A gift is a transfer without consideration. There may be a valid contract to make a sale, but none to make a gift, for if we assume we have an enforceable contract our definition of a gift prevents us from calling this contract or any execution or result of it, a gift. A gift is gratuitous, made as a favor and not as a duty. It becomes apparent then that a gift must take effect at once and that there can be no executory contract to make a gift. Either title passes when the gift is made or there is no gift.
Gifts may be described as those made between living persons or those made in contemplation of death, to take effect upon death.
Most gifts are those between living persons, but a person may make a gift in contemplation of his impending death. We call the former class of gifts those inter vivos and the latter class those causa mortis.45 There is an importance in distinguishing between these two sorts of gifts because the gift inter vivos when finally made is irrevocable while a gift causa mortis does not take effect if the giver recovers from what he thought, when he made the gift, was his last illness. If a giver then desires to revoke a gift it might depend upon whether it were a gift inter vivos or causa mortis whether he could do so. (Gifts by will are not discussed here.)
In a gift inter vivos it is essential that possession be delivered to the donee with the purpose of at that time transferring title.
As we have said there is no such thing as a contract to make a gift of personal property. In order to transfer by gift the gift must actually be made; the giver must hand over the article with the intention and for the purpose of transferring title at that time. It is not necessary that he make a manual delivery provided he does some act which may be regarded as a symbolical delivery. Thus, if he should give an article in the warehouse it would be sufficient if he transferred the warehouse receipt, or if he should give a trunk or the contents thereof it would be sufficient if he finally transferred the key.46
45. Telford v. Patten, 144 111. 611.
An executed gift inter vivos is irrevocable.
Though there may be no enforceable agreement to make a gift, yet when a gift is actually made, it transfers as complete a title as a sale or barter does. One who receives property by gift becomes the owner thereof, the giver has parted with his rights thereto and no matter how much he may repent he cannot recover what he has given away. A gift actually completed by final delivery is irrevocable.
In a gift causa mortis there must be actual delivery; the giver must regard himself as in his last illness and must give the property because of his impending death.
In the gift causa mortis the same elements in respect to transfer of possession with the intention of passing title must be present. But to constitute a gift causa mortis as distinguished from one inter vivos, it must be made on account of the death which the giver expects to soon ensue.47 As we have noticed, if a gift were really made because of death and death does not ensue the article may be recovered and this is the reason for inquiry whether it was a gift causa mortis. It must be borne in mind that in a gift causa mortis, the possession of the thing must be given over to the donee as completely and finally as in a case of a gift inter vivos for if there is simply a promise to make a gift at death this confers no rights to the article and if the statement is made that a person may have a certain article at death this gives no rights unless the statement is made in a regularly executed will.
46. Marsh v. Fuller, 18 N. H. 366.
47. Telford v. Patten, supra.
A debtor who is insolvent cannot deprive his creditors of his assets by giving them away.
While a gift transfers as good title as a sale or barter, yet there is a phase of the law which we will notice here which prevents the donee from getting a good title, as against the creditors of the giver, provided the giver is insolvent when he makes the gift or by the gift brings on insolvency. In that case the creditors may, by appropriate judicial proceedings, take the property from the person to whom it was given and this is no hardship upon him for he parted with nothing on account of the gift and ought not to be enriched at the expense of the creditors of the giver.48