Supreme Court of New York, Appellate Division, 1919.
187 App.Div 392, 176 N.Y.S. 225.
Facts
Leopold Cohn, in front of many witnesses writes out a birthday present to his wife stating that he gives her 500 shares of stock.
Issue
Whether a birthday present is a valid if the intent and delivery of a gift are in question. Is the gift an example of inter-vivos?
Arguments for Both Parties
Sara Cohn argues that the gift is an inter-vivos, stating that the intent and acceptance are crystal clear and that the delivery was only held back by the difficulty in getting the shares. Cohn’s estate argues that the gift is not valid, stating the delivery never occurred.
Holding
The court holds for the wife Sara, “There being no rights of creditors involved, no suggestion of fraud, the intention to make the birthday gift conclusively established, the gift being evidenced by an instrument of gift executed and delivered to the done… a reasonable and satisfactory excuse for not making the delivery of the certificates at the time of the gift.
The dissenting opinion states that the gift is not valid as an inter-vivos gift because the donor intended that the gift stay in the company safe for the purposes of using said holdings for the purposes of leverage in a merger and that this intent makes the gift a non-inter-vivos gift, and that the shares here should fall back on the intent written out in the will for the estate.
Rule
A gift needs the following elements to be proved:
- Intent
- Delivery
- Acceptance
Spencer M. Durden 