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ker, 1 Mass. R. 79.

Cooper v. Burr.

Willard v. Missani, 1 Cowen, 37. Mayor, &c. of Stafford v. Bolton, 1 Bos. & Pul. 40. Clerk, &c. of Taunton Market v. Kimberly, 2 Wm. Black. R. 1120. Gardner v. Walker, 3 Anst. 935.) Matter of abatement may be joined with defense on the merits. (Bridge v. Payson, 5 Sandf. 210. Mayhew v. Robinson, 10 How. 162. Sweet v. Tuttle, Id. 40; affirmed 14 N. Y. Rep. 465.) The exception to the charge on the subject of misnomer was well taken, viz: That "if the plaintiff has been known to the community and passed by the name of Mary Cooper, as much or more than Mary Flood, it would be no objection to her recovery under this name." This doctrine is applicable to a plea of misnomer of the defendant—and the reason is that a plaintiff can not know that a defendant has any other name than that by which he is commonly known. That reason has no application to the plaintiff; he knows his own (Le Blanc arg. 1 Bos. &. Pul. 43.)

name.

II. The complaint should have been dismissed on the further ground that no valid gift to the plaintiff was proved. The ruling of the justice at the trial was erroneous, and the judgment should be reversed for that reason. This ruling was, "if the jury are 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." "If this witness (Miss Moore) has testified correctly as to what occurred, and the deceased Mary Cooper did on that occasion deliver over to the plaintiff the keys to her trunks where her money was mostly kept, and to the bureau, and did then tell her, or in effect, that she then gave her all the property she had, and the plaintiff took the keys, and it was designed and intended on the part of Miss Cooper to invest her with the title to the property, then what was done, as described by Miss Moore, would amount I think, in law, to a valid gift, provided she is not mistaken in what occurred, and provided

Cooper v. Burr.

she has not testified untruly." 1. To constitute a valid gift, there must be an actual delivery. This is the rule, and what is called constructive delivery is allowed only when the circumstances are such as to render an exception necessary. 2. Such constructive delivery is only sufficient when the subject of the gift is of such a character, or is in such a condition, that manual or actual delivery is impracticable. The delivery "must be an actual delivery, so far as the subject is capable of delivery." (2 Kent's Com. 439, 6th and subse-. quent ed.) It is only where the thing is not capable of actual delivery, that there may be an act which the law may deem equivalent. (Id.) And the donor must part not only with the possession, but with the dominion of the property. (Id. Hunter v. Hunter, 19 Barb. 635. Huntington v. Gilmore, 14 id. 243, where the cases are collected.) In Woodruff v. Cook, (25 Barb. 512,) the court, after adverting to the fact that there was not even a symbolical delivery, (the subject of the gift being a mare,) say "she was on the farm where both parties resided at the time of the alleged gift, and in such case Kent says, without an actual delivery the title does not pass; and all the authorities so hold." Allen v. Cowen, (28 Barb. 99, 102,) is to the like effect, and that "a symbolical delivery will answer where the articles are ponderous and incapable of being handed from one to the other." 3. The rules on this subject apply alike to gifts inter vivos, and to a donatio mortis causa. (Cases above referred to, and Kenney v. Pub. Ad. 2 Bradf. 321. Bloomer v. Bloomer, Id. 346. 4. The above cases also establish that the intent to give, however clear, will not avail. Also, that such delivery is equally essential in equity as at law. A court of equity never enforces a gift. (Bryson v. Brownrigg, 9 Ves. 1.) In Allen v. Cowen, (28 Barb. 99,) above cited, the act of the donor was singularly like that alleged in this case; the donor pointed out the furniture in question, standing in the very room where it was, and said, "I give you this property, and all I have purchased to day." The delivery of a key.

Cooper . Burr.

can not therefore operate, the trunks being present, in the possession of the donor, and continuing in such possession. 5. No change of possession either of the trunks or keys is proven. On Sunday the week before her death, and after the pretended gift to the plaintiff, Miss Cooper had the keys in her possession. 6. The proofs in this case failed to show such a delivery as is requisite to a valid gift. If it be deemed that what this witness, Miss Moore, testified, if true, showed an intent to give, that is all that can be claimed for it. The gift was not consummated. The subject is elaborately considered in the opinion of Daly (1st Judge Com. Pl. acting as surrogate,) in re. the estate of Miller, (See Delmotte v. Taylor, 1 Redfield, 417, or 6 N. Y. Sur. Rep.)

III. As a question of fact, the weight of evidence is strongly against the story of the pretended gift. 1. The plaintiff herself stated after the funeral, in the presence of two witnesses, that she had asked the deceased to give her something, and that she would not give her a thing. The plaintiff, though recalled to the witness stand after this testimony was given, did not deny it. 2. The plaintiff's conduct after the death occurred, was wholly inconsistent with the theory of the gift. She gave up the keys to the relatives, without making any claim to them. She made no claim whatever to the property as hers, except to specific articles, all of which, with much more, were given her. She only claimed that the relatives should do something for her in consideration of her long services. This they were willing to do, though they did not agree on the amount. Against all this evidence to the contrary, the plaintiff pretends that she told them of the gift. Her testimony is unworthy of belief, in view of the fact that she deliberately swore that none of the relatives ever came to the house at all. This was proved to be untrue from the testimony of her own as well as of the defendants' witnesses. 3. The conduct and language of Miss Cooper, the deceased, after the time of the pretended gift, is inconsistent with the theory of the gift.

Cooper v. Burr.

About ten days before she died, she, being then in possession of the keys, pointed out the trunk to Mrs. Burr, and said, "My gold is in that trunk." Three or four days before she died, Mr. Moore was called in, and the old lady said to those round her, "Go away from here, you are coming here to rob me,” the plaintiff and Mrs. Hart being present. 4. When the gold could not be found after the funeral, the plaintiff being called, expressed the opinion that the deceased had taken it out during her sickness, and placed it elsewhere. This could not have been done unless the deceased had the dominion of the property. 5. It is perfectly evident form the foregoing facts and circumstances, that if any such occurrences as those related by Miss Moore, did take place, they were but the unmeaning expressions of insanity, and so regarded by the plaintiff at the time; no change was made in the dominion of the property, and no importance attached to the gift, until long after the death of Miss Cooper, and after the plaintiff had enjoyed the assistance of ingenious advisers.

IV. The evidence shows by the most satisfactory preponderance, that the alleged donor, Miss Cooper, was insane, and the verdict should be set aside as against evidence, on that ground. 1. The physician who had attended her for twentyfive years, states unqualifiedly, that she was insane. He relates at some length her extravagant and insane expressions; at one time calling him Dr. Baldwin, who had been dead twenty years. At another stating that she was the Almighty. She thought somebody wanted to poison her. 2. She was also in the habit of claiming that she was the sister of Mary, Queen of Scots, and of denying that she was the daughter of William Cooper. Sometime she would say she belonged to the royal family of France, and was in the constant habit of using an unmeaning expression, "there were three," &c. 3. The receipts given by her for quarterly payments of the annuity are wholly irreconcilable with the theory of her sanity. 4. But three or four days before her death, when Mr. Moore was called in, she was raving, calling out to the

Cooper v. Burr.

plaintiff and those around her, "Go away, you damned bloody murderers; you are coming here to rob me." 5. She had been in the insane asylum during her father's lifetime. 6. The fact that living alone as she did, she should for years hoard up coin to the extent of many thousand dollars, keeping it in her own room,' risking her own life, and deriving no benefit or interest from it, is of itself almost if not quite conclusive evidence of her insanity. 7. It is insisted that no intelligent and unprejudiced person can read the evidence without being compelled to the conclusion that she was insane. 8. The language of the justice in his charge on that subject, was calculated to mislead the jury, and tended thereby to a verdict against the evidence. (Clark v. Fisher, 1 Paige, 171, and other cases cited in the recent case of Delafield v. Parish, 25 N. Y. Rep. 9, 23, &c.) 9. It is a familiar rule that the court will look with distrust upon testamentary dispositions, or gifts contemplating the death of the donor, disinheriting the next of kin and heirs at law, and devising or giving the whole of the property to strangers. This rule applies with especial force to cases where the property is claimed to have been devised or given to one who has had the sole control, or nearly the sole control, of the donor. (Clarke v. Sawyer, 2 Comst. 498.) This suspicion should be greater, and the court ought not to be satisfied without the most clear and convincing evidence, when the donor is of even questionable capacity to manage her own affairs with discretion. 10. The court ought not to be satisfied with the verdict on this question of insanity, and the ends of justice demand that a new trial should be granted.

V. The defendants should have been permitted to show why (being her only relatives) they had not caused the deceased to be provided for in some asylum for the insane, instead of suffering her to lead an irrational, solitary life in a house rented for the purpose. The conduct of the defendants in this respect was pertinent, and was relied upon as tending to show that they did not themselves believe she was

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