GEORGE DRUKE et al. v. HENRY HEIKEN et ux.

[No. 8,259. Department Two.] Aug. 28, 1882. GEORGE DRUKE et al. v. HENRY HEIKEN et ux. Gift—Causa Moktis—Note Ratable to Obdeb.—A promissory note payable to order and not indorsed is the subject of a gift causa mortis; and such a gift carries with it the mortgage by which it is secured. Appeal from a judgment for defendants in the Superior Court of the County of Sutter. Keyser, J. L. S. Taylor, and Freeman & Bates, for Appellant. The note was payable to the order of the deceased. It was, therefore, payable only to his written order. (C. C. §§ 20, 3101.) The oral evidence of the transfer ought, therefore, to have been rejected. This is not a perfect gift; an indorsement is yet needed. Equity will not consummate a gift but will leave the parties where it finds them. (Pennington v. Gittings, 2 Gill. & J. 208; Bradley v. Hunt, 5 id. 54.) M. C. Barney and I. S. Belcher, for Respondents. The rule is now settled that a promissory note, payable to order and not indorsed, is the subject of a gift causa mortis. (3 Waits’ Actions and Defenses 503, 506; Redfield on the Law of Wills, Part II, pp. 305, 312 and 313; 2 Kent’s Com. side page 448 and note; Grover v. Grover, 24 Pick. 261; S. C., 35 Am. Dec. 319; Westerlo v. Da Witt, 36 N. Y. 340; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 id. 420; Brown v. Brown, 18 Conn. 410; Turpin v. Thompson, 2 Metc. (Ky.) 420; Borneman v. Sidlinger, 15 Me. 429; S. C., 33 Am. Dec. 626; Ashbrook v. Ryon, 2 Bush. (Ky.) 228; Walsh v. Sexton, 55 Barb. 251; Pierce v. Boston Savings Bank, 129 Mass. 425.) [MAJORITY — The Court :] The Court : If a promissory note payable to order and not indorsed, is the subject of a gift, causa mortis, the judgment appealed from must be affirmed, for there is uncontradicted evidence that such a note was given by the decedent as a donatio causa mortis to Margaret Heiken, one of the defendants in this action. The authorities cited by respondent’s counsel are somewhat numerous, and all support their contention “ that a promissory note payable to order and not indorsed, is the subject of a gift causa mortis.” Section 3101 of the Civil Code has not changed the rule in regard to the transfer of negotiable instruments payable to order by indorsement. The assignment of the note carried the mortgage with it. Judgment affirmed.