Mirvish v. Mott

Court of Appeals of New York, 2012 18 N.Y.3d 510, 965 N.E.2d 906

Facts

Jacques Lipchitz, a Russian-born cubist sculptor, died in 1973 at the age of eighty-one. He was survived by his wife, Yulla H. Lipchitz, who inherited many valuable works of art from her highly successful husband, including The Cry, a 1,100pound bronze sculpture. After she was widowed, Yulla began a relationship with Biond Fury; the two of them lived together for seventeen years before her death on July 20, 2003, at the age of ninety-two.

From time to time, Yulla would make gifts to Fury, including art created by her late husband. She memorialized these gifts by giving Fury a picture of the artwork with a writing describing the piece and declaring that it was a gift. After Yullas death, Fury produced a photograph of The Cry with the following notation on the back, in Yullas handwriting: 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 my warm wishes for a Happy Future, Yulla Lipchitz October 2, 1997, New York. At the time, The Cry was in storage in New York in the custody of the Marlborough Gallery, Inc., a Manhattan art dealer.

About a year later, the French minister of culture and communication approached Pierre Levai, Marlboroughs president, to ask about the possibility of placing The Cry on exhibit in Paris near the Louvre Museum for a period of five years, with a view to its ultimately being purchased. On November 11, 1998, Levai wrote the minister that he had discussed the French governments request with the Lipchitz family, who agreed to loan the sculpture for three years, unless Yulla died earlier. At the conclusion of the loan, Levai continued, the family was prepared to negotiate a sale of the work, but if [a]t the conclusion of the loan, the sculpture [was] not purchased, it [was] to be returned to the Lipchitz family in New York at the borrowers cost.

Levai discussed the loan of The Cry to the French government only with Hanno Mott, Yullas son, never with Yulla. Mott, who at the time did not know about the handwritten gift instrument conveying The Cry to Fury, is the executor and a residuary beneficiary of one-third of his mothers estate. He is an attorney, and he handled Yullas financial affairs and held power of attorney from her for many years prior to her death.

According to Mott, he talked to his mother about the loan and, on her behalf, consented that [The Cry] should be put on display in Paris and it was and it had [Yullas] name on the loan. The French government at some point also inquired if, once the exhibition was over, Yulla was willing to make a gift of The Cry. Mott testified that Yulla told him No, of course not, but if they want to buy it, they can buy iti.e., that we would [give] a right of first refusal. The Cry was in Paris, subject to this agreement, when Yulla died. Her will did not mention The Cry or any other specific work of art. Fury claims not to have known that the sculpture was loaned to the French government in 1998.

On March 9, 2004, Furys attorney sent a letter and a copy of the deed of gift to Motts attorney, demanding immediate delivery of The Cry to Fury. Mott claims to have sold The Cry and three other sculptures in a package deal in July 2004 to Marlborough International Fine Art Establishment (Marlborough International) for $1 million. But in a letter to the French minister dated January 10, 2005, six months after the purported sale of The Cry to Marlborough International, Mott informed the minister that Yulla had passed away in 2003, noted that the agreement for the loan also provided that at its conclusion the Lipchitz family would be prepared to negotiate a sale of the Sculpture, and inquired [o]n behalf of the family whether the Ministry [had] any interest in acquiring the Sculpture at this time before arrangements are made for its return.

On September 15, 2005, Fury sold his interest in The Cry to David Mirvish, an art collector and gallery owner in Toronto, for $220,000. On October 4, 2005, Mirvishs attorney notified Mott of the sale and demanded possession of the sculpture. In a letter dated October 14, 2005, the estates attorney refused this demand, asserting the Estate was the true owner of [The Cry], which was never subject of a valid inter vivos gift from [Yulla] to Biond Fury.

Both Mott, as executor of Yullas estate, and Mirvish filed petitions with the Surrogates Court seeking resolution of their conflicting claims of ownership of The Cry. The Surrogates Court ruled in favor of Mirvish, concluding that Yulla had made a valid inter vivos gift of The Cry to Fury because the wording of the deed of gift was in the past tense, i.e., I gave this sculpture The Cry to my good friend Biond Fury, which was not only indicative of an antecedent transfer, but also clearly identifie[d] the intended object and [was] consistent with [Yullas] long pattern of making gifts of similar items to her companion. The Appellate Division reversed the Surrogate Courts decree.

Decision

The order of the Appellate Division is reversed, and the order of the Surrogates Court is reinstated.

Opinion

The principles of law that control the outcome of this appeal are

First, to make a valid inter vivos gift there must exist the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee. Second, the proponent of a gift has the burden of proving each of these elements by clear and convincing evidence.

Relatedly, mere possession of a gift after the donors death creates a presumption of delivery to the donee during the donors lifetime.

Yullas intent to make a present transfer of The Cry was clear on the face of the gift instrument, as the surrogate concluded. There is no suggestion Yulla was coerced; there is no question about her capacity. Nor is there any dispute that Fury accepted the gift. Mott has not raised a triable issue of fact overcoming the presumption of delivery. Thus, Mirvish has established by clear and convincing evidence each of the elements of a valid inter vivos giftintent, delivery, and acceptance.

Interpretation

The elements of a valid inter vivos gift are intent, delivery, and acceptance.

Critical Thinking Question

• When should the making of a gift be considered complete? Explain.