dissenting.
I dissent for the reason that appellee failed to carry the burden of proof which rested upon her “to show every fact and circumstance necessary to constitute a valid gift by clear and convincing evidence”. Rust v. Phillips, 208 Va. 573, 578, 159 S. E. 2d 628, 631 (1968). The record discloses neither intent nor delivery.
We are concerned here with property having an estimated value in excess of $1 million. The marriage between Dr. Henry F. Capozzella and Harriet A. Capozzella on June 15, 1970 was his second and her third. It lasted less than five months. Harriet claims that four days after their marriage Capozzella “because of his great love for her” made to her “a valid gift of the land” involved. She alleges that this gift was effectuated by the preparation of a deed, its execution by the trustees and its delivery to Lytton H. Gibson, who was, as she characterized him, the attorney for Capozzella.
Appellee supports her case by the testimony of her mother and father. Capozzella denies the gift and introduces the testimony of his two sisters. We must look to Gibson for an impartial version of the facts.
Capozzella did discuss with Gibson on Jurie 19, 1970, in the presence of Harriet, the taking of title to the property in their joint names. However, it appears that he was then primarily concerned with the possibility that through his children, particularly his young daughter, his first wife might be able to exercise some control over his property. Gibson testified that at this time Capozzella “didn’t know what to do” about his property; that he “wasn’t given any instructions by Gapozzella”; and that the suggestion that mutual “wills be executed arid the *826deed to the property taken in their joint names with right of survivor-ship “was done really the way I more or less dictated it”. Gibson quoted the doctor as saying “well, I just don’t know . . . you do the way you think it ought to be done”.
Gibson testified repeatedly that the proposal to place the property in the joint names of Dr. and Mrs. Capozzella was his sole suggestion, and in the answer he filed as a defendant in the court below he stated: “The preparation of the deed in question by this defendant [Gibson] and the manner of taking title was done at the sole discretion of this defendant [Gibson].” Pertinent to the intent of Capozzella was this question to Gibson and his answer:
“Q. Did there ever come a time when he unequivocally expressed to you his intention with regard to this property as to the passage of title, exclusion and recordation?
“A. No, not ever as limited as you put the question. His idea about the property the first time he came in was he thought he would sell it at the best possible price. I don’t believe he ever indicated what he wanted to do short of selling it eventually.”
Gibson was asked: “Did Dr. Capozzella ever tell you he wanted to make a gift of half of all the property to his wife?” He answered: “Oh, no, he never discussed gifts in any way.” The attorney was questioned regarding the effect of a tenancy by the entireties: “So if he died she would have this piece of property?” He answered: “I don’t know if he had that in mind clearly or not. As I say, this joint survivorship, that was my suggestion and the primary reason behind it was because he didn’t know what to do about his children.” Gibson said that he advised Capozz'ella what he could do if he wanted to eliminate his children completely from any possibility of control over the property.
Following his conference with Capozzella on June 19, 1970 Gibson wrote to the trustees who were holding title to Capozzella’s land and asked if they would convey the property to Capozzella. The trustees replied that they would execute a deed conveying the land as Capozzella instructed in writing. No such instructions in writing were ever given by Capozzella either to Gibson or to th'e trustees. While there were telephone calls and some correspondence between Gibson and the trustees, and Gibson prepared the deed, there was never a formal written request of the trustees by Gibson, made on behalf of and as attorney and agent for Capozzella, directing and authorizing the trustees to convey title to Capozzella and Harriet.
*827Gibson’s testimony can be characterized as vague, uncertain and in-, definite. Most assuredly it is not testimony upon which a transfer of title to real estate should be based. Standing alone, or taken in connection with other evidence in the record, it does not constitute “the clear and convincing evidence” of donative intent this court has consistently held essential to a valid gift. King, Ex’x v. Merryman, Adm'x, 196 Va. 844, 86 S. E. 2d 141 (1955); Nelson v. Liggan, 189 Va. 637, 53 S. E. 2d 798 (1949); Grace v. Virginia Trust Co., 150 Va. 56, 142 S.E. 378 (1928);Rust v. Phillips, supra.
It is significant that notwithstanding Capozzella is alleged to have made this gift on June 19, 1970 the deed from the trustees was not signed until October 19, 1970 (three weeks before the parties separated) and Gibson did not seek further instructions from Capozzella until his letter of November 6,1970. Gibson’s explanation of this June-to-October delay has a definite bearing on the intent of Capozzella to make the gift to his wife. Gibson said: “Very frankly I was dragging my feet. I wondered about this entire marriage, the marriage setup, etc.” He said he was getting calls from New York and Boston, from Harriet, from her father and also from others. He “was wondering what the situation was” and “noticed some friction between the two of them”. He said he “got kind of leery of this thing and I didn’t know what to do”.
We are not concerned here with the friction that developed between Dr. and Mrs. Capozzella which caused the dissolution of their union. Suffice it to say that by late-summer 1970 it existed, and Capozzellahad abandoned any intent he ever entertained of taking title to his property jointly with Harriet. As the doctor’s ardor waned, Harriet’s interest in the property apparently increased. By December 11th Gibson realized that he was “in the middle”. After the marriage fractured there was no reason for Capozzella to make a gift of the property to his wife or to deliver the deed, and he had no intention of doing so. Harriet was demanding that the deed b'e recorded or delivered to her. Obviously Gibson could not comply with her request, for he was Capozzella’s attorney, dealing with Capozzella’s trustees and Capozzella’s land. He realized that there could b'e no delivery or recordation of the deed unless and until such was directed by Capozzella and that such direction would not be forthcoming. Gibson then retired from the scene.
Even if we could assume an intent on Capozzella’s part to make this purported .gift to. his.wife, that intention must be accompanied-by *828complete and unconditional delivery, actual or constructive. Here a deed had been signed by trustees and deposited with the donor’s attorney. No delivery has ever been made to the alleged donee, her attorney or her agent. The donor, Capozzella, never surrendered control or dominion over the deed of his property.
Delivery need not be made to a donee personally; it may be made to a third person acting as agent for the donee. 38 Am. Jur. 2d, Gifts, § 20. But “where the instrument relied upon to support a gift inter vivos is not delivered directly to the donee but is given to some third person . . . whether there was sufficient delivery of the instrument turns upon the decision whether the person taking delivery is to be regarded as the agent of the donor or of the donee”. 48 A. L. R. 2d 1419; see 9 M.J., Gifts, § 16. Stated another way, “while delivery may be made by an agent of the donor, delivery to such an agent is not enough”. 38 Am. Jur. 2d, Gifts, § 28 (Emphasis supplied). And “ [w] hether the third person is the agent of the donor or the agent. . . for the donee turns on the intent of the donor....” Payne v. Tobacco Trading Corp., 179 Va. 156, 167-68, 18 S. E. 2d 281, 286 (1942).
Gibson was Capozzella’s attorney and so regarded himself. He represented Capozzella in 1969 when the doctor divorced his first wife and settlement was effected with her. He was representing Capozzella when the doctor married Harriet. In her bill of complaint Harriet alleges that Gibson was Capozzella’s attorney. The trial judge in his opinion referred to Gibson as Capozzella’s attorney. Gibson so represented himself to the trustees, Graham and Lillard. All of Gibson’s correspondence was to Capozzella, none to Harriet. It was Capozzella to whom he sent his bill for services. Harriet, when asked if Gibson billed her for services, responded: “He had no reason to. Everything I called him for was for the doctor, himself.” She was then asked: “... and you never paid him?” She responded: “Well, I had no reason to.” There is not a scintilla of evidence in the record that Gibson was the attorney or agent for any person other than Dr. Capozzella.
Aside from the questioned legality of the conveyance by the trustees, in which Capozzella did not unite and which was made without his written authorization, the only possible justification for the conveyance is that the trustees thought that they were conveying pursuant to the direction of Capozzella’s attorney. Most certainly they would not have made the conveyance upon the representation of Harriet or her attorney, for she had no interest in or title to the property.
Since Gibson was the agent of Capozzella, execution of the deed; *829and its delivery to Gibson are not sufficient “words or acts” which “effectuate” the donor’s intent to deliver as required by Payne v. Payne, 128 Va. 33, 104 S. E. 712 (1920), and it cannot be held, as the majority does, that “at that point, delivery was complete”.
Viewing the evidence in the light most favorable to Harriet, we have here a case where a man expressed a desire to convey an interest in land to his wife but before the transaction could be consummated by delivery of the deed the parties separate, and he changes his mind. This was Capozzella’s prerogative, for the trustees were his trustees; the property involved was his land; the attorney who requested execution of the deed and to whom the deed was delivered was his attorney. The deed was at all times under the control of Capozzella, and remains so to this date.
It is well-settled that “gifts . . . must be fully and completely executed—that is, there must be a donative intent to transfer title to the property, a delivery by the donor, and an acceptance by the donee”. 38 Am. Jur. 2d, Gifts, § 18. Delivery of the thing purported to have been given, even if legally sufficient in all other respects, will not make the gift effective if the grantor did not intend to make the gift. Conversely, “an intention to give, unaccompanied by a delivery, is ineffectual to constitute a gift”. Snidow v. First National Bank, 178 Va. 239, 249, 16 S. E. 2d 385, 388 (1941). The intention must be executed by a complete and unconditional delivery. Thomas v. Lewis, 89 Va. 1, 15 S. E. 389 (1892).
It is equally well-settled that delivery may not be actual, but constructive, and “[t]he intention to give, manifested by the words or acts of the donor, is often the crucial test in determining a constructive delivery”. Snidow v. First National Bank, supra, at 245, 16 S. E. 2d at 387. However, we have said many times that in order for there to be constructive delivery, the donor’s intention must be in praesanti, and the constructive delivery such as to divest the owner of all dominion and control over the property and invest it in the donee. Copenhaver v. Halsey, 211 Va. 390, 177 S. E. 2d 634 (1970); Rust v. Phillips, supra; Taylor, Adm'x v. Smith, 199 Va. 871, 102 S. E. 2d 160 (1958); Payne v. Tobacco Trading Corp., supra. The authorities universally hold that in order to constitute a valid gift, the deed must pass beyond the dominion and control of the donor and come within the power and control of the donee.
“The principles relating to the delivery of personal property by way of a gift, either inter vivos or causa mortis, and delivery of a deed *830for real estate are much the same. ...” Snidow v. First National Bank, supra, at 245, 16 S. E. 2d at 387. Our most recent expression on the delivery necessary to constitute a completed gift is found in Rust v. Phillips, supra. In June, 1963, Daniel Rust wrote letters to each of his six children stating his intention to give each one of them at Christtnastime certain negotiable notes he owned. Enclosed with each letter were the notes designated for the addressee child. Each letter, together with the notes, was placed in a sealed envelope, handed to Elizabeth Phillips, his secretary and daughter, and she was told to place the letters in his lockbox to be mailed at a later date. Rust died in October, 1963, before the letters were ever mailed or otherwise delivered. The decedent’s intention to make the gifts was established beyond question, but Chief Justice, then Justice, Snead, reviewed for the court the applicable Virginia case law and concluded that “the essential element of delivery is lacking”, holding that Mrs. Phillips acted as her father’s agent and that since she was never told to mail or deliver the envelopes this indicated that Rust was not ready to relinquish all dominion and control over the property and vest it in his children.
After his two consultations with Gibson in June and August, 1970 Capozzella obviously lost interest in making a gift of the land to Harriet. He therefore did not write or contact Gibson or pursue the matter further with his attorney. With his marriage disintegrating, and friction developing, it can be said here, as the Chief Justice said in Rust, Capozzella was not ready to “relinquish all dominion and control” over his property. He therefore declined to authorize delivery by his attorney. ,
I would reverse.