Wilcox v. Matteson
53 Wis. 23, 1881 Wisc. LEXIS 207, 9 N.W. 814 (1881)
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Rule of Law:
A valid inter vivos gift requires the donor to part with both possession and dominion of the property during their lifetime; mere intent to give, without an actual or constructive delivery, is insufficient to transfer title.
Facts:
- A husband, during his lifetime, owned a pocket-book that contained a promissory note.
- While on his deathbed, the husband instructed a nurse, Edgar, to take the pocket-book and deliver it to his wife as her property.
- The pocket-book remained in the husband's actual possession, and its location did not change before his death.
- The nurse did not take possession of the pocket-book or its contents for the wife until several hours after the husband died.
Procedural Posture:
- The plaintiff (the widow) brought an action in the circuit court (trial court) to collect on a promissory note.
- At the conclusion of the trial, the judge directed a verdict in favor of the plaintiff.
- The defendant, as the appellant, appealed the circuit court's judgment to this court.
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Issue:
Does a valid gift inter vivos occur when a donor expresses a clear intent to give personal property but the intended recipient or their agent does not take physical possession of the property until after the donor's death?
Opinions:
Majority - Taylor, J.
No. A valid gift inter vivos does not occur without an effective delivery during the donor's lifetime. The court held that to perfect a gift, possession of the subject matter must pass from the donor to the donee. Although the deceased husband clearly intended to give the property to his wife, intent alone is legally insufficient. The court found a complete "absence of proof of any act" showing a surrender of possession by the husband or the taking of possession by the nurse (as the wife's agent) while he was alive. Citing established precedent, the court reiterated the rule that delivery must be actual if the subject is capable of it, and the donor must part not only with possession but also with dominion over the property. Since the nurse only took possession after the husband's death, the attempted gift was incomplete, and legal title to the note remained with the husband's estate.
Analysis:
This decision reaffirms the strict, formal requirement of delivery for the completion of an inter vivos gift. It clarifies that a donor's unambiguous verbal intent, even when communicated to a third-party intermediary, cannot substitute for the essential element of surrendering possession and control. The ruling serves as a bright-line rule that promotes certainty in property transfers and probate matters by preventing claims based solely on expressions of donative intent. Future cases involving disputed gifts will rely on this precedent to invalidate transfers where the donor retained possession and control of the property until death.
