The word "gift" is often introduced into deeds of land; but by gifts are usually meant transfers of chattels, which are wholly voluntary, or without any pecuniary or good consideration. They are usually distinguished into gifts inter vivos, and gifts causa mortis.
Any person competent to transact ordinary business may give whatever he or she owns, to any other person. The usual incapacities for legal action apply here. A gift by a minor, a married woman, an insane person, or a person under guardianship, or under duress, would be void or voidable according to the circumstances of the case.
Gifts by persons competent to give, of property which they had a right to give, to persons competent to receive, and which are completed by transfer of possession, however voluntary they may have been, are regarded by the law as executed contracts, founded upon mutual consent. It is essential, however, that there should be such a change of possession as to put it out of the power of the giver to repossess himself of the thing given. (y) And gifts to persons holding somewhat of a fiduciary relation, as to attorney from client, to parent from child, to guardian from ward, to trustee from cestui que trust, are scrutinized by courts of law as well as equity with great care, even if not held presumptively void. (z)l
(y) Little v. Willetts, 55 Barb. 125, 37 Howard (N. Y ), 481.
(z) Garvin v Williams, 44 Mo. 465
' See Mitchell v. Homfray, 8 Q. B D. 587; Tyars v. Alsop, 61 L. T. R. 8: Hall v. Knappenberger, 97 Mo. 509; Wilkinson v. Sherman, 45 N. J. Eq. 413; Parker's Adm v. Parker's Adm. 45 N. J. Eq. 224; In re Wormley's Est. 137 Pa. 101.
It is essential to a gift, that it goes into effect at once, and completely. If it regards the future, it is but a promise; and being a promise without consideration, it cannot be enforced and has no legal validity. Hence delivery is essential to the validity of every gift; (a) for not even a court of equity will * interfere to enforce a merely intended or promised gift. (b) There is, it is true, some authority for supposing that a gift inter vivos may be valid without delivery, if there be a distinct acceptance. (c) But this is not the law. Nor will transfer by writing alone satisfy the requirement of delivery. (d) The delivery may be constructive; for it may be any such delivery as the nature of the thing and its actual position require; as a delivery of a part for the whole, or of a key,(dd) or of a cumbrous mass by taking the donee near it, and pointing it out, with words of gift, or by an order on a bailee. But in this last instance, we should say that the gift did not become complete until the order was presented and accepted, or performed. (e) 1
(a) Bryson v. Brownrigg, 9 Ves. 1; Antrobus v. Smith, 12 Ves. 39; Irons v. Smallpiece, 2 B. & AM. 551; Noble v. Smith, 2 Johns. 52; Hooper v. Goodwin, 1 Swanst. 485; Adams v. Hayes, 2 Ired. L. 366; Sims v. Sims, 2 Ala. 117; Allen v. Polereczky, 31 Me. 338; Withers v. Weaver, 10 Barr, 391; Dole v. Lincoln, 31 Me. 422; Carpenter v. Dodge, 20 Vt. 595; Huntington v. Gilmore, 14 Barb. 243; Hunter v. Hunter, 19 Barb. 631; Brown v. Brown, 23 Barb. 565; Hitch v. Davis, 3 Md. Ch. 266; People v. Johnson, 14 Ill. 342; Craig v. Kittredge, 46 N. H. 57; Irish v. Nutting, 47 Barb. 37.
(b) Pennington v. Gittings, 2 G. & J. 208. See Antrobus v. Smith, 12 Ves. 39.
(c) Comyns, in his Digest, Biens D. 2, under " Property of goods, how vested," says that " if a man grant all his goods, the property vests in the grantee, and the grant may be without deed." This is asserted in London & B. Railway Co. v. Fairclough, 2 Man. & G. 691, n. (a), and the distinction made, on this point, between gifts inter vivos and gifts causa mortis.
(d) Cotteen v Missing, 1 Madd. Ch. 176; Caswell v. Ware, 30 Ga. 267; Evans v. Lipscomb, 31 Ga. 71; Gammon Seminary v. Robbins, 128 Ind. 85. And so long as money delivered by A to B. for C, as a voluntary gift from A to C, is in the hands of B, A may revoke the gift, and reclaim the money from B. See Lyte v. Perry, Dyer, 49 a, and Connor v. Tra-wick, 37 Ala. 289. But in Cranz v. Kroger, 22 Ill. 74, it was said that if the gift be evidenced by writing, it cannot be resumed. Held, also, in same case, that a parent may resume a gift made to a child, without the consent of the child.
(dd) Marsh v. Fuller, 18 N. H 360. A gift of a pocket was held to carry its contents, in Allerton v. Lang, 10 Bosw. 362; Cooper v. Burr, 45 Barb. 9.
(e) Carradine v. Collins, 7 Sm. & M. 428; Blakey v. Blakey, 9 Ala. 391; Pope v. Randolph, 13 Ala." 214; Hillebrant v. Brewer, 6 Tex. 45 . Anderson v. Baker, 1 Ga. 595; Donnell v. Dounell, 1 Head, 267.
1 In England it is now settled by the case of Cochrane v. Moore, 25 Q. B. D. 57 (C. A.), following Irons v. Smallpiece, 2 B. & Ald. 551, and discrediting certain criticisms of the latter case in more recent decisions, that a gift of a chattel, capable of delivery, per verba de presenti by a donor to a donee, and assented to by the donee,does not pass the property in the chattel without delivery; Fry, L. J , concluding (p 72), after a careful examination of the authorities, that " According to the old law no gift or grant of a chattel was effectual to pass it whether by parol or by deed, and whether with or without consideration unless accompanied by delivery; that on that law two exceptions have been grafted, one in the case of deeds, and the other in that of conA gift, by a competent party, made perfect by delivery and tracts of sale where the intention of the parties is that the property shall pass before delivery."
In this country delivery is universally held to be essential. Brantley v. Cameron, 78 Ala. 72; Nolen v. Harden, 43 Ark. 307; Evans v. Lipscomb, 31 Ga. 71; Roberts v. Draper, 18 Ill. App. 167; Gammon Seminary v. Robbins, 128 Ind. 85; Donover v. Argo, 79 Ia, 574; Augusta Savings Bank v. Fogg, 82 Me. 538; Coleman v. Barker, 114 Mass. 330; Love v. Francis, 63 Mich. 181; Wheatley v. Abbott, 32 Miss. 343; Reed v. Spaulding, 42 N. H. 114; Dilts v. Stevenson, 17 N. J. Eq. 407; Beaver v. Beaver, 117 N. Y. 421; Flanders v. Blandy, 45 Ohio St. 108; Scott v. Lauman, 104 Pa. 593; Taylor v. Staples, 8 R. I. 170; Bennett v. Cook, 28 S. C. 353; Hubbard v. Cox, 76 Tex. 239; Pope v. Burlington Savings Bank, 56 Vt. 284; Ewing v. Ewing, 2 Leigh, 337; Henschel v. Maurer, 69 Wis. 576.