Cooper v. Burr.

insane, nor treat her as an insane person. The directions of her father, Wm. Cooper, though not evidence of the fact of insanity, were admissable for the purpose of such explanation of the subsequent treatment of the deceased by her relatives; and so to destroy the inference that the defendants themselves did not regard her as insane.

pro

Wm. Fullerton and Stuart & Burling, for the respondent. I. It was proper for the plaintiff, who claimed the property in virtue of a gift from Mary Cooper, deceased, to show that the decedent had expressed an intention to give her the perty in her lifetime. When the question was put which was objected to, it had not been shown in the case that the defends ants were the legal representatives of Mary Cooper, deceased. The objection, therefore, was not well taken, under section 399 of the code.

II. The motion to dismiss the complaint was properly de-. nied. 1. The gift of the property in question was valid, and passed the title to the donee. The rule as to gifts is, "the thing must be put in the hands of the donee, or placed within his power by delivery of the means of obtaining it." (Harris v. Clark, 3 Comst. 93. Hunter v. Hunter, 19 Barb. 635. Allen v. Cowen, 28 id. 101. Parish v. Stone, 14 Pick. 206.) The delivery of the keys was a good delivery of the property. (Chapin v. Rogers, 1 East, 194. Allen v. Cowen, 28 Barb. 101. Smith v. Smith, 1 Strange, 955. Jones v. Se'by, Prec. in Chan. 300.) The donor in the case of Jones v. Selby had given his wife a hair trunk and handed her the key, in which, after his death, was found an exchecquer talley for £500. It is said by Lord Hardwicke, that this amounted to the same thing as delivery of possession of the talley. The keys were accepted and retained by the donee until the death of the donor. This was a good acceptane of the gift. The delivery of the key was a good sym(Noble v. Smith, 2 John. 55.) In this case, Kent, Ch. J. says; "The cases in which the delivery of

blical delivery.

Cooper v. Burr.

a symbol has been held sufficient to perfect the gift were those in which it was considered as equivalent to actual delivery, as the delivery of a key of a trunk, of a room or warehouse, which was the true and effectual way of obtaining the use and command of the subject." (2 Vesey, 442-3. 4 Brown, 286. Toller's Law of Ex. 181, 182.) "Where a father bought a lottery ticket, which he declared he gave to his infant daughter, and wrote her name upon it, and after the ticket had drawn a prize, he declared that he had given the ticket to his child, and that the prize money was hers, this was held sufficient for a jury to infer all the formality requisite to a valid gift." (Grangiac v. Arden, 10 John. 293.) "It is a sufficient delivery to constitute a valid gift to a married woman of household furniture in the possession and use of herself and family, where one who has just purchased under a chattel mortgage made by her husband, pointing out certain of the articles to the wife, says to her, 'I give you these and all the property I have purchased this day.'" (Ailen v. Cowen, 23 N. Y. Rep. 502.) The possession of the property after the gift by Mary Cooper the elder, to the plaintiff, was in the plaintiff. (Allen v. Cowen, supra.) In this case it was held "that the property remaining after the gift in the house occupied by the husband and wife together is to be deemed in the possession of the wife, and is not liable to execution against the husband." There was a valid delivery of the property. (1.) The keys to the bureau and trunks were given to the plaintiff to consummate the gift. (2.) After this delivery of the keys they remained in the possession of the donee until the donor's death. (3.) The property was spoken of as the plaintiff's by the donor after the gift, and was regarded as in her possession. (4.) The gift was made deliberately and with all due formalities. (5.) The donee asserted her title to the property after the donor's death. 2. The action was properly brought by the plaintiff in the name of Mary Cooper. That was the name she had been known by for the greater part of her life.

Cooper v. Burr.

III. There was no error in the judge's charge, and the judgment should be affirmed.

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 VOL. XLV,

3

Cooper . Burr.

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 1 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 donce 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 be 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 the 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

Angrave v. Stone.

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.

The judgment should be affirmed, with costs.

[NEW YORK GENERAL TERM, September 19, 1865. Ingraham, Leonard and Sutherland, Justices.]

ANGRAVE US. STONE and others.

In an action to set aside as fraudulent and void as against creditors, a sale of merchandise made by S. & Co. in August, 1861, the judge admitted evidence of an assignment made by S. to his son, in May, 1861, and of the consideration therefor, and the manner of payment. Held that the assignment having occurred after the embarrassments of S. & Co. commenced, and appearing to be a part of the general plan of S. to place his property beyond the reach of his creditors, upon execution, the inquiry was clearly within the rule in respect to evidence of contemporaneous frauds.

Held, also, that proof that several of the notes given by the purchasers of the debtor's stock of goods, at the alleged fraudulent sale, had been paid since the commencement of the action, was properly excluded.

IS action was brought to set aside and declare void a

THIS

sale of a quantity of merchandise made by the firm of E. Stone & Co. to the defendants, Stone & Hall, in August, 1861. The cause was tried before his Honor Justice ALLEN, at a special term in February, 1863, without a jury. Subsequently a decree was entered by direction of said justice, setting aside said sale, and declaring it a fraud upon the creditors of E. Stone & Co. and also decreeing payment of the plaintiff's judgment against said firm of E. Stone & Co. with costs of this action. The value of the merchandise so sold was $12,437. The judgment, which was ordered to be paid out of the proceeds of the sale of said merchandise, was $1,661.92, and was recovered by the plaintiff in the action against the defendants, E. Stone & Co., on the 22d day of January, 1862. The costs of this action, which the de