16 Daly 98 | New York Court of Common Pleas | 1890
This action was originally brought by plaintiff against the Greenwich Savings Bank to recover the amount of an account therein opened by the Reverend Henry Fitzsimmons, deceased, in his life-time. The plaintiff contends that the said deceased, who was her uncle, made to her a donatio causa mortis, in due form, of said account, a short time previous to his decease. The defendant, appellant, is the administratrix of the original depositor of the money, and, as she also claims such money in said bank as an asset of the estate, the bank interpleaded by order in proper form and duly entered, and this litigation has been conducted between the rival claimants to the fund. The testimony principally relied upon to establish the gift was that of plaintiff’s husband, and was in effect as follows: “Question. When you were there, (at the residence of the deceased,) in his life-time, did he have any conversation with you about his illness and his anticipation of death? Answer. Yes, sir. He said he thought he was going to die. He wanted me to do something for him. He said he was out of money, and he wanted to sell some bonds that he had, and either bring him a certified check or money for the bonds, and he would use it, as he had been using some money of Mrs. Devlin’s prior to that, and he gave plaintiff the key of a trunk to get them. I was sitting by the bedside, talking to him, reading a paper. He was sick in bed at the time. He told plaintiff to bring him a parcel, in my hearing, and he gave her the key of the trunk. I saw him hand her the key. She brought it down and handed it to him. He took the parcel and opened it. He took out three bonds. I think 5-20’s they were. He took out the books and gave them to Mrs. Devlin. Q. You mean the bank books in question? A. Yes, sir. Q. What did he say ? A. Mrs. Devlin said ‘ What am I to do with them?’ He says,‘You keep them. They are for you.’ He said he thought he was going to die, and he wanted everything that was there to belong to her. Everything he had. ” Also, upon cross-examination, said witness further testified as follows: “He handed these books to Mrs. Devlin. She asked him what she should do with them. He said for her to keep them. They were for her. He said that if he got well she should give them back to him. If he did not they were hers, and everything that belonged to him. ”
The learned referee evidently discredited the account given by plaintiff’s husband of the alleged gift of the bank books. His testimony was not contradicted, or in any manner directly attacked, but the referee found for defendant, presumably upon the inherent improbability of the facts averred in plaintiff’s behalf. I have not overlooked that, in the decision of this question of fact, direct contradiction could not be produced, as the conversation in which the alleged donatio causa mortis took place was had between the