33 A.D.2d 987 | N.Y. App. Div. | 1970
Decree insofar as appealed from unanimously modified on the law and facts, without costs, by reversing the first decretal paragraph thereof, and proceeding remitted to Surrogate’s Court of Erie County for further proceedings in accordance with the following memorandum: Respondent-appellant, Bethel Baptist Church filed an objection to the account of petitioner-respondent, Charles M. Divins, as executor of the last will and testament of Lydia Bartel, deceased, asserting that the account failed to charge the petitioner as executor with additional assets of approximately $14,000, being funds received, prior to the death of decedent, by said executor from the sale of certain real estate in July, 1966. The decree adjudged that the proceeds of the sale constituted a valid gift inter vivos from the decedent to the executor and the objection was dismissed. The petitioner had been attorney for decedent, an elderly woman of 84, for over 60 years. In July, 1966, less than three months before her death, petitioner sold her home from which she had removed to a nursing home. He received on the closing on July 20, 1966 the net proceeds of the sale by check payable to himself as attorney in the amount of $14,436.68. He indorsed the check individually and deposited it in his personal account. Ho writing of any kind was introduced to support petitioner’s claim of the alleged