Supreme Court of Pennsylvania.

356 A.2d 778

In re ESTATE of Arthur EVANS, Deceased. Appeal of Vivian KELLOW.

Decided May 12, 1976.

Argued Nov. 19, 1974.

Reargument Denied July 15, 1976.

Before EAGEN, O’BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

JONES, C. J., took no part in the consideration or de­cision of this case.

ROBERTS, J., filed a dissenting opinion in which MANDERINO, J., joined.

MANDERINO, J., joins in this dissenting opinion.

John S. Fine, Joseph P. Olexy, Wilkes-Barre, for ap­pellant.

John L. McDonald, Wilkes-Barre, for appellee, United Penn Bank, executor of estate.

Frank Townend, Wilkes-Barre, John J. Pentz, Jr., Stroudsburg, William T. Jorden, Erie, for appellees, Enid David, Geraldine A. Baltzer, Mary Ann Toms & George A. Learn, Jr., Legatees and Heirs-At-Law.

OPINION

NIX, Justice.

Appellant, Vivian Kellow, objected to the inventory, proposed schedule of distribution and final accounting of the executor of the estate of Arthur Evans. After appel­lant finished the presentation of her case, the lower court granted appellees’ motion to dismiss appellant’s objections. Appellant’s exceptions to that order were de­nied in a final order by Judge Lopatto sitting as a court en banc. The thrust of her appeal to this Court is that certain contents of a safe deposit box were the subject of an inter vivos gift to her from Arthur Evans, the de­ceased, and, consequently, should not have been included in his estate.

Appellant, the niece of Arthur Evans’ deceased wife, began working for the Evans family when she was 16. For several years she took care of Mrs. Evans who for some years prior to death was an invalid. Appellant cooked meals for the Evanses, cleaned their house, did their laundry and generally cared for Mrs. Evans. She received adequate compensation for performing these needed services. When Mrs. Evans died, appellant con­tinued to cook at least one hot meal a day for Mr. Evans, do his laundry and make sure his house was tidy. After appellant was married, she continued to perform these same services and visited Mr. Evans once a day. In May of 1971, following one of his four hospitalizations, the deceased moved into appellant’s home.

Although at times Mr. Evans was confined to his bed because of water in his legs, he frequently took walks, had visits with his lawyers and made trips to his bank. On October 22, 1971, appellant’s husband drove Mr. Ev­ans and a friend of his, Mr. Turley, to town so that Mr. Evans might go to the bank. Turley testified that Mr. Evans spent about one hour going through the contents of his safe deposit box. Before leaving the bank, the de­ceased obtained both keys to the box.

Various witnesses presented by appellant testified to seeing the keys to the safe deposit box beneath appel­lant’s mattress and to statements by Mr. Evans to the ef­fect that the contents of the safe deposit box had been given to appellant. Mr. Evans entered the hospital for the last time on November 5, 1971. During this last hos­pital stay, Reverend Cunnings visited with him and was told that Mr. Evans was giving the Reverend’s church $10,000.00 and that he had given the rest of his posses­sions and the keys to his safe deposit box to appellant. Mr. Evans expired on November 23, 1971.

Appellant relinquished the keys to the safe deposit box to a bank officer, but not without protesting that the contents of the box were hers. The box revealed a holo­graphic will of Mr. Evans dated September 16, 1965, and approximately $800,000.00 in bonds, preferred and com­mon stock and several miscellaneous items.1

The lower court correctly noted that the requirements for a valid inter vivos gift were donative intent and de­livery, actual or constructive. With respect to donative intent, the court found:

“Turning to the facts of this case, certainly no one can reasonably argue that Arthur Evans lacked suffi­cient motive to make a gift to Vivian. The record clearly manifests, both by his conduct and his state­ments, donative intent, the first prerequisite.”

Nevertheless, the court ruled that no delivery had been made. This result was predicated upon a finding that the deceased had not divested himself of complete domin­ion and control over the safe deposit box. After proper­ly noting that constructive delivery is sufficient when manual delivery is impractical or inconvenient, the court reasoned:

“The record contains no evidence of circumstances which were such that it was impractical or inconven­ient to deliver the contents of this box into the actual possession or control of Vivian.

Arthur Evans, although suffering physical infirmi­ties and apprehensive of death, was nonetheless ambu­latory. On October 22, 1971, he appeared at the Nan­ticoke National Bank in the company of Harold Turley and Leroy Kellow and spent approximately one hour going over the contents of his safe deposit box in a cu­bicle provided in the bank for that purpose. He left the bank after redepositing the contents and took with him only the keys which independent testimony indi­cates he delivered to Vivian the next day. There was no manual delivery of the contents. The contents of the box remained undisturbed. The box, and its con­tents, were registered in the name of the decedent at the date of his death. The objects of the gift were not placed in the hands of Vivian, nor was there placed within her power the means of obtaining the contents.”

Appellant now asserts three assignments of error: 1) that the lower court erred in ruling the testimony of ap­pellant and her husband inadmissible under the Dead Man’s Act, Act of May 23, 1887, P.L. 158, § 5, cl. (e), 28 P.S. § 322; 2) that the lower court erred in ruling there was insufficient delivery to sustain the inter vivos gift; and 3) that under our decision in Jervis Will, 443 Pa. 226, 279 A.2d 151 (1971), the Orphans’ Court did not have the power to “nonsuit” her. We find these argu­ments unpersuasive and, therefore, affirm the decision of the lower court.

Appellant and her husband attempted to testify as to the transfer of the keys to the safe deposit box to her and of decedent’s expressions of his intent to make a gift of the contents to her. In Friedeman v. Kinnen, 452 Pa. 365, 305 A.2d 3 (1973), we held that if the alleged donee fails to establish a prima facie gift by independent testimony, then his or her interest was adverse to the es­tate’s and, consequently, such testimony was rendered in­competent under the Dead Man’s Act, supra. For the reasons that will be discussed infra, we hold that the in­dependent testimony failed to establish prima facie a gift and the testimony of appellant and her husband was properly excluded by the court below.2

The law in this Commonwealth is well settled concern­ing the requirements of an inter vivos gift. In Tomayko v. Carson, 368 Pa. 379, 385, 83 A.2d 907, 908 (1951) we stated:

“A claim of a gift inter vivos against the estate of the dead must be supported by clear and convincing evidence. In re Leadenham’s Estate, 289 Pa. 216, 137 A. 247; Snyderwine, Admrx. v. McGrath, 343 Pa. 245, 22 A.2d 644. In order to effectuate an inter vivos gift there must be evidence of an intention to make a gift and a delivery, actual or constructive, of a nature suf­ficient not only to divest the donor of all dominion over the property but also invest the donee with com­plete control over the subject-matter of the gift. In re Pyewell’s Estate, 334 Pa. 154, 5 A.2d 123; In re Ry­nier Estate, 347 Pa. 471, 32 A.2d 736. It is claimant’s burden to prove by clear and satisfactory evidence that a gift in fact was made. Sullivan v. Hess, 241 Pa. 407, 88 A. 544; In re Kata Estate, 363 Pa. 539, 70 A.2d 351; Lochinger v. Hanlon, 348 Pa. 29, 39, 33 A.2d 1. Cf. In re Campbell’s Estate, 61 Pa.D. & C. 19.”

In the instant case, the controversy focuses on whether there was an adequate delivery. In Allshouse’s Estate, 304 Pa. 481, 487-488, 156 A. 69, 72 (1931), we elaborat­ed on the requirement of delivery:

“As said in Walsh’s App., 122 Pa. 177, 187, 15 A. 470, 471, 1 L.R.A. 535, 9 Am.St.Rep. 83: ‘If there re­mains something for the donor to do before the title of the donee is complete, the donor may decline the fur­ther performance and resume his own,’ and again, at page 190 of 122 Pa., 15 A. 470, 472: ‘[i]t is not possi­ble that a chancellor would compel an executor or ad­ministrator to complete a gift by the doing of any act which the alleged donor if living might have refused to do, and thereby revoked his purpose to give.’ In In re Campbell’s Est., 7 Pa. 100, 47 Am.Dec. 503, Chief Jus­tice Gibson stated: ‘A gift is a contract executed; and, as the act of execution is delivery of possession, it is of the essence of the title. It is the consummation of the contract which, without it, would be no more than a contract to give, and without efficacy for the want of consideration.’ Again, as we stated in Clapper v. Frederick, 199 Pa. 609, 613, 49 A. 218, 219: ‘Without a complete delivery during the lifetime of the donor there can be no valid gift inter vivos. “Though every other step be taken that is essential to the validity of the gift, if there is no delivery, the gift must fail. In­tention cannot supply it; words cannot supply it; ac­tions cannot supply it. It is an indispensable requisite, without which the gift fails, regardless of conse­quence”: Thornt. Gifts, p. 105.’ The consequence is that no matter how often or how emphatically the de­sire or intention of the donor to make the gift has been expressed, upon his death before delivery has been completed, the promise or purpose to give is revoked. Scott v. Lauman, 104 Pa. 593; 28 Corpus Juris, page 651.”

We have recognized that in some cases due to the form of the subject matter of the gift or due to the immobility of the donor actual, manual delivery may be dispensed with and constructive or symbolic delivery will suffice. In Ream Estate, 413 Pa. 489, 198 A.2d 556 (1964), for example, the Court found there had been a valid con­structive delivery of an automobile where the donor gave the keys to the alleged donee and also gave him the title to the car after executing an assignment of it leaving the designation of the assignee blank. The assignment was executed in the presence of a justice of the peace and the evidence was overwhelming that the name of the donee was to be inserted upon the death of the decedent.3

In Elliott’s Estate, 312 Pa. 493, 167 A. 289 (1933), we held there was a valid constructive delivery of the con­tents of a safe deposit box where the donor turned over to the alleged donee the keys. There, however, just prior to the delivery of the keys a doctor had informed the non-ambulatory donor that death was imminent. Under those circumstances manual delivery was impossible.4

Appellant relies heavily on Leadenham’s Estate, 289 Pa. 216, 137 A. 247 (1927), and Leitch v. Diamond Na­tional Bank, 234 Pa. 557, 83 A. 416 (1912). These deci­sions, however, support the Court’s finding that there was no delivery in the instant case. In Leadenham’s Es­tate, supra, the donor had rented a separate safe deposit box in the name of the intended donee, put the contents of his box into the newly rented one and delivered the keys to it to the donee. On those facts we held that the constructive delivery of the keys was sufficient to sus­tain the inter vivos gift because the donor had divested himself of dominion and control and invested the donee with complete dominion and control.

In Leitch v. Diamond National Bank, supra, the donor and donee were husband and wife and had lived together harmoniously for many years. The husband had three safe deposit boxes registered in his name and the name of his wife and he designated one of them as his wife’s. He gave her the keys to that box. The Court found that she had complete control over that box and that he only entered it with her permission. Since she had complete control over the access to the box the Court found there was a valid delivery of the contents of the box to her.

In both of these cases, the determinative factor was that the donee had complete dominion and control over the box and its contents. In that posture we ruled that giving the keys to the box to the donee was a valid constructive delivery. In the instant case, appellant did not have dominion and control over the box even though she was given the keys to it. The box remained regis­tered in Mr. Evans’ name and she could not have gained access to it even with the keys. Mr. Evans never termi­nated his control over the box, consequently he never made a delivery, constructive or otherwise.

Although appellant suggests that it was impractical and inconvenient for Mr. Evans to manually deliver the contents of his box to her because of his physical condi­tion and the hazards of taking such a large sum of mon­ey out of the bank to her home, we need only note that the deceased was obviously a shrewd investor, familiar with banking practices, and could have made delivery in a number of simple, convenient ways. First, he was not on his deathbed. He was ambulatory and not only went to the bank on October 22, 1971, but took walks thereaf­ter and did not enter the hospital until November 5, 1971. On the day he went to the bank he could have rented a second safe deposit box in appellant’s name, de­livered the contents of his box to it and then given the keys to appellant. He could have assigned the contents of his box to appellant. For that matter, he could have written a codicil to his will.

The lower court noted that the deceased was an enig­matic figure. It is not for us to guess why people per­form as they do. On the record before us it is clear that regardless of Mr. Evans’ intention to make a gift to ap­pellant, he never executed that intention and we will not do it for him. On these facts, we are constrained to hold that there was not an inter vivos gift to appellant and that the contents of the safe deposit box were properly included in the inventory of Mr. Evans’s estate.

Finally, appellant characterizes appellees’ motion to dismiss her objections as a motion for a “nonsuit” and, thus, error under our decision in Jervis Will, supra. In Jervis Will, supra, we held that in a will contest, the Orphans’ Court was without authority to enter a compul­sory nonsuit. The instant case is not a will contest, but rather stems from objections to the executor’s final in­ventory, accounting and schedule of distribution. De­spite appellant’s attempts to characterize the lower court’s order as granting a compulsory nonsuit, the lower court framed its relief as granting appellees’ motion to dismiss appellant’s objections. As such, this case does not fall within the ruling of Jervis Will, supra. We note that nothing could be gained by remanding the instant cause and allowing appellees to present their defense since the lower court has already correctly ruled on the failure of appellant to establish a prima facie case of a valid inter vivos gift.

Decree affirmed. Each party to bear own costs.

1

The will was uncontested and under its terms provided for a $1,000.00 bequest to appellant.

2

Moreover, the testimony of appellant and her husband would only have corroborated the evidence of their other witnesses that Mr. Evans did give the keys to his safe deposit box to appellant with the intent of making a gift of the contents to her. Since the lower court accepted these facts and neither party now disputes them, appellant was not prejudiced by the ruling. The issue presented in this appeal did not turn upon a factual dispute as to the events that occurred but rather as to the legal significance of those acts. Thus in any event, the evidentiary ruling now being challenged was in no way crucial to the outcome of the law suit.

3

Ream Estate, 413 Pa. 489, 198 A.2d 556 (1964), involved an al­leged gift causa mortis, however, the requirements for delivery are the same as for a gift inter vivos. Ream Estate, supra; El­liott’s Estate, 312 Pa. 493, 167 A, 289 (1933).

4

Elliott’s Estate, supra, also involved an alleged gift causa mor­tis.

ROBERTS, Justice

(dissenting).

I dissent. The central issue in this case is whether do­nor made an adequate delivery of the gift to donee. The majority finds that adequate delivery was not made be­cause the safe deposit box was leased solely in donor’s name and supports this conclusion by pointing out that there were several alternative means of delivering the gift which would have been adequate. I believe that the inquiry should not be what form of delivery would have been clearly sufficient, but rather whether the delivery made by donor was adequate. I believe that it was.

In Rynier Estate, 347 Pa. 471, 32 A.2d 736 (1943), we said that delivery is determined on the facts of each case, with reference to the donor’s intent.

“As the chief factor in the determination of the question whether a legal delivery has been effected is the intention of the donor to transfer title to the donee, as manifested by his words and actions and by the circumstances surrounding the transaction, it is evi­dent that each case must depend largely upon its own facts.”

Id. at 475, 32 A.2d at 738. We reaffirmed this statement in Tallarico Estate, 425 Pa. 280, 286, 228 A.2d 736, 740 (1967), and Pronzato v. Guerrina, 400 Pa. 521, 529, 163 A.2d 297, 300 (1960).

The majority suggests that donor was “obviously a shrewd investor, familiar with banking practices. . . .” From this “familiar[ity] with banking prac­tices,” which is nowhere shown on the record, and the absence of a joint lease for the box, it apparently con­cludes that donor did not intend a gift. There are two reasons why this result is not correct.

First, there is no doubt in this case that donor intend­ed a gift. He told many people that he had given the contents of the box to appellant. In fact, there is compe­tent testimony that donor directed donee to display the keys, hidden under her mattress, to several witnesses.

Second, it is apparent from the record that donor be­lieved undisputed and unconditional delivery of the keys to be sufficient to complete the gift. Most of this Court’s cases dealing with inter vivos gifts of the con­tents of safe deposit boxes turn on the delivery or nonde­livery of the keys to the box to the donee. If the key was delivered, the gift was normally upheld;1 if the key was not delivered, the gift was set aside, whether or not the box was jointly leased.2 I have found no case which turned on the presence or absence of a joint lease. Giv­en this line of authority, and accepting the majority’s conclusion that donor was sophisticated in these matters, it must be concluded that donor believed delivery of the keys to the box completed the gift. If this were not so, why would donor cause donee to take several witnesses into her bedroom to show them that she had the keys and why would he speak in terms that indicated a completed gift “I gave to Vivian . . . the keys and the con­tents are hers.” Because it is donor’s intention to trans­fer title which is crucial to a valid delivery, and because this donor intended to transfer title, I dissent from the majority’s conclusion.

This record firmly establishes appellant has shown a prima facie gift. I would, therefore, vacate the decree and remand to give the estate an opportunity to present its evidence.

1

See King Estate, 387 Pa. 119, 126 A.2d 463 (1956) (joint lease, donee had key to box, valid gift); Leadenham’s Estate, 289 Pa. 216, 137 A. 247 (1927) (box rented for donee by donor, keys de­livered to donee, valid gift); Leitch v. Diamond National Bank of Pittsburgh, 234 Pa. 557, 83 A. 416 (1912) (joint lease, donee had key to box, valid gift).

2

See Secary Estate, 407 Pa. 162, 180 A.2d 572 (1962) (joint lease key not delivered to donee, no gift); Chadrow v. Kellman, 378 Pa. 237, 106 A.2d 594 (1954) (joint lease, key not delivered to donee, no gift).

Michael S. Gruen, Respondent, v Kemija Gruen, Appellant.

decided July 8, 1986

Argued May 28, 1986;

POINTS OF COUNSEL

Paul G. Whitby and Helen J. Williamson for appellant.

Michael S. Gruen, pro se, and Victor P. Muskin for Michael S. Gruen, respondent.

I. Victor Gruen did not intend to make a present gift. (Martin v Funk 75 NY 134; McCarthy v Pieret, 281 NY 407, 282 NY 800; Deyo v Adams, 178 Misc 859; Young v Young, 80 NY 422; Matter of Clark, 16 Misc 405; Matter of Abramowitz, 38 AD2d 387, 32 NY2d 654.) II. Delivery of the painting was not effected. (Matter of Van Alstyne, 207 NY 298; Matter of Szabo, 10 NY2d 94; McGavic v Cossum, 72 App Div 35; Matter of Nolan, 61 NY2d 856; Matter of Seyffert, 20 Misc 2d 799; Vincent v Rix, 248 NY 76.) III. Acceptance by the donee was not proven. (Beaver v Beaver, 117 NY 421; Matter of Kelsey, 29 AD2d 450, 26 NY2d 792; Matter of Kelly, 285 NY 139; Matter of Mahlstedt, 140 Misc 245; American Church Missionary Socy. v Griswold Coll., 27 Misc 42.) IV. Respondent failed to prove his case by clear and convincing evidence. (Matter of Nolan, 97 AD2d 940; Matter of Abramowitz, 38 AD2d 387; Baird v Mayor of City of N. Y., 96 NY 567; Billington v State of New York, 33 AD2d 822; Smith v Smith, 273 NY 380; Mansbacher v Prudential Ins. Co., 273 NY 140, 274 NY 487; Amend v Hurley, 293 NY 587; Boyd v Boyd, 252 NY 422; Kelly v Watson Elevator Co., 309 NY 49; 63 Bldg. Corp. v Schlacter, 11 AD2d 743.)

I. Victor Gruen intended to make a present and valid gift. (Matter of Brady, 228 App Div 56, 254 NY 590; Berkey v Third Ave. Ry. Co., 244 NY 84; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178; Nirenstein v George A. Horvath, Inc., 286 App Div 409; Elyachar v Gerel Corp., 583 F Supp 907; Gannon v McGuire, 160 NY 476; Matter of Hendrick, 163 App Div 413, 214 NY 663.) II. The gift was validly delivered. (Matter of Roosevelt, 190 Misc 341; Matter of Palmer, 117 App Div 360; Matter of Kaphan, 176 Misc 228; Matter of Shelley, 134 Misc 265; Benson v Blue Ridge Coal Corp., 197 Misc 475, 278 App Div 681; Carroll v Smith, 229 App Div 286; Matter of Brandreth, 169 NY 437; Matter of Valentine, 122 Misc 486.) III. The gift was accepted. IV. The factual findings of the court below should not be disturbed. (People ex rel. MacCracken v Miller, 291 NY 55.) V. California law sustains the validity of the gift. (Intercontinen­tal Planning v Daystrom, Inc., 24 NY2d 372; Miller v Miller, 22 NY2d 12; Babcock v Jackson, 12 NY2d 473; Matter of Crichton, 20 NY2d 124; Industrial Credit Co. v J. A. D. Constr. Corp., 29 AD2d 952; Levey v Saphier, 83 Misc 2d 146; Matter of Bulova, 14 AD2d 249; James v Powell, 19 NY2d 249; Petrobras Comercio Internacional v Intershoe, Inc., 77 AD2d 546; Haag v Barnes, 9 NY2d 554; Franklin Natl. Bank v Feldman, 42 Misc 2d 839.) VI. Trial Term materially erred in evidentiary rulings. (Croker v New York Trust Co., 245 NY 17; Nay v Curly, 113 NY 575; Matter of Anooshian, 13 AD2d 626; Matter of Berardini, 238 App Div 433, 263 NY 627; Matter of Wood, 52 NY2d 139; Stoppick v Goldstein, 174 App Div 306; O’Hearn v O’Hearn, 55 AD2d 766; Napiearlski v Pickering, 278 App Div 456; Stutsman v Black, 244 App Div 764; Ranofsky v Frank, 208 App Div 213.) VII. Trial Term erred in denying the motion for a mistrial. (Jacobsen v Jacobsen, 205 Misc 798.)

OPINION OF THE COURT

Simons, J.

Plaintiff commenced this action seeking a declaration that he is the rightful owner of a painting which he alleges his father, now deceased, gave to him. He concedes that he has never had possession of the painting but asserts that his father made a valid gift of the title in 1963 reserving a life estate for himself. His father retained possession of the paint­ing until he died in 1980. Defendant, plaintiff’s stepmother, has the painting now and has refused plaintiff’s requests that she turn it over to him. She contends that the purported gift was testamentary in nature and invalid insofar as the formali­ties of a will were not met or, alternatively, that a donor may not make a valid inter vivas gift of a chattel and retain a life estate with a complete right of possession. Following a seven-­day nonjury trial, Special Term found that plaintiff had failed to establish any of the elements of an inter vivas gift and that in any event an attempt by a donor to retain a present possessory life estate in a chattel invalidated a purported gift of it. The Appellate Division held that a valid gift may be made reserving a life estate and, finding the elements of a gift established in this case, it reversed and remitted the matter for a determination of value (104 AD2d 171). That determina­tion has now been made and defendant appeals directly to this court, pursuant to CPLR 5601 (d), from the subsequent final judgment entered in Supreme Court awarding plaintiff $2,500,000 in damages representing the value of the painting, plus interest. We now affirm.

The subject of the dispute is a work entitled "Schloss Kammer am Attersee II” painted by a noted Austrian moder­nist, Gustav Klimt. It was purchased by plaintiffs father, Victor Gruen, in 1959 for $8,000. On April 1, 1963 the elder Gruen, a successful architect with offices and residences in both New York City and Los Angeles during most of the time involved in this action, wrote a letter to plaintiff, then an undergraduate student at Harvard, stating that he was giving him the Klimt painting for his birthday but that he wished to retain the possession of it for his lifetime. This letter is not in evidence, apparently because plaintiff destroyed it on instruc­tions from his father. Two other letters were received, how­ever, one dated May 22, 1963 and the other April 1, 1963. Both had been dictated by Victor Gruen and sent together to plaintiff on or about May 22, 1963. The letter dated May 22, 1963 reads as follows:

"Dear Michael:

"I wrote you at the time of your birthday about the gift of the painting by Klimt.

"Now my lawyer tells me that because of the exist­ing tax laws, it was wrong to mention in that letter that I want to use the painting as long as I live. Though I still want to use it, this should not appear in the letter. I am enclosing, therefore, a new letter and I ask you to send the old one back to me so that it can be destroyed.

"I know this is all very silly, but the lawyer and our accountant insist that they must have in their pos­session copies of a letter which will serve the pur­pose of making it possible for you, once I die, to get this picture without having to pay inheritance taxes on it.

"Love,

"s/Victor”.

Enclosed with this letter was a substitute gift letter, dated April 1, 1963, which stated:

"Dear Michael:

"The 21st birthday, being an important event in life, should be celebrated accordingly. I therefore wish to give you as a present the oil painting by Gustav Klimt of Schloss Kammer which now hangs in the New York living room. You know that Lazette and I bought it some 5 or 6 years ago, and you always told us how much you liked it.

"Happy birthday again.

"Love,

"s/Victor”.

Plaintiff never took possession of the painting nor did he seek to do so. Except for a brief period between 1964 and 1965 when it was on loan to art exhibits and when restoration work was performed on it, the painting remained in his father’s possession, moving with him from New York City to Beverly Hills and finally to Vienna, Austria, where Victor Gruen died on February 14, 1980. Following Victor’s death plaintiff re­quested possession of the Klimt painting and when defendant refused, he commenced this action.

The issues framed for appeal are whether a valid inter vivas gift of a chattel may be made where the donor has reserved a life estate in the chattel and the donee never has had physical possession of it before the donor’s death and, if it may, which factual findings on the elements of a valid inter vivas gift more nearly comport with the weight of the evidence in this case, those of Special Term or those of the Appellate Division. Resolution of the latter issue requires application of two gener­al rules. First, to make a valid inter vivas 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 (Matter of Szabo, 10 NY2d 94, 98; Matter of Kelly, 285 NY 139,150 [dissenting in part opn]; Matter of Van Alstyne, 207 NY 298, 306; Beaver v Beaver, 117 NY 421, 428). Second, the proponent of a gift has the burden of proving each of these elements by clear and convincing evidence (Matter of Kelley, supra, at p 150; Matter of Abramowitz, 38 AD2d 387, 389-390, affd on opn 32 NY2d 654).

Donative Intent

There is an important distinction between the intent with which an inter vivas gift is made and the intent to make a gift by will. An inter vivas gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will (see, McCarthy v Pieret, 281 NY 407, 409; Gannon v McGuire, 160 NY 476, 481; Martin v Funk, 75 NY 134, 137-138).

Defendant contends that the trial court was correct in finding that Victor did not intend to transfer any present interest in the painting to plaintiff in 1963 but only expressed an intention that plaintiff was to get the painting upon his death. The evidence is all but conclusive, however, that Victor intended to transfer ownership of the painting to plaintiff in 1963 but to retain a life estate in it and that he did, therefore, effectively transfer a remainder interest in the painting to plaintiff at that time. Although the original letter was not in evidence, testimony of its contents was received along with the substitute gift letter and its covering letter dated May 22, 1963. The three letters should be considered together as a single instrument (see, Matter of Brandreth, 169 NY 437, 440) and when they are they unambiguously establish that Victor Gruen intended to make a present gift of title to the painting at that time. But there was other evidence for after 1963 Victor made several statements orally and in writing indicat­ing that he had previously given plaintiff the painting and that plaintiff owned it. Victor Gruen retained possession of the property, insured it, allowed others to exhibit it and made necessary repairs to it but those acts are not inconsistent with his retention of a life estate. Furthermore, whatever probative value could be attached to his statement that he had be­queathed the painting to his heirs, made 16 years later when he prepared an export license application so that he could take the painting out of Austria, is negated by the overwhelm­ing evidence that he intended a present transfer of title in 1963. Victor’s failure to file a gift tax return on the transac­tion was partially explained by allegedly erroneous legal advice he received, and while that omission sometimes may indicate that the donor had no intention of making a present gift, it does not necessarily do so and it is not dispositive in this case.

Defendant contends that even if a present gift was intended, Victor’s reservation of a lifetime interest in the painting defeated it. She relies on a statement from Young v Young (80 NY 422) that "'[a]ny gift of chattels which expressly reserves the use of the property to the donor for a certain period, or * * * as long as the donor shall live, is ineffectual’” (id., at p 436, quoting 2 Schouler, Personal Property, at 118). The statement was dictum, however, and the holding of the court was limited to a determination that an attempted gift of bonds in which the donor reserved the interest for life failed because there had been no delivery of the gift, either actual or con­structive (see, id., at p 434; see also, Speelman v Pascal, 10 NY2d 313, 319-320). The court expressly left undecided the question "whether a remainder in a chattel may be created and given by a donor by carving out a life estate for himself and transferring the remainder” (Young v Young, supra, at p 440). We answered part of that question in Matter of Bran­dreth (169 NY 437, 441-442, supra) when we held that "[in] this state a life estate and remainder can be created in a chattel or a fund the same as in real property”. The case did not require us to decide whether there could be a valid gift of the remainder.

Defendant recognizes that a valid inter vivas gift of a remainder interest can be made not only of real property but also of such intangibles as stocks and bonds. Indeed, several of the cases she cites so hold. That being so, it is difficult to perceive any legal basis for the distinction she urges which would permit gifts of remainder interests in those properties but not of remainder interests in chattels such as the Klimt painting here. The only reason suggested is that the gift of a chattel must include a present right to possession. The appli­cation of Brandreth to permit a gift of the remainder in this case, however, is consistent with the distinction, well recog­nized in the law of gifts as well as in real property law, between ownership and possession or enjoyment (see, Speel­man v Pascal, 10 NY2d 313, 318, supra; McCarthy v Pieret, 281 NY 407, 409-411, supra; Matter of Brandreth, 169 NY 437, 442, supra). Insofar as some of our cases purport to require that the donor intend to transfer both title and possession immediately to have a valid inter vivas gift (see, Gannon v McGuire, 160 NY 476, 481, supra; Young v Young, 80 NY 422, 430, supra), they state the rule too broadly and confuse the effectiveness of a gift with the transfer of the possession of the subject of that gift. The correct test is "'whether the maker intended the [gift] to have no effect until after the maker’s death, or whether he intended it to transfer some present interest’” (McCarthy v Pieret, 281 NY 407, 409, supra [empha­sis added]; see also, 25 NY Jur, Gifts, § 14, at 156-157). As long as the evidence establishes an intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately (see, Matter of Brady, 228 App Div 56, 60, affd no opn 254 NY 590; In re Sussman’s Estate, 125 NYS2d 584, 589-­591, affd no opn 283 App Div 1051; Matter of Valentine, 122 Misc 486, 489; Brown, Personal Property § 48, at 133-136 [2d ed]; 25 NY Jur, Gifts, § 30, at 173-174; see also, Farmers’ Loan & Trust Co. v Winthrop, 238 NY 477, 485-486). Thus, in Speelman v Pascal (supra), we held valid a gift of a percentage of the future royalties to the play "My Fair Lady” before the play even existed. There, as in this case, the donee received title or the right of ownership to some property immediately upon the making of the gift but possession or enjoyment of the subject of the gift was postponed to some future time.

Defendant suggests that allowing a donor to make a present gift of a remainder with the reservation of a life estate will lead courts to effectuate otherwise invalid testamentary dispo­sitions of property. The two have entirely different character­istics, however, which make them distinguishable. Once the gift is made it is irrevocable and the donor is limited to the rights of a life tenant not an owner. Moreover, with the gift of a remainder title vests immediately in the donee and any possession is postponed until the donor’s death whereas under a will neither title nor possession vests immediately. Finally, the postponement of enjoyment of the gift is produced by the express terms of the gift not by the nature of the instrument as it is with a will (see, Robb v Washington & Jefferson Coll., 185 NY 485, 493).

Delivery

In order to have a valid inter vivas gift, there must be a delivery of the gift, either by a physical delivery of the subject of the gift or a constructive or symbolic delivery such as by an instrument of gift, sufficient to divest the donor of dominion and control over the property (see, Matter of Szabo, 10 NY2d 94, 98-99, supra; Speelman v Pascal, 10 NY2d 313, 318-320, supra; Beaver v Beaver, 117 NY 421, 428-429, supra; Matter of Cohn, 187 App Div 392, 395). As the statement of the rule suggests, the requirement of delivery is not rigid or inflexible, but is to be applied in light of its purpose to avoid mistakes by donors and fraudulent claims by donees (see, Matter of Van Alstyne, 207 NY 298, 308, supra; Matter of Cohn, supra, at pp 395-396; Mechem, Requirement of Delivery in Gifts of Chattels and of Choses in Actions Evidenced by Commercial Instru­ments, 21 111 L Rev 341, 348-349). Accordingly, what is suffi­cient to constitute delivery "must be tailored to suit the circumstances of the case” (Matter of Szabo, supra, at p 98). The rule requires that "'[t]he delivery necessary to consum­mate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit’” (id.; Vincent v Rix, 248 NY 76, 83; Matter of Van Alstyne, supra, at p 309; see, Beaver v Beaver, supra, at p 428).

Defendant contends that when a tangible piece of per­sonal property such as a painting is the subject of a gift, physical delivery of the painting itself is the best form of delivery and should be required. Here, of course, we have only delivery of Victor Gruen’s letters which serve as instruments of gift. Defendant’s statement of the rule as applied may be generally true, but it ignores the fact that what Victor Gruen gave plaintiff was not all rights to the Klimt painting, but only title to it with no right of possession until his death. Under these circumstances, it would be illogical for the law to require the donor to part with possession of the painting when that is exactly what he intends to retain.

Nor is there any reason to require a donor making a gift of a remainder interest in a chattel to physically deliver the chattel into the donee’s hands only to have the donee rede­liver it to the donor. As the facts of this case demonstrate, such a requirement could impose practical burdens on the parties to the gift while serving the delivery requirement poorly. Thus, in order to accomplish this type of delivery the parties would have been required to travel to New York for the symbolic transfer and redelivery of the Klimt painting which was hanging on the wall of Victor Gruen’s Manhattan apartment. Defendant suggests that such a requirement would be stronger evidence of a completed gift, but in the absence of witnesses to the event or any written confirmation of the gift it would provide less protection against fraudulent claims than have the written instruments of gift delivered in this case.

Acceptance

Acceptance by the donee is essential to the validity of an inter vivas gift, but when a gift is of value to the donee, as it is here, the law will presume an acceptance on his part (Matter of Kelsey, 26 NY2d 792, affg on opn at 29 AD2d 450, 456; Beaver v Beaver, 117 NY 421, 429, supra). Plaintiff did not rely on this presumption alone but also presented clear and convincing proof of his acceptance of a remainder interest in the Klimt painting by evidence that he had made several contemporaneous statements acknowledging the gift to his friends and associates, even showing some of them his father’s gift letter, and that he had retained both letters for over 17 years to verify the gift after his father died. Defendant relied exclusively on affidavits filed by plaintiff in a matrimonial action with his former wife, in which plaintiff failed to list his interest in the painting as an asset. These affidavits were made over 10 years after acceptance was complete and they do not even approach the evidence in Matter of Kelly (285 NY 139, 148-149 [dissenting in part opn], supra) where the donee, immediately upon delivery of a diamond ring, rejected it as "too flashy”. We agree with the Appellate Division that inter­pretation of the affidavit was too speculative to support a finding of rejection and overcome the substantial showing of acceptance by plaintiff.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be af­firmed, with costs.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexan­der, Titone and Hancock, Jr., concur.

Judgment appealed from and order of the Appellate Divi­sion brought up for review affirmed, with costs.

No. 99-611.

2002 MT 118.

48 P.3d 711.

MICHAEL A. ALBINGER, Plaintiff, Respondent and Cross-Appellant, v. MICHELLE L. HARRIS, Defendant and Appellant.

Decided June 6, 2002.

Submitted on Briefs December 29, 2000.

CHIEF JUSTICE GRAY, JUSTICES REGNIER and LEAPHART concur.

For Appellant: Nathan J. Homes, Great Falls.

For Respondent and Cross-Appellant: Ward E. Taleff, Alexander, Taleff, Baucus & Paul, Great Falls.

310 Mont. 27.

JUSTICE NELSON

delivered the Opinion of the Court.

Who owns a ring given in anticipation of marriage after the engagement is broken? Michelle L. Harris (Harris) appeals the disposition of an engagement ring by the Eighth Judicial District Court, Cascade County, Montana, and Michael A. Albinger (Albinger) cross-appeals the denial of reimbursement for certain telephone charges incurred by Harris and the award of damages for a prior, unlitigated assault and battery claim. We reverse the disposition of the engagement ring, affirm the denial of reimbursement for telephone charges and affirm the award for pain, suffering and emotional distress.

We frame the issues on appeal as follows:

1. Did the District Court err in determining an engagement ring is a conditional gift that may be revoked upon termination of the engagement?

2. Did the District Court err in denying Albinger reimbursement for telephone charges incurred by Harris during cohabitation?

3. Did the District Court err in awarding Harris compensation for general damages resulting from an assault and battery by Albinger?

FACTUAL AND PROCEDURAL BACKGROUND

Harris and Albinger met in June 1995, and began a troubled relationship that endured for the next three years, spiked by alcohol abuse, emotional turmoil and violence. Albinger presented Harris with a diamond ring and diamond earrings on December 14, 1995. The ring was purchased for $29,000. Days after accepting the ring, Harris returned it to Albinger and traveled to Kentucky for the holidays. Albinger immediately sent the ring back to Harris by mail. The couple set a tentative wedding date of June 27, 1997, but plans to marry were put on hold as Harris and Albinger separated and reconciled several times. The ring was returned to or reclaimed by Albinger upon each separation, and was re-presented to Harris after each reconciliation.

Albinger and Harris lived together in Albinger’s home from August 1995 until April 1998. During this time, Albinger conferred upon Harris a new Ford Mustang convertible, a horse and a dog, in addition to the earrings and ring. Harris gave Albinger a Winchester hunting rifle, a necklace and a number of other small gifts. Albinger received a substantial jury award for injuries sustained in a 1991 railroad accident. He paid all household expenses and neither party was gainfully employed during their cohabitation.

On the night of February 23, 1997, during one of the couple’s many separations, Albinger broke into the house where Harris was staying. He stood over Harris’ bed, threatened her with a knife and shouted, “I’m going to chop your finger off, you better get that ring off.” After severely beating Harris with a railroad lantern, Albinger forcibly removed the ring and departed. Harris sued for personal injuries and the county attorney charged Albinger by information with aggravated burglary, felony assault, and partner and family member assault. The next month, after another reconciliation, Harris requested the county attorney drop all criminal charges in exchange for Albinger’s promise to seek anger management counseling and to pay restitution in the form of Harris’ medical expenses and repair costs for damage to her friend’s back door. Harris also directed her attorney to request the court dismiss the civil complaint without prejudice.

The parties separated again in late April 1998. Albinger told Harris to “take the car, the horse, the dog, and the ring and get the hell out.” During their last month together, Harris ran up approximately $1,000 in telephone charges on Albinger’s credit card. Harris had been free to use Albinger’s telephone throughout the relationship, and Albinger paid the bills. Harris moved from Great Falls, Montana to Kentucky, where she now resides. The parties dispute who was responsible for the end of the relationship. No reconciliation followed, marriage plans evaporated and Harris refused to return the ring.

Albinger filed a complaint on August 31, 1998, seeking recovery of the ring or its monetary value and payment for $1,000 in telephone charges. Harris counterclaimed for damages resulting from the assault of February 23, 1997.

At the conclusion of the trial, both parties submitted briefs discussing how the statute barring actions for breach of promise to marry, § 27-1-602, MCA, impacts an action to recover an engagement ring. The District Court found the ring to be a gift in contemplation of marriage, and reasoned that § 27-1-602, MCA, did not bar the action because the case could be decided on common-law principles, as opposed to contract theories. The court implied the existence of a condition attached to the gift of the engagement ring. Disregarding allegations of fault for “breaking” the engagement, the court concluded that the giver is entitled to the return of the ring upon failure of the condition of marriage.

On September 2, 1999, the District Court awarded the engagement ring or its reasonable value and court costs to Albinger, and denied recovery for the telephone charges. Harris was awarded $2500 for pain, suffering and emotional distress. From this judgment, Harris appeals the disposition of the ring and Albinger cross-appeals the denial of telephone charges and the award of damages to Harris.

STANDARD OF REVIEW

In reviewing a district court’s findings of fact, we determine whether the findings are clearly erroneous. In re Marriage of Griffin (1996), 275 Mont. 37, 44, 909 P.2d 707, 711. The three-part test we use to determine whether findings are clearly erroneous in a non-jury case provides that: (1) the Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court will determine if the district court has misapprehended the evidence; and (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find that a finding is “clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed.” Griffin, 275 Mont. at 44, 909 P.2d at 711-12 (citing DeSaye v. Interstate Production Credit Assn. (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. In re Estate of Kuralt, 2000 MT 359, ¶ 14, 303 Mont. 335, ¶ 14, 15 P.3d 931, ¶ 14.

Issue 1.

Did the District Court err in determining an engagement ring is a conditional gift that may be revoked upon termination of the engagement?

Albinger and Harris gave one another numerous gifts of substantial value during their engagement. The ring is the only item now in controversy. When this Court was last presented with the question whether an antenuptial transfer of jewelry from fiancé to fiancée, which included an engagement ring, constituted consideration for the mutual promise of marriage or was an unconditional gift, we remanded the case for a new trial and factual findings on the matter. Davidson v. Stagg (1933), 94 Mont. 272, 278, 22 P.2d 152, 154. In the instant case, the parties agree that the ring was a gift. The crux of the dispute today is whether a condition of marriage attached to the gift as a matter of law at the time Albinger presented the ring to Harris.

Harris contends the ring lost any association with a promise to marry after the first incidence of domestic violence. The couple canceled their June 1997 nuptials and never revived explicit wedding plans. In response to a question about the ring’s symbolic relationship to a promise to marry after the couple’s numerous break-ups, reconciliations, and incidents of domestic violence, Harris testified, “[A]fter a while you don’t think about that stuff. You just resume life.” Albinger argues that the ring was presented as a gift only upon the unspoken condition that the wedding take place.

The District Court found the ring at issue in this action to be an engagement ring given in contemplation of marriage, and not a gift in commemoration of another occasion or as consideration for any other anticipated acts on the part of Harris. The court noted Albinger proposed marriage to Harris on December 14, 1995, and presented her with the ring at that time. Harris accepted both the marriage proposal and the ring. Although the ring was reclaimed by or returned to Albinger numerous times during the ensuing years, both Albinger and Harris referred to the ring as an “engagement ring” with some consistency. We conclude that the court’s characterization of the disputed gift as an engagement ring is supported by substantial evidence and is not clearly erroneous.

Legal ownership of the gift of an engagement ring when marriage plans are called off is an issue of first impression in Montana. In 1963, the Legislature barred access to the courts for actions arising from breach of the promise to marry. Sec. 2, Chap. 200, L. 1963. The District Court determined that this action brought to recover an antenuptial gift is maintainable, notwithstanding § 27-1-602, MCA, which states:

All causes of action for breach of contract to marry are hereby abolished. However, where a plaintiff has suffered actual damage due to fraud or deceit or a defendant has been unjustly enriched, the plaintiff may maintain an action for fraud or deceit or unjust enrichment and recover therein only the actual damage proved or for the benefit wrongfully obtained or restitution of property wrongfully withheld where such action otherwise is maintainable under existing law.

According to the District Court’s analysis, the statute goes no further than to bar actions for general damages sustained by the loss of marriage such as humiliation, lost opportunities, emotional suffering and other non-specific consequences of the breach. We agree with the court’s conclusion that the rights and duties of the parties regarding property exchanged “in contemplation of marriage” are still determined by existing law and common-law principles.

The District Court presents a cogent summary of common-law principles applied to antenuptial gift disputes in the wake of the abolition of breach of promise actions. Section 27-1-602, MCA, specifically preserves actions based upon fraud, deceit or unjust enrichment. Albinger levels no accusations of fraud or deceit, but nevertheless claims Harris is unjustly enriched by the value of the engagement ring.

The doctrine of unjust enrichment is an equitable means of preventing one party from benefitting by his or her wrongful acts, and, as such requires a showing of misconduct or fault to recover. Sebena v. State (1994), 267 Mont. 359, 367, 883 P.2d 1263, 1268 (citing Randolph v. Peterson, Inc. (1989), 239 Mont. 1, 8, 778 P.2d 879, 883). Albinger argues that the engagement ring was a conditional gift that he could revoke when the implied condition of marriage failed. Hence, Harris’ refusal to return the ring upon demand constituted unjust enrichment. Harris contends she deserves the ring because Albinger repeatedly beat her, forcibly took the ring back, and was the one who finally ended the engagement by ordering Harris to move out of the residence where they had been living together.

The District Court declined to undertake a determination of which party was at fault in terminating the engagement. The court cited the following three reasons: 1) judicial holdings that fault is an inappropriate concern in matters of family relations; 2) pragmatic difficulties in discerning fault when the conduct of both parties likely contributes to the failure of a relationship; and, 3) aversion to concepts of legal “rightness” and “wrongness” regarding the choice of a marriage partner. We agree, and affirm that judicial fault-finding is irrelevant and immaterial in the adjudication of matters of antenuptial gifting under existing law, absent fraud or deceit.

The District Court employed the “conditional gift” theory advanced by Albinger to determine present ownership of the disputed engagement ring. The theory holds that an implied condition of marriage attaches to the gift of a ring upon initial delivery due to the ring’s symbolic association with the promise to marry and, when the condition of marriage fails, the incomplete gift may be revoked by the giver. Albinger urges this Court to affirm the District Court’s conclusion that the ownership of an engagement ring remains with the one who gave the ring when plans to marry are called off.

Only in engagement ring cases does precedent from other jurisdictions weigh heavily for conditional gift theory in the absence of an expressed condition. See collected cases, Elaine Marie Tomko, Annotation, Rights in Respect of Engagement and Courtship Presents when the Marriage Does Not Ensue (1996), 44 A.L.R. 5th 1. See also Benassi v. Back & Neck Pain Clinic, Inc. (Minn. 2001), 629 N.W.2d 4­75; Meyer v. Mitnick (Mich. 2001), 625 N.W.2d 136; Lindh v. Surman (Penn. 1999), 742 A.2d 643; Heiman v. Parrish (Kan. 1997), 942 P.2d 631; Vigil v. Haber (N.M. 1994), 888 P.2d 455. Considering it “unduly harsh and unnecessary” to require a hopeful suitor to express any condition upon which a ring might be premised, many courts stepped in to impute the condition of marriage. Fierro v. Hoel (Iowa 1990), 465 N.W.2d 669, 671. In practice, courts presume the existence of the implied condition of marriage attaching to an engagement ring in the absence of an expressed intent to the contrary. Fanning v. Iverson (S.D. 1995), 535 N.W.2d 770; Brown v. Thomas (Wis. 1985), 379 N.W.2d 868; Lyle v. Durham (Ohio 1984), 473 N.E.2d 1216. A party meets the burden of establishing the conditional nature of the gift by proving by a preponderance of the evidence that the ring was given in contemplation of marriage. Fierro, 465 N.W.2d at 671. “Not only does this rule of law establish a 'bright line’ for situations where the parties involved are unlikely to have considered the necessity of making an ‘agreement to the contrary,’ but the rule also eliminates the need for a trial court to attempt the often impossible task of determining which, if either, party is at fault.” McIntire v. Raukhorst (Ohio 1989), 585 N.E.2d 456, 458.

Since the issue of ring ownership when the engagement ends without marriage is a matter of first impression, we will briefly review early breach of promise jurisprudence, look to some American customs associated with engagement rings, analyze the judicial imputation of a condition in the context of Montana gift law, and examine conditional gift theory in light of the constitutional prohibition against gender bias.

Abolition of Breach of Promise Actions

Historic breach of promise jurisprudence tended to view an engagement ring as either a pledge of personal property given to secure a marital promise or as consideration for the contract of marriage. See 44 A.L.R. 5th 1, §§ 8 and 9. When a contract to marry was abrogated, the jilted lover could seek redress in a breach of promise action that sounded in contract law, but availed the plaintiff of tort damages. “The law allows punitive or vindictive damages to be assessed by the jury; and all the circumstances attending the breach before, at the time, and after may be given in evidence in aggravation of damages.” Dupont v. McAdow (1886), 6 Mont. 226, 232, 9 P. 925, 928. The plaintiffs were almost invariably women seeking economic relief for themselves, compensation for pregnancy and material support for children of the relationship. Whatever “heart balm” was awarded to assuage lost love, ruined reputation or foreclosed opportunities to marry well “rest[ed] in the sound discretion of the jury.” Section 8685, ROM (1935).

By the mid-1930's, several state legislatures questioned the efficacy of court “interference with domestic relations” and passed statutes barring actions for breach of promise to marry, alienation of affections, criminal conversation and other inappropriate conduct of the “private realm.” See Rebecca Rushnet, Rules of Engagement (1998), 107 Yale Law Review 2583, 2586-91. Commentators noted all of these actions “afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts (5th ed. 1984) § 124 at 929. “There is good reason to believe that even genuine actions of this type are brought more frequently than not with purely mercenary or vindictive motives [and] that it is impossible to compensate for such damage with what has derisively been called ‘heart balm.’” Prosser and Keeton, § 124 at 929.

In the wake of “anti-heart balm” statutes that barred breach of contract to marry actions, courts heard a plethora of legal theories designed to involve them in settling antenuptial property disputes while avoiding the language of contract law. The results were mixed. Some courts allowed actions in replevin. See Vann v. Vehrs (Ill. 2d Dist. 1994), 633 N.E.2d 102 (to reclaim property which the other party allegedly no longer has a right to possess). Others entertained claims for restitution and unjust enrichment. See Wilson v. Dabo (Ohio 1983), 461 N.E.2d 8 (to reclaim property transferred in reliance upon the promise to marry when the donor was the “non-breaching party”). Out of this legal morass, conditional gift analysis emerged as a popular way to resolve acrimonious engagement ring disputes. While some states pursue a fault-based determination for awarding the ring in equity, the modern wave aligns ring disposition with no-fault divorce property disposition and follows a bright-line rule of ring return.

Engagement Ring Symbology

The custom of giving expensive engagement rings is largely a mid-­to late 20th Century phenomenon. Margaret F. Brinig, Rings and Promises (1990), 6 J.L. Econ. & Org. 203, 209. Nineteenth Century etiquette books struggled to identify proper gifts between men and women. Viviana A. Ziegler, The Social Meaning of Money (1994). Expensive or excessively intimate gifts, such as jewelry or wearing apparel, were fit for a kept woman, or perhaps a man’s wife, but not as tokens of respectable courtship. Ziegler, at 99. Upper class men and women occasionally exchanged diamond rings as gifts during the 19th Century. Ziegler, at 99. The six-prong gold or platinum setting holding a raised, brilliant-cut diamond, which has become the classic engagement ring style, was created by Tiffany’s in the 1870s. Anne Ward et al., Rings Through the Ages (1981), at 198. DeBeers’ launched its national advertising campaign in 1939 that promised: “A diamond is forever.” Brinig, at 206. To cultivate a no-return custom in America, the cartel threatened to cut off supply to dealers who bought diamonds back from purchasers. Brinig, at 209. An interesting correlation exists between the mid-20th Century increase in demand for costly diamond engagement rings and the statutory changes by state legislatures to abolish the breach of promise action. Brinig, at 206. After the Second World War, expensive rings became not just symbols of love, but tangible economic commitments in themselves, and appear to have gained significance as other economic incidents of marriage were in flux. See Reva B. Siegel, Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930 (1994), 82 Geo. L.J. 2127, 2201-03. As courts closed to women seeking damages for breach of the promise to marry, the cost and the practice of giving engagement rings rose dramatically. Brinig, at 209. By the time Montana barred the breach of promise action, diamonds constituted over 80% of engagement ring sales. Brinig, at 205. Through the late 20th Century, rings remained personal tokens of affection; many couples who spurned the conventions of marriage still wore rings to bear witness to their union. Ward, at 146. Since 1980, however, engagement rings never exceeded 20% of diamond jewelry sales. Brinig, at 212.

This Court acknowledges the customary practice of presenting an engagement ring in conjunction with a promise to marry and we next examine the legal significance of that symbolic association in the context of Montana gift law.

Conditional Gift Theory

According to Montana law, “a gift is a transfer of personal property made voluntarily and without consideration.” Section 70-3-­101, MCA. The essential elements of an inter vivos gift are donative intent, voluntary delivery and acceptance by the recipient. Marens v. Newland (1962), 141 Mont. 32, 39, 374 P.2d 721, 724 (citing O’Neil v. First Nat. Bank of Billings (1911), 43 Mont. 505, 511, 117 P. 889, 890). Delivery, which manifests the intent of the giver, must turn over dominion and control of the property to the recipient. In re Brown’s Estate (1949), 122 Mont. 451, 459, 206 P.2d 816, 821. Such a gift, made without condition, becomes irrevocable upon acceptance. Marens, 141 Mont. at 36, 374 P.2d at 723; Fender v. Foust (1928), 82 Mont. 73, 78, 265 P. 15, 16; O’Neil v. First Nat. Bank of Billings (1911), 43 Mont. 505, 511, 117 P. 889, 890. When clear and convincing evidence demonstrates the presence of the essential elements of donative intent, voluntary delivery and acceptance, the gift is complete and this Court will not void the transfer when the giver experiences a change of heart. See Gross v. Gross (1989), 239 Mont. 480, 781 P.2d 284 (father barred from revoking a gift of real property transferred to his son).

Another essential element of a gift is that it is given without consideration. Section 70-3-101, MCA. A purported “gift” that is part of the inducement for “an agreement to do or not to do a certain thing,” becomes the consideration essential to contract formation. Sections 28-­2-101 and 28-2-102, MCA. An exchange of promises creates a contract to marry, albeit an unenforceable one. Section 27-l-412(2),MCA. When an engagement ring is given as consideration for the promise to marry, a contract is formed and legal action to recover the ring is barred by the abolition of the breach of promise actions. Section 27-1-602, MCA.

The only revocable gift recognized by Montana law is a gift in view of death. See §§ 70-3-201, et. seq., MCA. Also known as a gift causa mortis, such a gift is subject to the following conditions: 1) it must be made in contemplation, fear or peril of death; 2) the giver must die of the illness or peril that he or she fears or contemplates; and 3) the delivery must be made with the intent that the gift will only take effect if the giver actually dies. Section 70-3-201, MCA; Nelson v. Wilson (1928), 81 Mont. 560, 570, 264 P. 679, 682; O’Neil, 43 Mont. at 511, 117 P. at 890. Statutory law provides that a gift in view of death may be revoked by the giver at any time and is revoked by the giver’s recovery from the illness or escape from the peril under which the gift was made. Section 70-3-203, MCA.

Albinger maintains he held a reversionary interest in the gift of the engagement ring grounded in an implied condition subsequent. Montana law recognizes the transfer of personal property subject to an express or implied condition which must be satisfied before title vests, as either a contract, § 28-1-405, MCA, or as a gift in view of death, §§ 70-3-201, et. seq., MCA. Since actions stemming from breach of the contract to marry are barred by our “anti-heart balm” statute, Albinger urges the Court to adopt a conditional gift theory patterned on the law relevant to a gift in view of death. Under Montana law, no gift is revocable after acceptance except a gift in view of death. While some may find marriage to be the end of life as one knows it, we are reluctant to analogize gifts in contemplation of marriage with a gift in contemplation of death. This Court declines the invitation to create a new category of gifting by judicial fiat.

Gender Bias

Article II, Section 4 of the Montana Constitution recognizes and guarantees the individual dignity of each human being without regard to gender. This Court and the Montana State Bar have recognized the harm caused by gender bias and sexual stereotyping in the jurisprudence and courtroom of this state. In the Matter of the State Bar of Montana’s Gender Fairness Steering Committee, No. 90-231 (1990) (Petition and Order); In re Marriage of Davies (1994), 266 Mont. 466, 480-82, 880 P.2d 1368, 1378 (Nelson, J., concurring). In its Petition to the Supreme Court, the State Bar of Montana’s Gender Fairness Steering Committee listed four forms of gender bias: a) denying rights or burdening people with responsibilities solely on the basis of gender; b) subjecting people to stereotypes about the proper behavior of men and women which ignore their individual situations; c) treating people differently on the basis of gender in situations in which gender should be irrelevant; and d) subjecting men or women as a group to a legal rule, policy, or practice which produces worse results for one group than the other.

The Montana Legislature made the social policy decision to relieve courts of the duty of regulating engagements by barring actions for breach of promise. While not explicitly denying access to the courts on the basis of gender, the “anti-heart balm” statutes closed courtrooms across the nation to female plaintiffs seeking damages for antenuptial pregnancy, ruined reputation, lost love and economic insecurity. During the mid-20th Century, some courts continued to entertain suits in equity for antenuptial property transfers. The jurisprudence that rose upon the implied conditional gift theory, based upon an engagement ring’s symbolic associations with marriage, preserved a right of action narrowly tailored for ring givers seeking ring return. The bright-line rule of ring return on a no-fault basis, which Albinger urges this Court to adopt, sets forth as a matter of law “proper” post-­engagement behavior in regard to this single gifted item. The proposed no-fault adjudication of a disputed engagement ring also ignores the particular circumstances of a couple’s decision not to marry.

Conditional gift theory applied exclusively to engagement ring cases, carves an exception in the state’s gift law for the benefit of predominately male plaintiffs. Montana’s “anti-heart balm” statute bars all actions sounding in contract law that arise from mutual promise to marry, absent fraud or deceit, and bars all plaintiffs from recovering any share of expenses incurred in planning a canceled wedding. While antenuptial traditions vary by class, ethnicity, age and inclination, women often still assume the bulk of pre-wedding costs, such as non-returnable wedding gowns, moving costs, or non­refundable deposits for caterers, entertainment or reception halls. Consequently, the statutory “anti-heart balm” bar continues to have a disparate impact on women. If this Court were to fashion a special exception for engagement ring actions under gift law theories, we would perpetuate the gender bias attendant upon the Legislature’s decision to remove from our courts all actions for breach of antenuptial promises.

Engagement Ring Disposition

To preserve the integrity of our gift law and to avoid additional gender bias, we decline to adopt the theory that an engagement ring is a gift subject to an implied condition of marriage. Judicial imputation of conditional gifting would stake new legal territory in Montana. “It is not the province of this court or any other court to assume to legislate by judicial interpretation, and to create in favor of any individual or any class of people an exception to the limitation set by the legislature.” Taylor v. Rann (1938), 106 Mont. 588, 594, 80 P.2d 376, 379; see also Section 1-2-101, MCA.

The District Court found the engagement ring was voluntarily offered by Albinger on December 14, 1995, without consideration and with the present intent to voluntarily transfer dominion and control to Harris. Harris accepted the ring. Although the court implied a condition of marriage attaching to the gift as a matter of law, we do not. In our judgment, the gift was complete upon delivery, and a completed gift is not revocable. The fact that possession of the ring passed back and forth between Albinger and Harris during the course of their relationship bears no relevance to the issue of ring ownership. All of the elements of gifting must be present to transfer ownership, and the facts do not indicate re-gifting occurred. In fact, Albinger acknowledged Harris’ ownership himself when he told Harris “to take the car, the horse, the dog and the ring” when she left the relationship. We hold that the engagement ring was an unconditional, completed gift upon acceptance and remains in Harris’ ownership and control.

Issue 2.

Did the District Court err in denying Albinger reimbursement for telephone charges incurred by Harris during cohabitation?

The District Court found that Harris had been free to use the telephone and charge calls to Albinger’s credit card throughout the relationship and Albinger paid the bills. Albinger seeks reimbursement for telephone charges incurred by Harris during the last month of their cohabitation. However, the record exhibits no proof by Albinger that he revoked Harris’ telephone privileges and Albinger presents no legal theory for recovery. We conclude that the District Court’s findings are not clearly erroneous and the court did not abuse its discretion in ruling that Albinger was not entitled to reimbursement.

Issue 3.

Did the District Court err in awarding Harris compensation for general damages resulting from an assault and battery by Albinger?

Harris counter-claimed for personal injuries stemming from the severe beating she sustained on February 23, 1997, seeking $35,000 to cover medical and psychiatric treatment, lost wages, emotional distress, pain and suffering. The District Court found Albinger admitted liability for the incident and paid Harris’ resulting medical bills shortly after the incident. Harris was not employed during the time she lived with Albinger, and the court found no evidence of lost earnings. Noting that Harris failed to present evidence of past or anticipated psychiatric counseling needs and expenses, the court awarded Harris $2500 in general damages for emotional distress, pain and suffering. Albinger appeals the award.

Once liability is established, it is the duty of the finder of fact to award damages for pain and suffering when the evidence clearly establishes that the plaintiff suffered painful injury and the defendant presents no evidence to the contrary. Thompson v. City of Bozeman (1997), 284 Mont. 440, 446, 945 P.2d 48, 51; Lee v. Kane (1995), 270 Mont. 505, 514, 893 P.2d 854, 859; Walls v. Rue (1988), 233 Mont. 236, 236, 759 P.2d 169, 170 (citing Gehert v. Cullinan (1984), 211 Mont. 435, 439, 685 P.2d 352, 354). This Court will not disturb an award of damages unless the amount awarded is so grossly out of proportion to the injury as to shock the conscience. Hansen v. Hansen (1992), 254 Mont. 152, 159, 835 P.2d 748, 752; Frisnegger v. Gibson (1979), 183 Mont. 57, 66, 598 P.2d 574, 579 (citing Kelleher v. State (1972), 160 Mont. 365, 375, 503 P.2d 29, 34-35). The amount to be awarded is properly left to the finder of fact and this Court will not substitute its judgment unless we find the judgment to be the product of passion or prejudice. Frisnegger, 183 Mont. at 67, 598 P.2d at 580 (citing Salvail v. Great Northern Railway Co. (1970), 156 Mont. 12, 31, 473 P.2d 549, 560). In personal injury actions there is no measuring stick by which to determine the amount of damages to be awarded for pain and suffering other than the intelligence of a fair and impartial trier of fact governed by a sense of justice; each case must of necessity depend upon its own peculiar facts. Johnson v. United States (D.C.Mont. 1981) 510 F.Supp. 1039, 1045 (citing Pfau v. Stokke (1940), 110 Mont. 471, 475, 103 P.2d 673, 674-75).

The record contains substantial and uncontroverted evidence that Harris endured numerous incidents of domestic violence during her relationship with Albinger. Harris testified that she experienced considerable pain, emotional distress and inconvenience as a result of the particularly severe beating she sustained on February 23, 1997. Brandishing a knife and threatening to cut off her finger, Albinger forcibly removed the ring from Harris’ left hand, which resulted in permanent nerve damage. Albinger also pummeled Harris with a railroad lantern. Photographs, taken shortly after this incident and admitted into evidence without objection, document the bruises, swelling and abrasions on Harris’s face, head, neck, shoulders and arms.

The clear weight of authority holds that any award that fails to include a sum for the general damages of pain, suffering and emotional distress is inadequate or inconsistent when the evidence in support is beyond controversy. The trial judge’s assessment of $2500 for such damages certainly is not excessive and does nothing to “shock the conscience” of this Court. We hold that the District Court legitimately acted upon its legal duty to award general damages as part of its judgment in this case.

CONCLUSION

We reverse the District Court’s conclusion of law and hold the engagement ring to be a gift given without implied or express condition. Montana gift law makes no provision for conditional gifting, except in the context of a gift in contemplation of death. We refrain from adopting permutations in the legal theory of gifting that have no legislated authority and serve to exacerbate gender bias. We affirm the court’s denial of reimbursement for telephone charges and the monetary award for Harris’ emotional distress, pain and suffering resulting from the assault and battery of February 23, 1997.

Reversed in part; affirmed in part; and remanded for entry of judgment consistent with this opinion.

JUSTICE TRIEWEILER

concurring and dissenting.

Gender discrimination is a bad thing. I am glad the majority is against it. However, I regret that the majority has taken this opportunity to declare their good intentions because gender equity has about as much to do with this case as banking law. Furthermore, the parties in the District Court will be as surprised to hear about the basis on which this appeal has been resolved as I was when I read the proposed opinion. Principles of gender equity were never argued or even raised by the parties at any stage in the proceeding and the District Court had no opportunity to consider the relevance (or irrelevance) of Constitutional theory to any of the simple issues which were presented in the District Court.

The precedent established by this case leads to all sorts of interesting possibilities. If we accept the majority’s assumption that women are more likely to have to give back a conditional gift given in anticipation of marriage than men and that, therefore, traditional notions of gift law are no longer applicable because it is unfair, what should we do about maintenance? After all, don’t men more often pay maintenance than women? Is that fair? What should we do about child support? Couldn’t there be a statistical argument that men pay more child support than women? What should we do about paternity suits? Surely men are more frequently the defendants in paternity suits than women?

The simple fact is that if women are more likely to be the subject of an action to recover a conditional gift given in anticipation of a marriage which does not occur, it is because they are more frequently the recipient of the gift. Should we just prohibit gifts in anticipation of marriage altogether because men are more likely to have to pay for them? The possible implications of the majority’s decision are just beyond my comprehension.

Before today, no court anywhere in the world has ever held that a conditional gift given in anticipation of marriage cannot be recovered if the condition on which it was given, the marriage, does not occur because to require its return would violate notions of gender fairness. Nowhere at any time. It is no wonder the parties did not think of it. Before embarking on this radical, unprecedented departure from traditional notions of contract and gift law, shouldn’t we have at least asked the parties for their views? Shouldn’t we at least have some record for the unfounded assumption that one gender is more likely to be affected than the other?

This is a simple case involving the law of conditional gifts, decided by the District Court based on findings which are fully supported by the evidence and law as it has been applied throughout the country. The District Court opinion is well reasoned and fair. It should be affirmed. Therefore, I dissent.

The District Court in Finding No. 6 found that the ring at issue in this case was referred to throughout the couple’s relationship as an “engagement ring.” It found in Finding No. 4 that the ring was presented to Michelle in contemplation of her marriage to Michael. The District Court found in Finding No. 7 that each time, except for the last time, the couple broke up (and they broke up frequently), the ring was either returned by Michelle or taken back by Michael. These findings were fully supported by the evidence. For example, Michael testified as follows:

Q. Now, when you gave her the engagement ring, were you contemplating that you were going to get married?

A. That was the whole idea.

Q. Was there any way in your mind that the engagement ring was just a ring and she could keep it whether you were married or not?

A. No.

Q. Is it correct that it was always in contemplation of marriage?

A. Yes.

Q. Now, she testified that the engagement was on and off a couple of times at least; is that correct?

A. Yes.

Q. Okay. At any of those times when the engagement was off and the ring - or excuse me, at any of those times that the engagement was off, was the ring delivered back to you?

A. Yes.

Q. Every time?

A. Yes.

Q. I guess with the exception of the time she got on the airplane?

A. Right. That would be, that would be the only time that I can recall.

It is equally clear from the record that the engagement ring was treated differently by the couple than other gifts which had been given by Michael to Michelle while they were engaged. He testified as follows:

Q. Okay. Now, you heard her testify, didn’t you, about the other gifts you’d given her?

A. Yes, I did.

Q. The 1995 Mustang that cost about $24,000, was that in contemplation of getting married?

A. No.

Q. Have you ever made any demand that she return that to you?

A. No.

Q. How about the diamond earrings that were the Christmas gift? Have you ever made any demands that she return those because they were given in contemplation of marriage?

A. No.

Q. How about the horse?

A. No.

Q. Any gift you gave her beside the engagement ring, did you ever contend that those other gifts were made in contemplation of marriage?

A. No. They were gifts. Those are gifts.

The testimony of one witness is substantial evidence which is sufficient to support the findings of the District Court. The District Court’s findings in this case were clearly supported by substantial evidence and were not clearly erroneous.

Based on the District Court’s findings, certain legal conclusions necessarily followed. First, the District Court concluded that courts in other jurisdictions have analyzed similar cases based on the theory of “conditional gift;” that the occurrence of the anticipated marriage was a condition on which the gift was given; and that because the condition was not fulfilled, plaintiff was entitled to recovery of the gift. The District Court was correct. In an A.L.R. annotation directly on point, the author validates the District Court’s position:

A predominant theory used in ordering recovery of engagement gifts to the donor relies upon the theory of conditional gifts. Many courts consider engagement gifts to be conditioned upon the subsequent marriage of the parties, and when such marriage does not take place, the condition has failed and the donor is entitled to recover the engagement gift. [Reference omitted.]

Elaine Marie Tomko, Annotation, Rights in Respect of Engagement and Courtship Presents When Marriage Does Not Ensue, 44 A.L.R. 5th 1, 18 (1996).

An example of a similar conclusion from another state is found at Heiman v. Parrish (Kan. 1997), 942 P.2d 631. In that case, under identical circumstances, the Supreme Court of Kansas came to the following conclusion and cited the following authorities:

In the absence of a contrary expression of intent, it is logical that engagement rings should be considered, by their very nature, conditional gifts given in contemplation of marriage. Once it is established the ring is an engagement ring, it is a conditional gift.

Other courts have reached a similar conclusion. See Simonian v. Donoian, 96 Cal.App.2d 259, 215 P.2d 119 (1950); White v. Finch, 3 Conn. Cir. Ct. 138, 209 A.2d 199 (1964); Gill v. Shively, 320 So.2d 415 (Fla.App. 4 Dist. 1975); Vann v. Vehrs, 260 Ill.App.3d 648, 198 Ill.Dec. 640, 633 N.E.2d 102 (1994); Harris v. Davis, 139 Ill.App.3d 1046, 94 Ill.Dec. 327, 487 N.E.2d 1204 (1986); Fierro v. Hoel, 465 N.W.2d 669 (Iowa App. 1990); Aronow v. Silver, 223 N.J.Super. 344, 538 A.2d 851 (1987); Mate v. Abrahams, 62 A.2d 754 (N.J. County Ct. 1948); Vigil v. Haber, 119 N.M. 9, 888 P.2d 455 (1994); Wion v. Henderson, 24 Ohio App.3d 207, 494 N.E.2d 133 (1985); Lyle v. Durham, 16 Ohio App.3d 1, 473 N.E.2d 1216 (1984); Spinnell v. Quigley, 56 Wash.App. 799, 785 P.2d 1149 (1990); Brown v. Thomas, 127 Wis.2d 318, 379 N.W.2d 868.

Heiman, 942 P.2d at 634.

Second, the District Court concluded that it was irrelevant which party was at fault for breaking off the engagement. The District Court concluded that application of fault principles to the “conditional gift” theory is contrary to the modern trend and inconsistent with Montana law which disallows consideration of fault for even the dissolution of marriage. The District Court was also correct when it arrived at this conclusion. In the annotation previously cited, Tomko states:

More recently, courts have declined to consider “fault” in looking at the broken engagement and have concluded that, without regard to fault, the donor is entitled to recover any engagement gifts made to the donee, in the absence of statute or special circumstances requiring the application of some paramount rule to the contrary. [Reference omitted.]

44 A.L.R. 5th at 20.

An example of the modern trend to disregard fault under circumstances such as those presented in this case is found at Fierro v. Hoel (Iowa Ct. App. 1990), 465 N.W.2d 669. In that case the plaintiff also sought return of an engagement ring following defendant’s decision to break off the couple’s engagement. The Iowa Court of Appeals concluded that an engagement ring given in contemplation of marriage is an impliedly conditional gift. Fierro, 465 N.W.2d at 672. The court recognized that an older line of cases limited a donor’s recovery of the gift to situations where the engagement is dissolved by agreement or unjustifiably broken by the donee. However, the court concluded that the notion of one party being at blame for the termination of an engagement is archaic and outdated. It cited the following language from Aronow v. Silver (N.J. Super. Ct. Ch. Div. 1987), 538 A.2d 851, 853-54:

What fact justifies the breaking of an engagement? The absence of a sense of humor? Differing musical tastes? Differing political views? The painfully-learned fact is that marriages are made on earth, not in heaven. They must be approached with intelligent care and should not happen without a decent assurance of success. When either party lacks that assurance, for whatever reason, the engagement should be broken. No justification is needed. Either party may act. Fault, impossible to fix, does not count.

Fierro, 465 N.W.2d at 672.

The Iowa court then concluded that:

Like the Aronow court, this court believes fault, in an engagement setting, is irrelevant. We reject this “fault” approach.

This court adopts the “no fault” approach followed in a minority of jurisdictions. E.g., Brown v. Thomas, 127 Wis.2d 318, 379 N.W.2d 868 (App. 1985). “Since the major purpose of the engagement period is to allow a couple time to test the permanency of their feelings, it would seem highly ironic to penalize the donor for taking steps to prevent a possibly unhappy marriage....” Gaden v. Gaden, 29 N.Y.2d 80, 88, 323 N.Y.S.2d 955, 962, 272 N.E.2d 471, 476 (1971).

Fierro, 465 N.W.2d at 672.

Finally, the District Court concluded that § 27-1-602, MCA (referred to in the majority opinion as Montana’s “heart balm” statute), is not applicable in an action to recover a gift made in contemplation of marriage. The District Court noted that the majority of jurisdictions have held that “heart balm” statutes bar actions for damages, such as humiliation, which arise as a consequence of breaching a promise to marry but have no effect with regard to recovery of gifts. Once again, the District Court was correct. In the Tomko annotation relied upon in most recent cases and cited by both parties in this case, she states:

In a number of states, the breach-of-promise action has been abolished, though it has generally been held that the recovery of engagement gifts does not fall among the barred actions. Statutes abolishing breach-of-promise suits are commonly referred to as “heart balm” statutes because they permit the former lovers’ heartaches to heal without recourse to the courts. The purpose of the heart balm statutes was originally “to avert the perpetration of fraud by adventurers or adventuresses who were prone to use the threat of a breach of promise of marriage action to compel overapprehensive and naive defendants to make lucrative settlements in order to avoid embarrassing and lurid notoriety which accompanied litigation of this character.” Most courts will not use these statutes, however, to protect a party who received an engagement gift under fraudulent circumstances, or where a conditional gift theory is to be applied. [Emphasis added.]

44 A.L.R. 5th at 27.

An example of the type of decision referred to in Tomko’s annotation is Pavlicic v. Vogtsberger (Pa. 1957), 136 A.2d 127, 130, in which the Pennsylvania Supreme Court held that that state’s “Heart Balm Act,” while abolishing causes of action for breach of contract to marry, “in no way alters the law of conditional gifts.”

What has been said so far in this Opinion is all that was necessary in order to resolve the issues presented to the District Court and to this Court on appeal. The District Court’s findings were supported by substantial evidence and were not clearly erroneous. The District Court’s conclusions of law were correct.

However, the majority is not content to review the issues presented based on the facts which were proven and the legal authorities which have been submitted. The majority instead, without any factual basis in the record, explores what it finds are “some American customs associated with engagement rings” and turns this simple property dispute based on traditional rules of gift law into a battle of the sexes with constitutional implications. Considering the significance we have now attached to this case, does it strike anyone else as odd that we haven’t asked the parties for any input on these critical issues?

The practical problems arising from the majority’s impulsiveness become quickly apparent. For example, a predicate to its gender inequity approach is its conclusion that “anti-heart balm” statutes have “closed courtrooms across the nation to female plaintiffs seeking damages.” What is the factual basis for assuming that women are more likely to seek damages for breach of a promise to marry than men? Tomko’s annotation would suggest that gender is not a factor. She states that the purpose of heart balm statutes was originally “to avert perpetration of fraud by adventurers or adventuresses ....” 44 A.L.R. 5th at 27. There is no authority provided for the quantum leap taken by the majority. It must be so simply because the majority says so.

The next step in the majority’s shaky syllogism is its unsupported conclusion that “[c]onditional gift theory applied exclusively to engagement ring cases carves an exception in the state’s gift law for the benefit of predominantly male plaintiffs.” Furthermore, the majority states that while “Montana’s ‘anti-heart balm’ statute... bars all plaintiffs from recovering any share of non-refundable expenses incurred in planning a cancelled wedding,” it assumes that women usually incur these expenses. The majority’s conclusion from these unsupported assumptions is that, therefore, we cannot, in fairness, enforce conditional gift law when it pertains to engagement rings.

First of all, either gender can given an engagement ring. For example, in Vigil v. Haber (N.M. 1994), 888 P.2d 455, the parties exchanged engagement rings. However, their relationship deteriorated, the couple separated, and following their separation a hearing examiner determined that the parties should return the rings they had given each other. The plaintiff immediately returned the ring he had along with other of the defendant’s possessions. However, the defendant objected to returning the engagement ring that had been given to her. The New Mexico Supreme Court held that the ring was a conditional gift dependant on the parties’ marriage and should be returned. Vigil, 888 P.2d at 458. What if the roles had been reversed and the woman had returned the engagement ring given to her but the man had refused to do so? According to this Court, she would not be allowed to recover the engagement ring that she had given to her fiancé, no matter how substantial the value and unfair the result because requiring the return of engagement rings is unfair to women.

The second problem with the majority’s assumptions is the assumption that conditional gift law as it relates to gifts exchanged in anticipation of marriage only applies to wedding rings. It does not. For example, in Pavlicic, a case which disproves the theory that jurisprudence cannot be written in readable prose, the plaintiff was a 75-year-old man when the 26-year-old defendant asked for his hand in marriage. While he first protested on the basis of his age, she assured him that she was no longer interested in “young fellows” and prevailed upon him to make the commitment. Over the course of the next four years, she then prevailed upon him to pay the mortgage on her home, buy her two new cars, an engagement ring, a diamond for her mother’s ring, remodel her house, and advance her $5000 to purchase a saloon which they could jointly operate. The problem was that after she received the money for the saloon, she disappeared. She was next seen in another town operating Ruby’s bar and married to a man two years her junior. As noted by the Pennsylvania Supreme Court:

When George emerged from the mists and fogs of his disappointment and disillusionment he brought an action in equity praying that the satisfaction of the mortgage on Sara Jane’s property be stricken from the record, that she be ordered to return the gifts which had not been consumed, and pay back the moneys [sic] which she had gotten from him under a false promise to marry.

Pavlicic, 136 A.2d at 129.

The Pennsylvania Supreme Court held that George’s action was not barred by the state’s “Heart Balm Act” and that all gifts, not just the wedding ring, were conditional gifts in anticipation of marriage which must be returned or repaid. The Pennsylvania Supreme Court cited Stanger v. Epler (1955), 115 A.2d 197, 199, stating:

A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and upon breach of the marriage engagement by the donee the property may be recovered by the donor. See also 38 C.J.S. Gifts § 61.

Pavlicic, 136 A.2d at 131.

The point is that there is no reason to limit the law of “conditional gifts” in anticipation of marriage to engagement rings. There is precedent for applying it to all gifts in anticipation of marriage and had either of the parties had any forewarning that this Court would have launched into the gender equity issue on which it bases its opinion, they could have pointed that out.

Also predicate to the majority’s decision is its conclusion that the District Court implied that marriage was a condition to the gift. However, as previously noted, the Court implied no such thing. The Court made a finding that the gift was given in anticipation of marriage based on the testimony that was presented. The majority has simply chosen, as a matter of law, to ignore those facts in favor of the social theory it has chosen to impose on the parties and the people of this state without the benefit of input from anyone else.

I concur with the Court’s conclusions that the District Court did not err when it held that Albinger was not entitled to reimbursement for Harris’ telephone calls and when it awarded Harris damages for her pain and suffering.

However, I object to the gender stereotypes on which the majority Opinion is based and without which the majority could not have arrived at their legal conclusion, and I object to the majority’s trivialization of something as important as equal rights by attaching them to the simple dispute involved in this case.

I dissent from the majority’s conclusion that Montana, unlike any other jurisdiction which has considered this issue, should not apply traditional “conditional gift” or contract law to the resolution of the dispute between the parties. I dissent from the majority’s interesting but inapplicable and factually unsupported social commentary and its interjection and ultimate reliance on constitutional theory which was never raised by any party, never considered by the District Court, and on which neither party had an opportunity to comment. The Opinion is based on sexual stereotypes, false assumptions unsupported by the record, constitutional theory never raised or considered by the parties or the District Court, and social theory that has nothing to do with the case as it was considered by the District Court or developed by the parties. In short, it breaks just about every rule of appellate decision-­making.

I dissent from the majority’s transformation of a simple case involving gift law to a soap box on which to analyze social customs and significant constitutional rights which have now been trivialized by their interjection in this case.