Mace v. Thayer

Smith, J.: The answer to a single question will determine this appeal. .After having made and delivered the deed to the defendants Thayer with the reservation in behalf of the defendant Lockwood, was Samuel Green authorized to revoke the same? The referee has found that Samuel Green at the time intended to make an absolute gift to the defendant Lockwood and did not intend to make a testamentary disposition which was to be revokable. This finding is, we think, based upon abundant evidence, and, if the question involved be one of fact, the appeal must fail. The appellant, however, urges, first, that there is no privity between Samuel Green and the defendant Lockwood, without which no right is given to the defendant Lockwood. If the fact assumed be true, the legal conclusion must follow. Authorities are 'abun■dant in support of the contention that to give a right of action to the beneficiary in whose behalf, as a third party, the promise is made, there must be privity between the promisee and the third person. In the case at bar there was no debt owing by Green to Mrs. Lockwood. While she was his daughter,, she was of age and married, and was not dependent upon him for support. Without an indebtedness of the promisee to the beneficiary, and with no obligation to support her, she is driven to the position that there was a complete executed gift to her of this indebtedness, in which case the necessary privity is by law deemed to exist. (Fulton v. Fulton, 48 Barb. 581.) If, therefore, there can be found the elements of a [124] complete gift to the defendant Lockwood of the obligation of the. defendants Thayer, such gift was irrevocable, and the attempt by Samuel Green thereafter .to revoke the same was futile,, , .' - The authorities fire numerous as to what constitutes a valid- gift inter vivos'. It is settled that that cannot be created by mere words. There must be some form of delivery. It is equally well settled, however,, that there is no property, real or personal,, which cannot be the subject of a gift. If, therefore, a party in attempting to make ..a gift has done all that can be done, it would seem that the gift should be deemed completed. ' In the case at bar Samuel Green by his own deed made the obligation of the defendants Thayer payable, -to: the defendant Lockwood. More fully to secure the same he made the obligation a lien upon the land until it was paid'. He made a copy of that part of the deed by which the benefit was reserved to the defendant Lockwood, and- delivered it to her with-the declaration of what he had done in her behalf. ' This was by the defendant Lockwood accepted. What more, then, could he have done to make complete that gift ? He could not- deliver the -deed because the deed belonged to the grantee. He could not have assigned the debt to her because, by his own grant, he had made the-debt hers iri so many words. Ho paper expressing his intention could be stronger than the words of the grant itself, together "with" the delivery of a copy to her and her acceptance thereof. It would seem, therefore, upon principle, that Samuel Green completed a valid gift to the defendant Lockwood which was irrevocable. These conclusions are not without authority.. In Fulton v. Fulton (48 Barb. 581) one Fulton. made an agreement with his two daughters for the sale of real and personal property. The consideration to be • paid was five promissory notes each for .-the- sum of" $500, payable to the three sons and two daughters of Fulton at’ the decease of -his wife. These notes were afterwards canceled, and Fulton caused the makers -to execute new notes in renewal, and signed a paper which stated that he- intended that .the new notes should "be considered by his children in full of their shares in property which he had or ever had had. It was there held that the transaction transferred the legal title of the debts represented in the notes. In.the opinión "óf Gilbert, J., in that case, an extract, from Lord Justice Knight Bruce in Kekewich v. Manning (1 De Gex, M. & [125] G. 187) is quoted : “ ‘It is, Upon legal and equitable principle clear, that a person sui juris, acting freely, fairly, and with sufficient knowledge, ought to have and has it in his power to make, in a binding and effectual manner, a voluntary gift of any part of his property, whether capable or incapable of manual delivery, whether in possession or reversionary, or howsoever circumstanced.’ ” Theopinion again reads: “ The intestate caused the notes to be made payable to his children, who are named therein as payees, respectively. This transferred the legal title to the debts represented in the notes; and with the accompanying declaration contained in the agreement and paper aforesaid, furnishes satisfactory evidence that" there was a delivery of them to the payees, and that the possession of them afterwards by the intestate was as trustee for them.” Again : “It is only when something remains to he done by or in behalf of the donor, which is not done before his death, that the gift fails totolee effect^ Again : “ ‘ Delivery * * * ' in this, as in every other case, must be according to the nature of the thing. It may be constructive. It must be an actual delivery so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject.' ” . Further, some support for the respondent’s contention would seem to be found in the case of Williams v. Fitch (18 N. Y. 546), where the trustee of a fund prevented the making of a will and promised.to hold the property for the intended beneficiary, and it was held that that beneficiary might sue for the fund as for moneys had and- received. In Smith v. Perine (121 N. Y. 384), where a son, upon his death bed,- said that he did not desire tó make a will, but wished that his property, which was in the charge.of his father, should be equally divided between the father and the mother, to which the father agreed, it was held that, after his death, the mother might recover her share of the property from the father. Flor do the authorities cited by the appellant Hold, a different rule. In Townsend v. Rackham (143 N. Y. 516) the beneficiaries did not assent to or even know of the gift before its revocation. That a gift to be complete must be accepted is unquestioned law. In Guy v. Langdon (84 Hun, 219) the title of the property did not pass from the grantor. There was.merely an agreement to [126] transfer and an agreement by the other party to the contract to give to the. sister which was not accepted by the sister, and hence there was no valid gift. In Kelsey v. Cooley (11 N. Y. Supp. 745) no notice was given to the beneficiary of the provision in his favor and the mortgage remained in the hands, of the grantor, and was not delivered to -the beneficiary. The cases cited by the appellant to show that there must be privity in order to authorize a recovery are unquestioned. No case is cited, however, which holds that such privity does not exist where there has been a complete executed gift of the debt. , ■ We conclude, therefore, that the gift to the defendant Lockwood having been completed was irrevocable, and the case was properly decided by the referee. All concurred, except Parker, P. J., and Herriok, J., dissenting-judgment affirmed, with costs.