In the amended findings, after including in the "one question in the case as I see it" deceased's "money in the bank," the court further said and found: "The parties in open court agreed that there was a net balance due the administratrix, Mrs. Annie M. Reh, of $342.89, aside from the matter of the leasehold interest in the Reh Hotel and the furniture," and the latter the court passed upon, holding they were the property of Mrs. Reh under the writing of September 4, 1913, and what transpired in that connection.

Counsel for appellant now argue at length in their brief, with citation of decisions, "that there was no transfer of the rights or title to the commercial bank deposits of Mr. Reh to Mrs. Reh," citing 20 Cyc. p. 1239, and other authorities, to support the contention that the rule recognizing a valid gift of a savings account by delivery of the depositor's passbook does not apply to commercial accounts. It does not appear from the findings whether the bank accounts in question were commercial or savings, but it does clearly appear that the trial court did not pass upon them, for the reason that by concessions of counsel for the respective parties the question of title to cash in bank was eliminated, and the balance due administratrix was determined to be a stated amount, exclusive of the leasehold interest and furniture. We therefore cannot treat those questions as open for consideration by this court.

The court's findings of fact state that deceased delivered this paper of September 4th to his wife the same day in the presence of some friends at his hotel, and "at the same time he took from his safe and turned over to his wife the hotel leases, bank books, and some other papers." The contents of that paper and deceased's disposition of it on the day he drew and signed it are found by the trial court to clearly show that he "intended the instrument he executed

*

on September 4th as an assignment to his wife of all his property," and the court concludes that "this gift was perfected * by such manual delivery of the property as was consistent with its nature," emphasized by the fact that this paper with his written evidence of ownership, or title to, the property he intended to and did give her were together placed directly in her hands by him.

This paper, or "statement," as deceased designates it, read independently of interpreting acts or circumstances, is an anomalous jumble of sentences and assertions difficult to legally define. Its import is in a sense testamentary. If intended for and to be regarded as a will, it is imperfect and inoperative. On its face it is not a gift inter vivos, for all language referring to property and which in any sense could be claimed to express donation is introduced by the condition, "In case anything happens to me." A gift inter vivos is not only immediate, but absolute and irrevocable.

While not so stated in exact language, the paper as a whole fairly implies that it was written in anticipation of the writer's death from the disorder then upon him, in consequence of which he was "a sick man" about to leave his home in search of health, and for the purpose of protecting or providing for his wife if his sickness proved fatal, as he feared, and which in fact occurred eight days later. To that end he lamely stated "so my wife Annie Reh is the owner of everything we possess and nobody else." Fair construction of this language, under the circumstances and in the connection found, would not limit it to only meaning, or as intended to mean, that she owned what she did own, or that she was the owner of all they possessed before or when he wrote it, which he knew was not true except as what he then might write and do made it true. If, at the same time he delivered

this paper to his wife, he also made a legal delivery to her of the property in question in anticipation of death and with intent to absolutely vest control and dominion over the property in her, speaking at and from that time in connection with what he then did the statement was true. His intent, which is admit. tedly an important question in the case, was one of fact. The court has found as a fact that deceased intended to give this property to his wife and this writing to be an assignment of it to her. The court heard the testimony, which we infer from the time occupied in its taking was voluminous, and from that testimony, which is not before us, decided the fact.

We conclude that this paper of September 4th in connection with the contemporaneous facts found by the court stamps the transaction as a donatio mortis causa, or gift in view of impending dissolution from an existing disorder or danger. Such a gift is always ambulatory and conditional, revocable during the lifetime of the donor. The essentials of a gift mortis causa are that it be made with a view to the donor's death from a present sickness or peril; that there be such present actual or constructive delivery of the subject of the donation as the circumstances of the parties and nature and situation of the property permit; and the gift conditioned to become absolute only on the death of the donor, survived by the donee. The writing of September 4th and facts found present all these elements. The context and circumstances make plain what deceased meant when he wrote, "In case anything should happen to me." The court finds that at the time he executed this paper he considered himself a very sick man, that his condition was serious, and on that day he went east for relief accompanied by an attendant, dying shortly thereafter. It is not essential to a causa mortis gift that the donor is in extremis and certain of speedy death. The law fixes

no such limit. Such gift may be made by one apprehensive of death from a present malady, or imminent peril, as from a necessary surgical operation which he intends to voluntarily undergo in hope of relief. Ridden v. Thrall, 125 N. Y. 572 (26 N. E. 627, 11 L. R. A. 684, 21 Am. St. Rep. 758). A gift causa mortis, being limited to personal property, may be made without writings. No particular form of words, written or spoken, is necessary to give effect to such a gift, provided the evidence of what was said and done establishes the requisites for its validity. Vandor v. Roach, 73 Cal. 614 (15 Pac. 354). For the foregoing reasons, we conclude that the furniture in dispute, which is purely personal property capable of manual delivery, passed to appellee as a causa mortis gift; but other questions arise as to the leases of the hotel which it is urged by appellant are clearly interests in real estate and could not thus be transferred in this State in violation of section 9509, 3 Comp. Laws (3 Comp. Laws 1915, § 11975), which provides:

"No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing."

It is elementary, however, that title to real estate cannot pass by a gift causa mortis, which originally had application only to chattels which could be transferred by manual delivery, and has since been extended to personal property generally, which could pass by constructive delivery, including choses in action, with their security even though the security was a lien on realty. While leases for a term of years are chattels real, passing no title or fee of the land, and

are as a rule held to be personal property, they are nevertheless an interest in land, and as such it may well be questioned whether the law of gifts causa mortis would be applicable to them even in the absence of statute defining the manner in which they may be transferred. We are not cited to any authority holding that a leasehold interest in land for a term of years is within the law of causa mortis gifts. That such interest is within the purview of the statute of frauds invoked is made plain by the language of the act, and is so recognized by this court, including subleases. Fratcher v. Smith, 104 Mich. 537 (62 N. W. 832). This law has been repeatedly held to cover every case where an interest in land is divested by act of the party concerned including both surrenders and transfers. Enos v. Sutherland, 11 Mich. 538; Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124); Whiting v. Butler, 29 Mich. 122; McEwan v. Ortman, 34 Mich. 325; Broas v. Broas, 153 Mich. 310 (116 N. W. 1077); Longe v. Kinney, 171 Mich. 312 (137 N. W. 119); and numerous cases there cited. While deceased's conditional "statement" that if anything happened to him his wife "is the owner of everything we possess" may be recognized of some probative value touching a causa mortis gift, it fails to disclose any of the characteristics of a "deed or conveyance in writing" of an interest in land, which must be complete in itself and leave nothing resting in parol. Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Hilberg v. Greer, 172 Mich. 505 (138 N. W. 201). If it did not transfer all his interest in land, it did not transfer any. No claim is made that it transferred his lot in the Wood addition inventoried as part of his estate.

For the foregoing reasons, the conclusion is reached that the furniture passed to appellee as a gift causa mortis by the transaction of September 4, 1913, but that the leases, being an interest in land, were not