The Gazette 1978

GAZETTE

JULY-AUGUST

1978

Recent Developments in the i Law of Gift I DR. JEREMY PHILLIPS, Lecturer in Law, Trinity College, Dublin

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

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