5 Lans. 7 | N.Y. Sup. Ct. | 1871
The defendant is the executor of the last will of his father, David Wilson. In September, 1868, he applied to the surrogate of Ontario county for a final settlement of his account as such executor. The surrogate issued the necessary citations for the appearance of the next of kin, and they appeared in obedience to such citation. The appellant, a daughter of the testator, insisted before the surrogate that the executor should be charged with the sum of $3,000, ' which she claimed had been loaned to him by the testator in his lifetime. The executor claimed and insisted that the money was given to him as a gift, and thereby became, and was at his father’s death, the sole property of the executor.
A large number of witnesses was examined before the surrogate, called by the respective parties, and after hearing counsel and after due deliberation being had, the surrogate held and decided that the money came to the executor by way of a gift from his father, and he was not, therefore, chargeable with the same as such executor. From that decision Mrs. Doty appeals.
The executor is the only witness living who had any personal knowledge in relation to the arrangement under which • he received the money in question, and as the surrogate holds that he received it as a gift, it is to be assumed that he believed the executor’s version of the transaction between him and his father, and in disposing of the question arising on the appeal I shall assume that the transaction was, as testified to by the executor.
• He testifies that the testator came to his house prior to the 30th March, 1866, and asked him to go with him (the testator) to look at a piece of land which the latter desired to see with the view of buying it. The respondent then told his father that if he would buy the Hosey lot, so called, which adjoins
From this statement of the transaction, it is established that when the respondent received the money from his father, he did not understand that the money was given by his father to him; there is no evidence that at that time his father intended to give it to the respondent. Up to the time of the interview, some two weeks after the loan, the respondent was the debtor of his father for the $3,000. It was at that interview, and not before, that the gift, if there was one, was made.
To render a gift effectual, there must be a delivery of the thing which is the subject of the gift, and if the thing is not susceptible of delivery, there can be no gift. (Story’s Eq. Jr., § 607g.)
There may be a valid gift of a debt evidenced by writing, such as a bond, note, or certificate of stock. Such a gift will be perfected by the delivery or cancellation of the bond or
It is essential to a gift not only that there should be a delivery of the subject of the gift, but the donor must part with all" interest in and control over it. (Williams on Ex’rs, 689.) The testator, therefore, could not reserve to himself the interest on the debt, as he thereby retained an interest in it.
Hot only was there no gift of the money, but there was not even a release of the debt. A mere paroi release without consideration is void. (Crawford v. Millspaugh, 13 J. R., 87; Seymour v. Minturn, 17 id., 169; Dewey v. Derby, 20 id., 462; Barnard v. Darling, 11 W., 28; Harrison v. Close, 2 J. R., 448; Jackson v. Stackhouse, 1 Cow., 122; Farmers' Bank of Amsterdam v. Blair, 44 Barb., 641.)
A debt may be released by the surrender to the debtor of the evidence of the debt, or destruction by the creditor with intent to release. (Beach v. Endress, 51 Barb., 570.)
There being neither a gift of the money nor a release of the debt, the decree of the surrogate is erroneous, and must be reversed, with costs, and the proceedings remitted to the surrogate of Ontario, to the end that he may proceed to settle the executor’s accounts in accordance with the views above given.