Curtiss v. Barrus , 45 N.Y. Sup. Ct. 165 ( 1885 )

Follett, J.:

The finding of the Special Term that the transaction was a gift imter vivos, of the farm, which was not revoked by the donor’s restoration to health, is not sustained by the evidence. The donee and all of the witnesses agree that the deed was executed by the donor when very sick and under apprehension of death, and was delivered to a third person with directions to deliver it to the donee upon the donor’s death. This was a gift causa mortis. (Champney v. Blanchard, 39 N. Y., 111; Grymes v. Hone, 49 id., 17; Hathaway v. Payne, 34 id., 92.) The subsequent delivery of the deed to the donee by the donor’s direction did not, of itself, convert the gift ccmsa mortis into a gift inter vivos. To constitute a valid gift of either kind, the parting with the property by the donor must be absolute in form and accompanied by a delivery of the thing given. Had the donor, in the first instance, delivered this deed to the donee instead of to the third person, the donor’s recovery from that sickness would have revoked the deed. The chief distinction between a gift inter vivos and a gift causa mortis is that the former is irrevocable, while the latter is revocable, and ihe donor’s recovery from peril operates fer se as a revocation of the gift. (3 Pom. Eq. Jur., § 1150; Story’s Eq. Jur., §§ 606-608; Basket v. Hassell, 107 U. S., 602.) There is no evidence of anything said or done by the donor between the delivery of the deed to the third person and its delivery to the donee, indicating that she had changed her purpose so clearly declared to have the deed take effect only in the event of her death. All of the donor’s subsequent acts in respect to this and her other property indicate that she made these dispositions of this farm and of her other property in apprehension of death from the sickness with which she was then suffering.

The attempt to raise a consideration for this grant by proving the delivery of two chickens by the grantee to the grantor in her sickness, and so create an irrevocable grant, does not strengthen the defendant’s case in law or equity.

The judgment is reversed and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Boabdman, J., concurred.

Judgment reversed.and new trial ordered, costs to abide event.