In November, 1878, Mrs. Marston made known her desire and purpose to give to her son the plaintiff, and to her daughter Mrs. Pillsbury, the promissory notes which she held against them. That purpose she understandingly carried into effect by the transfer to them of the possession of the notes, without condition or reservation. The transaction was intended by her and understood by them to be a complete delivery of the notes, operating as an absolute extinguishment of all claim against them as signers of the notes. None of the elements to constitute a valid gift inter vivos were wanting. The gift was by a person competent to give, of property she had a right to give, to persons competent to receive, and was completed by an absolute and unconditional transfer of the possession of the thing given. The gift having been perfected by delivery and acceptance, became an executed contract, founded in mutual consent, irrevocable by the donor, and the notes became the absolute property of the donees. Creditors only could interfere, but there is no suggestion that there were any.
The redelivery of the notes to Mrs Marston subsequently on the same day was not a revocation of the gift, for it is found as a fact, and the paper drawn up by Mr. Herbert and signed by her shows, that the parties did not understand that the gift was revoked, and did not intend to revest the title to the notes in her, except in the contingency which has never happened. Nor was the redelivery a gift inter vivo from the children to their mother; the facts show that was not what the parties intended; and besides, a gift of the donor's promissory note may be avoided. If the reissue of the notes was intended as security for their agreement to support their mother, the answer is, there was no valuable consideration for the agreement. 3 Pars. Cont. 362.
It is unnecessary to inquire what the effect was of the delivery to Herbert of the Kelly notes, for the administrator cannot be charged for them if they were worthless, as alleged by Mrs. Kelly, one of the defendants. If this is not assented to by Marston, the other defendant, the report can be recommitted for a hearing on that question. If it shall appear that the notes are not worthless, then the question whether the plaintiff should be charged for their amount will arise; and on that question we express no opinion.
Mrs. Kelly's motion to dismiss, understood as a motion to become defaulted, is granted as of the term when the motion was made.
Unless the defendant Marston desires a further hearing, the order will be
Decree of probate court reversed.
ALLEN and BINGHAM, JJ., did not sit: the others concurred. *Page 149