts have always been held to be prima facie correct but liable to be surcharged and falsified. (Vernon v. Vawdry, 2 Ark. 119; Chapedelaine v. Dechenaux, 4 Oran. 203). But if there be a fraud in the settlement of an account, such stated account can not be relied upon by the party committing the fraud as prima, facie correct, but the whole account will be opened. (Mathew v. Wallwyn, 4 Ves. 118; Botifner v. Weyman, 1 McCord Ch’y 161). Such an ex parte settlement before a commissioner of a county court approved by the court and recorded has always been held in Virginia as prima facie correct but subject to be surcharged and falsified, as a stated account between parties could be; and the proceedings, by which it was to be surcharged and falsified, were always the same as the proceedings for a like purpose, where the account was a stated account (Anderson & Starke v. Fox et als., 2 II. & M. 260).
Nevertheless a stated account and such ex parte settlement of an executor did not in all respects stand upon the same footing. Thus a fraud in making a settlement by one of the parties to it would, as we have seen, vitiate the whole account, and it could not be relied upon as prima facie correct as to any items in it, but the whole account would be opened. On the other hand, though it were proven, that an executor had taken an unfair advantage, he could still rely upon such an ex parte settlement as prima facie correct in all items, which were not falsified by proof. This was because this *434prima facie weight given in such ex parte settlement was based not on the acquiescence of tlie other. parties in the correctness of the balance due on the account as stated, as was the case in a stated account, but on the supposed integrity of the county court and its commissioner, upon whom the law imposed the duty of settling such ex parte accounts of executors, and upon the long established practice in Virginia influenced perhaps by the statutes in reference to the weight to be given inventories and appraisements returned by executors and ex parte settlements made by guardians, to which I have referred before. (See Newton and wife v. Poole, 12 Leigh 112). In the Code of Virginia of 1849 it was expressly provided, that such ex 'parte settlement of an executor to the extent, to which it was confirmed, should be taken as correct, except so far as it may by a suit in proper time be surcharged and falsified; and this has remained the statute-law both in Virginia and in this State ever since. (See Code of Va. of 1860, ch. 132, § 23, p. 605 ; Code of W. Va. of 1868, ch. 87, § 22, p. 513, Warth’s Amended Code of W. Va. ch. 87, § 22, p. 605). The mode of surcharging and falsifying ex parte settlements of executors is not prescribed by statute, and it is, as it always has been, the same as the mode of surcharging and falsifying stated, accounts. (See Anderson & Starke v. Fox and others, 2 B. & M. 260 ; Shugart, adm’r, v. Thompson’s adm’r, 10 Leigh 434; Corbin et al. v. Mille, 19 Gratt. 465, and Chapman’s adm’rs v. Shepherd’s adm’r et als. 24 Gratt. 389, 390). From the last of these cases I will quote, what is said by Judge Staples with reference to the mode of proceeding:
“The sixth and last exception is to the action of the commissioner in re-opening the ex parte settlements in the county court without any particular surcharge and falsification averred' in the bill. The rule that administrative accounts settled ex parte, returned and recorded in the proper court, are to be taken as prima facie correct, liable only to be surcharged and falsified b) proper averments, has received the sanction of this court in numerous cases. The inconvenience of the rule has been often felt, and in some few instances exceptions and modifications have been allowed when necessary to attain the justice of th.e case.
*435“The case of Shugart, adm’r v. Thompson, 10 Leigh 443, is a familiar illustration. There the answer denied all the allegations of the hill intended to impeach the ex parte settlements; it was therefore not proper to send the cause to a commissioner to re-settle the account in the absence of evidence to sustain these allegations. (See Wyllie and wife v. Venable’s ex’or, 4 Munf. 369; Peale v. Hickle et als. 9 Gratt. 445). Nevertheless an order of account was made and the parties proceeded with their proof before the commissioner.
“ The facts then established did not sustain the specific objections urged in the bill to the settled accounts, but they showed other grounds for surcharging thé settlement. Judge Stanard says the court might have required the plaintiff to amend his bill by. inserting the other matters ol surcharge and falsification, so as to afford the defendants the benefit of an explanation and defence by way of answer Lor dispensing with that circuitous and formal proceeding the court might have permitted the commissioner to proceed with the investigation in like manner as if the matters had been noticed in the bill. If the defendant should object he was taken by surprise, the court should give him time to combat the new charges. If he urged the privilege of defending himself by answer, that privilege might be secured him by allowing him to file his affidavit, and giving it the effect of an answer.
“In the case before us the ex parte settlements made by the commissioner of the county court wore erroneous upon their face, in bringing charges against the legatees into the execu-torial accounts, and in allowing the executors commissions on their receipts. It is also to be observed that these settlements did not profess to be final or to embrace all the transactions of the executors. The court therefore very properly referred the accounts to one of its commissioners to settle and adjust. In the progress of the investigation it was discovered that the executors had omitted to charge themselves with various debts lost by their negligence, and with debts due by one of them to the testator. With the exception of those omitted items, the commissioner obtained the principal material for his account from the ex parte settlement. The only important change in the settlements consisted in the addition *436oí the omitted debts and in separating the administrator’s accounts proper from those of the legatees. The defendants did not complain of any surprise. They did not insist upon any specifications in writing. They did not claim the benefit of any explanation by way of affidavit or answer. The fullest and most thorough investigation -was had; and it.is very clear that no injustice has been done in reforming the ex parte settlements, and in making the additional charges. Under these circumstances it will be productive only of expense and trouble to send the cause back for the plaintiff to go through the useless formality of amending his bill by inserting matters already investigated before a commissioner, and with respect to which the defendants have not proposed to make any defence or explanation other than is already made. For this reason I think the court did not err in overruling the sixth exception.”
It seems to me that the judge, who pronounced this opinion, correctly understood the decision of the court and the opinion of Judge Stauard, who pronounced it, in the case of Shugart’s administratrix v. Thompson’s administrator, 10 Leigh 443. That case was a bill to surcharge and falsify a stated account. But the principles, which control the mode of proceeding to surcharge and falsify a stated account, except where there has been fraud in making the settlement, are properly assumed in Chapman’s administrators v. Shepherd’s administrator et als, 124 Gratt. 589, to be the same as those in a cause brought to surcharge and falsify an ex parte settlement of a personal representative, which had been returned and recorded in the proper court. Judge Joynes in the case of Corbin et als v. Mill’s executor et als and other cases in 19 Gratt. 465 seems to put a somewhat different construction on the decision of the court in Shugarts’ administratrix v. Thompson’s administrator, 10 Leigh 434. Judge Joynes says in Corbin v. Mill’s executor et als, 19 Gratt. 465 :
“The executors might have objected to an overhauling of the transactions embraced in their settled accounts, except so far as they might have been open to objections apparent on their face on the ground that there was no specification of errors in the bill. It is a familiar principle, that the accounts of an executor, which have been regularly-settled in *437the mode provided by law, are to be taken prima jack correct. They are liable to be impeached on specific grounds of surcharge or falsification to be alleged in the bill, but the court will not decree an account upon general allegation that settled accounts are erroneous. The rule not only results from the presumption which the law makes in favor of the correctness of a settled account, but it is necessary to prevent surprise to the defendants, and give them the advantage of their answer, to which they are entitled, on the principles which govern equity practice. When an account has been ordered on a proper bill, additional objections to settled accounts may be discovered in the progress of the case. It would be attended with inconvenience and delay to require the plaintiff in any such case to amend his bill for the purpose of alleging the additional objections. It will save time and expense, and generally be attended with no inconvenience to allow the plaintiff to raise the objection betore the commissioner with a proper specification in writing, and to allow the defendant to meet the objection by an affidavit, giving to the affidavit the same right which could have been-given to an answer if the matter had been alleged in the bill. This is the full extent to which the settled rule of practice can be safely and conviently relaxed, and this is the extent to which I understand it, Judge Stanard meant to go in Shugart’s administrator v. Thompson’s administratrix, 10 Leigh 434.”
As I understand that case and Judge Stanard’s opinion, and as it'was evidently understood by the court and by Judge Staples in the case ot Chapman’s adm’x v. Shepherd’s adm’r et als., 24 Gratt. 389-390, the court and Judge Stanard went further, than Judge Joynes supposes in relaxing the settled rule of practice referred to by Judge Joynes. I understand the Virginia cases to hold, that, while the rule is, that a bill to surcharge and falsify an ex parte account of a personal representative duly made and recorded ought to set forth the items of the account, which it is desired to surcharge and falsify; yet if the error be apparent on the face of the ex parte settlement or report, which is sought to be surcharged and faláified, there is no necessity to specially point out such error in the bill, if the ex parte account and report is filed *438with tlio bill, and there be only a general charge, that it is erroneous, and the plaintiff in his bill asks generally, that he may be permitted to surcharge and falsify such ex parte account, he will be allowed to do so to the extent, that there were errors on its face, though in his bill he has not pointed out any. His counsel may for the first time in the argument of the cause call attention to such errors on the face of an ex parte settlement or report, and the court should correct them, though these errors had not been pointed out or specified in the bill. (Garrett, &c. v. Carr et ux et al, 3 Leigh 413). If in the bill the plaintiff has specified errors but introduces no evidence to sustain the specified errors, or the evidence, which is introduced for that purpose, fails to establish such errors, the court ought to dismiss the bill, unless something improper in the ex parte account is disclosed in the answer oris apparent on the face of the account; in which case the court should correct such apparent error or admitted error or refer the cause to a commissioner that it may be corrected.
(Wyllie v. Venable’s ex’or, 4 Munf. 369).
The question in such cases arises, whether, if a reference is proper, the order of reference should be general giving the complainant the right to surcharge and falsify before the commissioner such ex parte settlements with instructions, that the commissioner should regard such ex parte settlements as prima, fade correct, or whether the order of reference should be restricted to the correction of any errors apparent on .the face ot the ex parte settlement, and to the bringing into the accounts the matters, which by the admissions in the answer ought to have been embraced in it, but which are not, or to correcting the account, where errors in it in favor of the personal representative appear from the facts stated in the answer, though not referred to in the bill. Judge Lee in Peale v. Hickle et als., 9 Gratt. 447, expresses the opinion, that in such á case the order of reference should be such restricted order of reference rather than the general order.
It seems to me, that in such case and indeed in every case the order of reference should be general and never restricted. Lor if restricted,-and after the report of the commissioner had been made, the plaintiff asked to amend his bill, because he had discovered, while the cause was before the commis-*439siouer, other errors iu the ex parte, settlements, which could not be proven or reported upon, because of the order of reference being so restricted and not a general order of reference, the court would have to permit him to amend his bill, bring into the case the investigation of these subsequently discovered alleged errors, and another order of reference would have to be made. All this inconvenience and delay would be saved by making the first order of reference general. And I can see no objection to so doing; for,if no new supposed errors in the ex parte accounts are discovered by either party, while the cause is before the commissioner, the general order of reference would in such case operate precisely as the restricted order of reference. If however the court made a restricted order of inference, where it might better have made such a general order, or if it made such a general order, where no order of reference should have been made, such errors alone, if the final decree of the court was right, would be of course no ground for reversing the decree in an appellate court. Such errors tend to delay perhaps but do not necessarily cause the substantial rights of the parties to be violated.
In the case of McGuire et al v. Wright et al, 18 W. Va. 507, this Court decided as follows : “When a bill is filed surcharging and falsifying an administrator’s account, and the cause is referred to a commissioner for the purpose of having the account corrected, and before the commissioner it is discovered, that the administrator has failed to charge himself with an item properly chargeable against him, and the bill does not notice such item, but there is a thorough investigation before the commissioner of the facts, whether such item is properly chargeable against the administrator, and the administrator takes evidence tending to show, that he is not chargeable with the item, and does not complain of surprise, nor insist upon any specification in writing utor claim the benefit of an explanation by affidavit or answer, an exception to the report charging him with such item is properly overruled.” ■ - ’ ■ •
In that case the exception to the commissioner’s report was on the ground that this was an item by-way of surcharge of the ex parte settlement, and the bill did not surcharge the *440said accounts in this particular, and there was no specification of this error in writing before the commissioner nor any reference to it in the pleading. And the court below overrule the exception. There can in this State be no explanation by affidavit by the personal representative either before the commissioner or the court of any item of surcharge or falsification whether specified in writing or not, because such affidavit is but a substitute for an answer; for under our statute (ch. 125 §59 of Code of W. Va.,p. 608, Warth’s Amended Code of West Virginia, ch. 125 § 59, p. 709) an answer in chancery is not entitled to peculiar weight as evidence, as it was by the general rules of equity prior to the passage of this statute and still is in Virginia; but such an answer has only the effect of a plea in a common law suit; and if it denies material allegations in the bill, it only throws the burden of proving the truth of such allegations on the plaintiff, whether the answer be sworn to or not. But with certain exceptions, which we will hereafter consider, the personal representative under another West Virginia statute could depose in reference to any item of the ex parte account. (See Code of W. Va. ch. 130, §§ 22-23 p. 619, Warth’s Amended Code of West Virginia ch. 130 §§ 22-23 p. 724). This Court in Campbell’s administrator v. White, trustee, and others and Janney et al v. Campbell’s administrator, 14 W. Va. 123-143, acted upon the law as laid down in the Virginia cases in reference to the surcharging and falsifying the ex parte settlements of an administrator as the law of this State.
These decisions tend to the following deductions as to the proper mode of proceeding in this State, where the accounts of a personal representative settled ex parte returned and recorded in the proper court are to be surcharged and falsified :
First. — The bill must set forth one or more items, whereby the plaintiff seeks to surcharge or falsify such ex parte settlement, unless there are errors or mistakes on the face of the ex parte report and settlement, when there need be no specifications in the bill of such apparent errors, as, when the ex parte settlement, which is a part of the bill, is examined, it will disclose the particulars of surcharge or falsification of this sort. A bill defective in this respect, if it be not amended, should be dismissed-. It should be dismissed on *441demurrer; but if it be not demurred to, and the court should make a general order of reference directing a settlement of the account of the personal representative and instruct the commissioner to regard the ex parte settlement as prima fade correct subject to be surcharged and falsified by either party, and this be legally and successfully done by the plaintiff, while the cause is before the commissioner, the cause can not after-wards be dismissed for such defects in the bill.
Second. — When an order of reference is made in any suit to surcharge and falsify the ex parte settlement of a personal representative, it should be a general order of reference, such as is above named, not a restricted order of reference confined to those items, which have been specified in the bill as the subjects of surcharge or falsification. If the plaintiff does not wish to be confined to those items of surcharge or falsification named in his bill and the errors on the face of the ex parte settlement, the proper mode of proceeding is to file with the commissioner a written specification of any additional items of surcharge or falsification, on which he proposes to rely, so as to give the personal representative an opportunity to know, in what respect the exparte settlement is to be surcharged and falsified and thus to prevent him from being taken by surprise. Such written specification is regarded as a substitute for an amended bill. It need not be replied to by the personal representative; but, unless the allegations in it are admitted by the personal representative, they should be regarded as denied. In like manner, if the personal representative wishes to surcharge and falsify such ex parte settlement, he should file with the commissioner a written specification of the particulars, in which he proposes to surcharge and falsify such ex parte settlement; and it should be regarded, as the written specifications of error by the plaintiff are regarded.
Third. — If either the plaintiff or defendant fails to file such written specifications of error and the parties proceed to take evidence with reference to such additional errors, as if such written specifications of error had been filed; or if in the cause they have taken such evidence without objection, and it is apparent, that neither party has in point of fact been taken by surprise, and tlie commissioner in his report cor*442rects such errors not named in the bill or in any written specifications filed with him, if his report is not excepted to, because he has acted on such items without written specifications being filed with him, the court should act upon such report, as if such written specifications had been filed, the parties by such conduct being regarded as having waived their right to have such written specifications filed.. But in such case either party may prove to the court, that he has been in point of fact taken by surprise by the non-filing of such written specifications, and, if he do so, the court should refer the cause back to the commissioner to inquire into such items of alleged error, but not otherwise.
Fourth. — If exceptions be filed in proper time to the commissioner’s report, because he has introduced into it items of surcharge and falsification not named in the pleadings nor in any written specification filed before him, the court may, if it think proper, for this reason only and without an examination ot the evidence, on which the report is based, refer the cause back to the commissioner; or it may inquire, if it think proper, into the question, whether the exceptor has in point of fact been surprised, and in so doing may examine the evidence, on which the report is based, and if satisfied, that the exceptor has not been in point of fact taken by surprise, but that there has been a full and fair investigation of the questions involved in these items so introduced into or so omitted from the report, it may overrule such exception, so far as it is based on the non-filing of such written specifications, and act upon the report, as if the same had been filed before the commissioner.
Fifth. — Where there are no errors on the face of the ex parte settlement, and the bill sets forth one or more items, whereby it is desired to surcharge or falsify the ex parte account, and the answer denies the allegations of error and discloses nothing improper in such account, and the plaintiff fails to produce evidence sufficiently strong to rebut the prima facie evidence of the correctness of the account in these respects, which the law attaches to the ex parte settlement, or produces no evidence to sustain the allegations of error alleged in the bill, the court ought not to refer the cause to a commissioner but should dismiss the bill, otherwise it should *443refer the cause; but if it should erroneously make an order referring the cause to a commissioner generally to settle the accounts of the personal representative- instructing the commissioner to regard as prima facie correct subject to be' surcharged and falsified by either party any ex parte settlements, which had been approved by the county court, the Appellate Court would not reverse the decree, which was right on the substantial merits of the cause, made after the return of the commissioner’s report, merely because the court ought not to have made such order of reference.
1 propose now to examine the record in this cause and determine, whether according to these views the proceedings have been so irregular as to require us to either affirm or reverse the final decree without reference to the merits of the controversy. Two'of the defendants, O. W. Seabright and Louisa Nolte, demurred to the original bill and the court overruled their demurrer. Did the court err in so doing? One of the objects of the bill was to surcharge and falsify an ex parte settlement made by Charles W. Seabright as executor of Louis Seabright before Morris, a commissioner ot Marshal county court, in which court the will of Louis Seabright had Been proven, and before which the executor had qualified. This exparir settlement had been returned tosaid-county court, and by it had been approved and ordered to be recorded. A certified copy of the ex parte settlement was filed with the bill and also a copy of the will. Two other like ex parte settlements, the bill alleges, had been made and returned to the clerk’s office of said county court but had not been approved, and a copy of one of them is filed with the bill. The bill alleges, that the defendant, Charles W. Seabright, executor of Louis Seabright, in all these ex parte settlements had failed to account for numerous bonds and notes of Louis Seabright, which represented the purchase-money of lands, which Louis Seabright in his lifetime had sold to various parties, and which bonds and notes were secured by deeds of trust of record in the clerk’s office of Marshall county, and that these," which came into his hands and were in his hands after the death of Louis, and which he should have accounted for as executor, exceeded $23,000.00 ; and that instead of accounting for them he had distributed them or their proceeds among *444the legatees or devisees of Louis Seabright excluding entirely the plaintiff, the widow of Louis Seabright, who being unprovided for in the will, and Louis Seabright dying childless, was entitled to one third of his personal estate after the payment of his debts. The names of the persons, by whom these notes unaccounted for were given, are stated in the bill, and the deeds of trust are referred to as giving a full and detailed description of them. There is filed in the bill an abstract of these deeds of trust giving a full description of most of the notes, how secured and the number of the deed-book and page, on whieh the deeds of trust were recorded. It is stated in the bill also, that Louis Seabright had placed all these notes in the hands of Charles W. Seabright as his agent and attorney in fact on or before January 16, 1878, and had advertised in a paper, that he was his general agent authorized to collect all the debts due him and pay all the debts he owed. A copy of this advertisement is filed with the bill. This was, as the bill shows, only one month befo re the death of Louis Sea-bright. The will filed with bill shows, that Louis Seabright had left two spscific legacies of $500.00 each to two persons severally and all the residue of the estate was divided and bequeathed to his brothers and sister, Charles W. Seabright, Henry Seabright and Louisa Nolte. Charles W. Seabright was appointed his executor, but no authority was given him to sell any of the real estate. In one of the ex parte settlements filed with the bill under date of December 81, 1878, the executor is credited with cash paid Louisa Seabright as dower-interest in the Myers place $729.98 and dower-interest in the home-place $2,683.52 and it is obvious on the face of the accounts, that the executor is charged with many thous- and dollars received from the sale of lands. These charges and credits are explained in the report of commissioner Morris, which had been confirmed by the county court, and a copy of which was filed in bill. Commissioner Morris in it says:
“The executor represents to your commissioner that the personal estate of his testator was not sufficient to pay the debts. And the devisees in the will agreed and sold the real estate of said testator, and also agreed the sum in gross to the widow in lieu of her dower therein, the proceeds of *445such sale to be paid to the executor, and he to apply the same to the payment of said sum in gross to the widow in lieu of dower and then to the debts against said estate and to the legacies from this estate. The executor is charged with the purchase-money of the real estate he here received and audited with the payment of the sum in gross to the widow, a large portion of the purchase-money of said real estate is in arrears and unpaid. Your commissioner has made an allowance of five per cent, commission to the executor on all his receipts on both personal and real estate as appears on the face of the annexed settlement.”
This was an obvious mistake on the face ot these accounts extending to many items of large amount. The report of commissioner Morris shows clearly, that Charles W. Seabright received these proceeds of land-sales not as executor but as agent of the devisees and, I suppose, probably of the widow, and he is of coui’se individually accountable to them for the moneys so received and disbursed under this agreement,the provisions of which nowhere appear. The bill was clearly not filed to hold Charles W. Seabright to any account as such agent; and there is probably no controversy about this, none certainly, which could be settled in this .cause, even if the parties desired to do so, as the bill, if it sought such a settlement, would thereby become multifarious. -But it does not seek it. And Commissioner Morris obviously erred in mixing up this account of Charles W. Seabright individually with Charles W. Seabright’s executorial accounts, which were all that the commission er_ had any authority to settle. All the items in the ex parte settlements of this private account are not prima fade correct and are obviously improperly entered in this executorial account. According to the first rule set out above it is obvious, that this error, when apparent on the face of the ex parte settlement sought to be surcharged and falsified, even though not specifically pointed out in the bill, even if it had failed to specify any error, for which the ex parte settlement should be surcharged or falsified, would have sufficed to render the bill good. But, as we have seen, the bill did particularize by an exhibit filed Avith it many items of surcharge. The bill is therefore good unless fatally defective because of its viola*446tion ot the general rules governing equity pleading. These the defendants, who demurred, have attempted to show.
For grounds of error they say first, that there was a mis-joinder of defendants. The executor and residuary legatees or some of the specific legatees were made defendants. As one of the ex parte settlements on its face showed, that this specific legatee had been paid in full, perhaps he might have been dispensed with as a party; but as the other defendants were all obviously necessary and proper parties defendant they could not demur, as two of them did, because a specific legatee was unnecessarily made a defendant, even though he might possibly have done so. (See Story Eq. Plead., sec. 445). The suit was afterwards dismisssed as to this specific legatee.
The next reason assigned why the bill should have been held bad on demurrer is, that while the administratrix of Henry Seabright, a residuary legatee, was made defendant, his heirs were not. If I have properly understood this bill, it is obvious, that the heirs of Henry Seabright ought not to have been made parties defendant, as they were heirs, who bavp no interest-in the settlement of the accounts of the executor as a personal representative having no authority under the will of any sort in reference to the real estate of the testator.
The ..third reason given as a ground of demurrer is, that .the.plaintiff seeks relief as a widow, and the summons served on the defendants did not require them to answer her bill filed in that capacity. This ground of demurrer scarcely deserves .a passing notice. If there had been any error iii the summons, which it does not appear that in fact there was, it would on demurrer to the bill of course be disregarded,- as it would on a demurrer have been entirely immaterial, whether the defendants had or had not been served with any summons.
The fourth ground of demurrer is, that the bill is multifarious, because it seeks, first, to surcharge and falsify the ex-ecutorial accounts of Charles W. Seabright, executor of Louis Segbright; secondly, to impeach as fraudulent certáin sales of land made by Louis Seabright in his lifetime, and thirdly, tp_compel the residuary devisees of Louis Seabright *447to refund to the complainant certain moneys, which the executor of Louis Seabright has as such, improperly paid to them. As I understand the bill, it has for its object the first and second of the above objects, as is shown by the prayer of the bill; and I can see no objection to the uniting of these two objects in one bill. It may be questionable on the facts stated, whether or not these residuary legatees, if the facts stated in the bill were true, would be compelled to refund the moneys they had received improperly from the executor (Anderson v. Piercey, 20 W.Va. 282), but be this as it may, if the plaintiff was not entitled to this relief, she was entitled to hold the executor of Louis Seabright responsible, if the facts stated in her bill were true, and these residuary legatees were necessary parties to such a bill surcharging and falsifying the executorial accounts. The fact, that the plaintiff claimed other relief, to which she was not entitled, if such was the case, certainly would not vitiate the bill. If one of the objects of the bill as alleged in this demurrer was to have certain deeds made by Louis Seabright in his lifetime set aside as fraudulent, if such object could have been sought, of course the heirs of Ilenry Seabright, deceased, who would ow-n,in case such deeds were set aside, a third of these lands, would have been necessary parties. But it is obvious, though the bill does idly mention, that these deeds were fraudulent, yet it does not seek to set them aside, but on the contrary is filed for the purpose of empowering the defendants to pay to the plaintiff her share of the notes representing the purchase-money arising from these sales. Though the bill is rendered to some extent obscure by these sales being spoken of as fraudulent, yet as on the face of the bill it would make no difference, whether they were fraudulent or not, so far as any of the parties to this suit were concerned, and it was therefore not sought by the bill to have them set aside, and the purchasers were not made parties, it is clear, that the bill was not rendered multifarious by these idle allegations, which it contained.
The fifth ground of demurrer is, that an exhibit filed in the bill shows, that the plaintiff’s counsel filed at one time some sort of exceptions, what sort does not appear, to the ex parte settlement of Commissioner Morris now assailed; and before *448said ex parte settlement was confirmed by the county court of Marshall, the plaintiff withdrew these exceptions and filed none others. This, it is claimed, was a waiver of all right to surcharge and falsify this account, unless the hill alleged, which it did not, that the plaintiff had discovered the grounds of surcharge and falsification since said ex parte settlement was confirmed by the Marshall county court. There is nothing in this position ; for if it had been shown, that Louisa Seabright had excepted to this ex parte settlement before the county court for the very reasons, for which she now seeks to surcharge and falsify it, and she had then withdrawn these exceptions, before the county court of Marshall confirmed this e.x parte, settlement, it would not in any way affect her right afterwards by hill in chancery to surcharge and falsify these accounts, as she has done in this suit. The action of the county court in confirming this ex parte settlement is prima fade correct, and nothing, which passed before them, when they confirmed this ex parte settlement, could render it more than prima fade correct. This exception is based on a false idea of the province of the county court in making ex parte settlements with fiduciaries. No one can lose anything by failing to make a contest before them, except that as in all other cases their action will be regarded as prima fade correct subject to be surcharged and falsified.
The sixth ground for demurrer is also based apparently upon a misundei standing of our statute-law. The bill expressly declared, it wanted no discovery of the defendants. This useless declaration, I presume, was made under the false notion, that, though the bill was not sworn to, the defendants could answer the bill on oath, and thus get the advantage of making their answer evidence entitled to particular weight, such as answers formerly had. This the plain-* tiff seemed to think he could avoid by disclaiming all discovery from any of the defendants. And this useless clause in the bill is in the sixth cause of demurrer supposed to make the bill liable to be dismissed on demurrer. It could not possibly have such effect. * It was simply surplusage and useless. For under our statute the answers though sworn to are entitled to no more weight than if not sworn to. In either case they have their legitimate weight.as pleadings but *449no weight as evidence (See Code of W. Va. ch. 125 § 38, and § 59 p. 604 and 608).
The seventh, eighth, ninth and last grounds of demurrer are that there is no equity in the bill; the bill does not aver? that the executorial accounts are fully settled, and seeks to open the whole executorial accounts in addition to the matters sought to be surcharged. There is nothing in these grounds of objection to the bill. Of course a party is not bound to delay bringing a bill, till the executor chooses to make a final ex parte settlement before a county court. If this were so, an executor could escape all responsibility by never making such exp-irte settlement. The fact, that he has not made a final ex pule settlement ot his executorial accounts, is on the contrary rather a reason for upholding a bill to surcharge and falsify his accounts, though, it does seem to me, it would not alone be a sufficient reason for sustaining a bill to surcharge and falsify an ex parte settlement (see 24 Gratt, foot of page 390). When the cause is referred to a commissioner, the plaintiff has, as we have seen, a right to ask the court to allow him to further surcharge and falsify the accounts before the commissioner.
The court therefore did not err in overruling the demurrer in this cause and on overruling it by its order very properly gave the defendants time to file answers to the bill. Answers were accordingly filed by all the defendants.
The answer of Charles W. Seabright, executor ot Louis Seabright, admits, that in the latter part of 1872 Louis Sea-bright being in feeble health appointed him his agent to collect all his debts and pay his indebtedness, and on January 10, 1873, he gave the public notice of this by an advertisement in a Wheeling newspaper. lie admits that he had a portion of the notes claimed in the bill to have belonged to Louis Seabright’s estate in his possession as such agent but alleges, that he returned them to Louis Seabright before his death, and before he made his wall on February 13, 1873, and then “on the 13th of February, 1873, the said Louis Seabright being in feeble health and about to make his will, and before the same wras made, endorsed, delivered, transferred and assigned all the right, title and interest of said Louis Seabright to Henry Seabright and the defendant C. W. *450Seabright, in writing, and signed his name thereto on the back oí the said notes hereinafter mentioned. Then follows in this answer a list of these notes amounting without interest to $19,116.61. All these notes are designated specifically or generally in the exhibit filed with the bill except “notes of Henry Goetze amounting to $1,200.00 and notes of B. Juergens amounting to $1,200.00.” This answer states, that the death of Louis Seabright occurred on February 21, 1878, eight days after the assignment of these notes and the making of his will. The answer claims, that as executor O. W. Sea-bright has accounted for all the assets, which came into his hands as such executor, and the assigned notes he has divided or their proceeds between Henry Seabright’s heirs and C. W. Seabright individually, to whom they belonged.
The answers of the other defendants were substantially the same; and all of them were sworn to.
Upon the filing of these answers and on general replication thereto the court on November 17, 1877, made an order referring the cause to a commissioner, before any depositions were taken. According to the principles laid down in the fifth rule above stated as properly governing in such cases the court properly made an order of reference at this time, both because there were large errors already pointed out on the face of the ex parte, settlements, which were being surcharged and falsified, and because the answer itself, if un-sustained by evidence, discloses that, which would render these ex parte settlements liable to be surcharged and the executor of Louis Seabright liable to be charged with the large amount of notes, which he in his answer admits belonged to Louis Seabright his testator some eight days be-' fore his death when, he claims, they were given by the testator to himself individually and to his brother Henry Sea-bright. The burden of establishing this claim of the gift by the testator of these notes shortly before his death was upon the donees. (See Conklin v. Conklin, 20 Hun. 278; Walter v. Hodge, 2 Swins. 97; Coutant v. Schuyler, 1 Paige 316 ; Grey v. Grey, 47 N. Y. 552-556).
But as stated in the fifth rule supra this order of reference should have been a general order to settle the accounts of Charles W, Seabright as executor of Louis Seabright, in*451structing the commissioner to regard as prima facie correct subject to be surcharged and falsified by either party any ex parte settlement, which had been approved by the county court of Marshall and ordered to be recorded. The order of reference, which was made is so worded, as to render it questionable, whether it really amounted to such general order of reference, or whether it was only a special order directing the commissioner to report, whether the specific surcharges of the ex parte settlements named in the bill were sustained in whole' or in part. The language of the order of reference was to a commissioner “to examine the accounts heretofore filed of the said estate and ascertain, if the said executor, C. W. Seabright, is liable to be charged with said several sums of money or the notes and deeds of trust in the exhibit 33. mentioned or any or either of the said sums of money or notes or deeds of trust and report, if he shall so find the said C. W. Seabright liable, for how much he is liable to account, and how much his said accounts by reason thereof should be surcharged. Before the taking of the said account the said commissioner shall give twenty days notice, &e.”
It seems to me, that this order may be reasonably interpreted to direct the taking by the commissioner of the exec-utorial accounts of Charles W. Seabright, executor of Louis Seabright, and as further directing a particular inquiry and report in regard to the specific surcharges made in the bill. Unless this order be so interpreted, it is difficult to understand, why it speaks of taking an account, for no account would be taken, if this order is interpreted as the commissioner seems to have interpreted it, that the executorial accounts of Charles W. Seabright were not to be examined or any re-statement of them made, though there were, as we have seen, errors to a large amount apparent on the face of them, but his duty was confined to ascertaining, which of the debts named in Exhibit B. filed with the bill, if any of them, should be charged to the executor, when his accounts were settled. But he even reports not only, which of these debts upon the evidence he regarded the executor as chargeable with, but he also reports, that he is chargeable with “the notes of Juergens and G-oetze amount*452ing to $2,400.00 and $720.00 interest thereon. These were notes admitted in the answer of the executor to have come into his hands at the same time with the other notes, which are named in said report and referred to in Exhibit B. filed with the bill; and the answers claim, that these notes of Juergens and Goetze did not belong to the testator, Louis Seabright, at the time of his death for the same reasons as those on which it is claimed, that none ot the notes named in said Exhibit B. belonged to Louis Seabright at the time of his death. This report in my judgment was based on too narrow a construction of the decree of reference. But it must be admitted, that this order of reference was very badly worded and was liable to misconstruction.
Exceptions were taken to the report one of them being, that the report was not made at the place, where by the notice the commissioner gave it was to be made. The court did not act upon the merits of this report, but on May 12, 1870, in order to avoid some of the exceptions made to it, gave leave to the plaintiff to file several certified copies of papers taken from the office of the clerk of Marshall county such as copies of deeds of trust and of the appraisement of the personal estate of Louis Seabright, deceased, at the same time the cause was recommitted to the commissioner to give ten days personal notice of the time and place of executing the order and with direction: “To state the account between these parties and report the evidence on which he based his findings.” This seems to show, that the court below expected its commissioner to state the executorial accounts of Charles W. Seabright as executor ot Louis Sea-bright. In so doing, as has been stated in the second rule, he ought to have permitted either the plaintiff or the executor or any other interested parties to surcharge and falsify the exparie settlement in a proper manner before him and ought to have corrected it where erroneous on its face. The commissioner however under this report, as he did under the first, confined his enquiries to the surcharges made in the bill and added to them only the notes of Juergens and Goetze of $2,400.00 with $720.00 of interest on the same, these being notes of which we have before spoken as admitted in the answer of the executor to stand on the same footing as to his *453liability to be charged with them, as the other notes, which the commissioner reported, that he was chargeable with, and which he had declined to charge himself with in his ex parte settlement. The report does not differ from the first report, except that the commissioner states, on what evidence he had based his conclusions, being nothing other than the depositions and exhibits, which had been filed long before in the cause. He also gives his reason for his conclusion, that the executor was chargeable with specified notes, the principal of which amounted to $20,116.66, and all of which were the bonds and notes, which the executor and other defendants claimed were assigned by the testator to Henry Seabright and Charles W. Seabright eight days before his death as a gift and actually thi n delivered by him as such to Charles W. Sea-bright. ’ Nearly all of these notes so charged in this commissioner’s report are specified in these answers as notes thus assigned and delivered by Louis Seabright in his lifetime, and which therefore never came into the hands of Charles W. Sea-bright as executor according to their claim.
Eight exceptions were ‘filed by Charles "W. Seabright to the report of the commissioner; but, before it was acted upon, the court gave leave to the plaintiff to amend her bill; and for this purpose the cause was sent to rules, and the plaintiff there amended her bill, but in her amended bill made no allegation, which in any way qualified or changed the case, as it was then before the court, simply alleging, that in addition to the notes, which were named in Exhibit B., and which she claimed had been received by Charles W. Seabright as executor, and he had refused to account for as such, she had discovered, that he received other notes, for which he ought to be charged as executor, but which he refused to account for. These additional notes are particularly specified. The specification is taken from the answer of the executor, who in it sets up the same claim to them as to the others. All these notes including these additional ones named in the amended bill had been specified in the report of the commissioner, and he had reported that the executor was responsible for them; and the said executor had excepted to said report, because,.he claimed, the evidence showed, that none of these notes belonged to Louis Seabright at the time of his death, and the executor *454was not therefore accountable for them. If then this report and exceptions fairly put in issue all matters, that could be put in issue under this amended bill, the court ought to have held, that such amended bill was bad, and ought on demurrer to have sustained the demurrer and dismissed the amended bill. But instead of so doing it by an order made July 11, 1883, overruled this demurrer; and as the amended bill had been filed at rules by leave of the court, there could be properly no decree of any kind rendered upon it, until it had regularly matured by the proper proceedings at rules, which it does not appear to have done; but the court proceeded, as it the amendment had been by its leave filed in. open court. Such an amended bill, as was filed, the court ought not to have permitted to be filed in open court, as it brought no new matter whatever, as I shall presently show, into the cause and was entirely futile. Had a different kind of bill been filed at rules, the court having sent the cause to rules, that an amended bill might be filed, and the amended bill had been regularly and properly returned at rules for hearing, and the court had properly overruled a demurrer to it, still this order of July 11,1883, simply overruling the demurrer would have been erroneous; it should have granted the defendant demurring leave to file his answer before a specified day, as has been repeatedly decided by this Court. [Moore v. Smith, 26 W. Va., points 2 and 3 of syll., p. 383, 384; Park v. Petroleum, Company, 25 W. Va., point 6 of syll., p. 112; Peck v. Chambers,8 W. Va. 210; Nichols v. Nichols, 8 W. Va. 174, also Sutton v. Gatewood, 6 Minn., p. 898; 2 Robinson’s (Old) Practice, 302]. This was however cured by this defendant actually filing his answer.
But though there were so many errors in this order of July 11, 1883, overruling the demurrer to said amended bill, in this particular case they constitute no ground for reversing the final decree rendered by the court dismissing the bill. If on its merits this final decree be found correct, the court should have entered it, when it did ; and no injury would have been done to any one, though no time had been given to answer this amended bill, as it had been answered, and though filed at rules, it had never been properly returned for hearing. It was in fact answered by C. TV. Seabright *455nominally Ins answer being but a repetition of his answer to the original bill. Certain depositions were also taken in reference to the new allegations in the amended bill taken from the answers to the original bill, but they were really unnecessary. ' The whole proceedings under this so-called amended bill were unnecessary and useless and entitled to no consideration in the final decree to be entered in the cause; and on the face of this final decree it is obvious that they received none.
However irregular therefor all these proceedings under this so-called amended bill were from their inception, they would not justify a reversal of the final decree or prevent consideration by this Court of the decree, which should be rendered on the merits of the case as presented by the record, if such final decree should be reversed. This amended bill and all the irregular proceedings under it originated doubtless in the false idea, that without such amended bill the court could not act upon the commissioner’s report or decide the main question in controversy. For instance, the commissioner had reported, that the notes of Juergens and Qoetze, the principal of which amounted to $2,400.00, the executor Charles W. Seabright was responsible for, as they constituted a part of the estate of Louis Seabright, deceased, and had not been effectually given by him in his lifetime to Charles W. Seabright and Henry Seabright as claimed by them in their answers. This was thought doubtless to be a surcharging of the ex parte settlement of the executor before the commissioner improperly, because these particular notes had not been named in the original bill, nor had there been any specification of them in writing before the commissioner as subjects of surcharge; but under rules two and three before stated the commissioner did not errfatally in considering the question, whether these notes were or were not chargeable to Charles W. Seabright as executor of Louis Seabright and proceeding, just as if they had been mentioned in the bill or in written specifications filed before him as subjects of surcharge, as no objections to his so doing were made either before him or by exceptions on that account filed to his report or before the court in any mauner, and the parties had all evidently regarded this as a matter of controversy in the suit *456as well as before the commissioner, and it was most obvious that no person was or could have been surprised by the action of the commissioner, as these notes had been named in the defendants’ answers and therein claimed not to belong to the estate of Louis Seabright but to Charles W. Seabright and Henry Seabright by an assignment of them as a gift by Louis Seabright in his lifetime, and the parties had taken depositions on this question of controversy. The matter thus reported upon the court could legitimately act upon, the subject of controversy being submitted to the court fairly by the exceptions to the commissioner’s report, and all the evidence, on which this report was based as well as the reasons, which controlled the commissioner, being specially reported to the court by its directions.
It is true there were no less than eight exceptions filed to this report, any of which, if they had been ■well founded, would have excluded from the court the consideration of this report on its merits; but all the exceptions of this character were unfounded and idle. As for the first of the defendant’s exceptions, that a duly certified copy of the appraisement of the estate of Louis Seabright, deceased, and duly certified copies of certain deeds of trust, in which the notes the subject of controversy were mentioned, were considered as evidence by the commissioner, these perhaps had been filed as evidence under an order of the court permitting them to'be filed and specifying them particularly, and of course they were properly regarded as evidence, though it would have been more regular and suitable to have filed them as exhibits with the bill. Other exceptions were based on the allegation, that no proper notices were served on the defendants. There was in fact no foundation for an exception of this character, the report showing, that there wms no just foundation for such exceptions. All the other exceptions of the defendant but one may be regarded as amounting simply to this, that the commissioner erred in reporting each and all of the various notes named in his report as chargeable to Charles W. Seabright as executor of Louis Seabright, but should have reported each and all of them as the individual property of Henry Seabright and Charles W. Seabright. There are a number of different forms, in which, it is claimed, that this error ex*457ists. But these different exceptions might just ás well and better have been here put in a single exception to this effect. The single other exception of the defendants (the seventh) is. that if it be admitted, that the executor was properly chargeable with the notes named in the report, their amount is not as much as reported. This I suppose refers to the interest said to be due on these notes. This is the seventh exception.
The plaintiff also filed three exceptions to this report based on the erroneous reasoning assigned by the commissioner for the conclusions reached by him. The substantial conclusions are not exempted to; and I deem it unnecessary to take any further note of these idle exceptions ot the-plaintiff.
The court in itsfinal decree of October 11,1884, substantially-sustained the exceptions to the commissioner’s report filed by the defendants and expressed the opinion and found, that the notes named in the commissioner’s report and amended bill were no part of the estate of Louis Seabright, deceased, at the time of his death, but had been before delivered by him to the defendant, Charles W. Seabright, as a gift to him and Ilenry Seabright; and that there was no ground for surcharging the ex parte settlement of Charles W. Seabright as executor of Louis Seabright; and that said Charles W. Sea-bright was not in his individual capacity indebted oraccountable to the plaintiff in any sum by reason of any thing alleged in the bill or amended bill; and therefore the bill was dismissed at the plaintiff’s costs, she not desiring further to amend it.
Was there any error in the decree on its merits as disclosed by the record ? We have seen, that the court as to the matters contained in this decree despite the gross irregularities, which had been committed, was justified in considering the matters, which it did consider, on their substantial merits. The important question, whether these bonds or notes amounting to more than ^40,000.00 of principal, which were endorsed by Louis Seabright generally on February 13th, “For value received, I hereby transfer and assign all my right, title and interest in this note to Henry Seabright and Charles W. Seabright,” were in point of fact delivered then "to Charles W.-Seabright for himself'and *458Henry Seabright asa gift, was decided in the affirmative by tlie court in this linal decree. Did the evidence, all of which was before the court,justify this conclusion? The delivery of these notes so endorsed by Louis Seabright at that time by him to Charles W. Seabright is proven by Charles W. Seabright, who testifies, that, when Louis Seabright handed him these notes, he told him they were his and his brother’s. They were according to his testimony a gift from Louis Sea-bright to him and his brother Henry.
It becomes then important to decide, whether-this evidence is admissible, as it is the only direct testimony as to . the delivery of these notes by Louis Seabright in his lifetime . to any one as a gift. It is of course undisputed that Charles "W. Seabright’s evidence above stated would by the established rules of evidence in force in common law and chancery suits .independent of statute-law have been inadmissible in this cause, both because he was a party to the cause and because he was testifying in his own favor about a matter in which he had a direct interest. But it is claimed, that this evidence of his was admissible under the statute-law of this State in force, when this final decree was rendered December 11, 1883, and still in force in this State. That statute-law is found in Warth’s Amended Code of West Virginia, ch. 130, see. 23, p. 724,as follows:'
“hfo person offered as a witness in any civil action, suitor proceeding shall be excluded by reason of his interest in the event of the action, suit or proceeding, or because ho is a party thereto, except as follows: JSTo party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or undey whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, insane or lunatic, against the executor, administrator, heirs at law7, next of kin, assignee, legatee, devi-see, or survivor of such deceased person or the assignee, or committee of such insane person or lunatic. But this prohibition shall not.extend to-any transaction or commm.i.a-. tion, as to which any such executor, administrator, heir at law, *459assignee, devisee, survivor or committee shall be examined in his own behalf, h'or as to which the testimony of such deceased person or lunatic shall be given in evidence.”
As by this provision of our statute-law many distinct and separate matters are mingled and united in a single sentence, we will state the substance of this provision, so far as it bears on the question we are discussing separate from all the extraneous matters contained in the same clause. When this is done this section 23rd ot chapter 130 as amended will read: “No party or interested person shall be examined as a witness in regard to any personal transaction or communication between such witness and a person deceased at the time of such, examination against the executor, administrator, heir at law, assignee, lec/utee, devisee or survivor of such deceased person. But this prohibition shall not extend to certain specified eases.” This provision in this form was passed March 27, 1882, and went into operation ninety days thereafter (See Acts of 1882 ch. 1G0 § 23, pp. 538-544). It was an alteration of the law, as it had existed before, as contained in the Code of 18G8 in eh. 130 §23, p. G19, there being added to the corresponding provision in the Code the words which we have italicised above.' These additional words it will be observed extend considerably the incompetency of witnesses to testify as to the transactions or communications had personally with a decedent. The additional cases, in which a witness was declared incompetent to testify of such matters, being those, which, though not within the words ot this provision of our Code ot 18G8, were apparently within the spirit of the law as contained in the Code so amended. Thus there was added in this act ot 1882 as among the persons; against whom a party could not testify, legatees, devisees or survivors of the decedent.
The case, which suggested the adding of the word survivor was probably Carlton, Chamberlaine Co. v. Mays & Co., 8 W. Va. 245, wherein it was decided, that “surviving partners are not assignees in law ot their deceased partner, and the 23rd see. of ch. 130 of the Code does not apply to actions against such survivors, when a party defendant is a witness to prove payment to a deceased partner during his life.” There could not bo assigned well any reason, why a personal *460transaction between the witness and the deceased partner, such as the payment by the witness to the deceased partner personally of a debt due from the witness, should be allowed to be proven by this debtor; but as no words could be tound in this twenty-third section, which prohibited such evidence being given by the debtor, this Court held, that it was competent testimony. - Such testimony would however under this act of 1882, the present law, be obviously incompetent, as by it such testimony could not bo given against a surdcor of the decedent. . ■
As there is thus a material difference between this act of 1882 and the Code, it becomes important to determine, whether the competency of this evidence of Charles W. ¡Sea-bright of the delivery of these notes to him by his testator Louis Seabright in his lifetime as a gift is to be determined by the provisions of this act of 1882 or by those provisions contained in the Code of 1868. This question has in effect been decided by this Court in Zane v. Fink et al., 18 W. Va. 695, point 9 of syll., where it was decided, ("that within the meaning of this section 23rd of chapter 130 of the Code a part}' testifies in his own behalf, at the time his deposition in his own behalf is used in a chancery cause, when it is read at the hearing of the cause, not at the time the deposition was actually taken (See 18 W.Va. 752). The deposition of Charles W. Seabright, the competency of which is disputed, so far as he testifies, that Louis Seabright the decedent delivered these notes and bonds to him as a gift on February 13, 1873, was taken November!, 1878, when the law contained in the Code of 1868 with reference to incompetency was in force. 13lit the final decree in this cause was rendered October 11,1884. When it was rendered, the court below for the first time considered and decided, “that these notes were not a part of the estate of Louis Seabright deceased, at the time of his death but before that time had been delivered to the defendant C. W. Seabright by the said Louis Seabright as a gift to said Charles W. Seabright and Ilenry Seabright.” As the decision was rendered subsequent to the time, when this act of 1882 went into effect, according to our decision in Zane v. Fink et al. we must determine the competency of Charles W. Seabright to testify on the point so decided not by consider*461ing the act in force, when liis deposition was taken, that is, the provision in the Code of 1808, but by considering'tlie act in force when this testimony was considered by the court below, if considered at all at the time this decision was rendered on October 11, 1884.
The general principles to be deduced from the decisions of this Court are, that this statute, which removes the disability to testify,which by the common law attached to a party to a suit and to any person havinga direct interest in the e,rentof a suit with the exception, that such disability as to such persons should continue as at common law, if his testimony was in regard to any personal transaction or communication between such witness and a deceased person, and the testimony of the. witness was against certain specified persons, so taras the exception continuing the disability of such witnesses ,in certain eases is concerned, should be liberally construed to avoid the evils, which it was apparent must have resulted but for such exception. The spirit of this statute is to permit any person, whether interested or not or whether a party to a suit or not, freely to testify, it being regarded, that it was not necessary to exclude such persons upon the common law idea, that their testimony would be biased and unreliable, provided that the other party to the transaction, out of which the suit arose, was living and by his testimony could give his version of the same transaction; that under these circumstances the court or other tribunal trying the case could bo safely trusted despite the biased character of the evidence to deduce the truth from perhaps the conflicting statements of the same transaction by the plaintiff and the defendant. But the statute seems to proceed upon the idea, that this would be safe so long as the plaintiff and defendant were testifying to or about the same transaction, of which each had personal cognizance; but that it would be unsafe to permit either party to testify in regard to a transaction or communication had personally with a decedent, where the controversy was with any person, who alter the death of the decedent represented in the suit the interest ot the decedent in the subject of controversy. For in such case, as the decedent could not be heard with reference to such transaction or communication had with him personally by such party or interested *462person, it would be unsafe and not tend to produce justice to bear the testimony of the living and interested party to such transaction or communication, the. temptation to perjury, when generally there would be no means of proving it, being in'siicha ease so great as to render it unsafe to allow such testimony to-be given.
0nr-Court in view of the great difieulty, which exists, to find language, which would under all circumstances effect the object, which the legislature apparently had in view, has construed the language actually used in the statute-law liberally with a view to suppress the evil, which this exception to the removal of these common law disabilities was designed to avoid. Thus "the words “personal transaction or communication between such witness and a decedent” have been given a broad interpretation and have been decided to include, where the subject of-controversy was an implied assumpsit to pay witness for-work and labor and services rendered deceased, any aiid all acts done at any time during the dccedant’slifetime, out df which an implied assumpsit on his part would have arisen. A party to such a suit brought against the personal representative can not testify, what work and labor he had done for the decedent in his lifetime, or what services he had rendered liim in his lifetime, this being construed to be testifying in regard to personal transactions with the decedent. (See Owens v. Owens, administrator, 14 W. Va. 88). Calwell v. Prindle’s administrator et al., 11 W. Va. 324, &e., may be referred to as another of -those cases in .which a very liberal construction was given to these words “a personal communication with a deceased person.” If a strict instead of a liberal construction had been given the words of the statute, it might be said, that in the first of these eases what was proven ought not to be regarded as a personal transaction between the decedent and the witness, because perhaps the great mass of the work and labor done for the deceased as well as the services rendered him proven by the witness to have been done was done, when he was not present, and therefore it could not properly come within the words of the statute, it could not be regarded as a persona! transaction. But this phrase being as broad as 'any phrase, which could have been adopted by the legislature, it ought to be interpreted, as it was interpreted *463by this Court, if we would suppress the evil and avoid the injustice, which the legislature evidently intended to suppress and avoid. The legislature could have made known ' its intentions only by the use of broad and necessarily -indefinite phrases, unless it entered into such minute details in-the statute, as would have rendered it very lengthy and eon-... fused ; and even if it had attempted to do this, there can be little doubt, but that it would still' in the infinite variety ofb human transactions have omitted many, which would have been expressly included, had it been practicable or even possible to describe each transaction in detail intended to be included.
• In the same spirit our Court has given to the words “per-. somil communication” used in the statute the same liberal construction. From Judge Ilaymond’s opinion in Owens v. Owens, administrator, 14 W. Va. 97-8, we may infer, that in his opinion personal communication with the deceased would : include a conversation held by the deceased in the presence-of the interested party produced as a witness, though the conversation was not with-the witness, but he simply testifies to having overheard such conversation and what was said by the deceased. This cjuestion has not been decided in this State, but I am of the impression at present, that, whenever it shall be presented, such witness will be decided incompetent to testify to such a conversation with a deceased person. In Anderson v. Cranmer et al., 14 W. Va. 562, 576, it was decided, that conversations held with a deceased person at anytime, though not on the subject in controversy, but which' simply tended to prove facts, which would go to show, that the subject in controversy should be decided against the rep--resentatives of the deceased, could not be proven by the witness. In Martin v. Smith, 25 W. Va. 580, it was decided point 5 of syll., that when “a widow files her bill as admin-istratrix of her deceased husband claiming as her own certain bonds, which she avers were given to her by her intestate husband before and in consideration of marriage, she was incompetent as a witness to- prove the gift or delivery of these bonds.” In that case her husband died utterly' insolvent, so that there was no controversy really but with the' creditors of the estate; and it was contended, that under the *464provisions of our Code, which wo have seen did not mention creditors, she was only incompetent as a witness in such case as against an executor, administrator, heir at law, or next of kin, and therefore might testily against creditors as to personal transactions with the deceased. But on this point Judge Snyder on p. 587, in delivering the opinion of the Court, says:
“This position is too untenable for serious consideration. The only mode by which creditors can reach the assets of the estate of a deceased person is through the title acquired thereto by the representatives and heirs from the deceased person. If the construction contended for was sustained, the. statute would have no effect in any suit against the repre-. sentatives of a person who died insolvent. For in such case, the creditors alone are interested and neither the personal representative nor the heir have any pecuniary interest. There is nothing in the terms or the spirit of the statute to support such a construction.”
That case in very important respects resembles the case before us. The personal representative and the witness claiming certain bonds as a gilt to her by the deceased were the same person ; and yet it was held in effect, that in testifying to the delivery of the bonds in dispute to her individually as a gift or for a valuable consideration she was in efiect testifying against herself in her capacity as administratrix of the deceased, and therefore came properly within the words of the statute, as it was in the Code- of West Virginia, as well as in spirit she was testifying against the administratrix and those represented by her (in that case only creditors) with regard to a personal transaction had with the deceased by the witness, So in this case Charles W. Seabright, though technically not testifying against the defendants was really testifying against himself as administrator of Louis Seabright and in favor ot himself individually, just exactly as Lydia J. Martin in the case above referred to testified against herself as administratix of George Martin in favor of herself individually in reference to a personal transaction with him. The court properly held this could not be done, though on record there was no technical opposition as parties in the ejtlit between Lydia J. Martin personally and Lydia J. Mar*465tin as administratrix of George Martin, she being a party plaintiff in both capacities, just as in the ease before us there-is no technical opposition between Charles W. Seabriglit individually and Charles W. Seabriglit executor of Louis Sea-briglit as parties to the suit, he being a party defendant in both his individual and executorial capacities.
But in construing the statute under consideration we must disregard, as was done in the case ot Martin v. Smith, 25 W. Va. 587, such technical construction and hold, that ae/ainst in this statute does not mean on opposite sides of a suit but as having opposing interests in the suit, though th« administrator, executor, heir at law, &e., may happen to be on the same side nominally as plaintiff or as defendant in a chancery cause or may in fact he identically the same person.
It seems to mo therefore that even under the statute, as it was worded in the Code of 1868, Charles W. Seabriglit, though he qualified as executor of Louis Seabriglit, was incompetent to testify personally, that these bonds and notes were delivered to him as a gift by Louis Seabriglit. In so doing he testified against himself as executor of the estate of Louis Seabriglit. But, even as the Code of 1868 was worded, there were other words found in this law which would have sufficed to require the court to suppress his evidence, the admission of which was so obviously contrary to the spirit of this law. It will he of course admitted, that he could not as a witness give such evidence against “the next of kin” of the deceased Louis Seabriglit. Who is meant in this statute to be the “next of kin” of the deceased? It seems to me that by vext of kin this statute meant distributees of the deceased intestate. An interested witness by this statute is not permitted to testify against the next of kin of a decedent as to a personal transaction with the deceased not because of their blood-relation to the deceased, but simply because they were distributees of such intestate. It would seem to follow, that such a witness as to such a transaction ought not to be allowed to testify against a widow of the decedent, when she is one,of his distributees, unless there has been uniformally attached to the phrases next of kin the meaning of 'nearest blood-* relation, which is its ordinary meaning. But when we examine the decisions, we do not find this primitive meaning ah' *466ways given to tliis phrase. This phrase frequently occurs in wills; and while it is true, that the courts interpret it very generally as meaning nearest blood-relation, yet when from the context or other portions oí the will it is apparent, that the‘testator intended to include in the phrase all his distrib-utees, the courts will so construe the phrase and include in it' a widow or surviving husband, though to justify such a-construction of a will, it must be very apparent, that the testator meant, that it should have this comprehensive meaning according to the decided weight of the authorities. (Herden v. Larrabee, 113 Mass. 430; Garrick v. Camden, 14 Vis. 372; Levee v. Durhum and wife,60 N. Y. 43; Johnston v. Johnston, 12 Rich. Eq. 259).
The courts have however, it seems to me, been less strict in conthiing the phrase next of kin to blood-relations, where statutes were to be construed, and have frequently interpreted this phrase to include a husband or wife.
Thus in 15 How. Prac. R. 182 it was decided, that in the statute authorizing a creditor to recover the sum of the next of kin of the deceased, to whom any assets have been paid or distributed, the words “next of kin” did not mean blood-relations but all distributees.
So in Dewey v. Goodenough, 56 Barb. 54, it was held, that a husband should be regarded as next of kin within the section 399 of the Code, because he came within the spirit and intention of the statute.
In The Merchants’ Insurance Company of New York v. Inman, 34 Barb., the words next of'kin were interpreted to mean any distributee including the widow in a statute thus worded : “Actions against the next of kin of any deceased person to recover the value of any assets that may have been paid to them by an executor or administrator, may be brought against all of the said relatives jointly, or one or more of them, for the amount recovered by each of them.” And I doubt not, that in a number of New York statutes other than this one, which statutes are cited in the argument ot counsel, the court would have held the phrase next of kin to mean distribu-tees.- The court,-p. 418 simply say : “The term next of kin (in regard to the remedy) means those to-whom under the statute ■ of distributions the personal estate of the deceased vvouldpass.”
*467In Steele’s administrator v. Kurtz et al., 28 Obio State Kepi 191, it was decided, that “In an action by the personal representative under statute oí 1851 (S. & C. 1189-1140) to recover damages tor causing by wrongful act and neglect the death of a woman, who died intestate, leaving a husband but no children or their legal representative, the surviving husband within the meaning of this act is the next of kin, and as such entitled to the fruits of any judgment obtained in such action.”
From these and other cases, I think, we can safely conclude, that, it all the distributees of a decedent come clearly within the spirit of the statute-law, the phrase next of kin used in the statute will be interpreted to mean all distributees of the decedent. If by confining the meaning of 'hese words to nearest blood-relations the obvious purpose of the statute would be deteated, the courts will without hesitation put a broader meaning on the phrase and interpret it, as though the statute had used the phrase “distributee.” But when the statute-law of the Code of 1868 was amended, oneof the principal objects of the legislature would seem to have been to enlarge the class, against whom a party or intended witness was declared incompetent to testify as to any personal transaction or communication with such witness ; and, as we have seen, the classes, against whom such witness could not testify in reference to such subject, was enlarged by placing in it all legatees, devisees or survivors of such deceased persons.
I propose now to consider, who are properly included in this last class, survivors of such deceased persons. First, it is obvious, that in this class would be included a surviving partner of the deceased person, who in the ease of Carlton, Chamberlaine & Co. v. May & Co., 8 W. Va. 245, this Court had decided was not included in any class named in the law, as it was worded in the Code of 1868. If however the legislature had designed to limit this class to surviving partners, it would have used the words “or surviving partner of such deceased persons,” rather than the far more comprehensive phrase “or survivor of such deceased person. The section is not a provision particularly about suits in reference to partnerships; there is not a word about partnerships in it; the object of the section • is simply ■ to designate the *468evidence, which might or might not' he competent in “any action, suit or proceeding;” and the class intended to bo designated by the words “survivor of such deceased person” includes every person, who by reason of his surviving the deceased becomes as such survivor interested in the subject of the controversy. If this be the true meaning of the word “survivor” as heve used, it would include a large number of persons besides surviving partners. It would include tenants by curtesy, tenants by dower, the survivor in a joint tenancy of land, which had been held by a deed to husband and wife, whether such survivor were the husband or the wife, a widower or widow, who by surviving his or her matrimonial partner became a distributee of the deceased wife or husband, and doubtless others, who might become successors of deceased persons in modes which do not now occur to me. It is, it seems to me, impossible to conceive, why successors of any of these sorts should not receive the same protection from the testimony of an interested witness in reference to a transaction had with a deceased person, which a surviving partner now receives. They are survivors of the deceased, as much as he is; and they all need this protection for the precise reason he does, that is, because by death they have been deprived of the testimony of the deceased about this personal transaction between him and the interested witness. If it bo right to prohibit the interested witness from testifying against one of these survivors in reference to such matters, a surviving partner for instance, it is just as clearly right to prohibit him from testifying against any other of these survivors, as for instance a widow, who as survivor of her deceased husband is entitled to a certain portion of his personal estate.
In so interpreting our law, as it is now worded, I'do not consider that I am giving to its words a strained construction in order to .include a class of cases, which obviously come within the spirit of. the law. , These cases com», I think, almost as clearly within the words of the statute as amended, as they do within its spirit. And I can not hesitate to give this interpretation to our present statute-law, when I review, as I have done, our decisions and see how broad and liberal a construction was given to this' statute, even before it was *469amended and changed. Our Court has never shown a disposition by adhering closely to the letter of the statute to a o d the spirit and thus defeat its object. And when it has been possible by any fair construction of the language to promote justice by (tarrying out the obvious spirit of this law, we have not hesitated to do so, though in so doing we may have applied the law to transactions and to cases not perhaps immediately in the eye of the legislature. Our eases, which to some extent I have reviewed, evidently proceed on the supposition, that the legislature was not in this act attempting to make provisions for particular cases but was laying down general rules of evidence to bo applied by the courts in all cases, which came within the spirit of the law. And this our Court has freely done, except where they felt it impossible to apply the law, though the case may have1 been apparently within its spirit, without doing open and'palpable violence to the words o;' the statute. This we could not do. But this is no such case. It hot only comes plainly within the spirit but almost as plainly within the letter.
We conclude therefore, that Charles W. Seabright was in this ease incompetent to prove as against the plaintiff, the widow and distributee, the delivery to him as a gift of these notes and bonds on February 13, 1873, by Louis Seabright, this being a personal transaction between the interested witness and Louis Seabright, deceased.
The court below entertained these views; for on December 11, 1882, the court on the motion of the plaintiff ordered, “ that the part of the depositions of C.- W. Seabright stating personal communications with Louis Seabright in the ab-sense of the plaintiff be and the same are hereby suppressed.” But as the court below in its final decree of October 11, 1884, found, that “ said notes before his death had been delivered to the defendant, C. W. Seabright, by him the said Louis Seabright during his lifetime, as a gift to C. W. Seabright and Henry Seabright,” it is obvious, that it reached this conclusion from evidence before it other than the testimony of C. W. Seabright.
Was the court below after excluding from its consideration the testimony of Charles W. Seabright on this subject justified by the remaining testimony in the cause in reaching *470any such conclusion ? From the cases heretofore cited, it appears, that the burden of proving the gift by Louis Sea-bright to Charles W. Seabright and Henry Seabright of these notes was upon them. But this burden is much heavier when the gift is causa mortis, than when the gift is inter vicos. It would seem therefore proper, that we should determine, whether under all the circumstances, if we were to assume, that these notes were delivered as claimed by Louis Seabright to Charles W. Seabright on the 13th of February, 1873, such a gift would be regarded as a donatio mortis causa or as a gift inter vicos; as upon this depends the strength of the proof necessary to establish the delivery of these notes as a gitt.
A donatio causa mortis is a gift of personal property made by a party in contemplation of the supposed approach of death subject to' the following implied conditions subsequent attached by law, the occurring of any one of which wid operate a defeasance of such gift: 1st, If the contemplated danger of death passes by without the donor dying; 2nd. If the donor should think proper to revoke the gift before his death ; 'or 3rd. If the donee should die before the donor. Formerly in England it was denied, that a promissory note of a third person payable to the donor could be the subject of a gitt causa mortis, though it was admitted, that the'bond of a third person payable to the donor could be the. subject of such a gilt. (Miller v. Miller, 3 P. Wins. 356; Gardner v. Parker, 3 Madd.; Duffield v. Eleves, l Bligh N. S. 543). But it is now perfectly well settled at least in this country, that a promissory note, a bond or any instrument in writing, which creates a liability against a third person, and which is held by the donor and is his property either legal or equitable, is the subject of a valid donatio causa mortis. It is a matter of no importance, whether the chose in action, the subject of the donatio causa, mortis, be the note or bond of a third person, or whether, if a note, it be payable to bearer or be endorsed in blank, or whether it be payable to the donor only, and lie does not endorse it; it not being now regarded as at all necessary, that the legal title to the chose in action should pass by the delivery of it by the donor to tho donee as a gift causa mortis, but it being sufficient, that by *471the delivery ot the chose in action by the donor to the donee as a gift causa mortis the equitable title to such chose in action passes and vests in the donee by delivery. (Lee v. Boak, 11 Gratt. 182; Wells v. Tucker, 3 Binn. 366; Harring v. Edwards, 11 Md. 424; Constant v. Schuyler,1 Paige 319, 318; Westuto v. De. Witt, 36 N. Y. 340; Holly’s Administrator v. Adams, 16 Vt. 306, 311; Smith v. Kiltridge et al., 21 Vt. 238, 242; Grocer v. Grocer, 21 Pick. 216, 264, 366: Sessions v. Moseley, 4 Cush. 87; Borneman v. Sidlinger, 15 Me. 429; Parker v. Marston, 27 Me. 196, 209; Brown's Executor v. Brown, 18 Conn. 410, 413; Jones v. Dyer, 16 Ala. 221; Rhodes v. Childs, 14 P. F. Smith 18 ; Gourley v. Listenbigler, 1 P. F. Smith 345). .
' The history as well as the present condition of the law is satisfactorily given by Shaw C. J. in Parish v. Stone, 14 Pick. 198-205. This is unquestionably the settled law as to gifts causa mortis ; and it would seem, that the distinction at one time taken, which would uphold the delivery of a chose in action, which would not pass the legal title to it, such as a bond or promissory note not payable to bearer, as a valid gift causa mortis, and would not uphold such a delivery of a chose in action as passed only the equitable title as a valid gift inter ricos, would now bo disregarded. Such a gift accompanied by such delivery, as would pass the equitable title to a chose, in action, being held sufficient to make a valid gift inter ricos as well as a gift causa mortis. (Camp’s Appeal, 36 Conn. 88; Sessions v. Mosely, 4 Cush. 87).
It is now and always has been hold by the courts, that, to make any gift of personalty valid, as a gift inter ricos or causa mortis, delivery is absolutely necessary. (Ewing v. Ewing, 2 Leigh 337, 341, 344; Barker v. Barker’s adm’r, 2 Gratt. 344 ; Miller’s wife v. Jeffray et al., 472, 479; Lee v. Luther, 3 Woodbury & Minot 519; Sessions v. Mosely, 4 Cush. 87; Brown v. Hurd, adm’r, 10 Mass. 427, 429; Hobb v. Hobb, 5 Gill. 516 ; Tate v. Hilbert, 2 Ves jr. 120). But such delivery may be to a third person for the use of the intended donee. (Coutant v. Schuyler, 1 Paige 316, 318; Wells v. Tucker, 3 Binn. 366; Sessions v. Mosely, 4 Cush. 87). Or it may be delivered to one of several donees for the use of all. (Dresser v. Dresser, 46 Me. 48). But no gift whether inter vivos or *472causa mortis has ever been sustained by the courts in this country or in England without a delivery of the subject of the gift or of a deed transferring the title. One of the reasons for this is to avoid fraud or perjury. This reason is thus stated by the assistant vice-chancellor in Brinckerhoff v. Lawrence, 2 Sandt. Ch’y 406 :
“ There are many strong exceptions in the books of the common law against sustaining donations either mortis causa or inter vivos without actual delivery. The reason of this is that gifts of both classes are usually claimed upon parol evi- and unsusfained by any writing; and the courts have uni formally set their faces against such claims on account of the great danger of perjury. Where the interest is proved under his own hand, there is no such danger, and .the courts have accordingly presumed a delivery on slight evidence.”
But the only reason for requiring a delivery of the subject of a donatio mortis causa or a gift inter vivos, in order to make the gift valid, is not simply.to avoid perjury, but because, till there be a delivery, the subject of the gift remains under the control of the person claimed to be the donor, and though the writing whether delivered or not may show satisfactorily the intent to make a gift, yet without a delivery the transaction is as incomplete, where there is written evidence of the intent, as where there is no such evidence. An actual transfer is essential and that, though the intent to transfer be ever so clearly stated in writing; and it has been a question of controversy, whether the delivery even of a deed could supply the want of the delivery of the subject of the gift itself; but the weight of authority scemsto be, that the delivery of a deed of gift may pass the title to chattels or chosrs in action the subject of the gift, though the subjects of the gift are not actually handed over to the denor; but in such case the deed itself must be delivered to the donee, if the subjects of the gift are not themselves delivered; there must be a delivery of one or the other. (Gilmore v. Whitesides, Dudley’s Eq. 14; Nicholas v. Adams, 2 Wharton 17, 24; Jones v. Smallpiece, 2 M. & S. 551, 554; Means v. Means, 22 Vt.). But it makes no difference if the donor’s intention is set forth in writing, unless the instrument is in point of fact delivered. (Payne v. Powell, 5 Rush 248; Phipps v. Hope, 16 Ohio N. *473S. 594; Davis v. Boyd, 6 Jones 249; Thomson v. Thomson, 2 How. 745; Pringle v. Pringle, 9 P. F. Smith 281).
In determing whether a gift be a donatio causa mortis or a gift inter vivos the courts are largely influenced by the circumstances surrounding the donor, when the gift is made. To constitute the gift a donatio causa mortis, the donor must make the gift in contemplation of the supposed approach of death. By the civil law, to make a donatio causa mortis, it was enough, it the donor was moved to make the gift by the general apprehension of death as the common lot of humanity. But then the gift had thrown around it many requisites intended to protect the representatives of the donor, which the common law did not throw around such gift. One of these was, that the donor in making the gift should declare, what moved him to make it. While the older cases in England apparently were based upon the law, as 1 have laid it down above, yet they did not lay down the law with much distinctness as to how definite the apprehension of death should be; but they evidently generally proceeded on the idea, that the expectation of death must be an expectation essentially different from that required by the civil law, must be more than a general apprehension of death as the common lot of humanity. In the leading case of Nicholas v. Adams, decided in 1826, (2 Whart. 17), Chief Justice Gibson gave the whole subject a careful examination, in which he lays it down, that it is indifierent, whether the peril of death, under which a gift causa mortis is made, be induced by sickness, which might perhaps have been inferred from the English cases, or whether it proceeded from any other cause. In this he was clearly right; and his views in this respect have been very generally followed by the American cases.
But in this connection he used language, which was too broad and tended to mislead. He says : “A groundless apprehension of death is necessarily as operative to make a gift conditional, as if the danger was real;” and he adds : “I would therefore define a donatio causa mortis a conditional gift dependent on the contingency of expected death.” This language gives too much countenance to the notion of the civil law, that a small apprehension of death, as wdien a sol-' dier enlists in a war or is going to the front with the expec*474tation, that he may engage the enemy, is sufficient to sustain a donatio mortis causa. But such a general apprehension of death is by the American decisions held insufficient to support a donatio mortis causa. The giver must make a gift causa mortis with reference to a particular cause of death, which, he thinks, then exists, and which may result in his death. (Gourley v. Luisenbigler, 51 Pa. St. 345; Irish v. Metteng, 47 Barb. 370; Smith v. Dorsey, 30 Ind. 451; Craig Kittridge, 46 N. H. 57). These views are sustained by the modern English decisions. (Duffield v. Eleves, 1 Bligh N. S. 497; Edwards v. Jones, 1 Myl. & Cr. 232).
Whenever however a gift is made in a donor’s last illness a few days or weeks before his death, though nothing be said by the donor to indicate, that he was contemplating that such illness might prove fatal, it will nevertheless be presumed to be a gift causa mortis not inter vivos (Gardner v. Parker, 3 Madd. 184; Lawson v. Lawson, 1 P. Wms. 441; Miller v. Miller, 3 P. Wms. 356; Walter v. Hodge, 2 Swans. 100; Meachham v. Meachham, 24 Vt. 49; Delamotte v. Taylor, 1 Redf. 417-421). In Nicholas v. Adams, 2 Whart. 17-22, Chief Justice Gibson says: “There may doubtless be a conditional gift when death is not expected; but in that case the condition would have to be expressed and the contingency specified; in donatio mortis causa both are implied from the occasion.-” These conditions thus implied in every donatio mortis causa aré: Eirst, if the donor recovers, or secondly revokes the gift, or thirdly survives the donee, the gift will be defeated (Merchant v. Merchant, 2 Brad. 445). These, it seems to be universally admitted, are conditions, which the common law, as did the civil law, attach to every donatio causa mortis. There are many dicta to that effect, and none to the contrary. (Nicholas v. Adams, 2 Whart. 22; Parker v. Marstin, 27 Me. 186). These are all conditions subsequent, on the occurring of which the gift causa mortis is defeated. There are no conditions precedent attached to a donatio causa mortis, though there have been cases, which apparently held, that a gift causa mortis did not take effect till the death of the donor. But these cases are the result of a tailure to consider the difference between conditions subsequent and conditions precedent. There can, I con*475ceive, be no question, that a donatio mortis causa is a gift in presentí liable to be defeated by the occurring of any of these conditions subsequent. It has been so held, whenever there was a due consideration of the question. (Jones v. Selby, Pr. Ch. 300; Nicholas v. Adams, 2 Whart. 22).
But, as before stated, it has in several cases been assumed, as I think, thoughtlessly by judges, that a “donatio causo, mortis leaves the whole title in the donor, unless the event occurs, which is to divest him.” This is said for instance by Lord Cottenham in Edward v. Jones, 1 Myl. & Cr. 226. As I understand him, he proceeded in his reasoning on the assumption, that a donatio causa mortis was not a gift in presentí, and that when suck a gift was made, it did not operate to pass the title to the chose in action in presentí, but the title remained in the donor till his death, that is, as he expressed it above “till the event (i. e. the donor’s death) occurs, which is to divest him,” that is, as I understand him, to divest him, 'the donor, of his title to thecAo.se in action. This is, it seems to me, clearly a misapprehension of the nature of a donatio causa mortis. It is regarded, as though it was not a present gift to be defeated by the recovery of the donor, but as a gift, which is not to take effect till the death of the donor. It may seem that, such a misapprehension of the nature of this gift would practically produce no evil consequeneee. But this is not so. It led Lord Cottenham in this very case to what, I conceive, was if not a false conclusion at least a conclusion, which was indefensible on the grounds, upon which he based it.
In this case of Edwards v. Jones, 1 Myl. & Cr. 226, M. C., the obligee in a bond, five days before her death signed an endorsement not under seal upon the bond the subject of controversy as follows: “I, M. C., do hereby assign, transfer the within bond or obligation, and all my right, title and interest thereto, and to the use of my niece, E. E., with full power and authority for the said E. E. to sue for and recover the amount thereof, and all interest now due, or hereafter to become due thereon.” It was argued, that, if the gift could not in consequence of its being incomplete take effect as a donatio inter oicos_, it would take effect as a donatio causamortis. Lord Cottenham hefd, that it could not take effect as a donatio *476causa mortis, as an absolute and irrevocable gift was intended. His lordship said:
“A party making a donatio mortis causa does not part with the whole interest save only in a certain event; and it is the essence of such a gift that it shall not otherwise take effect. A donatio mortis causa leave the whole title in the donor, unless the event occurs which is to divest him. Here however, theie is actual assignment by which the donor M. 0., transfers all her right, title and interest in the subject to her neice; and that is really the whole evidence of the transaction ; for the testimony of several persons who were present, proves that it was intended as a gift; and though others speak as to an intention being expressed, inconsistent with the written document, very little attention can be paid to statements of what passed, when contradicted by the act of the party as evidenced by a written instrument. * * *
* There is not very precise evidence as to the time when these bonds got into the possession of the plaintiff. There is also a defect of evidence, to show that at the time at which the transaction took place M. C. was in such a state of illness or expectation of death as would warrant a supposition that the gift was in contemplation of this event. These considerations however do not appear to be very material because I consider the language of the assignment itself to exclude the possibility of treating this as a donatio mortis causa.”
It seems to me, that the case of Meach v. Meach et al., 24 Vt. 591, though not entirely satisfactory in its reasoning is far sounder than the English case. In that case M. in prospect of death being sick made a deed to his wdfe of all his real estate, and at the same time he made a separate deed to her of all his personal property consisting of stock on his farm and dioses m action. These deeds were duly recorded. M. continued hopelessly sick, till he died about a month afterwards. It was held for reasons not necessary to be stated, that the deed eonveyingthe land to the wife was void; but that the deed of the personalty w'as valid as a donatio mortis causa. Confining our abstract of the opinion of the court delivered by Chief Justice Radfield to such parts of it, as referred or applied to the dioses in action conveyed absolutely by the deed of the husband to the wife, on page 597 he says:
*477“This case combines, we believe all the essentiál tacts requisite to constitute a good donatio causa mortis by the common law and many of these strikingly identical with the very words used by the civil law writers in defining these gifts. ****** was mac]e during the last sickness, in the prospect of certain and speedy departure, to take effect-fully after death only. It was but a rational and reasonable gift under the circumstances, and was intended to become inoperative in case of the recovery of the donor from that sickness, or his surviving the donee, or changing his intention. All these incidents are not fully set forth in the instrument of donation, and we do not find it is essential to the validity of such a gift. In case of a transfer of property by deed nothing remains to perfect the gift. It does not remain in choate, or incomplete or in any sense revocable-after the delivery of the deed. * * In examining the case, it occurred that some might object to this deed as a gift mortis causa, inasmuch as it does not in terms, very explicitly provide that' the gift should only take effect after the donor’s death. In a verbal gift this is often implied from the attending circumstances. But the gift being by deed, we are, in a measure, confined to its terms, construed with reference to the attending circumstances. And as this deed proposes in terms to convey not only all the donor’s property at the date, but all of which he should possess at his decease, it is fair, we think, to give the words this signification, that the donee’s full right under the deed should not become absolute and perfect, except in the event of the donor’s death. But if this is doubtful, there is no doubt a court of equity would lend its aid to perfect the deed in this particular.”
In Grymes v. Howe, 49 N. Y. 17, it was decided, that, where the defendant’s testator being the owner of 120 shares of bank-stock included in one certificate made an absolute assignment in writing of twenty shares to the plaintiff, handing it to his wife to be kept by her and delivered to the plaintiff upon his death, the donor being at the time of executing the assignment about eighty years of age in failing health, and continuing so until his death, which occurred about five months thereafter, this was a valid gift mortis causa; that the .equitable title to the stock passed by the assignment; that *478the defendant, the executor of the donor, was trustee for the plaintiff by operation of law to make the gift effectual, and that a judgment requiring him to produce the certificate and to cause a transfer of the twenty shares to be made to the plaintiff was proper. The court in that case held, that “ to constitute a valid gift mortis causa, three things are necessary : 1st. It must be made with a view to the donor’s death. 2d. The donor must die of the ailment or peril. 8d. There must be a delivery. It is not necessary that there should be an express qualification in the transfer or the delivery; it may be found to be such a gift from- the attending circumstances, although the transfer or delivery be absolute.”
The law as thus held is, it seems, in strict conformity to the view, which we have above expressed, and is well sustained by the decisions. It may be questioned, whether this law was properly applied to the facts as developed in that case, but I do not think, that the law as above laid down by the court is questionable. Peckham, judge, in delivering the opinion of the court says: “The declaration of the donor that his wife should keep the assignment and not hand it over till after his death, as he did not know what might happen, and that they (the donor and his wife) might not need it, was simply a statement of the law, as to such a gift, whether the declaration was or was not made. Clearly he could not tell whether he would die or recover from that ailment. If he did recover the law holds the gift void. The transaction as to such gift is, the donor says, I am ill and fear I shall die ot this illness ; whereupon I wish you to take these things and hand them to my grand daughter after my death; but do not hand them to her now, as I may recover and need them. A good donatio mortis causa always implies all this. If delivered absolutely to the donee in person, the law holds it void in case the donor recovers, and he may then reclaim it. Staniland v. Wellott, 3 Mal. & Gor. Ch’y R. 664. To make a valid gift mortis causa it is not necessary there should be any express qualifications in the trausfer or delivery. It may be found to be such a gift from the attending circumstances though the written transfer and delivery may be absolute. Hee last case above cited.”
Whatever may be said or thought about the application *479of the law to the facts in that ease, I think there can be no question that the law as laid down in the last two sentences of the opinion above quoted is clearly law, though it would be impossible to reconcile it with the opinion of Lord Cottenham above cited from Edward v. Jones, 1 Myl. & Cr. 226. Instead of reaching as he did the conclusion, that “the language of the assignment itself” (which was absolute) “excludes the possibility of treating this as a donatio mortis causa,” he would have reached, a conclusion much more consonant with the law, had he said that “no assignment of a chose in action, however absolute may be its language, can possibly exclude the court from treating the gift as a donatio mortis causa, if the surrounding circumstances, when it was made, clearly lead to the conclusion, that it was such a gift.” For as donatio mortis causa is a present gift, the proper mode oi making the assignment of such a gift causa mortis, when the gift is a chose in action, is to make the assignment absolute, as though it were a gift inter duosThe error of Lord Cotten-ham, which led to'his false conclusion, was, as he expressed it, “a donatio causa mortis leaves the whole title in the donor, unless the event” (death) “occui’s, which is to divest him.” This is a very inaccurate statement of the law, and it led to his mistaken conclusion above stated.
On this subject, Mathews, justice, in delivering the opinion of the Supreme Court of the United States in Basket v. Hassell, 107 U. S. R. 602 says, in speaking of an extract, which he had quoted from Gass v. Simpson, 4 Cald. 288 :
“In the first oi these extracts there is an inaccuracy of expression which seems to have introduced some confusion if uot apparent contradiction when after having stated that ‘the property must pass and not be intended to pass at the giver’s death’ it added that ‘until the event occurs which is to divest him, the title remains in.the donor.’ But a view of this entire passage leaves no room to doubt its meaning; that a donatio causa mortis must be completely executed, precisely as required in cases of gifts inter uiuos, subject to be divested by the happening of any of the conditions subsequent; that is upon actual revocation by the donor, or by the donor’s surviving the apprehensive peril, or out living the donee, or by the occurrence of a deficiency of assets necessary to pay'the *480debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa midinter vivos. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of the possession and title either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will.”
The syllabus in this case is:
“A donatio mortis causa must he completely executed, precisely as required in the case of gifts inter vivos subject to he diverted by the happening of any of the conditions subsequent; that is upon actual revocation by the donor, or by the donor’s surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor and if the gift dues not take eflect as an executed and complete transfer to the donee of possession and title either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will. Therefore though a certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds and other securities, so that the delivery of it is as a gift constitutes an equitable assignment of the money for which it calls, yet a delivery of a certificate of deposit to the intended donee with an indorsement thereon which limits and restrains the authority ot the donee in his collection of the money, so as to forbid its payment until the donor’s death, is not validas a donatio mortis causa,.”
It is obvious, that such an indorsement of a note or bond would upon this reasoning, which seems to me to be entirely sound, defeat the gift either as a gift inter vivos or causa mortis, and that therefore an indorsement of such note or bond professing to transfer it immediately would, when accompanied by delivery only, have the effect of making the transfer perfect and thereby making it a gift in presentí; but whether it was a gift inter vivos or causa mortis could not be determined by such an absolute indorsement on it intended only to show a completed gift in presentí, but must be determined by the surrounding circumstances, just as the character of any other gift in presentí would have to be determined. Instead there*481fore of considering such absolute indorsement and assignment of the bond or note to the donee as conclusive evidence, that it was a gift inter vicos and not causamortis, it seemsto me to be in itself no evidence whatever, and that it only shows, that it is a gift in •presentí, which may be a gift inter vivos or co'iisa mortis. Both ot such gifts are always gifts in presentí.
The Roman law did not allow a gift causa mortis of the whole or of much the larger part of the personal estate of the donor; and there is a recent American case, which decides, that under the common law no such gift causa mortis could be made of the whole of one’s personal estate. (Headley v. Kirby, 18 Pa. St. 326; Meach v. Meach, 24 Vt. 597). Until this Pennsylvania decision there was no decision either in England or in America, where an attempt was made by the courts to limit the operation of a gift causa mortis on account of the comparative or absolute extent of the property so disposed of. And despite this decision the fact, that a gift constitutes the principal or whole of the donor’s personal property, can not by the courts be held to necessarily prevent such gift from taking effect. (Michener v. Dale, 23 Pa. St. 50). Such limitation of the extent of a gift whether inter vivos or causa mortis can bebrough about at this late day only by legislation. But, whore a gift either inter vivos or causa mortis of almost the whole of the donor’s personal estate is attempted to be set up, the courts may very properly require the most clear and satisfactory proof of the delivery of the property as a gift infer vivos or causa mortis, but they can go no further. Ohiet Justice Redfielcl in Meach. v. Meach et al., 24 Vt. 593 well says : “ Men that have property do not ordinarily part with it at once, aud without reluctance, even into the hands of a most tried friend. This is such a reversal of the relations hitherto subsisting between a grantor and grantee that nothing but the certainty and nearness of death could have induced the change. It is in vain to effect to convince us that any less motive could form the prevailing consideration for such transaction.
It seems to me therefore, that, whenever a gift of almost the whole of the donor’s personal property is set out, not only must there be the strongest evidence to show beyond .doubt, that the property was .delivered to the donee as a.gift, *482but, even if this evidence was produced, and the delivery of such property as a gift was fully and satisfactorily established, there would be from the very extent of the gift a strong presumption, that it was not an absolute gift inter vivos but a gift causa mortis, if there ivere any circumstances surrounding the donor, which tended to show, that such was the case. For it seems almost impossible to conceive, that any person would make a gift inter vivos to take effect immediately and to be incapable of revocation in any manner or by the occurrence of any futúre event of almost the whole of his personal estate, especially if such personal estate was large. Such gift he might make perhaps as a gift causa mortis, which would be revocable at his pleasure or would be revoked, if ho recovered from his present sickness. But an unconditional gift of a large personal estate, whereby he was left a very scant sum to pay for his necessary expenses, is so improbable, as to require proof of the strongest character. The evidence in any'case necessary to establish any gift causa mortis must be clear and satisfactory and such, as gives rise to no suspicion of undue influence. (Walsh v. Studdart 4 D. & W. 159; Thompson v. Heffernan, Id. 285; Cosnahan v. Grice, 15 Moo. P. C. C.). These cases'are referred to as establishing this position in White and Tudor’s Leading Cases in Equity, vol. 1 part 2 old paging 934 new paging 1,228. Though I have not access to these cases, yet the law as above laid down is doubtless correct, as it is supported by other cases. Thus in Miller and wife v. Jeffrees et als., 4 Gratt. 472, it was decided :
“A delivery is indispensable to the validity of a donatio mortis causa. It must be the actual delivery of the thing itself, or of the means of getting the possession and enjoyment of the thing; or if the thing be in action, of the instrument by the using of which the chose is to be reduced into possession. It is not the possession of the donee, but the delivery to him by the donor, which is material in a donatio mortis causa. An after acquired possession of the donee is nothing; and a previous and continuing possession, though by the authority of the donor is no better.”
Concklin v. Concklin, 27 New York, (20 Hun. 279) was an action brought by the plaintiff, administrator of a decedent, against the widow for property, which, the administrator *483claimed, belonged to his intestate at the time of his death, which the defendant his widow held and refused to deliver up to the plaintiff on his demand. The answer admitted the plaintiff’s appointment as administrator of her deceased husband’s estate, and that the intestate owned the lands in his lifetime, but averred, that prior to his decease they became the property of the defendant by a donatio mortis causa, and that she then took and thereafter continuously kept possession of them. It was decided, that on the widow claiming to be the donee was the burden of establishing the alleged gift. In that case she testified, that a few days before her husband’s death she took possession of the bonds and kept possession of them till her husband’s death. The court decided, that this proof was insufficient as between husband and wife to show a change of possession or delivery of the bonds. In this case the court concurred in the good sense of the observations of a judge who said :
“If any presumption of title is to prevail by mere possession (which this judge questions), it is only when the possession is free from suspicion. It is not a defence to show that the defendant, a member of the family of the deceased, and hence having access to his papers, is found in possession ■of a note owned by deceased at or about the time of his decease. To establish such rule would be dangerous. It leads into too great temptation.”
The court held, that the mere fact of possession of property shown to have belonged to a deceased person a few days before his death by relatives or persons residing in the same family and having access thereto is not satisfactory or even prima fade evidence of title. As cases showing the disposition of the courts in order to make a donatio mortis causa .valid to require strong proof to show it was a completed and perfected gift see First National Bank v. Baldwin, 35 Conn. 351; Prickett v. Prickett’s administrator, 5 C. E. Green (20 N. J. Ch’y) 478; Dilts et al v. Stevenson, 2 C. E. Green (17 N. J. Ch’y) 413; Webster v. Wise & Ford, 1 Paige 319; Grey et al v. Grey, 47 N. Y. 552; Cutting v. Gilman, 41 N. H. 152. The delivery of fhe possession to the donee to perfect a gift inter ricos is necessary; but the courts require less stringent proof of delivery to establish such gifts than to establish *484gifts cau-sd mortis, as there is usually less opportunity to set úp a fraudulent pretence ot a gift inter vivos than of a gift causa mortis. As evincing the character of proof required when the gift is inter vivos see Hanson v. Millett, 35 Me. 184; Sessions v. Moseley, 4 Cush. 87. Schouler on Personal Property, sec. 171 lays it down thus:
“Indorsement or assignment, in accordance with the tenor of the instrument, shows, doubtless, the gift intention most conclusively. But assuming that the chattel may be sufficiently given by the delivery of the muniment alone, .the evidence of the actual gift, should, nevertheless, be clear and consistent throughout. Hence an indorsement or assignment without parting with the thing appears too equivocal to establish delivery; and if on the other hand, indorsement or assignment ot the instrument be begun and not completed by the donor, the presumption should be that the gift is insufficiently executed.”
To support these propositions he refers to 8 Ir. Eq. 609; Basket v. Hassell, 107 U. S. 602, and McGrath v. Reynolds, 116 Mass. 566. The first of these authorities is inaccessible to me. In the last case it was decided :
“A written instrument not duly attested as a will, by which a sum of money is given to another for certain purposes named, and for the purpose of carrying out its provisions delivered to him a saving bank book with an order for the payment of the deposits, which made up only a smaller portion of the sum named in the instrument. The donor when asked by C. where the remainder was, said it was in his trousers pocket, turning in his bed and looking to the closet in which the trousers were and that E. who owned the house who was present would give it to him. After the donor’s death E. delivered the money to A. Held that there was no sufficient delivery to give effect to the gift as a donatio causa mortis and that it could not take effect otherwise than as an entire gift.”
rn delivering the opinion ot the court Wells, judge, says:
“Gifts causa mortis require actual delivery or its equivalent. (Parish v. Stone, 14 Pick. 198, 203; Rockmod v. Wiggins, 16 Gray 402; Marshal v. Berry, 13 Allen 43; Coleman v. Parker, 114 Mass. 30 ; see also cases cited in 2 Redfield on Wills 302, *485et seg., and 1 Leading Cases in Eq. 583, notes to Ward v. Turner.) * * * * We are forced to the conclusion, that there was a failure to make the intended gift effectual in law, by reason of an omission to perfect it by delivery' of the money. As there was no intention to make the gift otherwise than as a whole, the failure of the principal part must defeat the whole. We can not regard the delivery of the bank books as a delivery of the part in the name of the whole, so as to make the gift effectual. We need not consider the question whether the deposits in the saving bank would pass as a donatio causa mortis by delivery of the books, with the order of payment or the assignments, if disconnected with the rest of the scheme. The intended gift was not of those deposits or books specifically, hut of a definite larger fund and the books were delivered merely as a means in part to carry out the entire purpose. That purpose failing, there is no intended gift of which the delivery of those books is an appropriate manifestation.”
The substance of the case of Basket v. Hassel, 107 U. S. 602, has been hereinbefore stated. The transaction was as' follows: II. M. Chaney held a certificate of deposit in these words—
“Evansville National Bank, “Evansville, Ind., September 8, 1875.
“II. M. Chaney has deposited in this bank $23,514.70, payable in current funds, to the order of himself, on surrender of this certificate properly endorsed with interest ot the rate; of 6 per cent, per annum, if left for six months.
“HenRY Reis, Cashier.” l
Chaney being in possession of this certificate at his home in the county of Sumner, State of Tennessee, during 1ns last sickness and in apprehension of death wrote on the back thereof the following endorsement:
“Pay to Martin Basket, of Henderson, Kentucky, no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. (Signed.)
“H. M. Chaney.” .
Chaney then delivered the certificate to "Basket and died without taking- it back in January, 1876. The cpurt .held;-. *486that if this had been an indorsement directing the money to be paid to Martin Basket absolutely, it would have been a valid gift not inter vivos but mortis causa; that Basket could nevertheless in such case have collected from the bank the whole amount of this certificate in the lifetime oí H. M. Chaney the donor. But if this gift was only a gift cavsa mortis either by the act of the donor or by the operation of law, the donor recovering from that spell of sickness, the donee would have been under obligation to return the certificate, if uncollected, or the money, if collected and he would have had a perfect right to collect it. But as by the special indorsement the donee had no right to collect the certificate of deposit till the donor’s death, it was not a present executed gift causa, mortis but only in its nature a testament, which not being executed, as wills were required to be executed, was null and void. The court say :
“ It can not be said that the condition in the indorsement, which forbids payment till the donor’s death, was merely the condition attached by law to every such gift. Because the condition which inheres in the gift mortis causa is a subsequent condition. In the meantime the gift is executed, the title has vested, the dominion and control of the donor has passed to the donee. While here the condition annexed by the-donor to his gift is a condition precedent, which must happen before it becomes a gift, and as the contingency contemplate is the donor’s death, the gift can not be executed in his lifetime and consequently can never take efiect.”
I will now apply the law as above laid down to the facts as shown by the record in this cause. I have set out these facts at much length in the statement of this case, and they need not be repeated. So far as it is necessary to apply the law as stated above, they are substantially these. Louis Sea-bright died in February, 1878, having been in bad health tor several weeks before his death, the result probably ot his dissipated habits, and being unable to attend to his own business he put it all in the hands of his half brother, Charles W. Seabright, with directions to collect his debts and pay what he owed. He placed in Charles’s hands upwards of $22,000 worth of property' represented by a large number of bonds and notes, probably more than forty, secured on real estate. *487This was about one month before his death, and shortly thereafter, in a week or two, he was taken so sick as to be confined to his room and generally to his. bed and was attended daily by a physician. He had quarrelled with his wife, and separated from her several months before; and she had brought a suit against him for a divorce. He had broken up housekeeping and rented his homestead to one Weidebuseh who kept the house as a tavern or boarding house and Sea-bright boarded with him. It is a fair inference from the evidence, that because of these relations with his wife he concluded to prevent, as far as he could, her receiving any of his property after his death. To effect this object, as he could not prevent her from having dower in his real estate, he concluded, that, if he could, he would so arrange his personal estate as to deprive her of any of it after his'death. He saw his general agent, his half brother Charles W. Seabright, probably after his health had become such, that he was confined to his room and was attended daily by a physician, and consulted him as to how these notes and bonds, exceeding $22,000 in amount, could be assigned to him Charles W. Seabright and to a brother of Louis Seabright one Henry Seabright in a lawful manner; and he advised, that it should be done by one Hammer, a justice of the peace, who could do it properly, and ho was seen. It was intended, that Henry Seabright as well as Charles W. Seabright should be present, when this was done; but Henry Seabright could not be found not being' at home; but Hammer was found and brought to the room of Louis Seabright, who had gotten up and was sitting at atable, and in the presence of Weidebuseh and Charles W. Seabright Louis Seabright, to whom these notes had a few days before been returned for this purpose, handed them one at a time to Hammer sitting on the other side of the table, who indorsed on each of them an absolute assignment for value received to Charles W. Seabright and Henry Seabright and then handed them back toLouis Sea-bright, who signed his name to the indorsement; and, so far as the evidence shows, they were retained by Louis Sea-, bright and not handed over to or delivered iu any way to Charles W. Seabright. It is true that he says they were then delivered to him by Louis Seabright as a gift to him and Henry *488Seabright: butbistestimonyisinadmissible as evidence on this point,'as we have seen. The deposition oí Katnmer was not taken; and the deposition of'Weidebuseh, which was taken, simply proves the tacts as above stated, and he does not say one word about Louis Seabright after he had signed these indorsements written by Karamer handing these notes, bonds or any of them to Charles W. Seabright, who was present, or of his delivering them or any of them to him. It is true he does not say the contrary. lie is asked no question as to what was done with these notes and bonds, after this indorsement had been .signed on each of them. Of course the burden of proof of this delivery was on' those, who claim them to be gifts, their delivery or something equivalent being, as we have seen, absolutely necessary to perfect a gift of them, whether it was a gift inter viúos or a gift causa, mortis.
These notes and bonds constituted certainly nineteen twentieths of Louis Seabright’s personal estate and perhaps ninety nine hundredths of it. Ilis real estate was about equal in value to his personal estate including these bonds. What income he got from it does not appear. Instead ofits being proven, that these bonds and notes were, after this in-' dorsement was made on them, handed over or delivered by Louis Seabright to Charles W. Seabright for him and Henry Seabright, it seems to me most probable, that they were retained by Louis Seabright till his death, which occurred eight day's afterwards. If they had in fact been so delivered, it seems to me, that it would have been proven by Weide-búsch, when lie was examined; for if it was true, he certainly knew it, being present. And the claimant of these bonds and notes, when his deposition was taken, must then' have known of the absolute necessity of their proving this delivery, iii order to perfect the gift. For when the depositions of Charles W. Seabright, one of these claimants, was taken, he attempts to prove this delivery and distinctly testifies'to it; but, as we have seen, he is incompetent to prove this delivery. There are other good reasons for concluding, that those bonds and notes were never delivered to Charles' W. Seabright after these indorsements were madé on them.- - 'As-Charles W." Seabright had been‘the agent to *489transact all ot Louis Seabright’s business, so Louis intended that alter his death Charles should continue to do so, and accordingly immediately after the endorsement of these bonds and notes he made his will, in which he appointed Charles W. Seabright his executor.
Ot course on the death of Louis Seabright all of those bonds and notes would asa matter of course come into the possession of Charles W. Seabright having on their backs this assignment of them for value received to him and Henry W. Seabright. It was very natural for the parties then present, none of them being lawyers, to think, that this was all, that was necessary to give them a perfect title to all those bonds and notes. It is in the highest degree improbable, that Louis Seabright, in order to prevent his wife’s getting any of his personalty after his death, would give nineteen twentieths of it away absolutely in his lifetime. As we have seen, the law, so strong is the presumption against a person’s making such a gift either inter vivos or causa mortis, requires very strong proof that such a completed gift had been made, whenever it is claimed to have been done. It is obviously far more probable, that, if such a gift ■was made, it would have been made rather as a gift causa mortis than as an absolute gift.
It seems therefore to me, that there is a failure on the part of the claimants of these bonds and notes to prove any delivery of them and therefore to prove any gift either inter vivos or causa mortis. But, if we could believe that such gift was perfected, it does seem to me, that the surrounding circumstances show, that it]was made in contemplation of death, and was a gift causa mortis not a gift inter vivos. The nature of the gift whether the one or the other, had it been of some trifling piece of personal property instead of nearly all of the donor’s personal estate, would have been very questionable. Perhaps it might have been held, under the circumstances in this case, if such gift had been trifling, a gift inter vivos; or perhaps it would have been held to be a gift causa mortis on the authorities we have cited. But when we consider, that, if it was a gift at all, it was a gift of more than $22,000.00 or of nearly all of the personal estate of the donor, we must under the authorities hold, that if it had *490been perfected as a gift, it would be clearly only a gift causa mortis.
As we have seen, the endorsement on these bonds and notes, though an absolute assignment, would not show, that they were not a gift causa mortis, the authorities being that such an endorsement only shows clearly the purpose, when the note or bond is delivered, that it is delivered as a present gift. But as a gift causa mortis is a present gift subject to be defeated by conditions subsequent, such indorsement does not showq whether the gift was a gift inter uicos or causa mortis, and the character of the gift is to be determined in such case as in others by the surrounding circumstances.
1 If we could regard these bonds and notes as a gift causa mortis,, the plaintiff, the widow of the donor, would be enti-titled to her distributive share of them. Thus in Gentry et als. v. Bailey, 6 Gratt, 603, 604, Judge Baldwin says:
“These enactments impliedly recognizes the power of the husband, which he had according to the modern common law, to alienate by sale or gift in his lifetime the whole or any part of his personal property, and thereby exclude his wife from any interest therein. But they depart from the English law in respect to the husband’s disposition by will ot his goods and chattels, which by that law is effectual against his -wife, who can claim no part of what is so bequeathed ; and the effect of them is to secure to the wife her distributive share of whatever personal property belongs to the husband at the time of his death, whether he dies testate or intestate. This right by our law on the part of the wife, I think it clear, the husband can not defeat by any contrivance for the purpose. He can not by any device die testate or intestate in regard to his personalty, in such wise as tobar her of her distributive share. Whatever may be the form of the transaction, if the substance of it be a testamentary disposition by the husband of his property, it cau not be effectual in relation to his wife. If this were otherwise, the statute might bo rendered a dead letter at the option of the husband. It follows, that a husband by a voluntary deed of gift ol personals, in whatever form made, retains to himself the possession and enjoyment of the property during his life, and makes the gift effectual only from the time of his death, and *491reserves on his own part an absolute and complete power of revoking the same, such instrument, so far as regards the distributive share of the wife, is in its nature testamentary only and can not affect the rights conferred upon her by law in contemplation of his dying either testate or intestate. In such a case the dominion of the husband over the subject continues unlimited, and the question is not varied by the circumstance, that the gift takes effect by his failing to exercise the power of revocation, tor that is incidental to every testamentary disposition of property.”
If this reasoning is correct, and it seems to me to be so, then a wife could not in Virginia have been defeated of her disr tributive share in the personal estate of her husband by any gift of it causa mortis. See also Penner v. Jennin, 2 Ves. 612; Stone v. Stone, 18 Ind. 389-390, and Tucker v. Tucker, 32 Mo. 464. And, if this was law in Virginia, when this opinion was delivered, it is now law in West Virginia; for the language of the statute-law, to which Judge Baldwin referred, (1 Rev. Code, eh. 104 § 26 p. 381) and the provisions of our law, (Code of W. Va. ch. 78 § 11 p. 485. Warth’s Code, ch. 78 § 11 p. 577), are substantially the same, so far as this question is involved. Our law provides, that, when a husband makes any provision for a wife in his will, she may renounce such provision in a specified way and have such share of her husband’s estate, real and personal, as she would have had, if he had died intestate leaving children, which is one third thereof (ch. 78 § 9 of Code of WestVa. p. 485; Warth’s Amended Code p. 577). As no provision was inserted in the will of Louis Seabright devising or bequeathing any property real or personal to his wife, it was of course unnecessary to entitle her to this one third of his personal estate as a dis-tributee, that she should renounce the will. As our law is worded, it is ouly when a provision is made for her, that she is required to renounce such provision. In the case before us there was no gift of these bonds aud notes either inter vivos or causa mortis. The testator Louis Seabright died possessed of and owning them aud; after the payment of his debts the plaintiff his widow was entitled to one third of his personal estate.
For these reasons the decree ot October 11, 1884, which *492dismissed the plaintiffs bill, is set aside, reversed and annulled, and this Court proceeding to render such decree, as the court below should have rendered, must adjudge, that it is necessary for an account to be taken of the matters set up in the bill and amended bill, and that there are causes to surcharge and falsity the accounts of Charles W. Seabright executor of Louis Seabright; and the Court is further of opinion and so finds, that the bonds and notes mentioned and described in this bill, amended bill and commissioner’s reports in this cause were a part of the estate oí Louis Sea-bright, deceased, at the time of his death and never had been 'before that time delivered to the defendant Charles ~W. Sea-bright by the said Louis Seabright as a gift to the said Charles W. Seabright and Henry Seabright; and that this cause be remanded to the circuit court of Ohio with instructions to proceed with the same according to the specific directions set out in the decree of this Court and the principles laid down in this opinion and further according to the rules governing’ courts of equity; and that the appellant, Louisa Seabright, recover of the appellees Charles W. Seabright and Adam Ackerman, administrator de bonis non of Henry Seabright to be paid out of the estate in his hands to be administered her costs about her appeal in this behalf expended. The following is the decree entered by this Court:
It is therefore adjudged, ordered, and decreed, that the decree of the circuit court of Ohio county 2’endered in this cause on the 11th day of October, 1884, be and the same is hereby set aside, reversed and annulled, and that the appellees Charles W. Seabright and Adam Ackerman administrator de bonis non of Henry Seabright, deceased, out of the assets of his decedent,in his hands to be administered, do pay to the appellant'her costs about the prosecution of her appeal in this Court in this behalf expended ; and this Court proceeding to render such decree in this cause, as the circuit court of Ohio county should have rendered, doth adjudge, that the bonds and notes mentioned and described in the bill, amended bill and commissioner’s reports in this cause were a part of the estate of Lou\s Seabright, deceased, at the time of his death and never had been before that time delivered to the defendant, Charlee W, Seabright, by the said Louis Seabright *493as a gift to the said Charles W. Seabright and Henry Sea-bright; and the cause is remanded to the circuit court oí Ohio county with instructions to refer the cause to a commissioner to settle the account of Charles W. Seabright as executor of Louis Seabright, deceased, treating the ex parte settlement and report of James D. Morris, commissioner of the county court of Marshall county, confirmed at the April Term 1875, of said court and filed with the plaintiff’s bill, as prima facie correct liable to be surcharged and falsified by any of the parties to this cause in the manner set out in the written opinion of this Court, but not regarding the other ex parte settlements of Challes W. Seabright, which have not been approved by the county court of Marshall county as prima fade correct; and with instructions to exclude from the said account all items of receipts from the rent or sale of the real estate of which Louis Seabright died seized, where such receipts have arisen from leases or sales of said real estate since the death of Louis Seabright, and excluding also the commissions on said receipts and all sums paid to Mrs. Louisa Seabright on account of dower in the home-place or any other real estate of her husband and all other items, which properly belong to the settlement of Charles W. Sea-bright as agent of the heirs or of the widow to sell or rent such real estate referred to by commissioner Morris in his said report of September 22, 1874; excluding also from the said account the two sums of $500.00 each paid by said Charles W. Seabright, executor, &e., to the two specific legatees, William Juorgens and Henry Weidebusch, as then-legacies under the will of Louis Seabright — and this cause is to be further proceeded in according to the principles stated and instructions given in the written opinion aforesaid and according to the rules and principles governing courts of equity.
Reversed . • Remanded .