Collins v. Collins

11 Misc. 28 | The Superior Court of New York City | 1895

Gildersleeve, J.

This action was brought by the plaintiff to recover the possession of a certificate for- six shares of railroad stock and the dividends declared thereon since 1884.

Upon the trial the plaintiff had judgment for a portion only of the relief prayed for, and from this judgment both parties have appealed.

The defendant claims that the judgment is erroneous because it adjudges that the plaintiff is entitled to the possession of the stock sued for on the death of. the defendant, and because it refuses to compel a retransfer of the said stock to the defendant.

- The plaintiff, on the other hand, claims that the judgment is erroneous in so far as it adjudges that the defendant is entitled to collect and receive for her own use and benefit and during the rest of the term of her natural life the dividends on the stock in controversy, and that for that purpose she may indorse in the plaintiff’s name all checks received therefor.

The facts of the case, as fairly established by the evidence, are as follows: The defendant, some time in December, 1884, being in ill-health, which she believed might result in her death, took the plaintiff, her daughter,-who was then a child of about twelve years of age, to the office of the Buffalo, New York & Erie Railroad Company, and then and there surrendered a certificate of six shares of stock of said company, of which she was then the owner, and had a new certificate issued in the plaintiff’s name for the said stock. The defendant, however, has always retained possession of the certificate of stock, and collected the dividends in the name of the .plaintiff. The plaintiff now sues for possession of the certificate and for the siims collected thereon, with interest, claiming that the transfer was a gift inter vi/vos.

It seems to us, however, that by a fair preponderance of evidence the defendant has shown that it was a gift causa mortis. And this conclusion is in accordance with the probabilities. A lone woman, in the humble circumstances of the defendant, would not be likely to give up all her possessions except in view of death. The defendant thought that her illness might very possibly result in her death, and she wished to secure to her surviving daughter the six shares of stock so that she might to that extent be provided for. The apprehended dissolution did not take place. Her right, therefore, to revoke the gift is incontestable. She has revoked it, and consequently is entitled to the unqualified possession of the certificate of stock in question.

The judgment herein should be reversed and a new trial ordered, with costs to the defendant to abide the event.

Freedman, J., concurs.

Judgment reversed and new trial ordered, with costs to defendant to abide event.