McCraw v. Edwards, 41 N.C. 202, 6 Ired. Eq. 202 (1849)

Aug. 1849 · Supreme Court of North Carolina

41 N.C. 202, 6 Ired. Eq. 202

K. J. McCRAW vs. JOHN EDWARDS & AL.

When a parly avers that a certain bond was given to him in South Carolina, as a donatio mortis causa, he must shew that his right accrues under some special law of South Carolina ; otherwise the gift comes within the provision of the common or canon law, and there must be an expresa or implied delivery, and the title to be dependant upon the death of the donor.

Cause removed from the Court of Equity of Rutherford County, at the Spring Term 1849.

The defendants, John Edwards and George Edwards, gave a bond to one James McCarthy for $100, in the yearlS43, atad, in 1845, McCarthy died intestate infáouth Carolina, where he then resided. The bill states, that, a a few days before his death and in his last illness, McCarthy gave the bond, by way of donatio mortis causa, to one John Baber, with whom he resided, and that Baber afterwards disposed of the bond, and that, for a valuable consideration, it came to the plaintiff, without any recourse on his assignors. Afterwards, the defendant, John Edwards, took administration cf McCárthy’s effects in this State, and the present bill was filed to obtain payment of the bond.

The answer denies any knowledge or information of the alleged donation to Baber, but submits to pay the money to the plaintiff, if he should establish the gift, after discharging certain debts, which the intestate, McCarthy, owed. A witness for the plaintiff states, that, in McCarthy’s last illness, and five or ten days before his. death, he was called on by McCarthy to witness a power of attorney from him to John Baber, and also a verbal gift from McCarthy to Baber of all his effects, after payment of his debts. The plaintiff also examined Baber himself, who states that McCarthy gave him “all his notes, bonds and accounts, and all his land, during his last illness, and requested him to pay all his debts; ancl that the bond of Edwards was in his, the witness’s, possession, at the time McCarthy died, and was among the notes and accounts McCarthy gave him.”

Baxter, for the plaintiff.

Guión, for the. defendant.

Ruffin, C. J.

The bill does not state, that the transaction between McCarthy and Baber derived any peculiar efficacy from the law of South Carolina ; and, in the absence of such an allegation, we must assume that it did not, and are at liberty to suppose, that the validity of the gift depends upon the same rules of the canon or common law, which all the States of English origin received .from the mother country. By that law the alleged gift is clearly ineffectual, for the want of the delivery of the bond, express or implied. 1 Rop. Leg. 12. The transaction did not purport to be a present conditional gift, dependant upon the death or recovery of the donor; but it seems to have been rather a disposition, after the death of the donor, for the payment of debts and also for a bounty, in the nature of a nuncupative will, and, consequently, it cannot be executed in this Court, until the fact and validity of such a disposition have been establishad by the judgment of a Court of probate.

Per Curiam.

Bill dismissed with costs.