274 A.D. 363 | N.Y. App. Div. | 1948
Appeal from a decree of the Surrogate of Otsego County, made August 16,1947, in a discovery proceeding adjudging the petitioner to be the owner of certain bank accounts.
The decedent, some weeks before his death, and on July 29, 1944, handed the petitioner, who was his nephew, an envelope containing bank books representing the accounts in question standing in decedent’s name. The words of gift relied upon as testified to by a disinterested witness and corroborated by others, were, “ ‘ Wait a minute Mert, I’ve got something for you. # * * This is all I’ve got and you take care of me while I live and when I die I want you to bury me, and what is left is yours when I am through. ’ ”
The second question relates to the sufficiency of the words of gift employed to effectuate a gift inter vivos as a matter of law. Delivery of a savings bank passbook with intent to pass title is a consummated gift. (Ridden v. Thrall, 125 N. Y. 572; Baxter v. Gillen, 179 App. Div. 902; Matter of Welsh, 49 N. Y. S. 2d 591.) To establish a valid gift it must appear that there was a delivery of the property to the donee with an intent upon the part of the donor to immediately divest himself of all title and right thereto. (Matter of Green, 247 App. Div. 540, 544.) In the instant case delivery has been established and the accompanying words of gift indicate the necessary intent to establish a present gift inter vivos. Nothing was reserved by the donor except a right to demand support from the petitioner and a claim for funeral expenses. The gift was thus absolute and would be upheld as such even though the donor had reserved the right to withdraw such amounts as he might desire. (Hanigan v. Wright, 233 App. Div. 82, affd. 257 N. Y. 602; Hoffman v. Brown, 188 Misc. 262.) The decree should be affirmed, with costs.
Hill, P. J., Heffernan, Foster and Bussell, JJ., concur.
Decree affirmed, with costs. [See post, p. 1085.]