136 Misc. 798 | N.Y. Sur. Ct. | 1930
This is a discovery proceeding brought by Otto Hauber, administrator of this estate, to secure an order directing respondent Otto Heinzmann to deliver to petitioner decedent’s interest in a certain mortgage for the sum of $9,000 made by Frank Hauber to Anna Ziegler dated November 6, 1920, and also for the delivery of the sum of $1,847.18. Otto Heinzmann, the respondent, and Magdalena Hauber, decedent, were brother and sister and the children of Anna Ziegler, deceased. The latter died November 20, 1926, leaving a will in which after a legacy of $1,000 to St. Joseph’s Church, the residuary estate was equally divided between her children, Magdalena Hauber and Otto Heinzmann. This will has been admitted to probate. Magdalena Hauber survived her mother and died January 19, 1928. The respondent claims the moneys and the mortgage above referred to as gifts from his mother, Anna Ziegler. He contends that the mortgage was given to him by an assignment alleged to have been executed October 9, 1926. The moneys he contends were given to him by his mother on the following dates: August 20, 1921, $1,000; October 24, 1921, $200; June 22, 1925, $180; July 8, 1926, $150; July 9, 1926, $180. He also received the proceeds of a life insurance policy under which Anna Ziegler was the beneficiary amounting to $137.18. All of these items total $1,847.18. A trial of the issues raised by these claimed gifts was had and testimony of various witnesses was taken. It appears that in 1925 Anna Ziegler went to live with her daughter, Magdalena Hauber, because Otto Heinzmann’s wife objected to caring for her. She was eighty-three years old and was an invalid. The Fordham Hospital record introduced in evidence showed that from January 31, 1925, to February 5, 1926, when Anna Ziegler was a patient at that
The testimony of the notary public, Cole, was weak and unconvincing. It related only to the matter of the alleged assignment of
No evidence was offered by Heinzmann to sustain his claim that the gifts of money were genuine and valid except his mere statement that his mother gave him the moneys in question. He has failed utterly to sustain the burden of proof as to these gifts. It nowhere clearly appears that Anna Ziegler knew what she was doing when she executed this assignment and the burden of proof must be borne by the party claiming the validity of the gifts — in this case the respondent, whereas on the contrary it is very difficult to avoid the conclusion that advantage was taken of the infirmities of his mother by respondent (Matter of Booth, 215 App. Div. 516; Matter of Housman, 182 id. 37; Matter of Humphrey, 183 N. Y. Supp. 133; Matter of Canfield, 176 App. Div. 554); and the proof must be definite, clear, convincing, strong and satisfactory before such gift can be sustained. (Matter of Van Alstyne, 207 N. Y. 298, at p. 308; Matter of Wright, 121 App. Div. 581; Matter of Cofer, 121 Misc. 292; Miller v. Silverman, 247 N. Y. 447.) The gift must be established by a fair preponderance of all the evidence. (Ward v. N. Y. Life Insurance Co., 225 N. Y. 314; McKeon v. Van Slyck, 223 id. 392.) In this case all the evidence points inevitably to the conclusion that Anna Ziegler did not comprehend the effect of the assignment and that it was procured by fraud. The gifts claimed, therefore, have not been established by the respondent