CHAPTER VI. GIFTS. Gifts inter vivos. A GIFT, by which we mean a transfer of property without Chap. VI. valuable consideration to a donee, who accepts the property, is liable to be defeated by the creditors of the donor either under the statute of Elizabeth or on his bankruptcy.3 for value There is a broad distinction between an assignment for value Gifts and and a gift. In the former case, if the transfer of the property is assignments for any reason imperfect, we have to consider the intentions of distinguished two persons-of the person who makes and of the person who takes under the assignment; and if it appears that both intended that a perfect assignment should be made, the Court will compel the assignor to do everything that may be necessary to perfect the assignment. In the case of a gift, the nature of the transaction depends entirely on the will of the donor. If he does something which does not really amount to a complete transfer of the property to the donee, we have no reason to suppose that he intended to do anything more than he actually did. He may perhaps at one time have intended to make a gift; but the very fact of his not having completely transferred the property may show that if he ever had that intention he subsequently altered his mind. These considerations lead to the cardinal rule that an imperfect gift creates no right that can be enforced; in other words, that a person cannot be compelled to do anything to perfect a gift by It should be observed that, in the Year Books, "done," which is generally translated "gift," does not necessarily imply that there was no consideration; compare the phrases "donee" in tail, "to give" in tail, where, if the reversion is retained by the donor, there is necessarily consideration, owing to the 2 13 Eliz. c. 5; post, p. 94; M. L. R. Sm. L. C. 10. 3 Post, Chap. XVIII. Chap. VI. him. Gift obtained by misrepre sentation. No gift unless (1) complete transfer, or declaration of trust; (2) intention to give. Milroy v. There is a locus ponitentiæ so long as it is incomplete. But the subsequent conduct of the donor may enable the donee to compel the donor to perfect the gift; as, for example, if A. gives a piece of land to B. without making a formal conveyance, and B., to A.'s knowledge, builds upon it.3 If a gift has been obtained by a misrepresentation, though innocent, of fact by the donee, the donor has a right in equity to recover his gift from the donee.* Where it is alleged that a transaction amounts to a gift, two questions arise, viz. :— (1.) Was there a complete transfer of the property according to its nature? If the donor intended to transfer the property, has everything necessary to vest it in the donee been done? if the donor did not so intend, has a trust of the property for the benefit of the donee been validly constituted? An ineffectual attempt to transfer the property (contrary to the usual rule of construction. ut res magis valeat) will not be construed to operate as the creation of a valid trust. (2.) With what intention was the transfer made? A man may make a voluntary transfer of property, but not intend to make a gift of it. He may intend that the transferee should hold it as his trustee. The intention that the transfer should operate as a gift may be proved by the acts as well as by the words of the donor. The principles that we have stated are laid down very clearly by Turner, L.J., in his judgment in Milroy v. Lord.5 He says: "I take the law of this Court to be well settled that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it 1 See this discussed in Vaizey on Settlements, 92 et seq. 2 Antrobus v. Smith, 12 Ves. 39; 8 R. R. 278; Edwards v. Jones, 1 My. & Cr. 226; 43 R. R. 178; Lyle v. Peny, Dyer, 49a. 3 Per Westbury, C., Dillwyn v. Llewelyn, 4 De G. F. & J. 521; Re Barker, 44 L. J. Ch. 490. 4 Re Glubb, [1900] 1 Ch. 354. 5 4 De G. F. & J. 274. in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases, I think, go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be effectual by being converted into a perfect trust." Chap. VI. A promise to make a gift in the future does not amount to a What congift, and is merely nudum pactum.2 3 stitutes a giftA gift cannot be made unless the donee is ascertained and is acceptance. capable of taking; he is not bound to accept it; but, if it is made by deed, it vests in him till he repudiates the gift; and acceptance is presumed until dissent is signified.7 An infant can accept a gift, but he can repudiate it when he Infants. comes of age. A common example of the right of an infant to repudiate a gift on his attaining twenty-one is afforded by the transfer to or purchase in the name of an infant of shares in a company. He can repudiate them on attaining twenty-one, and if the company is wound up before that event happens his transferor remains liable for calls.10 11 condition. A gift may be made subject to a condition precedent or to a Gifts on condition subsequent. Gifts subject to conditions subsequent must be carefully distinguished from gifts for a particular purpose. Gifts of the latter class take effect even if the purpose becomes incapable of being performed. In Scott v. Haughton, 12 Mrs. Fuller gave some lottery tickets to 1 See also Richards v. Delbridge, 18 Eq. 14. Shower v. Pilck, 4 Ex. 478; Re Ridgway, 15 Q. B. D. 449. 3 Y. B. 11 H. 7, 12, pl. 4; Paston and Genney's Case, 11 Ed. 4, 2, pl. 2; Bro. Ab. Done, 31; Roberts v. Roberts, 11 Jur. N. S. 992. Haynes's Case, 12 Rep. 113; 3rd Instit. 110. Hill v. Wilson, 8 Ch. 893; Y. B. 7 Ed. 4, 29, pl. 14; Lyte v. Peny, Dyer, 49a (8). 6Y. B. 7 Ed. 4, 20, pl. 21; Standing v. Bowring, 31 Ch. D. 282. G.P.P. 7 See London and County Bank v. London, &c. Bank, 21 Q. B. D. 541. 8 Hunter v. Westbrook, 2 C. & P. 578; Haynes's Case, 12 Rep. 113; The Wardens of the Minor Brothers of London, Y.B. 11 H. 4, 31. 9 Co. Litt. 2b. 10 Weston's Care, 5 Ch. 614; Mann's Case, 3 Ch. 459; Curtis's Case, 6 Eq. 455. 11 Lyte v. Peny, Dyer, 49a, (7); Re Whittaker, 21 Ch. D. 657. 12 2 Vern. 560. 6 Chap. VI. her servants on condition that, if 20s. or more should come up, her daughter should have a moiety of it. A ticket given to an infant servant produced £1,000, and it was held that the infant was bound to perform the condition. Gifts by deed. Acceptance presumed until dissent. Creditors' deed. The most common example of a gift being liable to be defeated by a condition subsequent is that of presents made by a man to a woman to whom he is betrothed, in which case, if the marriage is broken off, the presents must be returned; on the other hand, presents made to a woman to obtain introduction to her are not revocable.2 An example of the rule that a gift is not defeated by the failure of the purpose for which it is made is afforded by Leche v. Kilmorey, where A. paid a sum to an army agent to the account of N. "to be at his disposal for the use of L." The sum was really intended by the donor to be applied in purchasing promotion for L. At the death of A. the money still remained in the hands of the army agent. Afterwards L. was obliged, from his bad health, to leave the army, and it was held that he was entitled to the money. A gift of specific chattels by deed' vests the chattels in the donee without delivery of them to him, subject, of course, to his right to refuse the gift.5 "If the deed be delivered to the use of the donee, the goods and chattels are in the donee presently before notice or agreement; but the donee may make refusal in pais, and by that the property and interest will be divested." It is now settled that, "although a donee may dissent from and thereby render null a gift to him, yet a gift to him of property, whether real or personal, by deed, vests the property in him subject to his dissent."7 And acceptance is presumed until dissent is signified, even though the donee is not aware of the gift. 8 The cases which show that a voluntary assignment made by a debtor to a trustee for his creditors is revocable by the grantor 1 Young v. Burrell, Cary, 77; Robin son v. Cumming, 2 Atk. 409. 2 Robinson v. Cumming, sup. 3 Turn. & Russ. 207; 24 R. R. 19. 4 It may be a bill of sale within the ineaning of the Bills of Sale Acts; post, Chap. VII. 5 Y. B. 7 Ed. 4, 20, pl. 21. 6 Butler and Baker's Case, 3 Rep. 266, 27a. 7 Per Lindley, L. J., Standing v. Bowring, 31 Ch. D. 290. 8 Per Lindley, L. J., London and County Bank v. London, &c. Bank, 21 Q. B. D. 541. 9 Collected in Siggers v. Evans, 5 E. & B. 367. until it has been communicated to a creditor, are not authorities Chap. VI. for the proposition that a gift by deed is revocable until it is communicated to the donee. The distinction between the two cases is obvious. In the case of the creditors' deed, the debtor is merely directing how his own property is to be applied for his own benefit. The deed has merely the same effect as if the debtor had delivered money to an agent to pay his creditors, in which case the debtor might, before payment or communication by the agent to the creditors, change his mind and recall the money in the case of a gift, the effect of the deed is actually to change the ownership of the property for the benefit of the donee. The operation of a deed is not suspended by its being suppressed or destroyed by the donor, or by its not being communicated to the donee; and it may be good as between the donor and donee without notice to trustees, which may be necessary to render it good against third parties. The deed must, of course, be one which is effective to pass the property in law or equity.* The question whether a gift of a corporeal chattel in the Parol giftpossession of the donor can be made without delivery, per verba delivery is de præsenti, or by the expression of the intention of the parties, 5 6 as evidenced by their acts, has been the subject of much controversy. It has, however, been decided by the Court of Appeal, in accordance with Irons v. Smallpiece, that delivery is essential. Fry and Bowen, L. JJ., in their judgment said: 66 According to the old law no gift or grant of a chattel was effectual to pass it either by parol or by deed, and whether with or without consideration, unless accompanied by delivery. On that law two exceptions have been grafted, one in the case of deeds and the other in that of contracts of sale where the intention of the parties is that the property shall pass before delivery; but as regards gifts by parol the old law was in force when Irons v. Smallpiece was decided; that case, therefore, correctly declared the existing law." 1 See Acton v. Woodgate, 2 My. & K. 492; 39 R. R. 251. New v. Hunting, [1897] 2 Q. B. 19, [1899) A. C. 419. 3 Elph. N. & C. Interp. 120; Byth. & Jarm. Conv. by Robbins, vol. ii., p. 264; Standing v. Bowring, 31 Ch. D. 282; post, p. 128. Per Grant, M. R., Antrobus v. Smith, 12 Ves. 39; 8 R. R. 878. 5 See Re Harcourt, 31 W. R. 580; 6 Cochrane v. Moore, 25 Q. B. D. 57. 9 Cochrane v. Moore, sup. necessary. |