72 N.Y.S. 1030 | N.Y. App. Div. | 1901
Sarah M. Swade, the alleged donor, was a spinster between 6o and 70 years of age. For 25 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 sisters, nephews, and a niece, who 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 and the fact of the delivery.” Cooper v. Burr, 45 Barb. 9; Porter v. Gardner,
_ “The delivery may be symbolical or actual; that is, by actually transferring the manual custody of the chattel to the donee, or giving to him the symbol which represents possession. In case of bonds, notes, or choses in action, the delivery of the instrument which represents the debt is a gift of the debt if that is the intention; and so, also, where the debt is that of the donee, it may be given, as has been held, by the delivery of a receipt acknowledging payment. Westerlo v. De Witt, 36 N. Y. 340, 93 Am. Dec. 517; Gray v. Barton, 55 N. Y. 72, 14 Am. Rep. 181; 2 Schouler, Pers. Prop. § 66 et seq.”
And there may be implication of an acceptance when the gift is beneficial to the donee. Id.; Porter v. Gardner, supra.
So far as the subjects of the gifts are concerned, it has been held that 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, affirmed in 3 N. Y. 93, 51 Am. Dec. 352; Champney v. Blanchard, 39 N. Y. 111); and the same is true as to nonnegotiable 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. Institution, 48 App. Div. 218, 62 N. Y. Supp. 961; 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 this she was corroborated by the other witnesses, one of whom says that he saw what appeared from its color to be a bank book, and another says that it appeared to contain papers and envelopes. These witnesses all testified to the resemblance of the packet produced at the trial to that which passed from the hands of Sarah into the hands of Catharine. If the testimony of the witnesses is to be credited, this is the only point of attack open to the defendant. If they had testified that the donor scheduled the various choses in action, or exhibited them at the time, then the appellant’s case would have depended entirely upon breaking down the testimony of these witnesses. I think that the testimony of the witnesses is all the more creditable in that they did not attempt to manufacture testimony so as to shut off even this criticism; for it is not inherently improbable that a donor would have done exactly what the appellant insists that the witnesses have said she did not do. But there^is testimony that
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, and that it is excluded by the provisions of section 829 of the Code of Civil Procedure. 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.” Indeed, this is clear from the terms of the subsequent motion to strike out. The further question was asked, “Does it now contain the same that it did at that time ?” To this a similar objection and a similar ruling were made, under exception. At the close of the evidence the learned counsel for the appellant moved to strike out the testimony of the witness with reference that after the death of her sister she took from her desk a package of papers, and what it contained, and also her testimony that she has that packet of papers now, upon the ground that this testimony is immaterial and improper, and is also improper to be received under section 829 of the Code, which motion was denied under exception. It is not contended that the question related to a personal transaction with the intestate, but the argument is that the donee did not testify to an independent fact, but to one which, in the language of Andrews, J., in Clift v. Moses, 112 N. Y. 426, 437, 20 N. E. 392, “is disclosed by other evidence that had its origin in and directly resulted from a personal transaction”; i. e. that the placing of the package in-the desk was the result of a personal transaction with the decedent, and the fact of its being taken therefrom, if of any materiality at all, is due to the transaction. It is-at least a serious question whether such testimony was admissible in view of the bar of section 829 of the Code as interpreted by the court in Clift v. Moses, supra. But, even if it were inadmissible, I think that the error is not sufficient to overturn the decision in this case. I think that the gift is established quite aside from this testimony, which was not admitted before a jury, but was presented to a court. Moreover, this court in this case is vested with the same power over 'questions of fact that the surrogate holds, and upon such questions it is to determine for itself, upon all the facts, as on the law, whether the decision was right. In re Rogers,.
Decree of the surrogate’s court of Dutchess county affirmed, with costs. All concur.