Opinion
(July Term, 1815.)
Delivery is necessary to complete the gift of a chattel, unless it be granted by deed or is incapable of delivery. Therefore, where a father, the day after the death of his son, relinquishes to his son's widow all the right which he had to a distributive share of his son's estate, but without deed or delivery, and in the absence of the widow, it was held that the father might still recover such distributive share.
THE complainant, Micajah Bullock, exhibited his bill against Nancy Bullock (who afterwards intermarried with the defendant Carns Tinnen) as administratrix of her husband, Philip Bullock, charging that said Phillip died intestate and without any children; that the complainant was entitled, as the representative and next of kin, to two-thirds of the estate of said intestate in the hands of the said defendant, and charged that negro woman Betty and her children, Jenny, Jordan, Davy, and Leathy, with other property, came to the hands of said defendants. To which will the said Nancy, before her intermarriage, filed an answer admitting that her husband and intestate, Phillip, died on 17 November, 1807; that the negro woman Betty and her children, Jenny, Jordan, Davy, and Leath, with other property, came to her possession, but alleges that on the day after the death of said Phillip the said Micajah did fully, freely, wholly and absolutely relinquish and yield up to this defendant all the right and interest which he had, or might have, to any part of his said son's estate by reason of his having died intestate.
Browne and Norwood for complainant.
Nash for defendant.
Whereupon the following issue was made: Did the complainant, after the death of the intestate, yield and relinquish to the defendant all his right and interest in the intestate's estate? If any, what part thereof, and what relinquishment did he make? If he did, upon what consideration, and whether by parol or writing, and at what time?
Whereupon the jury returned the following verdict: That on 19 November, 1807, the complainant, Micajah Bullock, did yield and relinquish to the defendant a certain negro woman by the name of (252) Betty, and her children; that the consideration that influenced that relinquishment was the love and affection the complainant had to the defendant Nancy Tinnen (then Nancy Bullock), and further, that the relinquishment was made by parol, on the day aforesaid, and that the said Nancy, then Nancy Bullock, was not present.
Upon motion to dismiss the bill, as seeks distribution of Betty and her children, it is referred to the Supreme Court to determine and adjudge what decree shall be made.
Whatever wishes the circumstances of this case may be fitted to inspire, the Court are not apprised of any authority or principle of law by which the transaction between Bullock and his daughter-in-law can be supported.
"The delivery of possession has ever been deemed necessary to complete the gift of chattels, except they are granted by deed, or are incapable of being delivered." "Everything that is not given by delivery of hands must be passed by deed. The right of a thing, real or personal, may not be given in nor released by word." Noy. Maxims, 33. If the gift does not take effect by the delivery of immediate possession, it is then not a gift, but a contract, the performance of which can only be compelled upon good and valuable consideration. 2 Bl., 442. It has even been held that if a man, without consideration, deliver a thing to another to be given to a third person, he may countermand it at any time before delivery over. Dyer, 49.
The rule of the civil law appears to have been less strict with respect to gifts than the common law; but though it did not require a delivery, the presence of the party to whom the gift was made was deemed essential. It substituted, besides, other ceremonies, which were perhaps as well calculated to make the transaction public and to guard against haste and imposition as those required by our law. It is the object of all laws to enforce the performance of those contracts and engagements which grow out of the relations and state of society; and (253) the ceremonies requisite to their validity are designed to fix and ascertain the intention of parties and the degree in which they mean to incur a legal responsibility. No man who deliberately makes a promise can in morality or honor recede from the performance of it without very sufficient reason; but the law lends its aid in compelling the performance of those engagements only which are contracted under prescribed ceremonies and evidenced by certain proofs of deliberation. A man may have a present intention to do a thing, or may intend to do it in future, and express himself to that effect, without meaning at the time to lay himself under a legal obligation. And it may well be doubted whether it would be wise, if it were practicable, to give legal effect to those promises which are made without due deliberation or under the influence of some strong emotion, the presence of which, in a greater or less degree, interrupts the calm decisions of the judgment. Whether the heart abandon itself to the transports of joy, or is weakened by the sympathy of grief, something is deducted from the prudence and circumspection which the mind exercises in the ordinary concerns of life.
The Court overruled the motion to dismiss the bill.
NOTE. — See Arrington v. Arrington, 2 N.C. 1, and the note thereto; also, Picot v. Sanderson, 12 N.C. 309.