182 A.D. 37 | N.Y. App. Div. | 1918
The Court of Appeals has so often and vigorously stated the rule regarding the character and amount of evidence necessary to sustain gifts or other contracts whereby the estates of decedents are depleted, that it would seem unnecessary to repeat it. The contract, if not in writing, should be proved by disinterested witnesses, and the evidence must be definite, clear and convincing. (Holt v. Tuite, 188 N. Y. 17; Ide v. Brown, 178 id. 26; Hamlin v. Stevens, 177 id. 39; Shakespeare v. Markham, 72 id. 400; Wallace v. Wallace, 158 App. Div. 273; affd., 216 N. Y. 28.) The rule should be" more strictly applied if the gift is without either actual or symbolical delivery, and especially where it is alleged that the decedent stripped himself of all his property while still living. No general expression of intention, no vague and indefinite words, are sufficient. Tested by these rules, the evidence was insufficient to support the finding of the learned surrogate
We think this evidence insufficient to establish a gift.
Jenks, P. J., Thomas, Putnam and Kelly, JJ., concurred.
That portion of the decree of the Surrogate’s Court of Richmond county which adjudges that there was a gift of property to the claimant should be reversed, except as to one diamond solitaire ring of four carats; the decree is modified in accordance with opinion, and as modified affirmed, without costs. Order to be settled before Mr. Justice Blackmar.