183 A. 269 | N.H. | 1936
The plaintiff concedes that the evidence of intent to make a gift is sufficient, but contends that there was no valid delivery. Reliance is placed upon the authority of Bean v. Bean,
The essentials of a gift causa mortis do not here need definement. Such transactions are now regulated by statute (P. L., c. 297, s. 17) providing that "actual delivery of the property to the donee shall be *475 proved by two indifferent witnesses." But as the cited statement in Bean v. Bean is contrary to practical justice in respect to the requirement that in a gift inter vivos the declaration and delivery, actual or constructive, must concur in point of time, even when the delivery precedes the declaration, its authority has been considered. It is held to incorrectly set forth the proper rule. As already said, the cases cited in support of the limitation do not take such an extreme position, and the statement itself is but dictum. The Bean case held that at the trial therein reviewed no valid evidence of any delivery was introduced, and hence the issue whether delivery may be antecedent or subsequent to the declaration was not raised.
A declaration of gift when delivery is to be made at a later time is promise of the later delivery. It is unenforceable as a contract because the element of consideration is not present. It is not a gift because delivery is withheld. But when delivery has preceded the declaration, the declaration imports no promise. Nothing remains to be done. The elements of a gift are all to be found. In another view, the right to a return of the property is relinquished. The donee is given a discharge of the obligations of the previously existing bailment. The discharge is valid, whether or not a price is paid for it. Williston, Contracts, s. 727.
When delivery is already accomplished and perfected, there can be no act of constructive or symbolic delivery to make it more perfect. At best special ceremonies or intensive steps can be no more than confirmatory or of stronger, additional, and more persuasive evidence.
In Tenbrook v. Brown,
In Cain v. Moon, [1896] 2 Q.B. 283, 289, the court said with pertinent force: "Suppose a man lent a book to a friend, who expressed himself pleased with the book, whereupon the lender, finding he had a second copy, told his friend that he need not return the copy he had lent him; it would be very strange if in such a case there were no complete gift, the book being in the possession of the intended donee."
In the case of In re Stoneham, [1919] 1 Ch. 149, the court took a *476
practical view in this language: "From a common sense point of view it seems to me strange that articles already in the possession of an intended donee could not be effectually given by word of mouth without first removing them from the possession of the intended donee and then handing them back to him." The same thought is summarized in Goodrich's Ex'r v. Bank,
Authority is practically in unanimous accord with this rule. Besides the cases already cited the following uphold it: Gray v. Gray,
It is argued that the declaration of gift here was conditional, and not absolute. The evidence is that when the donee asked the testator if he did not wish to put a price on the paintings, the latter replied: "No, those pictures are going to hang there [in the donee's inn] for the next hundred years, and those pictures are yours." In further examination the witness testified on the point merely that the testator said they were the witness's. The statement accompanying the declaration was evidently rhetorical to emphasize the donee's full and sole ownership. It was meant to remove the restrictions of the prior bailment, and not to impose a condition upon the donee's title under the gift. Even if this were not so, the statement was evidence of the donee's right to retain possession, and therefore supports the general verdict for the defendant.
Judgment on the verdict.
MARBLE, J., was absent: the others concurred. *477