Gallagher v. Donahy

The opinion of the court was delivered by Johnston, J.: The notes and debt were formerly the property of Donahy, and, unless' he made an actual donation or disposition of them in his lifetime, they constitute a part of the Donahy estate, and the judgment was, therefore, correctly given. To constitute a valid gift of the debt and the evidence of the same, it must appear that Donahy not only intendéd to make a donation, but that he also divested himself of title and possession of them. (Johnson v. Eaton, 51 Kan. 708, 33 Pac. 597.) Delivery, actual or constructive, is essential to a gift inter vivos. A mere intention to make a donation effective at a future time confers no title to or- right in the subject-matter of the proposed gift. Here there was no delivery of the notes, nor any relinquishment of control or dominion over them. Instead of a transfer and surrender of the debt evidenced by the notes, its continued existence was recognized by the expressed purpose to collect interest on it. If there was no debt, no interest would accrue. The letter relied on indicates a purpose On the part of Donahy to make a gift of the notes to Gallagher at a future indefinite time, and that he intended to consummate the gift by sending the notes to him. ■ No time was fixed by him for the' sending of the notes, but he did declare that he would expect the continued payment of interest. [344] His retention of the dominion and control of the debt and notes and his statement that he would expect the continuance of payments of interest do not evidence a purpose to make a gift in prsesenti. As was said in Roland v. Schrack, 29 Pa. St. 125, a transaction cannot be changed from a loan to a gift by loose declarations of one that he has given- money to another, and especially where there is an absence of complete delivery so essential to the validity of a gift.' Under the evidence, it would appear that there was no intention on the part of Donahy to make an absolute transfer of the debt which would take effect immediately, and no understanding by Gallagher that the proposed gift was to go into immediate effect. The transaction lacked the essential elements of a gift inter vivos, and indicates no more than a promise to make a gift, which was unexecuted at the time of Donahy’s death. ( Young v. Young et al., 80 N. Y. 422, 36 Am. Rep. 634; Dole v. Lincoln, 31 Me. 422; Withers v. Weaver, 10 Pa. St. 391; Buswell v. Fuller, 156 Mass. 309, 31 N. E. 294, 14 A. & E. Encycl. of L. [2d ed.] 1015.) The judgment is affirmed., Cunningham, Gkeene, Ellis, JJ., concurring.