Majority
p. 297E. B. Servan Grangiac, Survivor, &c. against Arden. ALBANY, August, 1813.
Headnote
Delivery of possession is essential to constitute a valid gift. Where a father bought a ticket in a lottery, which he declared he gave to his infant daughter B., and wrote her name upon it, and after the ticket had £eaw declared that he hadgito his child E., pr?zehmoney was her’s; this was held suiti&emdash; cient for a jury to infer all the formality requisite to a valid gift, and that the title in the money was complete and vested in K.THIS was an action for money had and received to the use of the plaintiff, to recover the amount of the money drawn as a prize in a lottery. The cause was tried at the sittings in New-York, in October, 1811, before Mr. Justice Van Ness.
It was proved, by A. Herring, one of the managers of the almshouse lottery, that the defendant bought several tickets in that lottery, one of which, number 7,470, drew a prize of 5,000 dollars, which he paid to the defendant, about the year 1794, or before 1797. The ticket was lost or destroyed. Soon after the prize was drawn, the witness congratulated the defendant on his good fortune, and the defendant replied “ that the ticket did not belong to him; that he had given it to his daughter.” Other witnesses testified to a similar acknowledgment of the defendant, at different times.
It was also proved, by a witness who lived in the family of the defendant, that the defendant brought home six lottery tickets,
p. 298admitted the generar rule to be, that a parol gift was not perfect without a delivery of the thing; because it might be revoked; but he contended that the facts and circumstances proved, were tantamount to an actual delivery; and were sufficient evidence to the jury of such delivery. The plaintiff, on account of her age, was unable or unfit to take possession of the ticket; and her father, the defendant, must, in this respect, bs considered as her guardian. To have delivered the ticket into
which he said were for himself, and wife, and his four children, an(j he wrote the names of each on the tickets, and put them in his desk. The children were not present at the time. The defend afterwards being congratulated on his good fortune, by Mr. II-, said, the ticket belonged to bis daughter Elisa, (the plaintiff.) In a subsequent conversation in fhe family, the son. of the defendant said that Elisa ought to divide the prize with the others, to which the defendant answered, “ No, she should not divide it. The ticket was her own, and the prize money belongs to her, and she shall have • the whole of it, and I will put it in trade for her.” Elisa, the plaintiff, the daughter of the defendant, was about 8 years old when the prize was drawn, and lived in the defendant’s family unfil she married in January, 1809, and the present suit ivas brought in her name and that of her husband,, who has since died. In the month of Way, 1806, her mother, during her illness, reminded the defendant of the plaintiff’s prize money, and requested him to take care of it for her, and the defendant replied, “ You know the ticket was Elisa’s; the money is her’s; and I have kept it in trade for her to a good profit. I will never take a shilling of it or of the profit; she shall have it all.” Mrs. Arden died in 1806. A daughter of the defendant also testified that she had frequently heard her father say, in the presence of the plaintiff, before she was of age and since, that he had given the ticket to the plaintiff» and endorsed her name on it, and that the prize money belonged io her.
It did not appear that the plaintiff ever had the ticket in her possession.
A motion was made for a nonsuit, which was overruled by the judge. The allowance of interest was also objected to. The different points raised were reserved, and a verdict was taken for 8,000 dollars, subject to the opinion of the court on a case in which the above facts were stated.
S. Jones, jun. for the plaintiff,
p. 299that this was not a perfect gift, for want of an actual delivery of the ticket, which is essential to the consummation of a gift.[1] Until an actual delivery, there is a locus penitentice, and it rests in the will of the donor to consummate the gift or not. Until such a delivery, he may retain the property, and no power in law can take it from him. It is not necessary to show a revocation; for while the thing remains in the possession of the donor, no suit can be maintained for it. There was not even a symbolical delivery[2] to the plaintiff, for she was not present at the time the pretended gift was made. That the defendant, being the father of the plaintiff, was her guardian, and so a delivery was made to him as guardian, is a refined notion, to , support which, no law or case can be found in the books. A delivery is a notorious act, and does not depend on equivocal circumstances. Again, the plaintiff’s declaration as to the money amounts to no more than a verbal gift, without any delivery of the money. It was made not to the plaintiff, but'her mother. It was without consideration.
the hands of his infant daughter, would have been a useless ceremony. The proper person to receive and keep it for her was her guardian. Now, the giver himself was that guardian. Every thing was done which, under the circumstances, could be done to render the gift perfect. Though a parol gift, without actual delivery, is revocable, there is no evidence that the defendant ever expressed an intention to revoke the gift, until after the present suit was brought. On the contrary, the defendant, on various occasions, and in the most solemn manner, expressed his intention to carry the gift into effect. He, moreover, declared that he had received the prize money for the plaintiff, and had put it out ill trade for her benefit. If the plaintiff was entitled to the principal, she must be entitled to interest.
Colden and Harison, contra, insisted,
T. A. Emmet, in reply,
said, that this was not an action of trover, but for money had and received to the use of the plaintiff; and it might be, that without having a legal title to the ticket, the plain - tiff, on principles of moral obligation, would have a right to the money. But there was sufficient evidence to support the plaintiff’s title to the ticket itself. The defendant called a witness to his solemn act, and which was intended as a transfer, and wrole the .
p. 300
name of the plaintiff on the ticket, as such transfer. This amounted. *° more than a symbolical delivery; it was evidence of an actual delivery. As it respects an infant, a father may recover a gift from a stranger. The defendant stood in the double relation of donor, and as guardian to the donee. If he had delivered the ticket into the hands of the plaintiff, and she had immediately returned it to her father, there would be no question as to the validity of the gift. Now, are not the repeated and solemn declarations of the defendant that the ticket belonged to the plaintiff, and that he had given it to her, equivalent, and conclusive evidence against the defendant, as to the delivery ? The plaintiff proves a delivery, by the declarations of the defendant himself, for the ticket could not belong to the plaintiff without such delivery.
There can be no doubt but delivery of possession is necessary to constitute a valid gift. This, however', was matter of fact upon which the jury have passed. And we cannot say their verdict is not warranted by the testimony. The lapse of time since the transaction took place, ought to be taken into consideration, and induce a more liberal conclusion from circumstances than ought to be allowed to more recent transactions. The evidence from which the jury have inferred a delivery, is the declaration and acknowledgments of the defendant. And these are numerous, and as full and ample as words could make them. These declarations did not relate to a gift intended to be made ; and are not to be viewed in the light of executory promises, to be carried into effect at some future day. But there were confessions that a gift had already been made. Thus, on Mr. Herring’s congratulating him on his good fortune, in drawing the prize, he said the ticket did not belong to him; he had given it to his daughter. And to Mr. Aspinwall, he declared the prize was not his, but belonged to his cjanghter. The declarations made to his wife, in 1806, twelve years after the prize was drawn, speak the same language. On her questioning, him on the subject, he says, “You know the ticket was Elisa’s, the money is her’s, and I have kept it in trade for her to good profit.” All these declarations refer to and recognise a gift as having been made. They afforded reasonable ground for a jury to infer that all the formality necessary to make it a valid gift had been complied with, and the right and title of the plaintiff to the money complete and vested; and that the same was received and held by the plaintiff, for her use and benefit.
p. 301
As it has been employed by him in trade to good profit, interest ought to be allowed.
The motion for a new trial must, therefore, be denied.