Cooper v. Burr. except a Mrs. Hart, who nursed her for about three weeks immediately before her death. Through all these twentyseven years, the plaintiff worked, washed, ironed, cooked, ran errands, nursed her, washed her, dressed her, lifted her into bed, put on her shoes and stockings, and did every thing in the house. The decedent always said she was going to leave her property to the plaintiff. The plaintiff was brought to the decedent by the sister of the decedent, from one of the aslyums, at the age of six years. After the sister died, the plaintiff was always called Mary Cooper. The trunks were kept in the decedent's room, and they and the bureaus held the gold, silver and jewelry. Mary Ellen Moore testified: that about six weeks before the decease of the decedent, witness being sent for by the decedent, decedent said in witness's presence to the plaintiff, "Mary, here are these keys; I give them to you; all I have I give to you; they are the keys of my trunks and bureaus; take them and keep them, and take good care of them; all my property and every thing I give to you; you have been a good girl to me, and be so still. Don't cry, Mary, you can go to market now." * Mary asked her how much money she should take (to market,) and she said, "You know I have given it all to you, take whatever you please; it is all yours, but take good care of it." As the witness was leaving, the decedent threw up her hands and said, "All is yours, Mary, I have given it all to you." "You have been a good girl to me, Mary, and be so still." She handed Mary (the plaintiff) the keys, and the plaintiff took them at the time. That about two years before the death of the decedent, witness was in to see the plaintiff, who was talking to witness and crying, and the decedent's door being open, she heard her crying and said, “Mary, dear, what are you crying for?" Mary said, "Nothing" and she said "Don't cry; don't worry any more; when I am gone I will give every thing to you and you shan't work any more, and you shall be well cared for." As to going to market-she told Mary to get what she * Cooper v. Burr. wanted, for it was all hers to do as she pleased with. Catharine Hart testified, that she was nurse to decedent for three weeks before her death. Deceased sent for witness, said she had been taken very ill and would not have any body to nurse her but witness. She was very low indeed; she said, "I am going to die, and I want you to be my nurse; and Mary, being a good, faithful girl to me, I have given her every thing in this house-all that I have got in this house; Mary has earned it, for she has been a good, faithful girl to me; she nursed me day and night, and I had no friends but that girl;" and she called her "my dear child," and she said, "Mary, you shall never be called by any other name than Mary Cooper as long as you live, and you all hear that that is that girl's name." Abby Jane "Matthewson testified, that she lived in the house of the deceased three years. Became intimately acquainted with the deceased and with the plaintiff. Was in deceased's room twice a day or oftener. She has always said that every thing belonged to the plaintiff-"every thing she had, including money, furniture and every thing, belonged to Mary, her little girl." Deceased said she had brought her up, and for a great many years she had taken the best care of her, and she wished that every thing that belonged to her should be plaintiff's; "it was Mary's and nobody else's." The evidence being closed, the counsel for the defendants moved to dismiss the complaint on the ground that there must be an actual delivery, so far as the subject is capable of delivery, to make a valid gift; that the donor must part not only with the possession but with the dominion of the property. That the mere circumstance of the delivery of the keys to the trunks, where the trunks themselves and contents were capable of delivery, and where the trunks themselves and contents remained in possession of the donor, until her death, is not sufficient to make a valid gift. The court denied the motion, and defendants' counsel duly excepted. The court then said, "On that subject I shall Cooper v. Burr. charge the jury, that if they shall be satisfied that the matter occurred in the manner testified to by Miss Moore, and with the design and intent to pass the property to the plaintiff, it would be a good gift, notwithstanding the continuation of their living together in the manner they did." The defendants excepted to this ruling. The defendants' counsel requested the court to charge the jury, that if the jury should be satisfied that here was such a gift, as under the charge of the court would be valid, they were not in this case to go beyond nominal damages, because the title to this property passed to the representatives, and upon their taking out letters of administration, their title related back to the intestate. The court said, "That involves the other question, whether the property was the property of the plaintiff. That question can not be involved in this case at all." The defendants' counsel excepted to this ruling. The counsel for the plaintiff requested the court to charge that there was no evidence to prove insanity. The court declined so to charge, and the plaintiff's counsel excepted. The counsel for the plaintiff requested the court to charge the jury, that if they found that the property in question had been given to the plaintiff in such a way as under the directions of the court would be a valid gift, then they should allow the plaintiff the full market value of the gold and silver. The court declined so to charge, and held that the plaintiff could only recover the value of the coin as placed upon it by law-that it had no other value. To which ruling and refusal to charge, the plaintiff's counsel duly excepted. The court then charged the jury as follows: "The plaintiff in this case has in form brought her action to recover the specific property described in the complaint, but as some of the articles have not been taken from her possession, and as the articles are very numerous and of different values, by consent of the counsel it is agreed, that your verdict, if you shall find for the plaintiff, shall be a verdict for the value, Cooper v. Busr. and not for the specific property. That will leave the rights of the parties without any material injury, as well as if you found for the specific property. I have ruled that the plaintiff is not entitled to recover the enhanced market value of the gold and silver coin, but they have the benefit of the exception. I have ruled that when the parties come into a court of law to recover coin, they can only recover what the standard value is, according to law. In this question I may be wrong-very possibly I am, but you are to regard that as the law of this case. The first question you are called to consider and determine is, whose property this was, at the time it was taken by the defendants. Was it the property of Mary Cooper, the plaintiff, or was it the property of the deceased, Miss Cooper, at the time af her death? If it was the property of Miss Cooper at the time of her death, then it went to her representatives, and although the defendants here were not then her representatives, yet they subsequently became such, and as such the title to the property relates back to the time of her death, and hence no recovery could be had, or only a nominal one could be had, if you should find it was the property of Miss Cooper at the time of her death. But if she gave the property, or the title to the property, to the plaintiff before her death, under such forms, and such ceremonies as that the law will adjudicate the title to the property passed, and you shall find it passed, under the evidence in the case, then the plaintiff would be entitled to recover, because then it was no longer Miss Cooper's property, and no title passed to the defendants, and the plaintiff would be entitled to recover the value of the property, with interest upon that value from the time it was taken, down to the present time. For the purpose of making title to this property, the plaintiff claims it was given to her by Miss Cooper before her death. She gives evidence to show that she was taken by a sister of Miss Cooper, from an asylum when she was about Cooper v. Burr. six years old, and that that sister died when she was eight or nine years old, and from that time she continued in the family of this Miss Cooper and her father, who was then living, for some few years longer, when he died, in 1838 or 1839, and from that time forward she continued to live with this Miss Cooper, the deceased, and for the last eighteen or twenty years the deceased was in infirm health, and for the last seventeen or eighteen years she has not been known to leave the house, and for a considerable length of time not even her room. From this testimony, and all the witnesses concur in this, it appears that the plaintiff lived there with her all this time, and was the only person in the house, with the exception of a short time prior to Miss Cooper's death, when Mrs. Hart went there as nurse, and when, occasionally, some of the neighbors were called in to assist, when she was more unwell than usual. The plaintiff claims that Miss Cooper had frequently expressed her desire and intention to give to Mary, this plaintiff, her property before she died, and that before she died she did give it to her. As to the evidence on that point, the first important witness is Miss Moore. Miss Moore testified that about six weeks before the old lady's death, she desired to see Mrs. Moore, the mother of the witness, and the plaintiff went after her, but she found Mrs. Moore was out, and her husband asked if the daughter would not answer, and she said she would perhaps, and so the daughter accompanied her to the house. Now it will be remembered that Miss Cooper, the plaintiff here, or Miss Flood, as they call her, (what her name was is entirely an immaterial question,) was not permitted to testify in this case as to what occurred between her and Miss Cooper, the deceased, in reference to this matter, because Miss Cooper is dead, and can not be here to testify against her, and consequently the law, although it has allowed parties to be witnesses in their own case, has not gone to the extent that where the parties on one side are representatives of a deceased person, the other party can, as |