15 N.Y.S. 398 | N.Y. Sup. Ct. | 1891
On the 7th March, 1887, Mrs. Markham was the owner of a farm of about 90 acres in the town of Homer. At that date she and the plaintiff, who was her nephew, entered into a written agreement by which :she did “demise and lease her farm, with the appurtenances,” to the plaintiff for the term of one year from the 1st of March, 1887, she agreeing to leave •on the farm all the farming tools, eight cows, a team, and some other property, and pay all taxes except the road tax. She reserved “the right to pasture two colts by paying to the party of the second part one-third of the cost of the pasturing the same, and also reserves the front part of the house, with front yard, for her own use.” The plaintiff upon his part agreed to carry on the farm and do all the work in a good and workman-like manner. It was .also agreed that Mrs, Markham should have two-thirds of all the produce of the farm, and the plaintiff one-third, and, if he did not fulfill the agreement •on his part, Mrs. Markham had the right to re-enter and have full possession. The plaintiff moved onto the farm with his family, and occupied half of the house. At this time Mrs. Markham had on the farm five colts. Of these, two were quite young and soon after died. Of the remaining three, two were those named in the agreement, and the third was the one in controversy, and -coming two years old that spring. Jennie Porter, the wife of plaintiff, testified that in June, 1887, she heard a conversation at the breakfast table between the plaintiff and Mrs. Markham, in which Mrs. Markham said to plaintiff: “He had been good to her, and she wanted to make him a present, and she would give the bay colt to him, as she had nothing to mate it, and she would never try to raise any more; she would make him a present of it. Fred ■said, in substance, to her that hedid not want to take anything from her unless she had a mind to let him have it. She said she was willing that he .-should have it, or she wouldn’t give it to him. She said she would keep it
So it has been held that a delivery is not necessary when the intended donee is already in possession, hut that in such a case the gift, if completed and unambiguous, maybeeffected by a simple oral declaration. Institution for Savings v. Taft, 14 R. I. 502; Wing v. Merchant, 57 Me. 383; Tenbrook v. Brown, 17 Ind. 410; 8 Amer. & Eng. Enc. Law, 1319, and cases cited. Substantially the same was held in Taber v. Willets, 44 Hun, 348. In Stevens v. Stevens, 2 Hun, 470, a gift causa mortis of a note was held to be effectual, where there was no delivery in fact, it being said by the court: “The small note was in his [the donee’s] possession; that is, it was in the bureau in his house, and presumptively accessible to him.” In Whiting v. Barrett, 7 Lans. 109, it is .said by Mullin, P. J.: “It would seem to me that, when the owner of prop
Motion for new trial granted, costs to abide event. All concur.