¶1(with whom Wachenfeld and William J. Brennan, Jr., JJ., agree, dissenting). The decedent Ethel Beiss was fully competent when she freely wrote the longhand note which was intended to make a gift causa mortis to her husband Adam Beiss. On the day the note was written her husband duly received it, located the money and books in accordance with its directions, and took personal possession of them. Nine days later Mrs. Beiss died; in the meantime her husband retained his possession and there was never any suggestion of revocation of the gift. Although the honesty of the husband’s claim is conceded and justice fairly cries out for the fulfillment of his wife’s wishes, the majority opinion (while acknowledging that gifts causa mortis are valid in our State as elsewhere) holds that the absence of direct physical delivery of the donated articles requires that the gift be stricken down. I find neither reason nor persuasive authority anywhere which compels this untoward *56result. See Gulliver and Tilson, Classification of Gratuitous Transfers, 51 Yale L. J. 1, 2 (1941):
“One fundamental proposition is that, under a legal system recognizing the individualistic institution of private property and granting to the owner the power to determine his successors in ownership, the general philosophy of the courts should favor giving effect to an intentional exercise of that power. This is commonplace enough, but it needs constant emphasis, for it may be obscured or neglected in inordinate preoccupation with detail or dialectic. A court absorbed in purely doctrinal arguments may lose sight of the important and desirable objective of sanctioning what the transferor wanted to do, even though it is convinced that he wanted to do it.”
¶2Harlan E. Stone, in his discussion of Delivery in Gifts of Personal Property, 20 Col. L. Rev. 196 (1920), points out that the rule requiring delivery is traceable to early notions of seisin as an element in the ownership of chattels as well as land; and he expresses the view that as the technical significance of seisin fades into the background, courts should evidence a tendency to accept other evidence in lieu of delivery as corroborative of the donative intent. See Philip Mechem, The Requirement of Delivery in Gifts of Chattels, 21 III. L. Rev. 341, 345 (1926). Nevertheless, the artificial requirement of delivery is still widely entrenched and is defended for modern times by Mechem {supra, at 348) as a protective device to insure deliberate and unequivocal conduct by the donor and the elimination of questionable or fraudulent claims against him. But even that defense has no applicability where, as here, the donor’s wishes were freely and clearly expressed in a written instrument and the donee’s ensuing possession was admittedly Iona fide\ under these particular circumstances every consideration of public policy would seem to point towards upholding the gift.
¶3The delivery requirement has, for the most part, been applied in like fashion to gifts causa,mortis and gifts inter vivos. See Brown, Personal Property (1936), 76, 137; Atkinson, Wills (1937), 157. Cf. 4 Page, Wills (1941), 757. And although some courts have suggested that stricter attitude is called for in gifts causa mortis than in gifts inter *57vivos, other courts have adopted the opposite point of view. See, e. g., In re Wasserberg (1915), 1 Ch. 195; Begovich v. Kruljac, 38 Wyo. 365, 267 P. 426, 60 A. L. R. 1046 (Sup. Ct. 1928); Devol v. Dye, 123 Ind. 321, 24 N. E. 246, 7 L. R. A. 439 (Sup. Ct. 1890). In the Begovichcase, supra [38 Wyo. 365, 267 P. 429], the court said:
“… gifts cmisa mortis are ordinarily resorted to by intending donors because the facilities for executing the more formal testamentary disposition are not available, or the death of the donor is so imminent in point of time as to preclude preparation of the formal documents. They are in their very nature emergency measures. Hence, though delivery cannot be dispensed with, since words may be easily misrepresented (Drew v. Hagerty, supra[81 Me. 231, 17 A. 63, 3 L. R. A. 230]), still we should naturally expect the courts to hold the requirements as to such delivery to be less strict than in connection with gifts inter vivos, and that, in fact, is the holding of at least any of the courts. Meach v. Meach, 24 Vt. 591; Murphy v. Bordwell, 83 Minn. 54, 85 N. W. 915, 52 L. R. A. 849, 85 Am. St. Rep. 454; Scott v. Bank & Trust Co., 123 Tenn. 258, 130 S. W. 757; Devol v. Dye, 123 Ind. 321, 24 N. E. 246, 7 L. R. A. 439; In re White’s Estate, 129 Wash. 544, 225 P. 415; Innes v. Potter, 130 Minn. 320, 153 N. W. 604, 3 A. L. R. 896; Sharpe v. Sharpe, 105 S. C. 459, 90 S. E. 34, 3 A. L. R. 891; Pyle v. East, 173 Iowa, 165, 155 N. W. 283, 3 A. L. R. 885; Eaton v. Blood, 201 Iowa 834, 208 N. W. 508, 44 A. L. R. 1516.”
¶4And in the Devolcase, supra, the Indiana Supreme Court, through Chief Justice Mitchell, said [123 Ind. 321, 24 N. E. 248] :
“Expressions are sometimes found in the books to Jthe effect that gifts causa mortis are not favored in law because of the opportunity which they afford for the perpetration of frauds upon the estates of deceased persons by means of perjury and false swearing; but gifts of the character of those in question are not to be held contrary to public policy, nor do they rest under the disfavor of the law, when the facts are clearly and satisfactorily shown which make it appear that they were freely and intelligently made. Ellis v. Secor, 31 Mich. 185. While every case must be brought within the general rule upon the points essential to such a gift, yet, as the circumstances under which donations mortis causa are made must of necessity be infinite in variety, each case must be determined upon its own peculiar facts and circumstances. Dickeschied v. [Exchange] Bank, 28 W. Va. [340] 341; Kiff v. Weaver, 94 N. C. 274. The rule requiring delivery, either actual or symbolical, must be maintained, but its application is to be militated and applied according *58to the relative importance of the subject of the gift and the condition of the donor. The intention of a donor in peril of death, when clearly ascertained and fairly consummated within the meaning of well-established rules, is not to be thwarted by a narrow and illiberal construction of what may have been intended for and deemed by him a sufficient delivery. The rule which requires delivery of the subject of the gift is not to be enforced arbitrarily.”
¶5No helpful purpose would be served by further discussion of the history or wisdom of the delivery rule or its sympathetic or hostile application to gifts causa mortis; it would seem that under any reasoned point of view the particular facts in the instant matter should be deemed to constitute the required delivery. It must be remembered that the gift to Adam Reiss did not rest upon delivery of the note alone; it rested on the acknowledged fact that in accordance with the terms of the note the donee took physical possession of the donated articles and retained them until after the death of the donor. In his article on Gifts of Chattels without Delivery, 6 L. Quar. Rev. 446 (1890), Sir Frederick Pollock said:
“On principle it would seem that where A. by word of mouth purports to give B a certain chattel, this will have the effect of a license to B to take that chattel peaceably wherever he may find it. For it would not be reasonable for A to treat B as a trespasser for acting upon A’s expressed intention. The license is no doubt revocable until executed, and may be revoked either by the communication to B, by word or act, of A’s will to that effect, or by A’s death (which was the case of Irons v. Smallpiece) or perhaps by A’s becoming insane. If without any revocation the license is executed by B taking possession of the chattel, then, it is submitted, the property is irrevocably transferred to B. There would be great and obvious inconvenience in holding otherwise.”
¶6Similarly, Stone, supra, at 198, noted that “If the donor make oral gift of a chattel in the donor’s possession to the donee, and the donee avails himself of the donor’s license to possess himself of the chattel, the gift then becomes complete” without further delivery. Page in his treatise on Wills, supra, at 759, states flatly that “If the donor authorizes the donee to take physical possession of the property in question and the donee takes such possession before the donor dies, the donee’s *59act in taking possession is sufficient delivery.” Commonsensible decisions in England and in this country have applied these views to sustain gifts causa mortis where, as in the instant matter, the donee properly acquired possession before the donor’s death. See Cain v. Moon (1896) 2 Q. B. 283; Champney v. Blanchard, 39 N. Y. 111 (1868); Davis v. Kuck, 93 Minn. 262, 101 N. W. 165(Sup. Ct. 1904); In re Gordon’s Will, 238 Iowa 580, 27 N. W. 2d 900(Sup. Ct. 1947). Cf. Brown, supra, at 102; Mechem, supra, at 364.
¶7The Daviscase related to a causa mortis gift of a team of horses from a father to a son who lived with him; the court-sustained a charge that where the donee and donor lived together, as in the case of husband and wife or parent and child, it was not necessary that the donated article he removed from the common residence and it was “ ‘sufficient if it appear that the donor has relinquished and the donee acquired a control of the property.’ ” See 101 N. W., at page 166. In the Champneycase the court, in sustaining a gift causa mortis, held that where the donee already had possession no further formal delivery was necessary. See 39 N. Y., at page 116:
“Delivery of the subject-matter is, no doubt, essential to a gift, either inter vivos or mortis causa; but the object of delivery is to give possession, and, in this case, possession was already complete in the donee. No further delivery was necessary, nor was it possible, without first returning the property to the donor, that it might be redelivered to the donee, an idle and unmeaning ceremony.”
¶8To the same effect was the upholding of the gift causa mortis in the Cain ease, where Justice Wills remarked (2 Q. B., at 289) :
“Suppose a man lent a book to a friend, who expressed himself pleased with the book, whereupon the lender, finding that he had a second copy, told his friend that he need not return the copy he had lent him; it would be very strange if in such a case there were no complete gift, the book being in the possession of the intended donee.”
¶9When Ethel Reiss signed the note and arranged to have her husband receive it, she did everything that could reasonably *60have been expected of her to effectuate the gift causa mortis; and while her husband might conceivably have attempted to return the donated articles to her at the hospital for immediate redelivery to him, it would have been unnatural for him to do so. It is difficult to believe that our law would require such wholly ritualistic ceremony and I find nothing in our decisions to suggest it. The majority opinion advances the suggestion that the husband’s authority to take possession of the donated articles was terminated by the wife’s incapacity in the operating room and thereafter. The very reason she wrote the longhand note when she did was because she knew she would be incapacitated and wished her husband to take immediate possession, as he did. Men who enter hospitals for major surgery often execute powers of attorney to enable others to continue their business affairs during their incapacity. Any judicial doctrine which would legally terminate such power as of the inception of the incapacity would be startling indeed — it would disrupt commercial affairs and entirely without reason or purpose.
¶10The New Jersey decisions dealing with gifts causa mor Lis, including the leading cases of Cook v. Lum, 55 N. J. L. 373 (Sup. Ct. 1893), and Keepers v. Fidelity Title & Deposit Co., 56 N. J. L. 302 (E. & A. 1893), relied upon by the majority, do not bear on the actual issue presented in the instant matter. In the Cook case the court held that delivery of a slip of paper referring to a sum of money which the donor had on deposit did not constitute delivery of the deposit (see Brown, supra, at 183); the donee there did not take possession of the deposit before the donor’s death. In the Keepers case the court held that delivery of the key to a box did not constitute delivery of its contents (see Brown, supra, at 95); the donee there likewise did not take possession of the contents before the donor’s death.
¶11In the Cook case [55 N. J. L. 373], Chief Justice Beasley set forth the supposedly controlling principles which have been followed in our later cases and which do not in anywise impair the validity of the gift in the instant matter. Thus he noted that “there must be, in addition to the expression *61of a donative purpose, an actual tradition of the corpus of the gift whenever, considering the nature of the property and the circumstances of the actors, such a formality is reasonably practicable”; and further in his opinion he stated that “the test was this: that the transfer was such that, in conjunction with the donative intention, it completely stripped the donor of his dominion of the thing given.” When the husband took possession of the donated articles in accordance with his wife’s wishes and the decent dictates of the circumstances, he acquired complete dominion to the exclusion of the donor; in all justice this should satisfy the delivery requirement even in the eyes of those who adhere most technically to its ancient terms and tenor.
¶12I would affirm the judgment of the Appellate Division.