Page:The American Cyclopædia (1879) Volume VII.djvu/821

 ' GIFT any such delivery as the nature and actual po- sition of the thing at the time may permit and require; as a delivery of a key which com- mands access to the thing, or a delivery of a part for the whole, where the whole is too bulky to be delivered otherwise. So also the delivery may be by an order upon a ware- houseman or other person having the thing in his custody ; but in this case the gift is not com- plete and effectual until the order has been presented and completed or performed by the party on whom it is drawn. From the same necessity of completing the gift by delivery and acceptance, and from the same rules which make a mere promise without consideration voidable, it follows that if a gift be made by a note, or any instrument not under seal (for a seal is the equivalent of a consideration), it may be revoked by the donor. So if it be made by a check, draft, bill, or order, the giver may revoke it at any time before it is paid or executed, or accepted in such a way as to bind the drawee. A gift by a competent party, made perfect by delivery and accept- ance, is then irrevocable so far as the donor himself is concerned ; but it may still be re- voked or annulled, and the property re- sumed, by the creditors of the giver, if the giver at the time of the gift was insolvent, and by the gift diminished the fund to which his creditors were entitled. But it is thus void only in reference to existing creditors, and not as to persons becoming creditors subsequently, unless made when the insolvency was actual or immediately expected, or with actual fraud- ulent purpose as to future creditors. All vol- untary transfers, as settlements of every kind and the like, if made in fraud of creditors, are considered as gifts in the law, and are void. In most of the United States the statutes re- specting insolvency provide especially for all cases of this kind. Gifts causa mortis can be made only when the donor has reason to be- lieve that death is impending. The law watches over gifts causa mortis with great jealousy, and restrains them by rigorous prin- ciples and wise precautions, for the same rea- sons which induce it to lay down such precise and rigid rules in relation to wills and all testa- mentary dispositions. This reason is not any unwillingness that the wishes of the dead or of the dying should have their full effect, but from the extreme difficulty of giving them this effect, and yet closing the door effectually against, on the one hand, false and suppositi- tious expressions of his will, or, on the other hand, undue and injurious influence exerted upon him as to the disposition of his prop- erty. Both of these reasons apply as strong- ly and directly to gifts made in prospect of death as to wills, or perhaps more so. In- deed, as these gifts are not unfrequently made in substitution of wills, and to avoid the special requirements made by the law in respect to wills, this is another reason why the law re- gards them with the suspicion felt toward acts GIGNOUX 805 which are evasions of law. Much that was said of gifts inter mws is equally or indeed much more strongly applicable to gifts causa mortis. Thus, there must be not only delivery and acceptance, but this must be strictly actu- al, if that be possible without extreme incon- venience ; and if impossible, in that case it must be something that is as near actual delivery as may be possible. It has even been said that no mere possession, although previous and con- tinuous, is sufficient without delivery ; as if the giver should say, " You may have and keep as your own the watch I have permitted you to wear for a year, and which is now in your pocket," this would not pass the property in the watch unless the giver took it into his own hands and gave it back to the donee ; but we doubt whether the rule would be applied with so much severity. We have no doubt that the giver, if physically incapable, or perhaps if only unwilling to make the effort, might, without doing anything himself, as well and effectually direct another in his presence to take such a thing and give it to such a donee, to be kept by him as his own. After some fluctuation it seems now to be settled that the donor's own note, or his own check, draft, or bill, not paid or ac- cepted before his death, is not a valid gift causa mortis ; that is, the executor or administrator of the deceased may refuse to pay his note, and may revoke his bill or draft, and order the drawer not to pay it. But bank notes certain- ly, and probably all notes of other parties pay- able to bearer, or indorsed in blank, and per- haps all notes, bonds, and other written con- tracts of other parties, may be the subjects of a valid gift causa mortis. One rule is perfectly certain : one who makes a gift in prospect of death may revoke his gift at any time during his life, although it be completed and executed by delivery and acceptance. Any such distri- bution of his property is, in the language of the law, ambulatory, or changeable at his own pleasure, so long as he remains alive ; and it is sometimes said that his recovery does of itself revoke and annul such a gift made in prospect of death, because the cause and ground of it have ceased to exist. "We should say, howev- er, that if the giver, with full means of actual revocation, did not choose to revoke his gift, it became changed by his recovery from a gift causa mortis to a gift inter vivos. Within these rules and restrictions there seems to be no limit in law to the possible amount of a gift causa mortis. It should be added that gifts in prospect of death are equally void as against existing creditors with gifts inter vivos. GIGNOUX, Francois Regis, a French painter, born in Lyons in 1816. His art education was acquired chiefly in Paris, where he was under the instruction of Delaroche, Vernet, and other eminent masters. In 1840 he settled in New York, and devoted himself to landscape paint- ing. Among his best works are "The Dismal Swamp in Autumn," "Niagara in Winter," "Virginia in Indian Summer," "Four Seasons