Roy Kreitner Calculating Promises, The Emergence of Modern American Contract Doctrine (2007)

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.Reversing the conclusions of the trial court, the appellate division held that there was no delivery of the thing and that there was none of the formal-ity necessary to pass title. 20 On essentially the same facts, however, manycourts considered delivery to a third person sufficient to pass title and tocreate a valid gift.21she died, the donor said that she wanted the plaintiffs to have everything.She took some keys out fromunder her pillow, and gave them to the nurse, who handed them to the plaintiffs.The plaintiffs thenremoved a tin box from the trunk at the foot of her bed, and left the room.This was considered suf-ficient delivery of the bank book contained in the box, and the gift was thus upheld.Id.at 340 42.Butcourts were far from unanimous in accepting delivery of keys.One court explained its reluctance to finddelivery in the handing over of a key to a trunk by saying that it would be a dangerous extension ofthe forms of valid gifts:Cogent reasons may be given for protecting the thousands of depositors in savings banks.in rela-tion to the contents of safe deposit boxes and vaults of which the owners hold the key.Mrs.Kane spass book was not the actual subject of her alleged gift, but, rather, a symbol of such gift.The keywas therefore, at most, a symbol of a symbol of a gift.The delivery of the key of a trunk containingso many different articles which Mrs.Kane might desire to have taken from it for so many differentpurposes is an act in itself far less significant of a gift of any particular articles in the trunk than themanual delivery of the trunk itself.Dunn v.Houghton, 51 A.71, 76 (N.J.Ch.1902), (holding that there was no gift causa mortis by deliveryof the key, but upholding the gift on the ground that the bank accounts themselves had already beenvalid gifts in the life of the donor); see also Gescheidt v.Drier, 20 N.Y.S.11, 11 (Gen.Term 1892) (holdingdelivery of keys to wardrobe insufficient); Pink v.Church, 14 N.Y.S.337, 337 (Gen.Term 1891) (holdingdelivery of key to a safe vault sufficient).20.53 N.Y.S.154, 155 (App.Div.1898).21.For example, in Bump v.Pratt, the court stated:To constitute a valid gift.there must be such an actual or constructive delivery of the possessionas to place the subject of the gift beyond the possession and control of the donor, and placed in theactual possession of the donee, or of some person for the donee.Assuming, as I think we must, thatthe referee s findings of the question of fact upon this point are supported by the evidence, thenthere was a delivery of these bonds by the intestate in her lifetime to Miss Cornell for the defendantPratt, with directions that they should at some time thereafter be delivered to the donee.That, wethink, within the authorities, was such a parting with the possession by the donor, and delivery toanother for the donee, as to vest the title in the donee.32 N.Y.S.538, 540 (Gen.Term 1895).In Langworthy v.Crissey, a case involving the gift of a promissorynote, the court stated: A delivery to the donee in person is not necessary.A delivery of the thing grantedto another person for the use of the donee is sufficient, and the donee s subsequent demand of theproperty given, and his efforts to obtain possession thereof after the same has come into the hands ofthe donor s executor, is evidence of his acceptance of the gift. 31 N.Y.S.85, 86 87 (Sup.Ct.1894) (quot-ing the marginal note of Hunter v.Hunter, 19 Barb.631, 631 [N.Y.Sup.1855]).In In re Essex s Estate,52 g i f t s a n d p r o m i s e s r e v i s i t e dSome of the most complicated discussions of the sufficiency of deliveryarose in the context of joint accounts, which were often opened with theintention of assuring the transfer of the contents of the account to the do-nee.Typically, a donor would open a joint account with the donor s ownfunds, or change an existing account from her own name into a joint ac-count.Most often, the assumption underlying the change was that the do-nor would continue to have access to and control over the funds during herlifetime, but that the donee would become sole owner of the account at thedonor s death.In some circumstances, courts were willing to go to greatlengths, even reversing straightforward findings of fact on delivery when nocontradictory evidence was presented, to rule that there was no sufficientdelivery.22 On the other hand, there were situations in which courts simplyignored problems of delivery in order to validate the gift.23 The contrastamong the cases shows that even the widely accepted formula that validgifts require delivery and that delivery requires the surrender by the donordelivery to a third party was held sufficient, with the court going further and stating, In case of giftscausa mortis physical possession of the property is not necessarily parted with by the donor. 20 N.Y.S.62, 63 (Sur.Ct.1891).In In re Hall s Estate, the court stated: It has been distinctly held in many casesthat the delivery may be made to a third party for the donee, and that such delivery will be sufficient.38 N.Y.S.1135, 1139 (Sur.Ct.1896).22.An interesting example is the case of De Puy v.Stevens, where the plaintiff was a friend of the de-ceased donor, Nancy Sibbalds.55 N.Y.S.810, 811 (App.Div.1899).Six weeks before her death, the donorwithdrew the funds from a savings account, and redeposited them in an account in the name of Mrs.Nancy Sibbalds or Miss Hattie De Puy [the plaintiff]. Either or survivor to draw. Id.at 811.(Theplaintiff was the donor s agent for these changes in the account [ Pobierz całość w formacie PDF ]

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