See also Hunt v. Rousmanier, 1 Pet. 1, 7 L. ed. 27; Taylor v. Burns, 203 U. S. 120, 51 L. ed. 116, 27 Sup. Ct. Rep. 40; Dickinson v. Central Nat. Bank, 129 Mass. 279, 283, 37 Am. Rep. 351; Crowe v. Trickey, 204 U. S. 228, 240, 51 L. ed. 454, 460, 27 Sup. Ct. Rep. 275; Missouri ex rel. Walker v. Walker, 125 U. S. 339, 343, 31 L. ed. 769, 772, 8 Sup. Ct. Rep. 929; Rufe v. Commercial Bank, 40 C. C. A. 27, 99 Fed. 653; Michigan State Bank v. Leavenworth, 28 Vt. 209; Curtis v. Walpole Tire & Rubber Co. (C. C. A. 1st) 134 C. C. A. 140, 218 Fed. 147.

The cases previously cited relating to voluntary assignments or gifts of choses in action could not be sustained on the defendant's theory that no interest in the debt or fund passed by the assignment, for the transaction would be incomplete; nor could the numerous cases where consideration was paid and the assignor died, for, as above stated, the power would be revoked by his death, and, such being the situation, it is "safer to travel the path which the law has trodden, instead of discovering another one, unless it is very certain that the new path will enable us to reach, not only most of the results which have been reached by the old one, but all, or at least all which ought to be reached."

Harlem v. Bayonne, 48 N. J. Eq. 246, 21 Atl. 478; Todd v. Meding, 56 N. J. Eq. 83, 92, 38 Atl. 349; Warren v. First Nat. Bank, 149 Ill. 9, 23, 25 L.R.A. 746, 38 N. E. 122; Hinkle Iron Co. v. Kohn, 229 N. Y. 179, 128 N. E. 113; James v. Newton, 142 Mass. 366, 56 Am. Rep. 692, 8 N. E. 122; Voyle v. Hughes, 2 Smale & G. 18, 65 Eng. Reprint. 283; Pearson v. Amicable Assur. Office, 27 Beav. 229, 54 Eng. Reprint, 89; Fowler v. Sav. Bank, 113 N. Y. 450, 453, 4 L.R.A. 145, 10 Am. St. Rep. 479, 21 N. E. 172; Jacobs v. Jolley, 29 Ind. App. 25, 62 N. E. 1028; Green v. Langdon, 28 Mich. 221; Carpenter v. Soule, 88 N. Y. 251, 42 Am. Rep. 248; Rogers v. Penobscot Min. Co. 83 C. C. A. 380, 154 Fed. 615; 16 Law Quarterly Rev. 241.

The question whether, on the allegations of the bill, the donor, Mrs. Sayles, is estopped from setting up want of consideration as a defense has been argued at length; but, in view of the conclusion reached on the main questions, it is unnecessary to pass upon it.

Wills-rights of

The nature of Mrs. Sayles' right, though the result of a statutory compromise, is the same as it would legatee under compromise. have been had the vision in her favor. She takes as will originally included such proa legatee. This is the meaning of the statutes of Rhode Island, as construed by its courts. R. I. Gen. Laws 1909, chap. 312, § 23; Barber v. Westcott, 21 R. I. 355, 43 Atl. 844.

The decree of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the appellants.

Petition for writ of certiorari denied by the Supreme Court of the United States, October 18, 1926, U. S. U. S. —, 71 L. ed. (Adv. 127), 47 Sup. Ct. Rep. 99.

I. In general, 223.

I. In general.

The annotation does not purport to cover the question whether an interest in a trust fund which has not been created by the will of a decedent may be the subject of a gift.

Transfers for a consideration, such as sales, are of course beyond its scope; and assignments made under such circumstances as not to suggest their being regarded as gifts are likewise excluded.

The annotation is not concerned with cases involving gifts of specific property which has been actually received by a legatee, as in Murphy v. Bordwell (1901) 83 Minn. 54, 52 L.R.A. 849, 85 Am. St. Rep. 454, 85 N. W. 915.

Gifts by executors or administrators of claims for fees are also beyond the scope of the annotation, as in Luther v. Hunter (1898) 7 N. D. 544, 75 N. W. 916.

The question what amounts to a gift of debt or part thereof by creditor to debtor is the subject of the annotation in 37 A.L.R. 1144 [Gift, 22]; and as to gift of debts of third person not evidenced by commercial instrument, see annotations in 3 A.L.R. 933, and 14 A.L.R. 707 [Gift, § 14].

With respect to choses in action, a gift by equitable assignment, that is, by delivery of the instrument representing the right, claim, or debt, was not formerly, and is not now perhaps in a few jurisdictions, recognized. This rested upon the theory that it was necessary to resort to equity to compel the donor or his representative to transfer the legal title, and that equity would not lend assistance to compel the completion of a mere voluntary gift. This reason ceased to be of force when the donee became entitled to use the name of the donor or his personal representative in a suit to

enforce collection of the instrument, and, since all suits at law, as well as in equity, may be brought in the name of the real party in interest, the rule is now generally regarded as obsolete. 12 R. C. L. 938.

Although there is some variation in the theories invoked to supply the requisite of delivery in such case, it is now quite generally held that the gift of an interest which has vested in a distributee by the death of a decedent may be upheld as an executed gift, although there has been no manual delivery of specific property, if the intention to make a present gift appears, and the donor has done all that he could reasonably do, in view of the unsettled condition of the estate, to vest his donee with the right or interest which he intended to give him. In most, at least, of the following cases cited in support of that statement, there was a formal written instrument delivered to the donee, or to someone for him, which purported to transfer the interest in question, and which would concededly have been effectual for that purpose if supported by a consideration.

United States.-CHASE NAT. BANK V. SAYLES (reported herewith) ante, 207.

Georgia. Allen v. Allen (1916) 146 Ga. 204, 91 S. E. 22.

and that a trustee could not, by withholding assent, prevent the cestui from making an effectual gift of his interest in the trust property or any part of it.

In Voyle v. Hughes (1854) 2 Smale & G. 18, 65 Eng. Reprint, 283, one who had a one-fifth interest, as one of the next of kin of her deceased sister, in a certain trust fund, which had been created in the sister's favor (subject to a life interest in one who was still living), executed a deed by which she assigned such one-fifth interest to another, in consideration of natural love and affection, and gave the latter a power of attorney to demand and receive such interest from the trustees, which deed was delivered to one of the trustees, who furnished a copy of it to the assignee. Subsequently, the assignor stated her desire to revoke the assignment, in a letter which she sent to the trustee. In a suit after the death of the one who had the life interest, the assignee's representative was held to be entitled to the amount of the one-fifth interest,-the court declaring that this was not a case of an agreement, but of "an absolute assignment by deed, purporting to transfer the estate or interest of the assignor to the assignee;" and that as between them the transaction was complete. It also said that the equitable right was effectively transferred by the assignment; and that there was no room for the argument that an incomplete gift was invalid in equity.

It will be noted that in Voyle v. Hughes (Eng.) supra, the court expressly held that the gift could not be revoked. And the decision that the gift, which was effected by the settlement made in contemplation of marriage, was effective as against a subsequent settlement in favor of other parties, in Kekewich v. Manning (1851 1 De G. M. & G. 176, 42 Eng. Reprint, 519, supra, may be likewise regarded as authority, for the proposition that the gift could not be revoked, although apparently that point was not relied upon. This proposition seems likewise to be supported, although not stressed, in the other cases set out in 48 A.L.R.-15.

this subdivision. See also cases in subd. II. b, infra.

In Hooper v. Goodwin (1818) 1 Swanst. 486, 36 Eng. Reprint, 475, the surviving brother of an intestate, to whom certain bank stock had been left in trust, subject to his widow's life interest in the dividends, executed an instrument by which he and the other next of kin of intestate released the trustee upon the condition that the latter should transfer such stock to the widow, who as administratrix was also a party to the same instrument. In view of the release, together with the fact that this brother did not require a bond from the widow, whereas the others of the next of kin did so require, it was held that he had effectively carried out his intention of giving his share in such stock to the widow, which intention he had expressed in a letter to her, having in fact given her the beneficial interest in such stock.

Although possibly not directly involving the transfer of an interest in the estate of a decedent, attention is called to Re Way (1865) 34 L. J. Ch. N. S. (Eng.) 49, reversing in effect the decision in (1864) 10 Jur. N. S. 836. In this case a voluntary deed was executed by one who had a reversionary interest under an old settlement, assigning such interest to trustees for the benefit of certain individuals and charities. The lower court held that the deed was not effectual, since the assignor retained possession of it, which she subsequently destroyed (making by will other disposition of her interest), and no one knew of it except the solicitor who prepared it, and who represented as well the trustees under the old settlement; but upon appeal the Lords Justices took the view, assuming that the assignment was properly executed, that the assignee had done all that she could, being not required to give notice, and that accordingly the transfer was complete.

In Harding v. Harding (1886) L. R. 17 Q. B. Div. (Eng.) 442, where one of the residuary legatees under a will gave to his daughter a note directing the trustees to pay to her a certain

balance which was due to him, and she delivered it to the trustees, it was contended that this was a mere equitable assignment, and that, having been made in favor of a volunteer without consideration, equity would not enforce it, but the court held that she could maintain an action at law for such balance,-taking the view (aside from the consideration that the trustees assented to the assignment) that the donor had done all that he could to make the assignment complete, if it were regarded as an equitable one; and that it might also be regarded as a complete legal assignment, in view of the Judicature Act, which gave the assignee the right to sue in her own name in respect to this right of action, -observing in this connection that the law as to the necessity for a consideration did not apply if the assignment was completely made.

In Henry v. Graves (1861) 16 Gratt. (Va.) 244 (a quotation from which appears in the reported case), a decedent had left slaves to a life tenant, at whose death they were to be equally divided among all the testator's children, and, before the life tenant's death, one of the children, with her husband, executed a deed conveying their interest in such slaves. The court regarded this as an executed gift of the husband's contingent interest in his wife's vested remainder, declaring that the remainder was not a mere chose in action, but at most a quasi chose in action, and that the husband's interest was clearly assignable, with or without consideration.

In Tarbox v. Grant (1898) 56 N. J. Eq. 199, 39 Atl. 378, where a surviving husband, who had the entire beneficial interest in his wife's personal estate, after her death and before administration was taken out, executed a voluntary deed of settlement of the entire estate in favor of a son and the heirs of deceased children, the court said that, treating the case as an intended gift of the legal title to choses in action, the gift was completely executed by the deed alone, without an actual delivery of the chattel itself,-after replying to the contention that the deed was not delivered by the grantor,

but remained in his custody until after his death, by holding that there was no clear and decisive proof that it was thus undelivered, and that, even if it had been undelivered, such a deed would be valid, in the absence of other proof that it was not intended to be absolute; and disposing of the contention that, even if the deed had been delivered, it would not be operative to pass the choses in action which comprised the property of the estate, since there was no delivery of the evidence of such choses in action, by pointing out that the deed transferred only the grantor's equitable interest, that the trustee named in the deed became vested with the legal title upon taking out administration, and that delivery of such evidences was not essential.

In Heise v. Wells (1914) 211 N. Y. 1, 104 N. E. 1120, where a father had left, except for a specific legacy, the corpus of a large estate to four daughters, who were to share equally the income for ten years, after which time the property was all to be divided between them, and where several years after his death, but within the tenyear period, one of the daughters executed and delivered to a trustee an assignment of her entire interest in his estate for certain purposes, the only contention upon which she subsequently relied, to avoid the assignment, was that, while she had attempted to give a sum of money, the proceeds of her undivided interest in such estate, she did not give her legal estate in remainder, which was all she had to give at the time of the alleged gift, and that the gift was therefore executory and invalid; the court did not reply specifically to this contention, but apparently considered the assignment to be a valid gift.

In reply to a son's contention that a deed from himself and several other children to his mother, of all their respective interests in a certain parcel of land left by his father, lacked consideration, where the father had devised his lands and other property to the members of his family in varying proportions, it was said in Butler v. Butler (1911) 151 Iowa, 583, 132 N. W. 63, that it was entirely competent