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Property I
Southern Illinois University School of Law
Noble-Allgire, Alice M.

Property Final Outline – Noble-Allgire Fall 2014

1. Gifts

A. Inter Vivos Gifts

i. Definition: A gift “between the living.” Irrevocable.

ii. Elements – An inter vivos gift requires three basic elements:

1. Donative Intent: Donor has mental intent to make a present transfer without consideration. The rule of the delivery

2. Delivery: The donor has divested herself of dominion and control.

a. General rule – Manual/physical delivery (known as “actual delivery,” it is the physical handing over of the property to the donee. In Re Estates of Evans, 467 PA. 336, 356 A.2d 778 (1976)

i. Holding: Regardless of the intention to make a gift, complete control must be divested physically.

b. Exceptions:

i. Constructive Delivery: in lieu of handing over the actual item, donor gives donee the means to access control of the property.

ii. Symbolic Delivery: the donor gives an object that symbolizes or represents the subject of the gift. A writing is most common for symbolic delivery.

i. These exceptions are accepted dependent on the jurisdiction. Some courts allow more lenience for physical delivery.

3. Acceptance: Requires a manifestation of the donee’s willingness to receive and retain the subject of the gift.

a. The purpose is to guarantee the receiver wasn’t forced into accepting the gift.

i. Implied if donee is going to gain and is conditional

B. Conditional Gifts

i. Definition: An inter vivos gift or testamentary gift that is only valid if the donee complies with the future condition. The gift takes effect immediately upon delivery (for inter vivos) or death (for testamentary), but may be revoked if the future condition is not met.

ii. Elements of a Conditional Gift:

1. Intent

a. See IVG

2. Delivery

a. See IVG for rule and exceptions

3. Acceptance

a. See IVG

4. Condition

a. The big difference between IVG and Conditional gifts is the condition.

b. There are two types of conditions

i. Known condition

i. This condition is told to the donee at times of delivery.

ii. Implied Condition

i. This condition is implied, like the acceptance of an engagement ring with the condition the marriage happens.

a. Lindh v. Surman, 560 PA. 1, 742, A.2d 643 (1999)

i. Holding: Giving an engagement ring is an implied condition that the marriage must occur in order for the donee to keep control of the ring.

iii. Breaking of condition can be determined two ways

i. Fault-Based rule

a. If the donor is at fault for the breaking of the condition. The gift is still the donee’s.

ii. No Fault-Based

a. The breaking of the condition is not dependent on fault.

5. Acceptance

a. See IVG

b. A part of acceptance is also the acceptance of the condition.

C. Testamentary Gifts

i. Definition: The donor intends for the gift to take effect at the donor’s death. (Traditionally made through a will)

ii. Elements

1. Testamentary Intent: the intent for the gift to take effect at death.

a. Exception would be a holographic will (hand-written and not officially witnessed), which is only accepted in some states.

2. Mental Capacity: the testator is mentally competent and not suffering from undue influence.

3. Delivery: Unlike other gift, delivery happens post mortem.

4. Acceptance:

a. Acceptance can be denied, which the object will go back into the estate

b. Usually implied since it is usually unconditional to the donee

i. Some have conditions, usually concerning the use of monetary funds.

D. Gifts Causa Mortis

i. Definition: A gift the donor makes in anticipation of death. Takes effect immediately while donor is still alive, but is revocable if donor changes mind before death. Often used as a “will substitute.”

ii. Elements – Same three elements as an inter vivos gift plus expectation of imminent death and death from the anticipated peril:

1. Donative Intent

2. Delivery

a. Scherer v. Hyland 57 N.J. 127, 380 A.2d 698 (1977). Case where Wagner kills h

trespasser finds an object on someone else’s land, courts are more likely to deem it mislaid and award it to the landowner.

o Policy – This is done in hopes of returning property to original owner.

· Employees

o Rule – When an employee finds an object in the course of her employment, courts have often – but not always – deem the object mislaid and awarded it to the “locus in quo” or the employer.

o Depends if they had a duty to turn the goods over – like maintenance and cleaning personnel.

o Look at 2 things when evaluating this exception:

1. What kind of property? (lost, mislaid, or treasure trove).

2. Status of employer? (private contractor).

Rights and Obligations of Finders

· Rule – The finder of an item has full ownership of that item above all others except for the true owner.

o Defense of jus tertii – The rights of a third party. Not all courts.

Ø Ex: I trespass on your property and steal your TV. After the theft, I stop at McDonalds for some lunch. Fred steals the TV from my car. I sue Fred for the TV after which he uses the defense of jus tertii against me.

Possession: A finder must take possession to qualify as a finder. Two qualifications:

1. Control and dominion over the property

2. Intent to have and exercise that control

One who has acquired the possession of property, whether by finding, bailment, or by mere tort, has a right to retain that possession as against a mere wrongdoer who is a stranger to the property.

Ø A prior possessor prevails over a subsequent possessor.

Duties: A finder’s rights are inferior to the true owner: Considered a Gratuitous Bailee