Gift, in English law, means a gratuitous transfer of property. Any person is at liberty to do what he pleases with his own property, and to give it away with or without consideration, if he is so inclined. When he gives away goods or chattels, mere delivery of possession, accompanied by words of gift, is sufficient to transfer the property; and then the transaction is irrevocable. But if he does not give possession of the goods at the same time, then, that the gift may be binding upon him, he must execute a deed or writing under seal. The reason of this is that a mere verbal promise, without some legal consideration, is nugatory and revocable; whereas, when a person executes a deed, he is estopped from ever afterwards denying it. Where the property given is not personal, but real, then a deed is in general absolutely necessary to transfer the property. A will is the most familiar example of a gift of property both real and personal, for the testator generally, in such a case, gives away his property gratuitously. A gift of personality by will is called a legacy or bequest, and a gift of land is called a devise.
As sometimes the power of giving away property gratuitously is abused in order to defraud and defeat creditors, it is provided by statute that a voluntary conveyance, whether of chattels or land, made by a person who is at the time insolvent, shall be void as against such creditors; and they are entitled, accordingly, to recover the property from the donee (13 Eliz. chap. 5). The gift, however, even in such a case, stands good against the donor himself. So, if any person give by deed gratuitously any land, and then sell the same land, the gift will be void against the bonâ-fide purchaser (27 Eliz. chap. 4).
There is a peculiar kind of gift, or rather a gift made in peculiar circumstances, called a donatio mortis causa—i.e. a gift of personal property made in immediate expectation of death, which is not meant to take effect unless the donor actually dies, and the donee survives him. Such gifts may be made by word of mouth; and they may be proved by the evidence of the donee himself—a rule quite inconsistent with the policy of the law, which requires a will to be duly executed and attested by disinterested witnesses.
In Scotland a gift may be made of goods in the same manner as in England; but it is usually called a donation. Gratuitous alienations by persons in insolvent circumstances are also held to be void as against creditors (stat. 1621, chap. 18). Though it is competent in Scotland to make a gift of goods or money by merely delivering the possession thereof, accompanied by words of gift to the donee, still there is this peculiarity, that if the transaction is afterwards impeached it can only be proved in Scotland by the donor's writ or oath, no matter how many witnesses may have been present; whereas, in England, it can be proved by ordinary witnesses, like any other fact.
Gift, in the law of Scotland, is also often used to denote a grant or appointment by the crown or a court, such as gifts of non-entry, escheat, tutory, &c.