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Law and Equity
STATE OF NEW YORK.
MARY COOPER vs. MELANCTHON BURR and others.
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
C. who had been confined to her room by illness for nineteen or twenty years,
45b 9 47ap475 45b
65 AD 2593 65 AD 4594
Cooper v. Burr.
it all to you, take whatever you please; it is all yours, but take good care of it." Held that the language of the donor, accompanied by a delivery of the keys to the trunks and bureau, evinced the intention of the donor, and placed the donee in possession of the means of assuming absolute control of the contents at her pleasure, and constituted a valid gift of the coin and jew elry in the trunks and bureau.
Held, also, that the fact that the trunks and bureau, or their contents, were not
removed, or even handled, by the donee, was not a controlling consideration. Where it appeared from the evidence that the plaintiff, suing as Mary Cooper, was called Mary Flood, during her early infancy, but that she had been called Mary Cooper by C. with whom she lived, and whose name she took, and by all her acquaintances, since about the age of nine or ten years, a period of about twenty years; Held that the action was properly brought by the plaintiff by the name of Mary Cooper; that being the name by which she was generally known.
PPEAL by the defendant from a judgment entered upon the verdict of a jury, and from an order made at a special term, denying a motion for a new trial. The action. was brought to recover a quantity of gold and silver coin, jewelry, silver ware, household furniture, &c. which the plaintiff claimed as a gift from one Mary Cooper, deceased, the former owner, and which the defendants had taken possession of, and detained, claiming the same as the next of kin of the said Mary Cooper, who died intestate. The defendants alleged in their answer that since the commencement of this suit, letters of administration had been issued to two of them, Melancthon Burr and Ann S. Lyons, upon the estate of said Mary Cooper, by the surrogate of New York. The action was tried at the New York circuit, in April, 1863, before Justice HOYT and a jury. The plaintiff was examined as a witness, and testified as follows: That she had lived with deceased from the plaintiff's sixth year of age till the death of the deceased in 1861, a period of twenty-seven years, and that no one else lived with her, except as occasional sub-tenants of parts of the house. That the decedent was confined to her room by illness for nineteen or twenty years prior to her death, and kept her bed for five or six years. During this period no one but the plaintiff took care of the decedent,