Facts: D was the executrix and residuary legatee of P’s father, and P claimed colts under
a verbal gift made to him by the testator one year before the father’s death. The colts
remained in possession of the father until his death. 6 months before the father’s death,
the son went to a market for the purpose of purchasing hay for the colts, and found the
price to be very high. He mentioned the circumstances to his father, and the father agreed
to furnish the colts any hay they might want at a stipulated price to be paid by the son.
No hay was furnished to them til within three days before the father’s death. Trial court
found that possession of the colts having never been delivered to P, and since possession
remained with the father until his death, there was no gift of the colts and the colts
therefore appropriately go to the executrix of the father’s estate
Holding: Affirmed, P has no claim for redress
– In order to transfer property by gift there must either be a deed or instrument of
gift, or there must be an actual delivery of the thing to the donee. Here, the gift is
merely verbal and therefore differs from causa mortis in only that respect. Causa
mortis requires a transfer of the property with actual delivery. The possession
must be transferred in point of fact. Even when gifts are put in writing, if they ere
is no actual delivery it is not a valid gift. This cannot be distinguished from the
present case because the colts did not pass to the son by the verbal gift, therefore
the son cannot be charged for the hay because it applied to an invalid contract
made months before.
– Concurrence: In order to change the property by a gift of this description, there
must be a change of possession. Here, there has been no change of possession. If
the hay had been delivered, had the hay been delivered it could have been
consideration for the contract.
A donee, once in possession, need not afterwards be in continuous possession. A donee
may establish a bailment of the gift with the donor as a bailee. A donee’s possession may
also be constructive as when the donor delivers the gift to a third party to hold for the
Causa Mortis: a gift of personality with some distinctive, well-settled elements. 1. There
must be an intent to make a gift; 2. the gift must be of personal property; 3. the gift must
be made while the donor is under the apprehension of imminent death, upon the essential
condition that the property shall belong to the donee if the donor dies as anticipated
leaving the donee surviving, and the gift must not be revoked in the meantime; 4.
possession of the property given must be delivered at the time of the gift to the donee, or
to someone for the donee, and the donee must accept the gift.