Whiting v. Barrett

Mullís, P. J. Delivery of the thing given is absolutely essential to make valid the gift; but it is not essential that the delivery should be directly to the donee. It may be delivered to another person for him. (Hunter v. Hunter, 19 Barb., 631.) I do not find any case in which it has been held that a paroi gift of property not in esse or not in the possession or under the control of the donor at the time of the gift is valid where the donor subsequently, and before there is any revocation of the gift by the donor, obtains the possession, and the donor thereafter recognizes the donee as owner, nor do I find any decisions to the contrary. In Brooks’ Abridgment it is said, “ if the owner of goods which are at York give them to J. L., who, at the time of the gift, is in London, and before J. L. has obtained actual possession of the goods a stranger takes them, J. L. may maintain an action of trespass against the stranger, for by the gift he acquired a general property in the goods.” (Sprately v. Wilson, 3 Eng. Com. Law, 10, note.) The reporter, after reciting the passage from Brooks, says: “ But there is no case which goes to the extent of stating that the donor or his representatives might not retract a gift unaccompanied with possession.” In Shower v. Pilick (4 Exch., 478), it was held that a mere verbal gift of a chattel to a person in whose possession it is does not pass any property to the donee. The direct opposite of this was held in Champney v. [109] Blanchard (39 N. Y., 111). The plaintiff held in her hands money of the decedent, subject to her order, of which a memorandum was made and held by the latter. The decedent delivered to the plaintiff the memorandum, with a specific declaration that she gave her those moneys, and the court held there was such a delivery as perfected the gift. It would seem to me that when the owner of property makes a verbal gift of it to another, such other acquires a perfect title if he gets possession of it before revocation of the gift by the donor, although it was not present when the gift was made, or it was not even in esse at the time. The consent that the donor shall take the property as owner must be presumed, unless revoked, until possession is obtained. It is not necessary that the revocation should be in words. Any act of the donor inconsistent with the right of the donee to control the property before he takes it into his possession, would probably operate as a revocation. If, however, it is doubtful whether there was such a delivery as perfected the title of the wife to the bonds, the subsequent recognition of the title by the husband without any evidence of revocation of the gift, must render the gift perfect. If the gift was a valid one, it vested the title to the bonds in the wife, and she became the legal owner thereof. When the gift was made the bonds were exempt from the claims of creditors by virtue of § 4 of chap. 578 of the Laws of 1864, which declares “ that the pay or bounty of any non-commissioned officer, musician or private in the military or naval service of the United States shall be exempt from seizure and shall not be liable to attachment, or levy, or sale under any execution or to proceedings supplementary to execution.” As creditors could acquire no right to them as against the soldier, he could transfer them by gift or sale to another person, relieved from any such claim. The wife, therefore, took the absolute title to the bonds and the creditors could not be heard to allege that the transfer was in fraud of them, as they [110] never had and never could have any right to demand that they be applied in payment of their debts. . Had the bonds not been exempt in the hands of defendant’s husband, the creditors could insist that they were entitled to have them applied in satisfaction of their debts. And a gift of them by the husband to the wife while such debts existed, would be fraudulent and void as to them. But being exempt, the gift was not fraudulent, and his creditors had no claim to the bonds. The judgment must therefore be affirmed, with costs. Judgment affirmed.