How does one gift an 1,100 pound
sculpture? The New York Court of Appeals
recently revisited the law of gifts in the context of determining the validity
of such a gift by the deceased sculptor's widow. Mirvish v. Mott, 18 N.Y.3d 510, 2012 N.Y. LEXIS 266 (2012) [enhanced version available to lexis.com subscribers].
widow of the cubist sculptor Jacques Lipschitz purportedly made an inter vivos gift of the sculpture "The
Cry," cast in 1928, to her longtime companion Biond Fury. Jacques Lipschitz died in 1973 at the age of
81, and Yulla, his wife, inherited many valuable works from her husband,
including "The Cry." After Jacques' death,
Yulla began a long-term relationship with Mr. Fury, and they lived together
for seventeen years, until her death on July 20, 2003, at the age of
92. Yulla apparently made several gifts
to Fury by giving him a picture of a sculpture with a writing describing the
piece and declaring it was a gift. In
this case, after Yulla's death, Fury produced a picture of "The Cry" on which
Yulla had written on the back, "I gave this sculpture 'The Cry' to my good
friend Biond Fury in appreciation for all he did for me during my long
illness. With love and warm wishes for a
Happy Future, Yulla Lipschitz, October 2, 1997, New York."
the time of this writing, "The Cry" was in the warehouse of the Marlborough
Gallery in New York. Thereafter, Hanno
Mott, Yulla's son by her first marriage and later her executor, negotiated with
the French government to display "The Cry" in the Tuileries Gardens near the
Louvre Museum in Paris. Mott apparently
did not know about the handwritten gift document, but he talked to his mother,
and she consented to the loan to the French government. "The Cry" was in Paris when Yulla died. Thereafter, in 2004, Fury's attorney sent
several letters demanding delivery of the gift, with a copy of the instrument,
to Mott and threatening a discovery proceeding under SCPA 2105. Mott
ignored the claim, and in July, 2004, sold "The Cry" and three other sculptures
to the Marlborough Gallery for $1 million.
In 2005, Fury sold his interest in "The Cry" to David Mirvish, an art
collector, for $220,000. Mirvish
demanded possession of the sculpture, and the estate took the position that
"The Cry" was an asset of the estate and never the subject of a valid inter vivos gift from Yulla to Biond Fury. Mott commenced a proceeding in Surrogate's
Court against Fury to determine the estate's interest in the property, and
Mirvish began a proceeding against Mott for replevin of the property.
Surrogate granted Mirvish, the assignee of Fury, summary judgment, finding that
Yulla Lipschitz' gift to Fury was valid and that the writing was indicative of
an antecedent transfer and consistent with Yulla's pattern of making gifts to
Fury. The Appellate Division reversed
the Surrogate, granting summary judgment to Mott on the grounds that Mirvish's
claim was barred by the statute of limitation and that Fury's testimony of the
decedent's delivery to him was barred by CPLR 4519. The
Court of Appeals reversed and reinstated the order of the Surrogate.
on the classic case of the gift of a painting, Gruen v. Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496 N.E.2d 869 (1986)
[enhanced version available to lexis.com subscribers], the court found that Fury's
possession of the gift instrument created a presumption that the donor had
delivered the deed of gift to Fury before her death. The intent to make a gift was clear on the
face of the gift instrument. The court
found no impediment in the Deadman's Statute to reliance on the presumption of
delivery created by Fury's possession of the gift deed after Yulla's
death. The court rejected any statute of
limitations argument because both parties agreed to submit the issue of
ownership to the Surrogate. The decision
affirms the classic statement that the elements of a valid inter vivos gift are intent on the part of the donor to make a
present transfer, either actual or constructive delivery of the gift to the
donee, and acceptance by the donee.
another recent gift case, Surrogate Anderson found that there was no delivery
by a surviving spouse of the gift of his elective share to the estate where the
spouse had merely given the original written instrument to his attorney to
hold, despite providing a copy to the executor (Matter of Urry, N.Y.L.J., March 9, 2012, at 22 col. 1 (Sur.
Ct. New York County). The court found
that there was no relinquishment of dominion and control of the property in
issue, citing Matter of Szabo, 10
N.Y.2d 94, 217 N.Y.S.2d 593, 176 N.E.2d 395 (1961) [enhanced version available to lexis.com subscribers].
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