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GAZETTE
JULY-AUGUST
1978
Recent Developments in the
i
Law of Gift
I
DR. JEREMY PHILLIPS, Lecturer in Law, Trinity College, Dublin
The perfecting of oral gifts, whether by delivery or by
operation of law, has been considered in two recent
decisions,
Conner v. Quinlan and others
(Supreme Court,
23rd February, .1977) and
re Gonin, deceased
[1977] 3
W.L.R. 379. Analysis of these decisions gives rise to some
interesting legal problems; but before looking at these
problems it is necessary to give a brief account of the
relevant facts of each case. In
Conner's
case the donor
settled upon the donee a life interest in house and lands in
1962. At the same time he made a verbal gift of all the
chattels in the house and on the land, but no delivery took
place. In 1971 the donee went into exclusive occupation
of some of the rooms in the donor's house, and he farmed
the land by himself. When the donor died in 1972 the
donee claimed entitlement to all the chattels in the house
and upon the land, but the Supreme Court held him
entitled only to those chattels in his exclusive possession: .
the contents of the rooms he occupied and the equipment
and stock he possessed by virtue of his working the farm,
such as had been on the land in 1962 when the oral gift
was made. In
Gonin's
case the donee lived with her
parents. When her widowed mother died in 1968 the
donee became administratix of her intestate estate. She
claimed that between 1943 and 1968 her plcents had
indicated to her that the house and its contents would be
hers on their death, and that her mother had on numerous
occasions between those dates made delivery of various
small items of household furniture by way of Christmas
or birthday presents. On the evidence the donee was held
entitled to those pieces of furniture which could be said to
have been in her possession, all the furniture except her
mother's bedroom suite. These cases raise the following
interesting questions: (i) what is the standard of delivery
required by the law to complete a gift; (ii) what is the
extent of the applicability of the rule in
Strong v. Bird:
(iii)
which chattels are included in the gift when their state has
changed between the time of oral gift and that of the
completion; and (iv) is it safe to advise intending donors
to rely upon the perfection of a gift by the rule in
Strong
v.
Bird?
r
What sort of delivery Is required to complete a gift?
Actual physical delivery of the chattel to the donee
puts the gift beyond doubt; and physical delivery to the
donee of a 'symbol' or 'token' may suffice where the
chattel is too bulky, or is otherwise inappropriate as a
subject of physical delivery
in toto.
Yet delivery of the
donee to the chattel has been held an insufficient act in
re
Cole
[1963] 3 All E.R. 433, where the delivery did not
effectuate any change in the possession of the chattels in
question. In
Conner's
cise the donee was held entitled
only to those chattels the possession of which he had
assumed by delivering himself to them by taking up the
exclusive occupation of the rooms in which they were,
together with the farm stock and agricultural implements
which came into his physical possession when he took
over the farming. It is interesting to compare this case
with
re James
[ 1935] Ch. 449 where the donee lived in
the same house as the donor, and where it was not argued
that the donee was entitled to any furniture in that house
by virtue of her occupation — exclusive or otherwise —
of any part of it. Perhaps it is not the donee's assumption
of possession of the chattel which completes the gift, but
the donor's abandonment of it. Thus in
Kilpin
v.
Ratley
[1892] 1 Q.B. 582 the donor's furniture was already in the
donee's house; but it was the donor's act of leaving the
house once the words of gift were spoken which con-
stituted the act of delivery.
i
How far may the rule in
Strong
v.
Bird
be applied?
In
Strong v. Bird
(1874) L.R. 18 Eq. 315 an oral
release from a debt was held good in law where the
creditor died, appointing the debtor to be her sole
executor. This rule has been generalised by subsequent
decisions to the extent that any oral gift not perfected by
physical delivery is regarded as being completed by the
intended donee's being appointed executor
(re Stewart
[1908] 2 Ch. 251) or administrator
(re James, supra)
of
the deceased donor's estate. In
re Gonin
Walton J
expressed doubt as to whether indeed the rule in
Strong
v.
Bird
covers administrators as well as executors; and
indeed there is nothing in that case to suggest that it was
so intended. But
re James
is supported by a wide inter-
pretation of
Strong
v.
Bird
given by Neville J in
re
Stewart,
and there would seem to be no reason now to
deny its authority; see 93 L.Q.R. 485 at 486.
A more speculative question is this: is the rule in
Strong
v.
Bird
in any way applicable to the facts of
Conner's
case? It would appear perhaps anomalous that,
had the donor made the oral gift in 1962 without delivery,
and the donee had sat back and done nothing for nine
years but found himself an executor or administrator of
the donor's estate, he would enjoy the perfection of the
gift of all the donor's chattels extant since 1962, while by
assu tiling occupation of the property in which he had a
life estate he was regarded as owning only those chattels
of which he had exclusive possession. But it is difficult to
see how the rule in
Strong
v.
Bird
could be extended to
coyer this situation; and if it could, the legal requirement
of delivery would be effectively undermined.
Which chattels are included in a gift?
In
Conner's
case there had been substantial changes in
the donor's chattels in the nine years between the oral gift
and the 'delivery' of it; for works of art had been bought
and sold, some items were destroyed in a fire, farm
animals had died and new ones born, and farming
equipment replaced, repaired and updated. The Supreme
Court ordered an inquiry as to which of the donor's
chattels claimed by the donee and in his possession were
in existence when the gift was made, for these alone were
covered by the words of gift. Curiously enough, this point
did not occur in
re Gonin,
though quarter of a century
elapsed between the oral gift and the 'delivery' by law.
It is plain that one cannot give something which one
does not have, and that this applies as much to things