(dissenting) said :
As appears from the opinion of the majority of the court, this is a suit to enforce against the administrator of a dead man’s estate an alleged gift of the whole estate, amounting to over $200,000, which alleged gift is claimed to have been made by the decedent in disregard of all of his heirs and distributees, his next of kin, a few minutes before his death, to a colored woman living in his house, who claims to be the result of illicit intercourse with a colored slave woman.
*72It also appears from the opinion of the majority that the alleged gift consisted of goods and chattels in the house, and goods and chattels out of the house, where the alleged donor and donee resided together. The claim is that the goods and chattels in question were, as to certain keys, pocket-book, and two pocket-knives, actually delivered into the donee’s possession. That money, &c., in a bank vault, and money, &e., in an iron safe, and money on deposit in bank, subject to cheek, were symbolically delivered by the delivery of the keys and the pass-book of the bank, in which deposits were entered. It is not pretended that there was any further delivery than such as I have mentioned, either as to the thing delivered or the manner of its delivery. So that, if everything was done in manner and form as this woman Lewis alleges, then the gift was made by the donor to the donee at their common residence, with delivery of possession of keys as to the great bulk of the property given, and not actual delivery. Let us consider first whether the goods and chattels in question could pass from the donor to the donee in this way and become the property of the donee.
Our statute laws provide general rules as to the creation and limitation of estates, and their qualities and the manner of making valid gifts is regulated by the law from the earliest times of which we have any account. The law has, to a greater or less degree, thrown some protection around the estates of dying men, and provided safeguards against the perjuries and frauds employed by the designing to obtain the possession of the estates of the deceased person. Of these T will speak briefly hereafter.
It is profitable to consider first what are the regulations to be found in the Virginia law prescribing general rules as to the creation of estates.
It is provided by law in this state that, “No gift of any goods and chattels shall be valid, unless by deed or will, or *73unless actual possession shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not lye sufficient possession within the meaning of this section.” Code of Virginia, section 2414, chapter 107, page 591.
It must be admitted (it cannot be denied) that Thomas and Bettie Lewis were domiciled together. It is also distinctly proved that they did reside together at the time of the alleged gift. It is equally true that no actual possession ever came to Bettie Lewis of any important part of the large estate said to have been given to her, and that there was no possession of any sort except such as may be construed to pass with the key to the bank-vault box and iron safe, of which another person had a duplicate key, and with the pass-book of the bank. The pocket-knives and some notes were actually delivered into Bettie Lewis’ hand, but even this was at their common domicile -where they resided together. This statute is conclusive of the case, unless in some way it can be avoided. This is attempted to be done by the assertion that this statute does not apply to this kind of gift; that this statute v'as made to protect creditors and to prevent fraudulent acts, by way of gifts falsely alleged to be made, from defrauding creditors of their just debts, and that a gift of this sort does not affect creditors. But there is no language of this sort to be found in this section, nor in this entire chapter. It does not treat of the rights of creditors as against the claims of fraudulent alienees. Chapter 109 of the Code treats " of acts valid between, the parties, but void as to creditors and purchasers.” This chapter, as its title declares, prescribes general rules as to the creation and termination of estates and their qualities. Section 2414 enacts a general rule as to all gifts, and prescribes what shall be necessary in order to create .an estate in goods and chattels by a valid gift; and declares *74all gifts not so made invalid. “ No gift of any goods or chattels shall be valid unless * * This is an alleged gift, alleged to have been made by a donor to a donee, when donor and donee resided together at the time of the alleged gift.
The word “ gift ” is not limited, but is used in its full signification. If this term does not include this kind of gift, what word could be used to describe it ? If the statute was intended to apply to gifts inter vivos only, why is the word “ will ” in the statute ? Gifts inter vivos are not given by will; a will takes effect at the death of the testator. A gift inter vivos is not, cannot be, bestowed by will. It may be by deed or by actual and complete delivery of possession, so as to cut off and determine the possession, control, and dominion of the former owner; otherwise it is incomplete, and, being without consideration, cannot be enforced. A will is the appropriate method to give gifts to take effect after the death of the testator or donor; bequests and legacies are allowed and enforced against the executor or persons entitled without a will.
If a will is not made, then there is allowed by the- law a gift, w'hich has certain characteristics and attributes, appropriately signified by the words mortis causa. Among other things, it is revocable by the recovery of the sick man from the impending peril which threatened him. But it is well settled that, like all other gifts, and, as a gift, it must be completely given and actual possession consummated, so as to cut off the possession, control, and dominion of the donor—interrupt his possession just as completely as is necessary in all gifts. In other words, the same sort of delivery of possession is necessary in the one case as in the other. In this respect there is no difference between gifts, whether inter vivos or mortis causa. And when the kind of possession is prescribed by statute, that sort must be given or there is no gift; the attempt is abortive, and the gift is invalid. I do not see any reason in construing this statute to limit the meaning of the *75word “ gift ” to one kind of gift only. The word applies to botli kinds. The reason of the law applies, as we well know, to the one as well as to the other. The statute has never been otherwise construed, but has been often construed in this state, and always in the same way, and I will cite the cases, and there are noneper contra until this.
There is only one other state in the Union which embodies this statute in its code of laws, the state of West Virginia, and there this statute has been construed, and constimed in accordance with the Virginia decisions. Dickeschied v. Bank, 28 W. Va. Rep. 340. It is there considered that the principal object which the legislature had in view in the passage of the law as it stood in the Code of 1849 was to protect the estate of decedents from the rapacity of unscrupulous attendants residing with and constantly surrounding them, and to prevent them from appropriating to their own use the slaves or other personal property belonging to the alleged donor. And just in proportion- as his personal property was valuable, and of a character to be readily appropriated, was it the more necessary that, when claiming as a gift, the actual possession of the property should be required to come to and remain in good faith with the alleged donee. Where the donee resides with the donor so many opportunities of unfair dealing may be found, and so many temptations to commit perjury may exist, the legislature determined to render the same impossible by declaring that “no gift of goods or chattels should be valid unless actual possession shall have come to and remained with the donee, or some person claiming under him. And if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession within the meaning of this section.”
The delivery of everything which is claimed to have been delivered in this case is invalid under this statute. The *76money, stocks, bonds, &c., were never' delivered at all, actually or otherwise. But it is said that keys were actually delivered, and that the stocks, bonds, &c., were given, and were not at the place of the common residence of donor and donee, and so were not affected by the statute. The answer to this is that delivery is necessary, and here there is no delivery. If the delivery of the keys symbolized the valuables, the symbolical delivery was incomplete and invalid, and if the keys and pocket-knives were not validly given, then there was no gift, for nothing else is alleged to have been given. One of the learned counsel who argued this case here by brief insists that “it would be absurd to suggest that a delivery of keys and a pocket-book, as representative or symbolical of the gifts, would be valid gifts of chattels, and that the chattels themselves, if delivered as the symbols were, would be invalid and ineffectual.” That would defeat the object and destroy the spirit of the statute. That would make the shadow more potent than the substance. Just here let us consider what becomes of the symbol itself in such a delivery of possession, for the symbol in this case was a key, a chattel, and that was the thing delivered, if anything was at “ the place of their residence.” I think it is clear that the reason, as w’ell as the letter, of the law applies equally to every species of property alleged to be the subject of the gift.
This section first came into our law in the Code of 1849, where sections 2413 and 2414 of the present Code were embodied in section 1 of chapter 116. And the words, “ if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession within the meaning of this section,” first then appeared in our law.
The Code of 1849 was not like its predecessors—a compilation of revised statutes—but an act of assembly, one of the chief objects of which, as expressed in the preamble to the *77act, was to arrange the subjects under appropriate titles; and the title of chapter 107 of the present Code is a copy of the title of chapter 116 of that Code; so the legislature there declared that this section prescribed pre-requisites to a valid gift, and declared that to be the object of its enactment; and the revisors have preserved the same language in the preamble to the present Code, to arrange them in appropriate titles, &c.
The learned lawyers who revised and codified our laws appended to this section a note referring to the decisions construing this section, most of the marginal references being to decisions found in the Code of 1819, and decided, therefore, before the enactment of the law in question. The note is as follows: “ Donatio mortis causa. 4 Gratt. 172; 11 Gratt. 182; 23 Gratt. 312; 107 U. S. 602.”
The first case referred to by the learned lawyers who composed the board of re visors, as appropriate to this section, as to what is necessary to render valid donations mortis causa, is the case of Miller v. Jeffress, in 4 Gratt. That was a controversy over an alleged gift to the donee of bonds which the alleged donor held against him. The court rejected the claim of the donee. In that case Judge Allen said : “As the witnesses examined to prove the alleged donation vary somewhat as to the precise words used by the decedent, the certificate written and signed at the time, and referred to and recognized by the witnesses when giving their testimony, can be more safely relied on as showing what did actually occur than the recollection of the witnesses after so great an interval.” The certificates and the depositions vary in this case, as I will hereafter show.
Judge Allen said further: “ The words themselves import a future benefit, * * * imply not a present donation, but a future enjoyment. The words were that ‘his friend Jeffress should have all the bonds of his in his possession.’ Viewing the words as clearly testamentary, that they were so *78intended, and. not as importing any present gift or parting with dominion over the thing, I am of the opinion [says Judge Allen] the appellee is not entitled to claim the bonds as a donation causa mortis.”
In the same case Judge Baldwin said, in delivering the opinion of the court: “ The court is of the opinion that the appellee, Jeffress, has shown no right to the bonds assigned to and placed in the hands of Jeffress & Co., (of which firm he was partner-,) by Paschal Folkes, deceased, the subsequent parol gift to said Jeffress, under which he claims, having never been perfected by delivery, which was not the less essentia] to its validity because the gift was in the donor’s last sickness, and in contemplation of approaching death. A donatio mortis causa is of a mixed character, being partly testamentary and partly donative; from an indulgence to the nature of the emergency, the law dispenses with the solemnities of a testament, and for that very reason requires the essentials of a gift.”
I will pause here to ask what are the essentials of a gift in this state ? My answer is, they are prescribed in section 2414 of the Code, supra, by deed or will, or by actual possession delivered to the donee, and, if the donor and donee reside together, possession at the place of their residence is not sufficient.
Judge Baldwin says further: “ A delivery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, as of a watch or a ring, or of the means of getting the possession and enjoyment of the thing, as of the key of a trunk or a warehouse in which the thing is deposited ; or, if the thing be in action, of the instrument by using which the chose is to be reduced into possession, as a bond or a receipt, or the like. * * * It is the naked case of an abortive nuncupative will, which the disappointed legatee is now seeking to convert into a donatio mortis causa.”
*79In the case of Lee’s Executor v. Book, 11 Gratt. 185, Judge IVLoncure said : “ "Whether the donation was valid or not depends upon whether there was a sufficient delivery of possession to perfect the gift. All gifts, except by will, must be attended by delivery of possession to make them valid. Until such delivery they are inchoate and revocable—indeed, mere nullities. The donation in this case, as found by the jury, ivas a donatio mortis causa. But there is no difference in this respect between donations mortis causa and inter vivos. The same kind of delivery of possession which is necessary to make good the one is necessary to make good the other.”
And in the case of Morrison’s Executor v. Grubb, 23 Gratt., Judge Anderson, delivering the opinion of the court, when speaking of the delivery of possession of a gift, says: “And it matters not whether it was a gift causa mortis or inter vivos.”
In a recent case in this court, Yancey v. Field, 85 Va. 756, the statute concerning gifts, which I have been considering, came up for consideration. The case was an alleged donatio causa mortis. The circuit court had sustained the gift, but this court, for want of compliance with the requirements of the statute, section 2414 of the Code of Virginia, as to delivery, reversed the trial court, and refused to sustain the gift, with reluctance, it being stated in the opinion : “ This conclusion, however, has been reached not without reluctance. Had we the authority to execute the alleged gift, or, in other words, to give effect to the manifest intention of the decedent to aid this worthy lady, the court, without hesitation, would affirm the decree; but we have no such authority. Our province is not to make the law, but to administer it, and we must, therefore, decide this case according to the settled law as it is written, and not permit a hard case to make bad law.” * * * Blackstone says : “A true *80and proper gift is always accompanied with delivery of possession, and takes effect immediately.” 2 Comm. 441. Citing Ward v. Turner, 2 Ves. Sen. 431, and quoting from and citing Basket v. Hassell, 107 U. S. R. 602, says: “Indeed, we have a statute which expressly, enacts that no gift of any goods or chattels shall be valid unless by deed or will, or unless accompanied by actual possession, and that if the donor and donee reside together, possession at their residence will not suffice.” Code, section 2414.
It is, however, now decided in this case that this statute, so expressly quoted and held by the unanimous opinion of this court in Yancey v. Field to render a gift mortis causa invalid, has no application to such an alleged gift.
I am of opinion that the words of the statute clearly and unequivocally apply to all gifts. “No gift shall be valid unless,” is equivalent to “ every gift shall be invalid unless ” ; and, as there was no delivery of possession, actual or otherwise, claimed, except at the- common residence of the alleged donor and donee, this supposed gift is invalid. So the law is written.
The decision here must rest upon the assertion that a gift mortis causa is not a gift—that is, that the word “gift ” does not apply to a gift with a particular motive. The words of the statute are general, and include all gifts, and they have been so distinctly held in this court up to this case.
A gift is the voluntary transfer of a thing without consideration—a transfer of the title to property to one who receives it without paying for it.
This case was first considered in the chancery court of Richmond by the late chancellor, Edward H. Fitzhugh, ivho died before decree in the cause, but not before he had partially written his opinion, and such was his eminence in his profession that his opinions have, upon appeal here, been several times adopted by this court in full, as the best exposition of its opinion that could be made of the law of the subject, and *81recorded as the opinion of the appellate court; and I have turned to his opinion to see what was his construction of the particular question upon which I think this case should he determined—the delivery of possession set forth in the testimony. Judge Fitzhugh says, among other things : “ The question in this case is whether the gift set up in the plaintiff’s bill has been maintained as a valid gift causa mortis, under the law and the evidence, so as to confer a title to the property, the subject of the gift, to the donee. As was justly observed by one of the counsel in argument, the statute of descents and distribution has long been held as a wise and just and natural disposition of a man’s property, if he chooses to die intestate. If he thinks proper to make a different disposition of his property than that prescribed by law in case of intestacy, he is at liberty to make a will. Our statute of wills can fully guard him against imposition in his dying hours. A man may make a gift causa mortis, but, for obvious reasons, the courts are extremely guarded and cautious in the establishment of such gifts. Every reason which the wisdom of the law deems to be necessary to establish*a will applies with equal, if not greater, force to the establishment of a gift causa mortis ; and because of the opening which this mode of transfer affords to fraud, the law watches it with jealousy, and does not permit it, with its attendant uncertainties, to take the place of a will. It is apparent, if these remarks are sound, that the court should require the clearest proof of the donor’s intention to make the gift, and of every requisite necessary to make a valid donation causa mortis—one of these requisites is delimery.” And the learned chancellor, after quoting extensively from the case of Yancey v. Field, supra, recently decided here, says: “ This, I think, is a sound exposition of the law. It conforms to the policy of the law, which watches this mode of transfer of property with so much caution and jealousy; and, moreover, it seems to be the view which our Supreme *82Court of Appeals lias taken of it, and which is therefore binding on this court ” (chancery court of Richmond city): In view of these extracts, it cannot be doubted what his decision was to be in this case.
Mr. Minor, in his third volume, speaking of the mode of perfecting the gift of a chattel between donor and donee (referring to a separate head—the mode of perfecting a gift of chattels as to third parties), after referring to actual delivery, or its equivalent, when the thing was incapable of actual delivery, as a pre-requisite to a valid gift, says : “ The donor must part not only with the possession, but with the dominion of the property.” Says further, at page 81: “ Much embarrassment having arisen when the donor and donee lived together (as, for example, in the case of father and child) in respect to what should be a sufficient delivery of the possession, it has been judicially enacted that ‘if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession within the meaning of this section.’ ”
It was decided in this court in Shirley v. Long, 6 Rand. 764, that a parol gift of a slave to a son by father, when they resided together, was void as between the donor and donee, for want of actual possession. See also Hunter v. Jones, 6 Rand. 541; Slaughter's Adm'r v.Tutt, 12 Leigh 147; Tutt v. Slaughter's Adm'r, 5 Gratt. 364. This is a case of the validity of the gift between the parties, which is not valid as between them—that is, is no gift—unless delivered in the mode prescribed by law.
I think this is conclusive of this case, but the learned chancellor who rendered the opinion appealed from has sustained the alleged gifts as to all, except the alleged gift of the bank deposit, by delivering -the pass-book. As to this pass-book, I think he was right; as to all else, wrong. There was no valid gift under the law of anything. I do not con*83sider it necessary to review the evidence, therefore, to sustain my view, as, admitting all that is claimed to be true, the gift was invalid for want of delivery; but I do not mean to concede that all that is testified to appears to me to be credible. It is an alleged gift of everything the donor possessed. This is the claim. Who was the donor? An infirm sick man, advanced in years. At his bedside was the alleged donee, a colored married woman, acknowledged to be his child by the donor—no longer young. At her elbow another colored woman, which latter is the sole witness to prove the gift of this large estate, who, with much detail, recites the circumstance of the gift; no other person was present, no other witness was called in, although others were in the house. The gift is not of a trifle, or a competency merely, but of everything the donor had in the world. What are the circumstances that tend to discredit this sweeping gift of everything the donor had in the world?
First. The donor had an intimate friend, who had been chosen by him (the donor) to hold certain property for the alleged donee, and to whom he had conveyed certain lots in Richmond, in trust for the alleged donee, and to whom, in a long intimacy, he had often spoken concerning this woman, and to whom he had said that a large bequest to the donee in her situation would do her no good. When the trustee called, after the donor’s death, the donee said Thomas had made no will; she supposed she would get nothing except what he held in trust for her. • When the story of the keys, &c., was noised abroad, he called to enquire about it, and asked the donee about it, and expressed his interest in her The single witness, who was again at her elbow, cautioned her to say nothing on the subject, alleging that this was the advice of her counsel.
Secondly. It is also shown that Thomas, the donor, was negotiating with another gentleman, and had procured his consent to act as trustee, to hold other property for the donee, *84about the time of his death. So that lie appears to have considered a trustee necessary to hold and protect such property as he should give h er.
Thirdly. It is also shown that at the time of his death he had consulted with a lawyer about making his will, and had an engagement to attend at the lawyer’s office the next day after his death, to make his will. Tiffs lawyer was spoken to by the trustee of the donee to attend to her interest to establish this gift, or concerning it, but declined upon the ground that she had no case.
Fourthly. Although Thomas, the donor, as the evidence shows, was in the habit of talking a good deal about his property and his disposition of it, yet there is no person to whom he ever, before his gift, mentioned such an intention as giving all of his property to this woman, while Mr. Watkins, a witness, says he expressed a contrary purpose.
Fifthly. He had relatives with whom he was on good terms, and one of whom he was especially fond, whose portrait hung over—always over—the mantel in the room where he slept; and a letter from him is exhibited by a relative, written by Thomas to enquire the full names of certain relatives of the deceased.
These circumstances stand not conclusively disproving the evidence of the single witness, but they do not render it any more probable. Moreover, the affidavit filed at the commencement and first assertion of the claim set Up a gift testamentary in character, to be effected only after the death of the donor (Basket v. Hassell, 107 U. S. R. 614; Sterling v. Wilkinson, 83 Va. Rep. 791) ; whereas, in her deposition, she, the single witness, leaves out. all that indicates a postponement of the effectual delivery of the gift to the death of the decedent. The case alleged in her deposition is an absolute gift of everything the donor had, completely given, and the whole detail gone over more than once. If the law does not favor such *85gifts, as it does not, then in strictness this gift is not established by the testimony of one inconsistent witness.
I forbear comment upon the policy of the law which permits such gifts at all, on the dying-bed, but will refer to the remarks of Mr. Schouler in his treatise on the law of personal property, Vol. II., pp. 182, 183, 184, and the cases there cited, especially the views of Lord Eldon in Duffield v. Elwees, 1 Bligh. N. S. 533.
In Virginia, I have heretofore thought that the character of delivery required by our statute would sufficiently protect the dying man; but if there is no statute concerning the kind of delivery necessary to pass a dying man’s estate on his deathbed by gift, then our statute of wills appears to be useless. This question is of no importance, so far as creditors are concerned—such gifts do not affect them or their debts; but the next of kin, and distributees, near in blood or remote, are all concerned. One child against another, or one child against grand-children—all may rest at the mercy of attendants. It oj>ens wide the door for fraud and perjury, and I think Lord Eldon was right when he said : “ Improvements in the law, or some things which have been considered improvements, have been lately proposed; and if, among those things called improvements, this donation mortis causa were struck out of our law altogether, it would be quite as well.” “ And at the present day [says a learned author above mentioned], when the effort-to carry out the giver’s intention has resulted in encouragement to a giver to leave his deliberate intention in lasting doubt, when legal consistency seems to require reluctant courts to uphold a nurse, in sole attendance upon some foolish person, in carrying off stock, bonds, and promissory notes, with little or more ado than floor-sweepings or waste paper, utterly regardless of the claims of kindred, it is no wonder that we find the reports full of judicial regrets that the gift causa mortis was ever admitted into our law at all.” *86Schouler 184; Walsh v. Sexton, 45 Barb. 251 Tillinghart v. Wheaton, 8 R. I. 356. “It is far better that a gift of this kind occasionally fail, than that the rules of law be so relaxed as to encourage fraud and perjury.” Hatch v. Atkinson, 56 Me. 324.
I feel constrained to dissent from the opinion of the other judges, for the foregoing reasons.
Richardson and Hinton, J’s, concurred in the opinion of Fauntleroy, J.
Decree affirmed.