Dwight, J.
The referee has found, as facts, the intent of fLhe decedent to give the moneys in question to the defendant, her acts and declarations designed to effect such intention and her capacity to ihake the gift, and each of these findings must be held conclusive unless seen to be wholly unsupported by the evidence. In respect to the last, it is claimed, on the part of the appellant, that there is no legal and competent evidence to sustain it. It is said that the three witnesses, relied upon by the defendant to establish mental capacity, were incompetent to give an opinion on that subject; and that, excluding their testimony, thus incompetent, there is left only the un contradicted evidence of the physician, who testifies, that, in his opinion, the decedent was not of sound mind, nor of capacity to transact business during the last two days of her life. But such is not the true state of the evidence on this question: the three witnesses referred to, do more than express opinions; they narrate the facts and occurrences of the day; they describe the appearance and condition, and relate the words of the deceased. The narrative of the very transaction in question, the giving of the paper to the defendant and the accompanying words of the deceased, was evidence on this point, which the referee had a right to consider, and which, had he been sitting as a judge at the circuit, he could not have withheld from the jury. But they gave other evidence, equally admissible. They say: “ She distinguished persons about her as usual.” “ She appeared to comprehend what she said and did, and what was said and done by others.” “ Whatever she said was rational and clear, and, if I spoke to her, her answers were correct and clear.” “ Her expressions were as intelligent as usual.” “ I did not observe any peculiarities in appearance, conduct or conversation; she grew gradually weaker, but her mind held out wonderfully,” — and much more to the same effect. These are not expressions of opinion, but statements of facts, as they were observed by the witnesses; and they constituted evidence which must have been submitted to the jury, had there been one, and upon which the referee was warranted in finding competent mental capacity. I do not examine the question, raised upon the argument, whether persons not experts in the phenomena of the mind are competent to give an opinion on a question of mental capacity, because if there were any expressions of opinion in the testimony of these witnesses, which I doubt, the objection on the part of the plaintiff was.not specific enough to raise the question. That objection was made before the depositions were read, and was to all such parts thereof as involved matter of opinion on the subject of capacity. Such an objection cannot avail the party anywhere. The ccrtnot be called upon to scrutinize the testimony of vrkVp,.. os and decide for the party to what particulars his chjcM shríl apply. In this case, there was ample evidence < ‘ itiopcd competency to support the finding of the refere - i- the intestate was of sufficient mental capacity to maé v of her property by will or gift.
There remains to be examined, therefor .. wth - rvoree’s conclusion of law, that "such transaction am valid gift to the defendant, mortis causa, of the sums oo.-n eU ,y her, as aforesaid, or toan extinguishment of any eKim rpon her therefor.” It may be observed, that the refereik-h her in this finding, nor elsewhere in his report, undertaken íu decide whether the original transaction, by which the mom came into the hands of the defendant, was a loan or a deposit, and, probably, it was unnecessary to decide that question ; but, to my mind, it is clear, that here was no loan, and no debt at the time of the gift. The letter of the intestate, of April 30th, clearly imports that the money was to be held by the defendant as a deposit; it advises, for reasons growing out of some circumstances of Mrs. Champney’s own affairs, how tíre deposit should be kept, and indicates a probable future use of the money to be determined upon when the parties should come together; while the receipt or memorandum of the defendant, which was accepted by the deceased, and retained by her till the day of her death, distinctly characterizes the fund as a deposit to be held by the defendant subject to the order of the deceased, and to be accounted for with only such interest as the defendant might receive for its use. In this view of the case, the question is not presented whether a valid gift can be made of a debt, from the creditor to the debtor, by delivery of the evidence of the debt, without release or acquittance, though, both upon principle or authority, I think that question must be answered in the affirmative; but, in this case, the money of the decedent, of an amount ascertained by the memorandum, then in her hands, was in the possession of the defendant, held by her subject to the order of the decedent. Snell being the case, what more was necessary or possible to effectuate a gift of this money to the defendant, than a delivery to her of the memorandum evidencing the amount aiui identity of the fund, accompanied by a clear and explicit, declaration of the donor that she gave her those moneys? Delivery of the subject-matter is, no doubt, essential a gift, either inter vivos or mortis causa; but the object of delivery is to give possession, and, in this case, possession was already complete in the donee. No further delivery was necessary, nor was it possible, without first returning the property to the donor, that it might be redelivered to the donee, an idle and unmeaning ceremony.
I am, therefore, of opinion, that the objection, that there was no delivery of the subject of the gift, is not well taken; and this, to my mind, disposes of all the questions in the case. Gifts, mortis causa, if not favored by the law, are at least amply sustained by authority, in cases where the essential conditions are clearly fulfilled. These conditions are contemplation of death, clearly expressed intent to give in presentí, delivery of the subject-matter and death of the donor without revocation of the gift, all of which seem to me to have been fulfilled in this case. The objection that the paper, delivered by the decedent to the defendant, was void, for want of a stamp, is without pertinency, especially in the view of the case taken by me, viz.: that this paper was not the evidence of a debt, but simply a memorandum, evidencing the amount and identity of the fund, which was the subject of the gift.
The judgment of the Supreme Court should be affirmed.
All concur.
Judgment affirmed.