Decided October 17, 1898.
On Petition for Rehearing.
[54 Pac. 662]
Mr. Chief Justice Wolvertondelivered the opinion.
An elaborate and exhaustive petition for rehearing has been filed in this case, and we are constrained to review to some extent the salient points involved. Counsel say the gift was not consummated until the subject thereof reached the hands of Schütz, but that, having acquired possession of it prior to the death of Closter, it became his property at the instant of his taking possession. This view overlooks the fact that Closter was not then in a mental condition to bestow anything. It was Closter’s purpose, no doubt, to make the donation in contempla*248tion of death, not that he understood the distinction between a donatio mortis causa and a gift inter vivos, but such was the nature of the plan adopted, which he supposed would effect a change of ownership in the property. Death was absolutely necessary to render the gift in that form irrevocable upon his part, for it must be remembered that such a gift is always conditional until the event in contemplation of which it is made has actually come to pass. This, as we have shown in the main opinion, is the distinctive element which determines the nature of the gift. The object was to make the gift, but to retain the title while living. None other is manifest from his acts. This becomes apparent from the fact of his leaving the subject thereof on the table in his own room for the donee to discover and appropriate after he had put an end to his own existence. But the gift must fail as a gift causa mortis simply because there was no delivery. It is said that the donee discovered the property and appropriated it while Closter was yet living, but it was not his intention that the donee should thus or otherwise appropriate it while he lived, so that its possession prior to Closter’s death was obtained contrary to his manifest intention. True, there was an ultimate intention to give, but none of executing the gift at that specific time, or that it should be consummated in the particular manner which it is claimed is sufficient to complete the transaction and pass the title. The ultimate intention is plain enough, but the manner adopted for the consummation of the gift was legally insufficient, as it contemplated no change in title, either conditionally or unconditionally, prior to his decease. When Mr. Schütz possessed himself of the envelope and its contents he did that which the donor did not purpose should be done,— for it was designed, as we have said, that he should have them only after his death, not before; so *249that he took them without the donor’s consent, and there could be no delivery in the absence of such consent. If the note indorsed and inclosed in the envelope, addressed as it was, had been handed by Closter to Schütz without saying anything, the act would have disclosed the purpose of the donor, and the gift would have been complete, as the delivery would have been accomplished. So, it may be admitted that if Closter had left the note upon a stump, on a by-way, to use the illustration of counsel, intending that Schütz should come along and discover and appropriate it, when he had possessed himself of it, if within the lifetime of Closter, the delivery would have been completed and the gift consummated.
But suppose, in the first instance, Closter had subjoined a condition, when he handed the note to Schütz, that it should be and remain the property of the donor while living, and when dead it should pass to the donee ; there would be no gift, because there would be no purpose of passing title within the lifetime of the donor. The transaction would partake of the nature of a testamentary disposition, but could not operate as a donatio mortis causa, or a gift inter vivos; as, in either case, the title must pass within the lifetime of the donor, although in the former it is subject to revocation. Basket v. Hassell, 107 U. S. 602, (2 Sup. Ct. 415.) So, in the second instance, suppose it was intended, and in some way made clearly apparent, that Schütz should, subsequent to the death of the donor, and in that event only, have possessed himself of the property, and then appropriated it, could it be said that there had been a delivery, if he had come by and obtained it prior to Closter’s demise? In such case, like the one at bar, there would have been no intention that the title should thus pass, and without the intention there could have been no delivery prior to his death. A mere passing of the naked possession does not *250come up to the requirements of a good delivery. It must be a transfer of the property with a purpose on the part of the donor to relinquish his dominion over it, and thereby to part with and divest himself of the title. A case of some analogy and illustrative of the principle is Miller v. Jeffress, 4 Grat. 472. There was a parol declaration by a party in his last illness of a gift of certain bonds which had been previously assigned to, and were then in the possession of, a certain firm of which the donee was a partner, but further than this there was no delivery of the subject of the intended gift. The court say, speaking through Baldwin, J. : “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 the means of getting the possession and enjoyment of the thing, as of the key of a trunk or a warehouse in which the subject of the gift 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 not the possession of the donee, but the delivery to him by the donor, which is material in a donatio mortis causa. The delivery stahds in the place of nuncupation, and must accompany and form a part of the gift. An after-acquired possession of the donee is nothing, and a previous continuing possession, though by the authority of the donor, is no better.”
We quote again from Woods, J., in Dickeschied v. Exchange Bank, 28 W. Va. 340, who states the essentials to a valid gift inter vivos as well as those of a donatio mortis causa. He says : “ Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. To constitute such a gift, the donor must be devested of, and the donee invested with, the right of property in the subject of the gift. It must be absolute, irrevo*251cable, without any reference to its taking effect at some future period. The donor must deliver the property, and part with all present and future dominion over it.” Touching a gift causa mortis, he says : “ There must be a delivery of the property to the donee, or to some other person for his use. The donor must part with all dominion over it, so that no further act of him, or of his personal representative, is necessary to vest the title perfectly in the donee; to belong to him presently, as his own property, in case the owner should die of his present illness, or from the impending peril, during the lifetime of the donee, and without making any change in relation to the gift.” See, also, Delmotte v. Taylor, 1 Redf. Sur. 417; Dunbar v. Dunbar, 80 Me. 152 (6 Am. St. Rep. 166, 13 Atl. 578) ; Bigelow v. Paton, 4 Mich. 170; Evans v. Lipscomb, 31 Ga. 71; Green v. Carlill, 4 Ch. Div. 882. So that whether we look at the transaction in the light of authority, or examine® it upon principle, it is not possible to sustain it as constituting a gift, — a completed, consummated act,— passing title to the donee.
The quotation from Caldwell v. Wilson, 2 Spears, 75, does not seem to be understood. Two methods of delivery are defined,— one, by actual tradition from hand to hand; the other, by an expression of the donor’s willingness that the donee should take when the chattel was present and in a situation to be taken by either party. In the latter there is involved no actual transfer of possession. The donor says, “There is the chattel (it being present) ; take it ” ; and the donee assents. This, the authority holds, would be equivalent to an actual manual transfer of possession from hand to hand. Hence we said the definition implied the mutual presence of the donor and donee. Of course, the assent or acceptance of the donee may be through an agent. But in this case, *252there being no agent for either party, there could have been no delivery until Schütz took manual possession, and it is the delivery accomplished by actual tradition from hand to hand that the counsel is contending for. The vice of the argument, however, lies in supposing that title passed at the instant the donee came into possession of the note and mortgage, it being before the donor had ceased to breathe, notwithstanding the fact that he was then irrational, and made no mention, either directly or indirectly, touching the property, or of its further disposal by him. It was the purpose of Closter to take his life instantly. If he had thus accomplished his purpose, it is admitted there would have been no delivery by reason of the donee’s subsequently finding and appropriating the property. Although he lived some four days, he never manifested any other or further intention respecting it; so that we are relegated to the primary manifestation of his ultimate intention, and it leaves no new or additional act by which to signalize the transaction as a gift in any aspect. The petition will be denied.
Rehearing denied.