132 Misc. 209 | N.Y. Sur. Ct. | 1928
Elizabeth C. Buchanan died in 1898. She left surviving her, two nieces, Laura J. Post and Maria J. O’Conor. These nieces had lived with their aunt at No. 24 East Thirty-third street in a house owned by the latter. From 1881 John C. O’Conor, who had in that year married one of said nieces, lived in the same household. Laura J. Post died on March 12, 1927, and now the executor of her estate claims one-half of certain securities which were originally the property of the aunt, Elizabeth C. Buchanan, and which Mrs. O’Conor and the executor of her sister’s estate, the parties to the present controversy, concede to have been the subject of a gift to said two nieces at or about the time of the marriage of the O’Conors. The parties are in conflict upon the question of the nature of the gift; one contending that the donees received the securities as. joint tenants and the other asserting that the gift was to the two nieces as tenants in common. The record upon the trial of the issue is very meagre. On the side of Mrs. O’Conor it consists solely of her testimony and that of her husband which testimony relates principally to the claimed expressions upon the part of the aunt at about the time of the turning over of the securities. These expressions are not presented as literal statements of said aunt. In her testimony Mrs. O’Conor testified as follows: “ She said she wished us to have them forever to go toward the maintenance of the house, and the understanding clearly being that they were given to us jointly and that the survivor would take the whole; whichever one went first the other one was to have it. .It was a gift out and out then and after to us jointly.” In his testimony Mr. O’Conor testified as follows: “ I had frequent conversations about this fund. During her lifetime, from time to time she frequently alluded to this gift, sometimes in a joking way and sometimes in a serious way, but it was always in her mind-. She told me that she wanted to be relieved of all her cares and also that she wanted to provide for her two nieces and that she had turned over all of her securities to them for the purpose of keeping a roof over their heads. She said there was sufficient for them and if either died the other would take the balance, and she frequently stated that, and that she wanted them to have this so that they would be protected for their lives with a roof, and that she had turned over all the securities. Laura Post had them in her custody. They were supposed to be in the joint custody of both of them, and Mrs. O’Conor was to have access to them and she did. She
It may be noted here that each of these witnesses is of most mature years and that each testified as to happenings of forty-six years ago. The cross-examination of these witnesses disclosed nothing that is helpful in deciding the question at issue. The sole evidence presented on the part of the Laura J. Post estate is a copy of the will of Elizabeth C. Buchanan, deceased, which was admitted to probate by this court in June, 1893. Inadvertently this will was not offered in evidence but only marked for identification, application having been made by petitioner in his brief — the instrument will be deemed to have been received and marked in evidence. The representatives of said estate point to the provisions of said will leaving testatrix’s real and personal property to said nieces without any language establishing a joint gift, as evidence of the disposition of said aunt in the matter of distributing her property. The provision in question is as follows: “All my estate both real and personal and wheresoever situate of which I shall die seized and possessed or be in any manner soever entitled to I give to my sister Lama Taylor, widow, to her use for and during the term of her natural life and upon and immediately after the death of my said sister I give devise will and bequeath all my said estate, both real and personal wherever situate and of which I shall die seized possessed or entitled to in any manner soever, to my nieces Laura Josephine Post and Maria Jephson O’Conor to them and their heirs forever absolutely and in fee.”
No further evidence was offered by the representatives of the Laura J. Post estate. Upon this brief record the respondent seeks a ruling that there was a gift made in 1881 jointly to the nieces with survivorship in Mrs. O’Conor upon the death of her sister in 1927; and the petitioner seeks a determination that there was a gift and that it was to the nieces as tenants in common with no right of sur