Donor’s “Cry” For Help

Donor’s “Cry” For Help

New York’s Court of Appeals finds an unusual gift to be valid


Jacques Lipchitz, the Russian born, cubist sculptor, lived a life of creativity.  As it turns out, his wife, Yulla H. Lipchitz, was pretty creative herself, albeit her medium differed somewhat from that of her artist husband.


In Mirvish v. Mott, the New York Court of Appeals, the state’s top court, recently reversed an appellate court decision and upheld as valid Yullah’s gift of “The Cry,” an 1,100 pound bronze sculpture, to her lover, Biond Fury (a name straight out of central casting).  What made this particular gift interesting was that the gift instrument was simply a photograph of the sculpture, on the back of which Yullah had written:  “I gave this sculpture 'The Cry' to my good friend Biond Fury in appreciation for all he did for me during my long illness.  With love and my warm wishes for a Happy Future, Yulla Lipchitz/October 2, 1997, New York.”


The issue at bar, now contested between David Mirvish, Biond’s assignee, and Hanno Mott, Yulla’s son, was whether that photograph constituted a valid gift.  In upholding the gift, the court held that, in spite of her unusual choice of medium, Yullah and Biond established all three elements required for a completed gift.  Yullah’s intent to give a gift is clear on the face of the instrument.  On the other hand, the elements of delivery and acceptance are less evident. The court held that the last two elements were established by “the presumption of delivery” inherent in the fact that Biond actually possessed the instrument (a rare, real-world example of the old cliché that possession is 9/10 of the law).


The case was further complicated by the fact that the statute of limitations on the conversion action at the heart of the matter had already lapsed.  However, the court was able to side step this pitfall, because an earlier settlement agreement entered into by the parties provided that ownership of the sculpture would be decided, on the merits, by the surrogate, which it was, also in David’s favor. This created an untenable situation, under which the sculpture would be forever stuck in escrow, as David couldn’t take possession because the statute of limitation on his conversion action had run out, and Hanno couldn’t take possession because of the settlement agreement that he signed.


The court broke this stalemate, stating, “This is surely not what the parties intended when they entered into the settlement agreement, which called for the return of ‘The Cry’ from Switzerland to New York, to be held in escrow awaiting delivery to the party -- either the estate or Mirvish -- finally adjudicated the sculpture’s owner.” Honoring the surrogate’s decision, the court awarded possession to David.


You can read the full decision at:

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