Opinion
by the Court.When the deceased deposited the note with Mr. Boren, he was under no apprehension of death other than that general expectancy of dissolution, soon to occur in the course of nature, which all persons of his age so reasonably entertain. In his case, perhaps, this general expectation of death was aroused and quickened by his failing health. Otherwise, he ivas in no fear of death, immediate or remote. Gifts, made under such circumstances, can not be regarded as donatio causa mortis. 2 Blackstone Com. 514; Story Eq. Juris. Sec. 607 a.
A gift inter vivos is only enforced when it is a completed gift. The donor must relinquish, absolutely and irrevocably, present and future dominion and power over the subject-matter of such a gift. True, the delivery may be in escrow, to vest upon the happening of an event, but this contingency must not be at the mere will or pleasure of the donor. His dominion and right of control must cease before such a gift becomes absolute and fixed, so that it may be enforced at law. Jackson v. Railway Co., 88 N. Y. 520; 8th Am. and Eng. Ency. of Law, page 1313.
If such a gift is not completed during the lifetime of the donor, his death revokes the part which has been performed. 8 Am. and Eng. Ency. sujyra.
The decedent procured from the appellant convention, a blank form for anote, for the"payment of money to it. This he signed, but instead of delivering it to the appellant, as a binding obligation, he deposited it with one who was to act for him, and retain it during his lifetime. Manifestly, he intended to keep the note within his own control, so that he could repossess himself of it, if he chose so to do. To our mind, it clearly appears, from the evidence, that the deceased did not intend to irrevocably invest the appellant with legal power to enforce against him payment of the sum of money mentioned in the note. He did not know but that his life might be prolonged, or, for other reasons, he might need, or prefer to otherwise apply and appropriate, his means. At any rate, he did not choose to bind himself absolutely to pay it to the appellant during his lifetime. lie left the gift incomplete.
It is insisted, however, that the evidence conclusively shows that he did intend to bestow the money upon the appellant, after his death, and that he executed the note and delivered it to Mr. Boren, with instructions to deliver it to the appellant after his death, for the purpose of effecting that intent; that upon his d th-bed, his words and conduct were such as to confirm and ratify his former act, and that in pursuance thereof, the note was delivered to the appellant, who rightly possesses it and may laivfully enforce its payment. If it be conceded that all this is proven, it only appears that the deceased desired, and attempted to make, a disposition of his property to take effect only after his death. This he might lawfully do, but not by means of an undelivered note.
The experience of ages has demonstrated the wisdom and the necessity of guarding such bequests, or gifts of property, against fraud, undue influence, and imposition. All the States of our Union have statutes designed to supply such safeguards. If one desires to make a solemn disposition of his property, to take effect only after his death, yet leaving him so long as he may live fully empowered to change such disposition, or to apply its subject-matter to his own use, or to any other purpose, he must do so by a will executed in strict conformity with the statutory enactments regulating such bequests. Redfield on Wills, Vol. 3, 348; Cline v. Jones, 111 Ill. 563; Olney v. Howe, 89 Ill. 556. The note in question can not be received as a testamentary bequest and given the force and effect of a will, under our statute, providing for the execution of such instruments.
We think the judgment of the Circuit Court correct. It is affirmed.