20 N.Y.S. 11 | N.Y. Sup. Ct. | 1892
The plaintiff is the executor of Eva Schmidt. She died on the 4th of August, 1890, in Westchester county, and at her death there was a deposit in the East Chester Savings Bank of $1,145, with interest, standing in her name. The defendant claims a title to the deposit by h gift of the bank book to her in the lifetime of testatrix. The plaintiff produced evidence tending to show that the bank book was taken by defendant out of Mrs. Schmidt’s wardrobe after testatrix’s death. The testatrix died at the house of a Mrs. Miller, and defendant, who was a niece, nursed her during her last illness. The defendant gave evidence tending to show that the deceased promised to give the book to her “ when she died, ” and that she spoke of the money as belonging to defendant. The proof fails to show any completed gift before the day of testatrix’s death. On the morning of that day the defendant had “ this bankbook.” She got it from a place pointed out by testatrix, “and I took it out, and put it back.in the wardrobe again.” The defendant locked the wardrobe after she put it back, and put the keys under Mrs. Schmidt’s pillow. The book remained in the wardrobe until after her death. The evidence wholly fails to make out a gift. There was no proof of a delivery with intent to transfer the title made by the deceased in her lifetime. The possession of the book by defendant, and its replacement in the wardrobe by her, and the return of the keys to the deceased, taken together, fail to show a delivery. The case is not like Bedell v. Carll, 88 N. Y. 581, where a plaintiff who produced a prom
