1 Misc. 447 | N.Y. Sur. Ct. | 1892
Gifts of chattels personal are the act of of transferring the right and the possession of them, whereby one person renounces, and another immediately acquires, all title and interest therein. A trae and proper gift is always accompanied by delivery of possession, and takes effect- immediately. It. may be regarded as axiomatic that, without delivery of the subject of it, there is no gift. Where delivery accompanies the words, of gift, the gift is perfect, and no question can arise in regard thereto, but there may be a constructive delivery, determinable by the facts established. Most of the controversies on the subject of gifts have arisen in regard to this last species of delivery, the facts relating thereto being as various as the cases are in' number; but in all of them the underlying question was, had there been a delivery? Of course, a so-called gift, without a delivery, actual or-constructive, may be revoked. Mow, in this case, no actual delivery of the subject of the gift is pretended, and all, therefore, that remains, is to determine whether the facts stated constitute a constructive delivery.
The facts relied upon by the petitioner are briefly these: That deceased boarded with the petitioner, after she had paid and taken up the notes as indorser, and paid her board without any pretense or suggestion that- the petitioner was indebted to her; that the testatrix, while so hoarding, executed her will, in. and by which she bequeathed to the petitioner the sum of $200; that the testatrix told petitioner that she had cancelled said notes, and that she owed her nothing; that on the execution of
This matter has come before the court in an informal manner. No petition has been presented, or citation issued, as provided by sections 2717 and 2718 of the Code, nor answer filed under the provision of subdivision 1 of the latter section; nor has it been proved, under subdivision 2 of the latter section, that there is sufficient personal property of the estate to pay said claim as therein provided. The parties simply appeared in court, and the affidavit of the legatee, wdtb other affidavits annexed, was presented, and the executors objected orally that the facts alleged therein did not prove a gift of the notes. Under these circumstances, it is more than doubtful whether the court has obtained any jurisdiction in the premises, but, out of deference to the learned counsel engaged, has proceeded to give some consideration to the merits of the case. I think the statute was in