Mrs. Mary E. Mallory died December 16, 1909, leaving surviving her husband, Edward B. Mallory, and a son, Earl B. Mallory, who are the principal defendants in the case. Plaintiff is a brother of the deceased. Deceased was the owner of a note for the sum of $532 (upon which note $100 had been paid), executed by defendant Christensen. This note was secured by mortgage upon real estate in the city of Council Bluffs. Plaintiff claims that deceased gave him the note on December 11, 1909, and that he was the owner thereof at the time of her death. On the other hand, defendants' say that deceased was unsound of mind and incapable of making a gift at the time it is claimed the transfer was made; that the alleged gift was causa mortis, and can not be sustained, as against the claims of the surviving husband;, that the property was originally given to one of the defendants, and that this gift could not be recalled without the consent of the donee.. Further claim is made that the gift was made with intent on the part of the donor to deprive [*167] her husband of his distributive share in his wife’s property.

Some of the -questions presented are of fact, and some are purely legal questions arising from facts to.be found or conceded. The first question arising out of the issues is the claim of incompetency of the. donor. We have examined the testimony upon this proposition, and agree with the district court in its conclusion that defendants have not met the burden imposed upon them of showing the mental incapacity of the donor. Again, we fail to find sufficient testimony to establish the claim of actual fraud. Counsel differ upon the proposition as to-whether the claimed gift was causa mortis or inter vivos, and also upon -the effect of the gift upon the surviving husband’s claim to distributive share. Inferentially appellants’ counsel admits that, if the gift were inter vivos, the defendants have no just ground for complaint; so that we have to determine whether the claimed gift was causa mortis or inter vivos.

!. Gifts causa mortis. I. A gift causa mortis is defined to be a gift of personal property made by a person in expectation of death then imminent upon an essential condition that the property shall belong fully to the donee in case the donor dies as anticipated, leaving the donee surviving him, and the gift is not in the meantime revoked. 2 Sehopler on Personal Property, section 135. “Story observes that by our law there can be no valid donatio mortis causa (1) unless the gift be with a view to the donor’s death; (2) unless it be conditioned to take effect only on the donor’s death by his existing disorder or in his existing illness; and (3) unless there be an actual delivery of the subject of the donation. 1 Story Eq. Jur. section 607a.” 20 Cyc. note, page 1228.

[*168] 2. Same: wills: distinction. [*167] A learned text-writer has made the following distinction between - a gift causa mortis and a will: “A gift causa mortis is distinguished from a gift by will in the following particular: (a) A gift causa mortis may be made [*168] by parol. An instrument in writing is ordinarily required in the case of a will, (b) A gift causa mortis must be made under apprehension of impending 'death. A will is commonly made in view of the fact of death, but not because of its immediate proximity. (e) Delivery is essential "to the validity of a gift causa mortis, and the donee acquires title directly from the donor. No delivery is ever had of property which is the subject of gift by will until after the death of the testator, and the legatee’s title is derived from the executor.” Gardner on Wills, page 12, section 3. In Trenholm v. Morgan, 28 S. C. 268 (5 S. E. 721), the court said: “From the nature of the donatio it is apparent that the infallible test which must distinguish it from a testamentary gift is delivery — change of dominion in praesenti. Without this there is really nothing to distinguish it from an ordinary testamentary bequest.” In a sense they are both ambulatory in character; but a gift is claimed against the executor or administrator, while a legacy is claimed from him. Emery v. Clough, 63 N. H. 552 (4 Atl. 796, 56 Am. Rep. 543).

3. Same: gifts: inter vivos: distinction. A gift inter vivos takes place by mutual consent of the giver who divests himself of the thing given in order to transmit the title to the donee gratuitously, and the donee who accepts and acquires the legal title to it. It operates, if at all, in the donor’s lifetime, immediately and irrevocably. It is a gift executed; and no further act of the parties and no contingency is needed to give it effect. Garner v. Fry, 104 Iowa, 515.

The distinction between the two kinds of gifts has thus been stated: “(1) A donatio causa mortis must be made in contemplation of the near approach of death with the implied condition that it take effect absolutely only upon the death of the donor, caused by a disorder from which he is then suffering, or a peril which is then im [*169] pending, whereas by a gift inter vivos, completed by delivery, the property vests immediately and irrevocably in the donee, and the donor has no more right or control over it than any other person; and (2) at common law a man might thus, and only thus, transfer property directly to his wife.” 20 Oye. page 1230. This statement is well fortified by the authorities cited.

Delivery is essential to either form of gift, but such delivery may be to a third person for the donee.' Stokes v. Sprague, 110 Iowa, 89; Donover v. Argo, 79 Iowa, 574. There may be a constructive delivery in many cases where actual manual tradition can not be made. Wait v. Grubbe, 43 Or. 406 (73 Pac. 206, 99 Am. St. Rep. 764). But in every case of gift there must be either an actual or symbolical delivery. Packard v. Dunsmore, 11 Cush. (Mass.) 282; Stevens v. Stewart, 3 Cal. 140.

4. Same: evidence. Having distinguished the two kinds of gifts and pointed out how they differ from a testamentary disposition of property, we are now ready for the facts. Mrs. Mallory, the deceased, for a long time prior to ;her (jea^]1 was affecteii with what the doctors called elephantiasis, an incurable and loathsome disease, causing a swelling and sloughing of one or both limbs. The affliction causes much pain, and on account of its toxic effects certainly results in death.' It is progressive in character, and there seems to be no specific for it. Deceased was possessed of some money, the usual' household supplies and furniture, a number of pictures and paintings, and one-half of the house and lot where she lived in addition to the note and mortgage in question. Her son Eaii was a drinking man, and she did not intend that either he or her husband should have all of her property. On the contrary, she seemed to have had an affection for her brother, the plaintiff herein, thought that he was not strong, and never would be, that he had been overworked, and, with the evident intention of assisting him, she wrote plaintiff [*170] 011 March 18, 1909, inquiring as to the amount of the indebtedness upon his place, saying: “I got a mortgage coming due next Sep. I. shant be here but I want it to go out of Ed & Jens reach. She will have the house and everything in it soon as I am buried — maybe—it costs $5.00 for a lawyer to come to the house & see me &• two witnesses sign a paper. ... I own half this • property which is worth now $1,800 then I put $400.00 in the business & got kids note & first mortgage on this for than he wants to pay me off now so when I drop off he will move out. I got $1000 worth in paintings expect a man here to set market, price on them. If I can get $500.00 for Daniel in' the Lion’s den he goes, & the chink will go on your place. I cant live but a short time and there is plenty left for Jen and her family.” In another letter to plaintiff written August 16, 1908, she said: “You see I have got over $1,500 now in cash and property in my name. Ed has no claim on it. Not one cent of his wages has ever been paid on it. It is Kid’s board and the cow money you gave me and interest.”

Upon information that Mrs. Mallory was very ill, plaintiff came to Council Bluffs on December 11, 1909, and, upon going to his sister’s home, found defendants Christensen and E. B. Mallory, the husband, and Mrs. Breece there. Soon a Mr. Campbell came- in, and in the presence of Mr. Campbell and Mrs. Breece deceased talked to plaintiff about giving him the note and mortgage in question in order that he might use them or the proceeds thereof to pay the indebtedness upon his place. Plaintiff testified as follows regarding this transaction: “She spoke to me in the forenoon of December 11. She says: ‘I have a note and mortgage. I ain’t going to last long, and I want to help you out on your place with it.’ She turned them over to me in the afternoon of the same day. I got them for her from a satchel under her bed, and I put them back in the satchel. She says: 'I want you to take [*171] it and put it on your place when it is due. I can’t last a great while anyway.’ I says: ‘It wouldn’t be right for me to take it.’ Here is this name oil the back of it, ‘Pay to the order of Earl B. Mallory, signed Mary E. Mallory.’ I said: ‘If I should take it in the shape it is, Ed. will claim I had taken the note and marked that off myself, and put my name on.’ She said: ‘What will you do, then?’ I said: ‘You had better scratch that off yourself, and write on it what had been received on it, and pay the balance to me, and have witnesses to it.’ Then I said: ‘In the case of any trouble that would show I didn’t do it myself.’ Mrs. Campbell was there at this conversation. Neither Mrs. Breece nor Mrs. Jackson was there at that time. I went over and got Mrs. Jackson. Mrs. Mallory said: ‘I can’t sit up alone. You will have to hold me.’ So I got under the pillows, and held her up in bed while she wrote it. She scratched out the indorsement at that time.” The note which was introduced in evidence shows an indorsement to Earl B. Mallory signed by the deceased, but this indorsement seems to have been erased by the running of lines through the name, “Earl B. Mallory.” it also contains this indorsement: “Pay balance to W. S. Vosburg. Mary E. Mallory. C. M. Jackson, L. J. Breece.” It is agreed that these last two names were placed upon the note as witnesses to Mrs. Mallory’s signature. Plaintiff’s testimony is substantially corroborated by that of Mrs. Breece and by C. M. Jackson, and it is practically agreed that the note and mortgage were delivered to plaintiff on the afternoon of December 11, 1909. To both witnesses she declared that she did not want her son Earl to have the note and to one of them she said that she wanted plaintiff to have it “to pay on his place.” While there is some testimony to the effect that she expected plaintiff to pay the money back at some indefinite time, the preponderance of the evidence shows that no conditions were attached to the gift.

[*172] There is also some testimony to the effect that, after the indorsement of the note to her son Earl, it was handed to him, and that he returned it to Mrs. Mallory, and that she kept it in her possession until it was delivered to plaintiff. The preponderance of the testimony, as we think, is with the plaintiff on the proposition that there was no delivery to the son. Deceased left a will in which she devised all her property to J. P. Christensen in trust for Earl B. Mallory, the principal to be given him when he arrived at the age of twenty-one years. The husband filed an election to take under the statute, and, of course, is not barred by the terms of the will. It is apparent that the transaction beween plaintiff and Mrs. Mallory did not amount to a will, and it is equally well settled that the gift to the plaintiff was not revoked by the prior will. The record clearly establishes a gift either causa mortis or inter vivos. As Mrs. Mallory was in her last illness at the time of making the gift and evidently made the donation under the apprehension of death from her existing disease we are constrained to hold that the transaction was causa mortis. This is the presumption from such a state of facts. Knight v. Tripp, 121 Cal. 674 (54 Pac. 267); Henschel v. Maurer, 69 Wis. 576 (34 N. W. 926, 2 Am. St. Rep. 757). And the testimony adduced is not sufficient to rebut this presumption.

S' ’ II. There being no delivery of the note to Earl B. Mallory, the indorsement of the note to him did not amount to a completed gift. Stokes v. Sprague, supra. Aside from this, however, there is no showing that the claimed gift to Earl B. Mallory was not of the same character as that subsequently made to plaintiff, to wit, a gift causa mortis.

If that were its character, it was revocable at the election of the donor, and in this case the donor did elect to recall it and to give it to another.

[*173] 6- wife^ínisi - titiVe^hire”*5" [*172] III. The real question in the case is the effect of the [*173] gift upon the surviving husband’s distributive share. There is no testimony whatever that an" actual fraud was intended, and no room for any presumption of fraud, except such as arises from the mere fact that the gift was made. It did not cover all of the property of Mrs. Mallory. She had the property hitherto referred to which she disposed of by will. Creditors are not complaining, and the only reason for saying that it is invalid is because of the fact that, if the gift be sustained, it will deprive the surviving husband of one-third of the amount of the note which he would have been entitled to had the property remained in the hands of the wife until her death. Section 3362 of the Code reads as follows: “The personal property of the deceased not necessary for the payment of debts, nor otherwise disposed of, shall be distributed to the same persons and in the same proportions as though it were real estate.” This section has been construed to mean that a wife can not by will deprive her surviving husband of his distributive share in her personal estate. Ward v. Wolf, 56 Iowa, 465; Linton v. Crosby, 61 Iowa, 401; May v. Jones, 87 Iowa, 194; Poole v. Burnham, 105 Iowa, 620. However, there is no statute which preserves to the survivor any inviolate right in personal property, as in many of the states whose courts have held that a gift causa mortis will not be sustained as against the claims of a surviving husband or wife. There is a decided conflict in the authorities upon the proposition now under consideration. Some of them squarely hold that a married woman can not by gift causa mortis so dispose of her estate as to deprive her husband of his statutory distributive share therein. See Baker v. Smith, 66 N. H. 422 (23 Atl. 82); Jones v. Brown, 34 N. H. 439. But others assert that such gifts are valid, although they in effect deprive the survivor of his distributive share for the reason that the survivor’s right is only to that property of which the owner died [*174] seised or possessed. Chase v. Redding, 13 Gray (Mass.) 418; Cranson v. Cranson, 4 Mich. 230 (66 Am. Dec. 534). We have adopted the latter rule for this jurisdiction. In Samson v. Samson, 67 Iowa, 259, we said: “It is finally contended that said gift is void as against public policy. By the transaction the deceased was divested of much the greater part of his estate; and the argument of counsel is that, as the husband can not by will divest his widow of the distributive share-which the law gives her in his estate, he should not be permitted to accomplish that result by distributing it during his lifetime to his heirs. -The ready answer to this claim is that it is in the personal property of which the husband dies seised that the law gives the widow a distributive share. Code [1873] section 2436. But during his lifetime she had no inchoate right in such property, and he may make such disposition of it during his lifetime as he sees fit. - If he sells it, or makes any other disposition of it by which he is divested of the ownership, the wife has no claim upon it after his death. The law has placed no restriction or limitation on the power of the husband to make such disposition of his personal property during his lifetime as he may elect.” Doubtless this language had reference to a gift inter vivos; but there is no reason for not applying it to gifts causa mortis, save that in one sense the latter kind of a donation is ambulatory in character. But in Hatcher v. Buford, 60 Ark. 169 (29 S. W. 641, 27 L. R. A. 507), it was said: “Many authorities do speak of the donatio causa mortis as but another form of testamentary disposition, and liken it unto the testamentary disposition, for- the reason that it is revocable during the donor’s life, is subject to his debts if there be a deficiency of assets, and does not become an absolute gift until the donor’s death. Jones v. Brown, 34 N. H. 439; Baker v. Smith, 66 N. H. 422 (23 Atl. 82); 2 Kent, Com. 445; Schouler, Personal Prop. 138.

' But while, in these particulars, it resembles a testa [*175] mentary disposition, it differs from it, in that the subject-matter of the gift is delivered to the donee during the life of the donor, and at his death does not pass into the hands of the executor or administrator, but remains with the donee. This is not because the property or title has passed to the donee during the life of the donor, or that the donor is not actually seised in law at the time of his death, but because it is one of the peculiar characteristics of this species of gift that at the donor’s death the donee takes, instead of the heir, according to the intention of the donor, as manifested during his life by delivery to the donee.” See, also, Conner v. Root, 11 Colo. 183 (17 Pac. 773); Marshall v. Berry, 13 Allen (Mass.) 43. In the Marshall-Berry case the court said: “It is contended that a gift mortis causa is a testamentary disposition of the estate, and therefore, if made by a married woman, would be contrary to the intent of Gen. Stats, chapter 108, section 9, and, if sustained, would tend to defeat that provision. Although it is of a testamentary character in some of its incidents, and is said to have been deemed by the Roman law ‘of the nature of legacies’ (1 Story on Eq. section 607) ; yet inasmuch as by our law an actual delivery, or some equivalent act, by the donor, in his lifetime, is necessary to its validity, we think it must be regarded as in its essential character a gift. The title passes by the delivery, defeasible, only in the lifetime of the donor, by revocation, either express, or implied by his recovery or some other act inconsistent with the gift and indicating a purpose to resume it. The death of. the donor perfects the title by terminating his right or power of defeasance. This mode of transmission can apply only to certain specific articles capable of passing by delivery, and not as a disposition of the donor’s estate. If' it purport to be such a disposition — -that is, if it assume the province of a will — it is void. Headley v. Kirby, 18 Pa. 326. It is not subject to probate, nor to contribution with legacies in case of insufficiency of [*176] assets, nor to any of the incidents of administration. The donor at his decease is held to be already divested of his property in the subject of the gift, so that no right or title in it passes to his personal representatives. The donee takes the gift, as it is said, not from the administrator, but against him. It is subject to debts; but only in the same way as other voluntary conveyances and gifts would be. That the wife may thereby evade the provision of the statute, which disables her from depriving her husband of more than half of her personal estate by her will, without his consent in writing, may be equally urged against any disposition of it in her lifetime. This consideration does not protect the wife from such disposition of his estate by the husband. Chase v. Redding, 13 Gray (Mass.) 418. We see no reason for guarding the rights of the husband more tenderly than those of the wife. In the case of Jones v. Brown, 34 N. H. 439, the court seem to hold a contrary doctrine, both as to the nature of the gift and the power of the wife to make it. But, if the current of authorities be interpreted by the thing decided rather than by the phraseology used, it must result in the position before stated, that donatio causa mortis is not a testament, but a gift. Nicholas v. Adams, 2 Whart. (Pa.) 17-22, and Dole v. Lincoln, 31 Me. 422, contain strong statements of this view of the subject.” The question of the power of the wife must be determined upon statutes, and therefore the decision in New Hampshire can have little weight with us, except for its bearing upon the other point. Our statutes are broad and explicit. If the Legislature intended that the wife should be restricted in this respect, it would have been so declared. In the absence of any provision of statute inconsistent with the right of the wife tb dispose of her personal property in this manner, we must hold that she has the power. Our statutes give a married woman full power to dispose of her separate estate, and contain no restrictions upon her power to alien, [*177] ate her personal property. She may therefore dispose of the same either by gift, sale, or will as completely as her husband may of his property. And the Code expressly says that the survivor is entitled to the personal property of the deceased not necessary to the payment of debts nor (or) otherwise disposed of. This clearly has reference only to the property of which the deceased was the owner at the time of his or her death.

We reach the satisfactory conclusion that, as no fraud was intended, the gift should be sustained, although it deprived the husband of his distributive share in that amount of personal property.

It follows that the decree awarding the note and mortgage to plaintiff must be, and it is, affirmed.