(248 Ν. Υ. 76)

VINCENT et al. v. PUTNAM et al. VINCENT v. RIX et al.

Court of Appeals of New York. May 1, 1928. 1. Wills 601(2)-Under will providing that realty given wife should be her absolute property, and that portion undisposed of at her death or remarriage should go to husband's heirs, wife could not devise realty.

Under will devising realty to testator's wife to be her absolute property, provided that, on death or remarriage, whatever property which remained undisposed of should go to testator's heirs at law, wife had no power to dispose of realty by will.

2. Wills 612(2)-Wife, taking under will providing that personalty should be her absolute property, and that portion undisposed of at her death or remarriage should go to husband's heirs, could not bequeath personalty.

Under will devising personalty to testator's wife to be her absolute property, provided that, on death or remarriage, whatever property which remained undisposed of should go to testator's heirs at law, wife had no power to dispose of personalty by will.

3. Wills 612(2)-Under will providing that property given wife should be her absolute property, and that portion undisposed of at her death or remarriage should go to husband's heirs, wife could not give securities to her relatives on approaching death.

Wife, taking under will providing that property devised was her absolute property, but that, on her death or remarriage, whatever remained undisposed of should go to testator's heirs at law, while sole judge of what was for her benefit and enjoyment, could not dispose of stocks and bonds by gift for benefit of her blood relatives, made in view of approaching death.

4. Gifts 31 (3)-Delivery of securities to donor's attorney with instructions to deliver them to donee held not gift, where placed in donor's deposit box.

Assuming that, under terms of will, wife could make gift, where bonds and certificates were delivered to her attorney with instructions that they were for her grandniece, and attorney never made delivery, but retained securities for a time, and then placed them in possession of donor by putting them in her deposit box, where they were found after her death, held that there was no gift, since mere words never constitute delivery.

5. Gifts 18 (2) Delivery is essential to valid gift, and must divest donor of control.

Delivery is essential to constitute a valid gift, and must be such as to vest donee with control and dominion over property, and to absolutely divest donor of his dominion and control, and must be made with intent to vest title of property in donee.

Gifts 17-Delivery to consummate gift must be as perfect as nature of property and circumstances reasonably permits.

Delivery necessary to consummate gift must be as perfect as nature of property and circumstances and surroundings of parties will reasonably permit. 7. Gifts 19(1)-Delivery must be actual.

Intention or mere words cannot supply place of actual surrender of control and authority over thing intended to be given. 8. Gifts 21-Delivery to donor's agent is insufficient.

While delivery may be made to third party for and in behalf of donee, yet handling of property to agent of donor to be delivered to donee is not sufficient.

9. Trusts633/4-Equity will not declare agent of donor, who has failed to make delivery of gift as expected, trustee for donee.

Equity will not help out incomplete delivery, and, if agent of donor has failed to make delivery as expected, equity, will not declare him trustee for donee.

10. Trusts633-Donor's attorney, taking securities from donor, and acknowledging intention to give to donee's mother, but placing them under donor's control, held not trustee for donee.

Where donor delivered stock certificates to

her attorney, with instructions to deliver them to donee, and attorney, instead of delivering them, retained possession of them for a while, and then placed them back in possession of donor by putting them in her deposit box, statements of attorney to mother of donee of donor's intention and of the mother advising him to keep securities until later, held not to make attorney trustee for benefit of donee, since neither donee nor her mother had title or possession of securities whereby to create trusteeship.

11. Appeal and error 1094 (2)-Finding that donor's attorney did not receive securities as agent of donee, made by trial judge, affirmed by Appellate Division, and sustained by evidence, held conclusive.

Finding that attorney of donor was not agent of donee to receive delivery of securities for and in her behalf, made by trial judge, and affirmed by Appellate Division, based upon sustaining evidence, held conclusive on Court of Appeals.

Appeal from Supreme Court, Appellate Division, Third Department.

Actions by Sarah E. Vincent and others against Julia V. Putnam, as executrix, of Julia Rix, deceased, and others, and by Sarah E. Vincent against William H. Rix and others. From judgments of the Appellate Division (221 App. Div. 211, 223 N. Y. S. 361; 221 App. Div. 209, 223 N. Y. S. 364), affirming final judgments of Special Term entered, one on report of referee in an accounting action, and the other a judgment in partition, defendants appeal. Affirmed.

Lewis C. Varney, James A. Leary, Walter A. Fullerton, and Edward W. Barrett, all of Saratoga Springs, for appellants Violet

Putnam and Julia Putnam.

W. P. Butler and Charles L. Hoey, both of Saratoga Springs, for respondents.

CRANE, J. Asa W. S. Rix died a resident of Saratoga, N. Y., on the 26th day of November, 1919, leaving a will which was duly admitted to probate, wherein after certain bequests, he disposed of his residuary estate as follows:

"Seventh. All the rest, residue and remainder of my property and estate, both real and personal and every name and nature, I give, devise, and bequeath unto my beloved wife, Julia Rix, to be her absolute property, provided, however, that upon the death or re-marriage of my said wife, whatever of property or estate she may have received from me and which shall remain at that time undisposed of, I give, devise and bequeath unto my heirs at law and next of kin, in shares as provided by the laws of descent and statutes of distribution of the state of New York."

Julia Rix died on the 14th of December, 1925, leaving a will wherein and whereby, after certain bequests, she gave, devised, and bequeathed all the rest, residue, and remainder of her real and personal property to Violet Putnam, a grandniece, no relation to her former husband, Asa W. S. Rix.

At the time of her death, Mrs. Rix had not disposed of her husband's real estate nor the personal property which she had received from him under his will. Certain bonds and certificates she attempted to give away, and of these we will speak later.

[1] In the case of Vincent v. Rix the action is one in partition, wherein Violet Putnam claims to take the real property of Asa W. S. Rix through the will of her grandaunt, Julia Rix. The courts below have held that, whatever power Julia Rix had to use and dispose of the real property of her husband, Asa W. S. Rix, during her lifetime, under and pursuant to the seventh paragraph of his will, ended with her death, and that she had no power of disposition by will. This ruling is in accordance with the previous decisions of this court, and the judgment must be affirmed. Matter of Ithaca Trust Co., 220 N. Y. 437, 116 N. E. 102; Seaward v. Davis, 198 Ν. Υ. 415, 91 N. E. 1107; Leggett v. Firth, 132 N. Y. 7, 29 N. E. 950; Terry v. Wiggins, 47 N. Y. 512.

[2] The judgment in Vincent v. Putnam comes to us in an action for an accounting,

and involves the disposition of the personal property under the same wills. In so far as Julia Rix attempted to bequeath the property of her husband, Asa W. S. Rix, what has been said above about the real property applies to the personalty. She had no power to dispose of the personal property by will. There remains, however, a question regarding her attempted gift of bonds and stocks 30 days before her death. The facts are agreed upon.

This personal property consisted of five Liberty Loan bonds and sixty-five shares of railroad stocks. The stock stood in the name of Asa W. S. Rix. Julia Rix, the wife, received the income therefrom, as well as from the bonds during her lifetime, but never had the certificates changed into her own name individually or as executrix. On the 13th of November, 1925, at the approach of death, she sent for her attorney, Lewis C. Varney, to make her will. He prepared, and she executed, the will above referred to. At the

same time Julia Rix handed to him the said stock certificates and Liberty bonds, and said: "Give those to Violet Putnam." The lawyer put the stock certificates and Liberty bonds in the safe in his own office, and later put them back in the safe deposit box of the donor, Julia Rix, where they were at the time of her death. No markings indicated a separation of these securities from the many others which were there. The stocks and bonds never left the possession of Julia Rix or her attorney, Lewis C. Varney. They were not delivered, or even tendered, to Violet Putnam. Varney says that he told the mother of Violet Putnam that Julia Rix had given to Violet the securities, and that the mother said to hold them for safe-keeping.

[3] Passing for the present the question whether there was here a completed gift, we must first determine whether or not, under the will of Asa W. S. Rix, Julia, the widow, had power to give away without consideration the property left to her for life. I doubt whether under the decisions she had any such power. Rix and his wife had no children. He apparently desired to have her well taken care of and provided for during her life. He gave her all his property, both real and personal, to be her absolute property, "provided, however, that upon the death or re-marriage of my said wife, whatever of property or estate she may have received from me and which shall remain at that time undisposed of, I give, devise and bequeath unto my heirs at law," etc. No doubt under this provision of the will Julia Rix could dispose of the property for her needs and requirements, and her judgment in this matter would be conclusive. A very broad and liberal interpretation would be given to her power of disposal. We need not try to forecast all the instances in which such a legatee could dispose of the property. We are dealing here with the sole question whether on approaching death she could give it away absolutely and without any consideration. We have already held that she could not dispose of the property coming to her from her husband by will. Here was an attempted gift made at the same time that she made her will, and within 30 days of her death. It has all the indicia of an attempted gift in place of a testamentary disposition. If the bequests by will were void, so likewise should be this attempted gift.

Every case deals with a differently phrased will. Some clearly indicate that the property is to be used by the legatee only for her own use and benefit. Others are very vague in this particular. In this will the testator says that the property he gives his wife is to be her absolute property, provided, however, that upon her death or remarriage, whatever shall remain undisposed of shall go to his heirs. What does he mean by "remain undisposed of?" I am inclined to think the intention was to limit the power of disposition for her use, comfort, benefit, or support, and that these words should have a very broad and liberal interpretation, so much so that Julia Rix would probably be the sole judge of what was for her benefit and enjoyment. Such disposition, however, and such user would call for the exercise of good faith upon the part of Julia Rix, and would not include a gift of the property in view of approaching death solely for the benefit of her blood relatives in no way connected with her husband, Asa W. S. Rix.

Another event beside the death of Julia Rix was to terminate her life interest. This was her remarriage. What remained of his property undisposed of on her remarriage passed to the next of kin. Surely the testator never intended that his wife, the day before her remarriage, could give away all his property coming to her under this seventh clause of his will. If she had the power to give these securities to Violet Putnam, she also had the power to give away both real and personal property without consideration the day before her remarriage. It is a question of power, not of probabilities.

The tendency of the courts to place these reasonable limitations upon the power of disposition under such a will may be gathered from the following cases. Peck v. Smith, 183 App. Div. 336, p. 343, 170 N. Y. S. 500, reversed, 227 N. Y. 228, 125 N. E. 91, on other grounds. See, also, cases cited above and the following: Goodrich v. Henderson, 221 Mass. 234, 108 N. E. 1062; Richards v. Morrison,

101 Me. 424, 64 A. 768; Trustees Presbyterian Church, Somerset, v. Mize, 181 Ky. 567, 205 S. W. 674, 2 A. L. R. 1237; Bevans v. Murray, 251 111. 603, 96 N. E. 546; Griffin v. Kitchen, 225 Mass. 331, 114 N. E. 431; Farlin v. Sanborn, 161 Mich. 615, 126 N. W. 634, 137 Am. St, Rep. 525; Gibson v. Gibson, 239 Mo.. 490, 144 S. W. 770.

[4-10] Assuming, for the purposes of this opinion, that Julia Rix could make a gift, I am convinced that her attempted disposal of these stocks and bonds above mentioned did not pass title to Violet Putnam-the gift was incomplete. The law regarding gifts has been fairly well settled, and the cases reviewed in Matter of Van Alstyne, 207 N. Y. 298, 100 Ν. E. 802. Delivery is essential to constitute a valid gift. The delivery must be such as to vest the donee with the control and dominion over the property, and to absolutely divest the donor of his dominion and control, and the delivery must be made with the intent to vest the title of the property in the donee. Jackson v. Twenty-Third St. Ry. Co., 88 N. Y. 520, 526. The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit; there must be a change of dominion and ownership; intention or mere words cannot supply the place of an actual surrender of control and authority over the thing intended to be given. While delivery may be made to a third party for and in behalf of the donee, yet handing the property to an agent of the donor to be delivered to the donee is not sufficient. The matter was well stated in Bickford v. Mattocks, 95 Me. 547, 550, 50 A. 894, 895:

"Not every delivery to a third person is a delivery for the donee, or for the use of the donee, in the sense in which these phrases are used in the cases cited. There may be a delivery to a third person which constitutes him the agent of the donor, and there may be a delivery which constitutes him a trustee for the donee, and the distinction lies in the intention with which the delivery is made. If the donor deliver the property to the third person simply for the purpose of his delivering it to the donee as the agent of the donor, the gift is not complete until the property has actually been delivered to the donee. Such a delivery is not absolute, for the ordinary principle of agency applies, by which the donor can revoke the authority of the agent, and resume possession of the property, at any time before the authority is executed."

See. also, Grant's Trust & Savings Co. v. Tucker, 49 Ind. App. 345, 96 N. E. 487; Furenes v. Eide, 109 Iowa, 511, 80 N. W. 539, 77 Am. St. Rep. 545; Dickeschied v. Exchange Bank, 28 W. Va. 340; Love v. Francis, 63 Mich. 181, 29 N. W. 843, 6 Am. St. Rep. 290; Merchant v. German Building & Loan Co., 17 Ohio Cir. Ct. R. (N. S.) 190.

Equity will not help out an incomplete delivery. If the agent of the donor has failed to make the delivery, expected equity will not declare him a trustee for the donee. Govin v. De-Miranda, 79 Hun, 286, 29 N. Y. S. 345.

The nearest approach to the present case is Bump v. Pratt, 84 Hun, 201, 32 N. Y. S. 538. The delivery in that case, however, was to a Miss Cornell as agent of the donee; the opinion so states.

The delivery of the securities by Julia Rix to her lawyer, Lewis C. Varney, was a delivery to her agent, not the agent of the donee, Violet Putnam. Mrs. Rix gave them to her lawyer to deliver to Violet Putnam. The law yer says: "She wanted me to give the stock certificates which she handed me to Violet Putnam." And again: "Give those to Violet Putnam." The lawyer never delivered them to Violet Putnam, but kept them for a while in his possession, and then gave them back into the possession of the donor by putting them in her box, where they were found after her death. Any time before the lawyer had parted with the possession of the securities by delivering them to Violet Putnam or her representative, Julia Rix could have revoked his authority. The object of complete satisfactory delivery to constitute a gift is to prevent just such questions as have here arisen where personal property claimed to be the subject of the gift is found in the possession of the alleged donor at the time of her death.

When Varney, the lawyer, told Violet Putnam's mother of Julia Rix's intention, the mother said for him to keep the securities until later or for safe-keeping. This did not constitute a delivery to the mother. Mere words never constitute a delivery. Neither did it make the donor's agent a trustee for Violet Putnam, as neither she nor her mother had title or possession of the securities whereby to create a trusteeship. Brown v. Spohr, 180 N. Y. 201, 73 N. E. 14.

A father put a check in the hands of his nine months old infant, saying: "I give this to my baby for himself," and then took back the check and put it away. The father died very soon thereafter, and the check was found in his effects. It was decided by the English Court of Chancery in Jones v. Lock (1 Chancery Appeal Cases, p. 25; Law Reports 1865-66) that this was neither a gift nor a declaration of trust. While this may be an extreme ruling, yet it indicates the trend of the courts regarding this question of gifts. In order that mistakes may not be made where the alleged donor has passed in

to silence, delivery beyond the power of further control and dominion must be proved as well as the intention in order to constitute a gift.

[11] Even if we should be disinclined to hold as matter of law that Varney was not the agent for Violet Putnam to receive delivery of the securities for and in her behalf, at least it was a question of fact which has been resolved against the donee, and, as there is evidence or reasonable inferences to be drawn from the evidence which sustains this conclusion, we cannot reverse the findings of the trial judge affirmed by the Appellate Division. The trial judge found that Julia Rix in her lifetime made no valid gift of these securities, and this finding has been affirmed by the Appellate Division, which in its opinion states, "It was not a completed gift."

For these three reasons here stated, the judgment in each action is correct, and should be affirmed with costs.

POUND, ANDREWS, KELLOGG, and O'BRIEN, JJ., concur with CRANE, J.

CARDOZO, C. J., and LEHMAN, J., concur in the result as to the action for an accounting upon the ground that the life tenant's power of disposition did not extend to a gift in contemplation of death or remarriage, if made for the purpose of evading and defeating the ulterior limitations that were to take effect in those contingencies.

Judgments affirmed.

(248 Ν. Υ. 86)

PETTERSON v. PATTBERG.

Court of Appeals of New York. May 1, 1928. 1. Contracts 19-Offer to enter into unilateral contract may be withdrawn before performance.

Any offer to enter into a unilateral contract may be withdrawn before act requested to be done has been performed.

2. Mortgages 211-Mortgagee, having offered to discount mortgage by thereafter-informing mortgagor before acceptance of sale of mortgage, withdrew offer, and prevented binding contract.

Where mortgagee, having offered to discount mortgage on condition it was paid on a certain date, thereafter informed mortgagor before a tender was made that he had sold mortgage, thereby definitely informing mortgagor that he could not perform offered promise, there was a withdrawal of offer before it became a binding promise, and no contract was created for breach of which damages were recoverable.

Lehman and Andrews, JJ., dissenting.

vision, Second Department.

Action by Jennie Petterson, as executrix of last will and testament of John Petterson, deceased, against George Pattberg. Judgment for plaintiff, entered at Trial Term, Kings County, was affirmed by the Appellate Division, Second Department (222 App. Div. 693,

224 N. Y. S. 889), and defendant appeals. Re versed and rendered.

Harry G. Anderson, of New York City, and Louis J. Merrell, of Brooklyn, for appellant. Saul Levine, of New York City, for respond

ent.

KELLOGG, J. [1] The evidence given upon the trial sanctions the following statement of facts: John Petterson, of whose last will and testament the plaintiff is the executrix; was the owner of a parcel of real estate in Brooklyn, known as 5301 Sixth avenue. The defendant was the owner of a bond executed by Petterson, which was secured by a third mortgage upon the parcel. On April 4, 1924, there remained unpaid upon the principal the sum of $5,450. This amount was payable in installments of $250 on April 25, 1924, and upon a like monthly date every three months thereafter. Thus the bond and mortgage had more than five years to run before the entire sum became due. Under date of the 4th of April, 1924, the defendant wrote Petterson as follows:

"I hereby agree to accept cash for the mortgage which I hold against premises 5301 6th Ave., Brooklyn, N. Y. It is understood and agreed as a consideration I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and the regular quarterly payment due April 25, 1924, is paid when due."

On April 25, 1924, Petterson paid the defendant the installment of principal due on that date. Subsequently, on a day in the latter part of May, 1924, Petterson presented himself at the defendant's home, and knocked at the door. The defendant demanded the name of his caller. Petterson replied: "It is Mr. Petterson. I have come to pay off the mortgage." The defendant answered that he had sold the mortgage. Petterson stated that he would like to talk with the defendant, so the defendant partly opened the door. Thereupon Petterson exhibited the cash, and said he was ready to pay off the mortgage acccrding to the agreement. The defendant refused to take the money. Prior to this conversation, Petterson had made a contract to sell the land to a third person free and clear of the mortgage to the defendant. Meanwhile, also, the defendant had sold the bond and mortgage to a third party. It therefore became necessary for Petterson to pay to such

gage. It is claimed that he thereby sustained a loss of $780, the sum which the defendant agreed to allow upon the bond and mortgage, if payment in full of principal, less that sum, was made on or before May 31, 1924. The plaintiff has had a recovery for the sum thus claimed, with interest.

Clearly the defendant's letter proposed to Petterson the making of a unilateral contract, the gift of a promise in exchange for the performance of an act. The thing conditionally promised by the defendant was the reduction of the mortgage debt. The act requested to be done, in consideration of the offered promise, was payment in full of the reduced principal of the debt prior to the due date thereof. "If an act is requested, that very act, and no other, must be given." Williston on Contracts, § 73. "In case of offers for a consideration, the performance of the consideration is always deemed a condition." Langdell's Summary of the Law of Contracts, § 4. It is elementary that any offer to enter into a unilateral contract may be withdrawn before the act requested to be done has been performed. Williston on Contracts, § 60; Langdell's Summary, § 4; Offord v. Davies, 12 C. B. (N. S.) 748. A bidder at a sheriff's sale may revoke his bid at any time before the property is struck down to him. Fisher v. Seltzer, 23 Pa. 308, 62 Am. Dec. 335. The offer of a reward in consideration of an act to be performed is revocable before the very act requested has been done. Shuey v. United States, 92 U. S. 73, 23 L. Ed. 697; Biggers v. Owen, 79 Ga. 658, 5 S. E. 193; Fitch v. Snedaker, 38 N. Y. 248, 97 Am. Dec. 791. So, also, an offer to pay a broker commissions, upon a sale of land for the offeror, is revocable at any time before the land is sold, although prior to revocation the broker per

forms services in an effort to effectuate a

sale. Stensgaard v. Smith, 43 Minn. 11, 44 N. W. 669, 19 Am. St. Rep. 205; Smith v. Cauthen, 98 Miss. 746, 54 So. 844.

[2] An interesting question arises when, as here, the offeree approaches the offeror with the intention of proffering performance and, before actual tender is made, the offer is withdrawn. Of such a case Williston says:

"The offeror may see the approach of the offeree and know that an acceptance is contemplated. If the offeror can say 'I revoke' before the offeree accepts, however brief the interval. of time between the two acts, there is no escape from the conclusion that the offer is terminated." Williston on Contracts, § 60b.

In this instance Petterson, standing at the door of the defendant's house, stated to the defendant that he had come to pay off the mortgage. Before a tender of the necessary moneys had been made, the defendant in