PROPERTY FALL 2010 UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW PROFESSOR CASE PRACTICE EXAM QUESTION ONE HOUR After

er getting into her automobile to drive to work, Cordelia Chase suffered a cerebral hemorrhage after an especially powerful vision. She called her co-worker at Angel Investigations, Winifred Burkle, to come help her. Winifred drove to Cordelias house and found Cordelia slumped behind the steering wheel of her automobile with her head hanging down on her chest. Winifred immediately telephoned for the doctor. In the meantime, Cordelia refused to move from the automobile, saying that she would be alright in a little while. Cordelia began fumbling around in the pocket of her jacket and pulled out a small envelope and handed it to Winifred and said: Here is a key to the safe in the office at Angel Investigations. I have some valuable diamond earrings in there. If anything happens to me, I want you to hold on to them. Shortly thereafter, the doctor arrived and, on examination, found Cordelia to be critically ill and near death. He ordered that she be taken immediately to the hospital. The next day, Cordelia experienced a surprising recovery and was discharged from the hospital early that morning. She went directly to the office at Angel Investigations arriving by mid-morning and was greeted by Winifred, Angel, and Charles Gunn. They tried to convince her to go home but Cordelia said she was feeling completely fine. At noon, Winifred opened the safe at the office and retrieved the diamond earrings. She left the office and took them to the Los Angeles National Bank and placed them in her safe deposit box. Upon returning to the office at 12:45 p.m., Winifred went into Cordelias office but she had stepped away from her desk. Winifred put the key to the Angel Investigations office safe on Cordelias desk together with a note to Cordelia explaining that she was returning the key to her. Upon returning to her office 15 minutes later, Cordelia found the key to the safe and Winifreds note. She took the key and went into Angels office. She told Angel, I always hoped that you and Buffy would get married someday. When you pop the question I want you to have my diamond earrings that I keep in the office safe so that you can give them to Buffy. Here is the key to the office safe. I needed it the other day but Im bringing it back to you now. Angel took the key from Cordelia and Cordelia went back to her office. Tragically, at the close of the business day, Angel and Winifred went into Cordelias office and found her unconscious. They called an ambulance and Cordelia was rushed to the hospital. She was pronounced dead on arrival at the hospital. The doctors later explained that Cordelias death was caused by the cerebral hemorrhage she had suffered the previous day. Cordelias attorney, Lindsey McDonald, subsequently produced a copy of Cordelias will which left all of her property, both real and personal, to her co-worker Charles Gunn. Winifred, Angel and Charles all claim ownership of the diamond earrings. Discuss the legal principles that apply and analyze the arguments that should be raised by the various parties claiming ownership of the diamond earrings based on the above facts.

ANSWER KEY FALL 2010 PRACTICE EXAM QUESTION PROPERTY PROFESSOR CASE The following key does not approximate a sample essay answer. Instead, this key is intended only to serve as a guide to the optimum analytical manner of working through the practice exam problem. Both Winifred and Angel will contend that Cordelia made a valid gift of the earrings to each of them, respectively, while Charles will contend that neither Winifred nor Angel should prevail on a gift theory and thus the earrings passed to Charles when Cordelias will became effective upon her death. Winifred Burkle should argue that Cordelia made a valid gift causa mortis of the earrings to her. A gift is a voluntary, immediate transfer of property between living persons a donor and a donee. A gift causa mortis is a present gift between living persons, but one made in contemplation of and in expectation of immediate approaching death. If the donor survives the anticipated peril, the gift is revoked, although some courts may hold that revocation occurs only if the donor elects to revoke upon recovering. There are three common law requirements for a valid gift: (1) intent (the donor must intend to make the gift); (2) delivery (the donor must transfer physical possession of the gift to the donee if practicable if not, some constructive or symbolic delivery is required); and (3) acceptance (the donee must accept the gift however, courts typically presume acceptance of a gift if the other elements are met and there are no facts indicating that the donee has rejected the gift). Taking the gift causa mortis issues up one at a time: (1) Made in contemplation of and in expectation of immediate approaching death (or as sometimes referenced in anticipation of imminent death): Winifred must show that Cordelia believed that she was dying or that her death was imminent. This may be inferred from the attendant circumstances (that is, it is unnecessary for the donor to expressly say that she believes she is about to die). Winifred should argue that Cordelias statement if anything should happen to me and handing over the key to the safe indicated that Cordelia believed she was dying. However, other facts indicate it was not certain that Cordelia believed she was dying. When Winifred found her slumped behind the steering wheel of her car, she said that she would be alright in a little while. This undercuts the argument that Cordelia believed her death was imminent. The facts state that the doctor found Cordelia to be critically ill and near death, but this occurred after Cordelia had given Winifred the key to the office safe and asked her to hold on to the earrings if anything happens to me. Further, the facts also do not indicate that the doctor communicated his opinion to Cordelia that she was near death. Winifred may well have a problem in establishing this required element of her cause of action. (2) Intent to make a gift: Winifred should argue that Cordelias telling her about the earrings and stating that if anything happens to me, I want you to hold on to them indicates that Cordelia intended her to have the earrings if she died. However, again the facts are equivocal as to Cordelias intent. It would have been much clearer if Cordelia had said I want you to have

them or I want to give them to you. Instead, she used far more ambiguous language I want you to hold on to them. This might mean that she wanted Winifred to hold on to them for Cordelia and keep them safe until she got back or to hold on to them for someone else (such as, Charles would argue, the devisee of her personal property in her will). The critical question the finder of fact must answer here is Can Cordelias words be fairly and reasonably interpreted to mean `If I die these earrings are yours? Again, Winifred may have a problem in establishing that Cordelia intended to make a gift of the earrings to her. (3) Delivery of the gift: Winifred should argue that physical delivery of the gift was not practicable under the circumstances the two of them were not where the earrings were located and Cordelia was heading to the hospital where there was a strong probability that she would die. Instead, Winifred should argue that Cordelia made the only delivery possible under the circumstances the delivery of the keys to the safe in which the earrings were located which constitutes either a constructive or symbolic delivery of the earrings themselves. Winifred should have no problem with the delivery requirement under these facts. (4) Acceptance: Again, courts typically presume acceptance of a validly made gift, but here Winifred can also argue that she accepted the gift through the act of removing the earrings from the office safe and placing them in her safe deposit box at the bank. (5) Revocation: As noted, a gift causa mortis is revoked if the donor survives the anticipated peril or if the donor elects to revoke upon surviving the peril. Both Angel and Charles should argue that Cordelia initially survived the anticipated peril as demonstrated by her surprising recovery and [subsequent] discharge from the hospital the morning after the incident. Thus, Angel and Charles would argue that any gift should be considered revoked by operation of law, preventing Winifred from prevailing (assuming she is able to prevail on the other required elements). Winifred should counter with the argument that Cordelias death actually did ensue the next day from the peril she was facing the previous day and thus her temporary recovery should not be construed as revoking the gift causa mortis. Said another way, Winifred should argue that Cordelia died from the circumstances creating the anticipation of her imminent death within a reasonable time thereafter. Even though ultimately only a temporary recovery, this fact causes another problem for Winifreds claim of ownership through a gift causa mortis. Further, Angel should argue that Cordelias acts in trying to give him the earrings after her temporary recovery constitute a revocation of any gift she may have made to Winifred in anticipation of a death which Cordelia would have believed upon her discharge from the hospital was not going to occur. Said another way, even assuming Cordelia intended to make a gift to Winifred the day before, she intended to revoke that gift the next day after believing she had recovered and deciding that she wanted the earrings to go to Angel so that he could give them to Buffy. Again, because gifts causa mortis are revocable (unlike a gift inter vivos), this element will cause significant problems in Winifreds efforts to prove ownership of the earrings.

Angel should argue that Cordelia made a valid gift inter vivos of the earrings to him. A gift inter vivos is a gift made by one living person to another; once effectively made it is irrevocable. The same three common law elements for a gift must be established: (1) intent, (2) delivery, and (3) acceptance. Taking these elements up one at a time: (1) Intent: Angel should argue that Cordelias intent to make the gift is demonstrated by her words I want you to have my diamond earrings that I keep in the office safe so that you can give them to Buffy. However, a gift inter vivos is a voluntary, immediate transfer of property from one person to another. Charles should argue that Cordelias words do not show the intent to make an immediate transfer of the property to Angel. Cordelias statement that I always hoped that you and Buffy would get married someday. When you pop the question I want you to have my diamond earrings suggests that Cordelia intended the gift to take effect in the future (upon Angel someday asking Buffy to marry him). A gratuitous promise to make a transfer at some point in the future is not a valid inter vivos gift and confers no enforceable rights to the property on the donee. The requirement that the donor intend to make an immediate gift will be a significant problem for Angel in proving ownership of the earrings. (2) Delivery: Angel should argue that Cordelia made a constructive or symbolic delivery of the earrings by giving him the key to the office safe in which they were kept by Cordelia. There are a number of problems with this argument, however. First, the donor must transfer physical possession of the gift if practicable. Cordelia and Angel were in the office where the safe was located and manual delivery of the earrings was possible and practicable. Angel may argue that manual delivery was not possible at the time because Winifred had already removed the earrings from the office safe at that time, and thus a constructive or symbolic delivery was the only actual option at that point. The fact that Cordelia did not know the earrings were not in the safe undercuts that position somewhat, however. A manual delivery could have been attempted and upon learning the earrings had been moved it would have been possible for them to be retrieved and physically delivered to Angel at that time. Another problem with Angels constructive or symbolic delivery argument is that Cordelia does not appear to have handed Angel the office safe key for the purpose of him using it to get the earrings out. Instead, she told him as she handed him the key that she was returning it to him because she had taken it earlier because she had needed it. Thus, handing the key to Angel was not an attempt to constructively or symbolically deliver the earrings to him it was nothing more than a returning of the key to Angel. (This fact may also be used by Charles to support the argument that Cordelia did not intend to make an immediate gift of the earrings, and, instead, only intended to give them to Angel at some point in the future (when he popped the question to Buffy.) The delivery requirement will also be a significant problem for Angel is demonstrating a valid inter vivos gift. (3) Acceptance: This element should not be much of a concern. Acceptance would be presumed if Angel could demonstrate the required intent and delivery of the gift.