Cooper v. Burr

By the Court, Leonard, J.

It is essential to a valid gift by parol, that there should be an actual or symbolical delivery. The title does not pass unless possession, or the means of obtaining it, are conferred by the donor and accepted by the donee.

The situation, relation, and circumstances of the parties, and of the subject of the gift, may be taken into consideration in determining the intent to give, and the fact as to delivery. A total exclusion of the power or means of resuming possession by the donor is not necessary. A declaration of the intent to give, and an indorsement of the name of the donee on the back of a lottery ticket, with a reaffirmation of the gift after the ticket had drawn a prize, was held to be a valid gift of the prize to a child of the donor, in Grangiac v. Arden, (10 John. 293.) Where the donor and donee were living in intimate relations, occupying the same room in which was the subject of the gift, a declaration by the donor that he gave to the donee his trunk and , all that was in it, was held to constitute a valid gift of money in a savings bank, the pass book of the donor being in the trunk at the time. It does not appear that the donee had taken any manual possession of the trunk or pass book, except being left temporarily by the donor in the exclusive enjoyment of the room in which was the -trunk, where he subsequently returned. (Penfield v. Thayer, 2 E. D. Smith, 305.) The purchaser of household furniture at an auction sale under a chattel mortgage, give it to the wife of the mortgagor, in whose possession and use it was, and had been previously, by the declaration, “I gave you all the property I have purchased this day;” and this was held to be a valid gift, against a creditor of the mortgagor, notwithstanding the purchaser had not seen all the furniture purchased, and there was not at any time an actual change in the use or possession. (Allen v. Cowen, 23 N. Y. Rep. 502.) Vide the same case, 28 Barb. 99, where numerous cases are well reviewed by Justice Rosekrans, who came to an opposite decision, in which his associates there concurred, but which was reversed in the Court of Appeals.

The fact that the trunks and bureau or their contents, were not removed, or even handled, so far as appears from the evidence, is-not a controlling consideration in this case. The language of the donor, accompanied by a delivery of the keys to the trunks and bureaus containing the coin and other property, evinced the intention -of the donor, and placed the donee in the possession of the means of assuming absolute control at her pleasure. The cases to which I have above referred, together with others more particularly reviewed by the learned authors of the opinions in the cases cited, are quite sufficient to establish the validity of the gift in this case, assuming the evidence of the plaintiff to bo the truth. The question of the veracity of the witnesses, and of the preponderance of testimony in respect to the manner and circumstances attending the gift, and the capacity of the donor, was properly left to the jury, and th'e verdict can not be disturbed on these grounds.

The defendants sought to prove the declarations of third parties at the trial, in order to show their reasons for not having caused the donor to be sent to an insane asylum. It requires no argument or citation of authority, to establish the correctness of the ruling which excluded this evidence.

It was also insisted that the plaintiff’s true name is Mary Flood, and that the name in which she brought this action is a misnomer, and that the action should abate on this ground. It appears from the evidence that the plaintiff was called Mary Flood during her early infancy, but that she has been called Mary Cooper by the donor, whose name she took, and by all her acquaintance, since about the age of nine or ten years, a period of about twenty years. I think the name in which the action is prosecuted was the name by which the plaintiff was generally known, at the time this action was commenced, and long before, and that the use of the name of Flood might have afforded ground for a valid plea in abatement. This objection is not well taken.

[New York General Term, September 19, 1865.

The judgment should be affirmed, with costs.

Ingraham, Leonard and Sutherland, Justices.]