209 A.D. 884 | N.Y. App. Div. | 1924
Decree of the Surrogate’s Court of Westchester county reversed upon the law and the facts, in so far as it dismisses the proceeding as to the specific Liberty bonds and diamond stud described in the amended petition; and this court decrees that the executor is entitled to possession of said property, and directs delivery thereof to him. (Surr. Ct. Act, §§ 205, 206.) The evidence of the respondent as to personal transactions with her deceased husband in her attempt to establish a gift inter vivos of this specific property, was erroneously admitted; the petitioner had not interrogated the respondent as to personal transactions with decedent, and she was barred from testifying as to such transactions. (Civ. Prac. Act, § 347; Matter of Housman, 182 App. Div. 37; Matter of Meehan, 59 id. 156; Matter of Benioff, 73 Misc. Rep. 493; Tilton v. Ormsby, 10 Hun, 7; affd., 70 N. Y. 609.) As to the proceeds of the cheek for $10,000 cashed by the respondent prior to her husband’s death, the decree of the surrogate is affirmed. (Matter of Hyams, 237 N. Y. 211; Matter of Heinze, 224 id. 1; Matter of Kingsley, 111 Misc. Rep. 528, and cases cited.) Costs to both parties, payable out of the estate. Kelly, P. J., Rich, Jaycox, Young and Kapper, JJ., concur. Settle order on notice.
