GIFT (AS., OHG. gift, from AS. gifan, Goth. giban, OHG. geban, Ger. geben, to give). Gift, in the broadest sense, includes every gratuitous transfer of property, whether real or personal, and whether made orally, by deed, or by will. As a specific legal term, however, it is limited to a present transfer of property without considera tion. In this sense it is distinguishable from a de vise or legacy on the one hand (which takes effect in the future, upon the giving owner's death) and from a barter, a grant, or a sale on the other, in each of which transactions a transfer is made upon a valuable consideration. Gifts are divisible into two classes, those cause mortis and those inter vivos. The first class has been discussed in the article on DONATION (q.v.).
It has been judicially declared that the ele ments necessary to the validity of a gift infer vivos are the following: (1) That the donor must be competent to contract ; (2) there must be free dom of will; (3) the gift must be complete, with nothing left undone: (4) the property must be delivered by the donor and accepted by the donee; (5) the gift must go into immediate and absolute effect. If either of the first two elements is wanting, the gift may be avoided and the prop erty regained by the donor, because of his legal incapacity to transfer property, or because he was the victim of fraud, duress, or undue influ ence. In case, however, all these essentials are present, the transfer becomes irrevocable as be tween the donor and donee. Even then,' if it leaves the donor insolvent it may be set aside by his creditors as a fraudulent conveyance.
The third essential of a gift—that it must be complete—distinguishes the transaction from a promise to give. A person makes a present of his promissory note for $1000 to another. Here is no gift; only a promise to give. As a promise it is unenforceable because there is no legal consideration for it. Had the donor presented the donee with the promissory note of a third person, a gift would have been consummated.
Whether the delivery to another of the donor's check constitutes a gift of so much of his bank deposit as is named in the check, or is to be con sidered simply a promise to give, is a question upon which the courts are divided. The weight of authority is in favor of the latter view. Any substantial act on the part of the owner of property, tending to carry the gift into effect, and to give the donee dominion over the property so that he can appropriate it to his use, will amount to a valid and effectual gift. According ly a savings-bank deposit may be effectually given to another by delivering to the latter the deposit book accompanied by an assignment, or by other acts which disclose the donor's intention to pres ently pass title and vest the donee with domin ion over the fund. Oftentimes a transaction which fails of effect as a gift is upheld by the courts as a declaration of trust (q.v.) in favor of the intended donee. This will not be done, as a rule, unless it is apparent that the owner of the property actually intended to create a trust.
Delivery of the property, which constitutes the fourth essential according to the judicial statement above referred to, may be actual or constructive; thus if the property is already in the donee's possession, it is sufficient if the par ties treat the property as thereafter owned as well as possessed by the donee. Neither does the law require actual acceptance by the donee in all cases. If the gift is wholly beneficial to him, his acceptance will be presumed until evidence of rejection by him is given.
The fifth requisite of a valid gift is that it go into immediate and absolute effect. The words of donation must be those of present, complete, and final transfer to the donee. Consult Kent, Commentaries, and the authorities referred to under CONTRACT.