ACQUISITION BY GIFT Without all elements of promise, it is enforceable: ♦ INTENTION TO MAKE GIFT NOW ♦ DELIVERY OF GIFT COMMON LAW RULE: If it can be handed over, it must be. If object is not practicable for manual delivery. Policy: Delivery forces a break on behavior of giftor. ▪ CONSTRUCTIVE DELIVERY—handing over a key that will open up the subject matter of the gift. ---Newman v. Bost 1898: On death bed, decedent gave keys to furniture items to Plaintiff. Executor sells furniture and insurance policy locked in one of pieces. Rule: In gifts causa mortis, delivery must be construed strictly, allowing variance only for constructive delivery, when things to be given are not present or too difficult to deliver because of weight or size. Articles in bureau were not Plaintiffs because no specific intent expressed about gift of policy and no delivery when possible. Constructive delivery of all furniture opened by keys made valid gift of those pieces, but not contents. ▪ SYMBOLIC DELIVERY—handing over something symbolic of property given; usually a writing of gift. ---Gruen v. Gruen 1986: In 1963, father sends letter to son at Harvard, indicating he would like to give him an irrevocable remainder interest in painting in New York. Rule: Testamentary gift entails intent to transfer possession after death; unlike this gift, which was an inter vivos gift, transferring present property interest to son. Father’s usage of painting not inconsistent with retention of life estate. Delivery by writing only practicable form for gift of remainder. ♦ ACCEPTANCE Presumed in most cases, only at issue when person does not accept and claims there is no gift. MISCELLANEOUS → Inter vivos gifts are irrevocable; causa mortis gifts are revocable, if giftor lives. → Statute of Frauds requires inter vivos gifts of real property and testamentary gifts to be in writing.
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