The American Cyclopædia (1879)/Gift

GIFT, a voluntary transfer of property of any kind. The word “give” is generally employed among the words of transfer in deeds of land;

but by gifts, in law, are usually meant transfers of chattels or presents which are wholly without any pecuniary consideration, or any other consideration which the law recognizes as valid. They are usually divided into gifts inter vivos and gifts causa mortis. The latter are called in English gifts in prospect of death; and the former phrase, or gifts between the living, is not accurate, as describing but one class of gifts, because it applies to all, as only the living can give, and they can give only to the living. But gifts causa mortis may be defined as gifts made by one believing himself, on reasonable grounds, to be very near his death, and made in view of and because of this apprehension; and gifts inter vivos are all those which are not gifts causa mortis. First, as to gifts inter vivos. Any person competent to transact ordinary business may give whatever he or she owns to any other person. The usual disabilities for legal action would apply here. Thus, a gift by an infant (i. e., a minor), a married woman, an insane person, or a person under guardianship, would be wholly void, or would be voidable by the giver or one having authority to represent the giver, in much the same way that a transfer for consideration would be. Gifts, by persons competent to give, of property which they have a right to give, to persons competent to receive, and which are completed and effectual, are regarded by the law as executed contracts, founded upon mutual consent. It is absolutely essential to the validity of a gift that it should go into effect at once and completely. If it be not a thing of the present, now done and finished, then it is no longer an act, but a promise. And as it must be, if a promise, wholly without consideration, because otherwise it is not a gift, it comes under the rule of law which makes promises without consideration of no legal validity, and incapable of legal enforcement. Hence, the very first rule in the law of gifts is, that delivery is essential to a gift. And this delivery must be to the donee; even if the giver deliver the money to a third person with orders to give it to the donee, and will therefore be bound if this third person give it to the donee before revocation, the giver may, at any time before the delivery to the donee, annul his directions to the party holding the money, and revoke and reclaim the gift. Generally, a court having equity powers will not interfere to enforce or complete a gift which is merely intended and promised. Nor will the transfer, if without delivery, be any the more effectual for being made in writing. As there must be actual delivery, so there must be actual acceptance; in other words, the thing given must pass out of the present power and possession of the giver, and into that of the donee. It is nevertheless true that a thing may be given, of which the present and immediate manual delivery is impossible. The delivery may, in such a case, be constructive, or symbolic, or

any such delivery as the nature and actual position of the thing at the time may permit and require; as a delivery of a key which commands 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 warehouseman or other person having the thing in his custody; but in this case the gift is not complete 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 acceptance, is then irrevocable so far as the donor himself is concerned; but it may still be revoked or annulled, and the property resumed, 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 fraudulent purpose as to future creditors. All voluntary 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 respecting insolvency provide especially for all cases of this kind.—Gifts causa mortis can be made only when the donor has reason to believe that death is impending. The law watches over gifts causa mortis with great jealousy, and restrains them by rigorous principles and wise precautions, for the same reasons which induce it to lay down such precise and rigid rules in relation to wills and all testamentary 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 supposititious expressions of his will, or, on the other hand, undue and injurious influence exerted upon him as to the disposition of his property. Both of these reasons apply as strongly and directly to gifts made in prospect of death as to wills, or perhaps more so. Indeed, 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 regards them with the suspicion felt toward acts

which are evasions of law. Much that was said of gifts inter vivos 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 actual, if that be possible without extreme inconvenience; 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 continuous, 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 accepted 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 certainly, and probably all notes of other parties payable to bearer, or indorsed in blank, and perhaps all notes, bonds, and other written contracts 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 distribution 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, however, 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.