
    Porter v. Gardner.
    
      (Supreme Court, General Term, Fourth Department.
    
    July, 1891.)
    ■Gifts inter Vitos—Delivery—Question for Jury.
    In an action against an administrator for the conversion of a colt claimed by plaintiff as a gift from decedent in her life-time, it appeared that, while plaintiff was in possession as lessee of decedent’s farm, decedent put several colts, of which, the colt in controversy was one, on the farm to pasture. A witness testified that on one occasion decedent said to plaintiff that she wanted to make him (plaintiff) a present, and would give the colt to him, and that he might keep it where it was. Several witnesses testified that they heard decedent say on different occasions that she had given the colt to plaintiff. The colt remained with decedent’s other colts, and no change was made in its treatment. Held, that the question whether there was a delivery of the colt by decedent to plaintiff was for the jury.
    Motion for new trial on exceptions.
    Action by Fred Porter against Nelson Gardner, as administratrix of Jane P. Markham, deceased, for the conversion of a colt of the value of $90. Defendant claimed that the colt was a part of the estate of Jane P. Markham, ■deceased, of whose will he is the executor. The main issue at the trial was whether Mrs. Markham before her death gave plaintiff the colt. At the close •of the evidence the court ordered a nonsuit.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      B. A. Benedict, for plaintiff. Dorr C. Smith, for defendant.
   Merwin, J.

On the 7th March, 1887, Mrs. Markham was the owner of a farm of about 90 acres in the town of Homer. At that date she and the plaintiff, who was her nephew, entered into a written agreement by which :she did “demise and lease her farm, with the appurtenances,” to the plaintiff for the term of one year from the 1st of March, 1887, she agreeing to leave •on the farm all the farming tools, eight cows, a team, and some other property, and pay all taxes except the road tax. She reserved “the right to pasture two colts by paying to the party of the second part one-third of the cost of the pasturing the same, and also reserves the front part of the house, with front yard, for her own use.” The plaintiff upon his part agreed to carry on the farm and do all the work in a good and workman-like manner. It was .also agreed that Mrs, Markham should have two-thirds of all the produce of the farm, and the plaintiff one-third, and, if he did not fulfill the agreement •on his part, Mrs. Markham had the right to re-enter and have full possession. The plaintiff moved onto the farm with his family, and occupied half of the house. At this time Mrs. Markham had on the farm five colts. Of these, two were quite young and soon after died. Of the remaining three, two were those named in the agreement, and the third was the one in controversy, and -coming two years old that spring. Jennie Porter, the wife of plaintiff, testified that in June, 1887, she heard a conversation at the breakfast table between the plaintiff and Mrs. Markham, in which Mrs. Markham said to plaintiff: “He had been good to her, and she wanted to make him a present, and she would give the bay colt to him, as she had nothing to mate it, and she would never try to raise any more; she would make him a present of it. Fred ■said, in substance, to her that hedid not want to take anything from her unless she had a mind to let him have it. She said she was willing that he .-should have it, or she wouldn’t give it to him. She said she would keep it for him until it was three years old, ready to break and drive for use; that he •might keep it right there. Question. What did she say about his assisting in breaking her colts, if anything? Answer. She said she would like to have him take care of her colts, and break them. Fred took charge of this bay •colt after that.” 'This witness also testified that the colts were then in the pasture upon the farm, and so remained until the death of Mrs. Markham, the following October, except as they got out or were occasionally taken out by the plaintiff; that this colt remained upon the place in the same way, in the same manner, as the other stock of Mrs. Markham, until the time it was ■sold by the defendant in October; that the plaintiff treated the three all alike; that he had no other place to keep the colt but on the farm. The plaintiff himself testified that, when the defendant came there after the death of Mrs. Markham, he told him the colt was his; that Mrs. Markham had given it to him; and the defendant replied, he did not dispute it at all, but the question was whether he (the plaintiff) could hold it or not; that after the conversation at the breakfast table the colts were treated in very nearly the same manner as they had been before; that they remained in the pasture, except occasions when they got out, and he had to tie up the bay-one—the one in question— in the barn. Another witness, a nephew of the deceased, testified that, upon an occasion in July when the colts had broken out, and the plaintiff had got them home, Mrs. Markham was taken out to the road to see them, and said, “I want to see these two older colts broke and harnessed together; the little red one I have given to Fred;” that she owed him for work, and had given him the little red colt, meaning the bay one; that plaintiff was there, near by, though not present at the conversation. Another witness testified that, upon another occasion in July, Mrs. Markham said she had given the bay colt to Fred Porter, and in last of August or first part of September she told another party substantially the same, and that the colt was the plaintiff’s whether she Jived or died. There seems to be no question about the intention of Mrs. Markham, but the defendant claims there was no delivery sufficient to make a valid gift. In some cases it has been held that a delivery might be inferred from declarations that a gift had been made. In Grangiac v. Arden, 10 Johns. 293, 296, it is said that declarations referring to and recognizing a gift as having been made afford reasonable ground for a jury to infer that all the formality necessary to make it a valid gift had been complied with. The principle of this case seems to have been recognized in Young v. Young, 80 N. Y. 435. In Trow v. Shannon, 78 N. Y. 446, a finding of delivery was sustained, though there was no direct evidence of it. There were admissions by the donor that she had given the bonds there in question, and that they belonged to the donee, and weight was given to these admissions, as some evidence from which the jury might infer that the gift had been completed by an absolute delivery. In Harris v. Hopkins, 43 Mich. 272, 5 N. W. Rep. 318, it was held that evidence that a decedent had stated positively that she had given certain specified furniture to her sons, and had previously declared an intent to give it, and that one of the sons remained in her house until her •death, warrants a finding of a complete gift in prcesenti.

So it has been held that a delivery is not necessary when the intended donee is already in possession, hut that in such a case the gift, if completed and unambiguous, maybeeffected by a simple oral declaration. Institution for Savings v. Taft, 14 R. I. 502; Wing v. Merchant, 57 Me. 383; Tenbrook v. Brown, 17 Ind. 410; 8 Amer. & Eng. Enc. Law, 1319, and cases cited. Substantially the same was held in Taber v. Willets, 44 Hun, 348. In Stevens v. Stevens, 2 Hun, 470, a gift causa mortis of a note was held to be effectual, where there was no delivery in fact, it being said by the court: “The small note was in his [the donee’s] possession; that is, it was in the bureau in his house, and presumptively accessible to him.” In Whiting v. Barrett, 7 Lans. 109, it is .said by Mullin, P. J.: “It would seem to me that, when the owner of property makes a verbal gift of it to another, such other acquires a perfect title, if he gets possession of it before revocation of the gift by the donor, although it was not present when the gift was made,, or it was not even in esse at the time. The consent that the donee shall take the property as owner must be presumed, unless revoked, until possession is obtained.” Under the lease the plaintiff, as between him and Mrs. Markham, was in possession of the farm. The colt, being on the farm, was in his actual custody and control. He had the charge and care of it. Upon the evidence it might be found that she had given it to him absolutely. If the declaration in .June was only of an intention, the subsequent declarations were of such a character that it might be found that she had made the gift absolute. It might also be found that she had parted with all dominion or control over it or right to possession which site might have had. if she did so, that would make it a completed gift. The fact that it remained on the farm was not necessarily inconsistent, (Armitage v. Mace, 96 N. Y. 542;) nor was the fact of no apparent change in the control, (Tenbrook v. Brown, supra.) 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 deliveiy. Cooper v. Burr, 45 Barb. 33. In that case it is said that a total exclusion of the power or means of resuming possession by the donor is not necessary. In Penfield v. Thayer, 2 E. D. Smith, 305, it was held that it was not necessary to take at the time manual possession. If the article given is at the time in the custody of the donee, the declarations of the donor to the effect that the donee is absolute owner, and characterizing the possession of the donee as absolute, will authorize the inference of complete delivery by the donor. An acceptance may be implied when the gift otherwise complete is beneficial to the donee. Beaver v. Beaver, 117 N. Y. 429, 22 N. E. Rep. 940. In Hunt v. Hunt, 119 Mass. 474, a bond was lent by the owner to the defendant, the owner taking therefor a receipt. There was evidence that afterwards the owner, while sick in bed, made verbally a gift of it to defendant, without any other delivery of the bond, and promised to return the receipt when he should be able to get it; that lie afterwards told anor.her party that he had provided for the defendant and his children by giving a bond to the defendant. It was held that the question of delivery was a matter of fact for the jury. In the present case we are of the opinion that the question of delivery was for the jury to decide, and that, therefore, the motion for a new trial should be granted.

Motion for new trial granted, costs to abide event. All concur.  