SEC. 1146. A gift is a transfer of personal property, Gifts made voluntarily and without consideration. N. Y. C. C., § 500. defined. made. SEC. 1147. A verbal gift is not valid, unless the means Gift, how of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee. N. Y. C. C., § 501. SEC. 1148. A gift, other than a gift in view of death, Gift not cannot be revoked by the giver. N. Y. C. C., $502. See 1 Parsons on Contracts, 235, and cases cited there. revocable. of death, SEC. 1149. A gift in view of death is one which is made Gift in view in contemplation, fear or peril of death, and with intent what. that it shall take effect only in case of the death of the giver. N. Y. C. C., §503. See authorities cited under next section. presumed SEC. 1150. A gift made during the last illness of the when gift giver, or under circumstances which would naturally im- to be in press him with an expectation of speedy death, is presumed death. to be a gift in view of death. N. Y. C. C., § 504. The deceased was in his last illness, suffering from an incurable disease; he had just made his will, and everything tended to show that he was in present apprehension of death: Held, that under such circumstances, a gift of his horses, furniture, wearing apparel and watch, was a gift mortis causa, and not inter vivos. Delmotte v. Taylor, 1 Redf. Sur. Rep. 417. view of Revocation of gift in view of death. The policy of the law is against gifts mortis causa; and to sustain them, the most clear, circumstantial, and satisfactory proof will be required. Ibid. To constitute a valid donatio mortis causa, there must be, if the gift is by parol, an actual delivery and acceptance of the thing, so far as it is possible. The mere fact that it has passed into the possession of the donee, even by the act of the donor himself, is not enough. However apparent the intention of the deceased to make a gift, such intention of itself is unavailing to sustain it. Ibid. The deceased in his last illness expressed a desire to his daughter that she should have his carriage and horses, but did not request her to take possession of them, nor direct the stable keeper to deliver them to her; nor did it appear that there had been any actual transfer, or change of possession; though they were used by her afterwards, and the coachman received his orders from her: Held, not such a delivery by the donor to the donee, as was necessary to complete the gift. Ibid. So where the deceased gave his daughter the furniture in his rooms, the keys to which were given her by her husband, and she subsequently removed the furniture to her residence, though nothing else appeared showing that she took possession of it with the donor's knowledge and assent: Held, not sufficient to consummate the gift. The fact that the furniture was in the donee's possession before the donor's death, is not of itself sufficient to warrant the presumption that there was an actual delivery. A mere taking pos session is not sufficient. It should appear to have been done with the knowledge and acquiescence of the donor. Ibid. See, also, 1 Parsons on Cont. 236, 237, and cases cited there. See further as to donatio causa mortis, 1 Fonblanque's Equity, 289; 14 Pick. (Mass.) 204; 5 Shepley (Me.), 287; 4 Cush. (Mass.) 87; 7 Gray, (Mass.) 282; 13 Gray, 418. A mortgage may be a donatio causa mortis. In such case the executors would be considered as trustees for the purpose of enforcing it. See 24 Pick. 261. A note made by deceased is not a good donatio causa mortis. See 14 Pick. 205; 24 Pick. 201; 1 Cowen, 598. But a note of a third person owned by deceased may be a good donatio causa mortis. A gift in view of death may be made to the wife of the donor. 3 Binney, 366. It can only be delivered to the donee or his agent; if to the latter, he must retain possession thereof until the death of the donor. 5 Shepley, 429; 3 Shepley, 429. SEC. 1151. A gift in view of death may be revoked by the giver at any time, and is revoked by his recovery from the illness, or escape from the peril, under the presence of which it was made, or by the occurrence of any event which would operate as a revocation of a will made at the same time. N. Y. C. C., § 505. NOTE.-The donor may also take the gift back before death or recovery, See 14 Pick. 203; see, also, 1 Parsons on Cont. 237. By the law of Connecticut, a will, whether making a total or partial distribution, is revoked by the subsequent birth of a child, if no provision has been made in that instrument for that contingency, and where a will would be revoked by such a circumstance: Held, that a donatia causa mortis would likewise be revoked. Bloomer v. Bloomer, 2 Bradf. 339; see, also, Merchant v. Merchant, Ibid, 432. will upon SEC. 1152. A gift in view of death is not affected by a Effect of previous will; nor by a subsequent will, unless it expresses gift. an intention to revoke the gift. N. Y. C. C., § 506. treated as SEC. 1153. A gift in view of death must be treated as a when legacy, so far as relates only to the creditors of the giver. legacy. N. Y. C. C., § 507. See 1 Fonblanque's Equity, 289, and note; 1 Parsons on Cont. 237; 1 Peere Wms. 405. 23 |