The following opinion was filed January 8, 1907:
Cassoday, C. J.1. There is no claim nor pretense that the written memoranda set forth in the foregoing statement *240constituted a last will and testament of tbe deceased. On tbe contrary, tbe answer expressly “admits that said Mary Becker died intestate.” Tbe memorandum itself, Exhibit No. 2, declares it to be tbe “expressed wisb,” therein repeated, “that no will or testament be written or made.” No attempt was made to prove it as a will. Tbe claim is that there was a complete transfer and delivery of tbe certificates of deposit in tbe lifetime of tbe deceased. Assuming that tbe memorandum relied upon truly expressed the wisb of tbe deceased, yet it was a mere order to give to tbe defendant all moneys then on deposit in the bank, providing her death occurred at that time,, and even then it was therein ordered that a certain amount thereof should be used as therein stated, and then declared that, in conveying her personal property to. defendant, she-thereby ordered “that tbe above written order shall he in full force immediately after my deathIn other words, tbe proposed gift was purely testamentary, and only to' take effect-after her death and not in prcesenti. Tbe case which seems to be nearest tbe case at bar in its facts is Basket v. Hassell, 107 U. S. 602, 609, 610, 2 Sup. Ct. 415, where Mr. Justice Matthews carefully reviewed and analyzed tbe adjudications, English and American, and reached the conclusion, and the court held, that
“A donatio mortis causa must, during the life of the donor, take effect as an executed and complete transfer of his possession of the thing and his title thereto-, although the right of the donee is subject to be divested by the actual revocation of the donor, or by his surviving the apprehended peril, or by his outliving the donee, or by the insufficiency of his estate to pay his debts. If by the terms and condition of the gift it is to take effect only upon the death of the donor, it is not such a donatio, but.is available, if at all, as a testamentary disposition.”
That, was an attempted gift of a certificate of deposit whereby the payee, during his last sickness and in the apprehension of death, made and signed the “following indorse*241ment” upon such certificate: “Pay to Martin Basket, of Henderson, Ky.; 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;” and then delivered it to the proposed donee and died. It was held that “by such indorsement and delivery” the donee “acquired no title to, or interest in, the fund.” In the opinion of the learned justice it is said “that a donatio mortis ccmsa must be completely executed precisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the conditions subsequent” above mentioned.' “These conditions are the only qualifications that distinguish gifts mortis causa and inter vivos. On the other hand, if the gift does not take effect 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.” That adjudication has repeatedly been referred to approvingly by this court. Barker v. Buhre, 61 Wis. 487, 489, 21 N. W. 613; Henschel v. Maurer, 69 Wis. 576, 34 N. W. 926; Crook v. First Nat. Bank, 83 Wis. 31, 36, 37, 52 N. W. 1131; Opitz v. Karel, 118 Wis. 527, 530, 531, 95 N. W. 948. As indicated in the case at bar, the order written in the memorandum was only to be in force after the death of Mrs. Becker and not in prcesenti. Pursuant to that theory the scrivener wrote the indorsement and put the mark on one of the certificates the day after Mrs. Becker died. That certificate was absent at the time he wrote the indorsement on the other certificates. Manifestly the ruling of the trial court to the effect that the document which governed in the case-showed that the transaction was not a valid gift causa mortis was correct. Por similar reasons there was no gift inter vivos, much less a purchase of any of the property in controversy by the defendant. The conversion of the certificates of deposit and the refusal to deliver the same to the plaintiff or his attorney seems to be conceded.
*2422. As to tbe other personal property, the plaintiff testified to the effect that when the demand was made for the same by him the defendant said it was there in the house, but that Mrs. Becker had given it all away. The defendant testified to the effect that when the plaintiff demanded the household goods he told him they were not given to him and he was not holding them, and that if he wanted them he should take them; that he, the defendant, never made any claim to such household goods, and that he never refused to let the plaintiff, or anybody else, have those goods.
At the close of the testimony, and after the court had intimated an opinion against the defendant, his counsel disclaimed and asserted that he had always disclaimed any right, title, or interest in the household goods. The court held, however, that such goods passed into the possession of the defendant and remained there down to the time of the trial and that he must account for them. The defendant excepted to such ruling and claimed that the question was for the jury and not for the court. The court directed a verdict in favor of the plaintiff and against the defendant for $1,500, which included $300 as the value of such household goods. We perceive no ground upon which such ruling can be sustained. The goods apparently remained in the same portion of the house which had been occupied by Mrs. Becker. The defendant was under no obligation to remove them to the plaintiff’s premises. Under the evidence referred to, it was at least a question for the jury as to whether the defendant refused to allow the plaintiff to take away such household goods, and, if so, their value. By reason of such error the judgment cannot be affirmed.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
TimliN, T., took no part.A motion for a rehearing was denied April 9, 1907.