65 A.D. 592 | N.Y. App. Div. | 1901
Sarah M. Swade, the alleged donor, was a spinster between sixty and seventy years of age. For twenty-five years she and her unmarried sister Catharine, the alleged donee, had lived alone on a farm owned in common by them and their sole surviving sister, who was married. Sarah Swade died intestate, leaving surviving her the said two sistei's, nephews and several nieces, one of whom alone attacks the alleged gift. It does not appear that she left any creditors. I state these circumstances as they may be considered in determining “ the intent to give and the fact as to delivery.” (Cooper v. Burr, 45 Barb. 9 ; Porter v. Gardner, 60 Hun, 571.) In Fowler v. Lockwood (3 Redf. 465) it was said that when the rights of creditors are not involved the testimony to establish the gift need not be as strong. Sarah Swade fell ill on October 3,1897. On the eighth day of that month, in the presence of the niece, a nephew and a grandnephew, she asked her sister Catharine to fetch a package of papers from a desk near her bed in their common bedroom. Catharine thereupon brought a packet wrapped in slate-colored muslin, which contained papers and envelopes, to Sarah. Sarah said : “ These are all my valuable papers, bonds, mortgages, notes and bank book, and I give them to you to do with as you see fit, both real and personal, indoors and out.” Sarah then gave the packet back to Catharine,
So far as the subjects of the gifts are concerned, it has been held that a gift of a promissory note of a third person may be made donatio causa mortis (Coutant v. Schuyler, 1 Paige, 316 ; Harris v. Clark, 2 Barb. 94; affd., 3 N. Y. 93; Champney v. Blanchard, 39 id. 111), and the same is true as to non-negotiable choses in action (Cornell v. Cornell, 12 Hun, 312, and authorities cited; Bedell v. Carll, 33 N. Y. 581), and as to savings bank books. (Podmore v. South Brooklyn Savings Inst., 48 App, Div. 218; Ridden v. Thrall, supra.)
It is further contended that delivery of the particular securities was not proven. This contention' is based entirely upon the fact that Sarah did not exhibit the contents of the package. The witness Mrs. Montfort says that the packet was in slate-colored muslin, and that the wrapping covered the entire package, except that each end showed; that she could not see what papers were in the package, but as near as she could see they were valuable papers. In
One question of evidence remains to be discussed. The alleged donee and administratrix was called as a witness and produced a package. She was then asked: “ Is this the package which was in the desk and which you took from the desk ? Objected to on the ground that it is immaterial and improper; that it is excluded by the provisions of section 829 of the Code. Objection overruled ; exception.” It is quite evident that the question did not refer to the act of the witness during the life of the intestate, for the reason that the testimony immediately preceding was: “ After her death I did not take from the desk a package- of papers right away; when I had occasion to, use the papers I had to take some of the papers out. I have the package now.” And indeed, this is clear from the terms of the subsequent motion to strike out. The further
Goodrich, P. J., Bartlett, "W oodward and Hirschberg, JJ., concurred.
Decree of the Surrogate’s Court of Dutchess county affirmed, with costs.