176 Misc. 15 | N.Y. Sur. Ct. | 1941
The objections filed to the account of the executors herein by Elizabeth Smoot Seigle are disposed of as follows: Objection designated (1) is overruled and dismissed. The agreement of January 17, ,1935, provides for the manner in which it is to be terminated. Decedent’s liability for the payment of the carrying charges is fixed as of the date of the termination of said agreement. Since this time has been stipulated on the record, the estate is entitled to credit for the overpayment of taxes beyond the period during which the agreement was in existence.
Objection designated (2) has been the subject of compromise wherein the objectant has agreed to accept, and the executors to pay, the sum of $3,500 in full settlement of interest claimed.
Objection designated (3) is directed to the rejection by the executors of two claims filed by the objectant, one based upon an alleged gift of 100 shares of Johns Manville stock, and the other on a promissory note dated May 29, 1936, in the sum of $7,500.
“ 100
shares
J. M. Stock to be delivered to you as soon as it can be recorded —
“ BOB ”
It is conceded that no certificates of this stock were delivered to the claimant nor was any transfer effected on the books of the corporation. In fact, the alleged gift is predicated solely upon the delivery of the above-quoted instrument.
For many years the validity of gifts inter vivos has been tested by the rules enunciated in Beaver v. Beaver (117 N. Y. 421, at p.428). Under certain circumstances, symbolical delivery of the subject of the gift has received the sanction of the courts. (Matter of Van Alstyne, 207 N. Y. 298.) An intention to give, however, no matter how forcefully proved, has never been held sufficient to constitute a valid gift inter vivos. (Young v. Young, 80 N. Y. 422; Matter of Crawford,113 id. 366.) The claimant here strongly relies on the authority of Matter of Cohn (187 App. Div. 392), which case is, in my opinion, easily distinguishable from the case at bar. There, the decedent wrote out and delivered to his wife a paper stating in part: “ I give this day to my wife, Sara K. Cohn, as a present * * * (500) five hundred shares * *
The donor died six days after the delivery of this instrument. In the case at bar the paper writing alleged to effectuate the gift states that the stock is “to he delivered to you as soon as it can be recorded.” (Italics mine.) The donor (this testator) lived until the year 1938, during which time, to wit, on May 26, 1934, the parties to the alleged gift were divorced. A separation agreement dated February 12, 1934, which was received in evidence, makes no mention of the alleged gift, although it otherwise purports to effect a final financial settlement between the parties. In Matter of Cohn (supra) there is evidence of a gift in'prsesenti, closely followed by death, which are circumstances entirely lacking in the case at bar. I, therefore, hold that the alleged gift of 100 shares of Johns Manville stock has not been proven, and the claim is accordingly disallowed.
It was stipulated on the record that up to the time of his death decedent made payments regularly in accordance with the terms of the separation agreement, and that upon his death there became payable to the claimant the sum of $76,875, which indebtedness is acknowledged in the account filed. There is no competent proof before the court showing any other indebtedness existing between decedent and this claimant. The general rule is that, in the absence of explanation, the presumption arising from the delivery of a check is that it was delivered in payment of a debt and not as
Upon the evidence before me I conclude that claimant has failed to prove her claim based upon the note in question, and that the defense of payment has been sustained. Objectant’s claim based upon the note in the sum of $7,500, dated May 29, 1936, is, therefore, disallowed, and objection (3) overruled and dismissed.
The agreement to divide the sum of $902.80, representing interest on legacies, equally among the five children of decedent and Elizabeth S. Seigle is approved.
The application of Julius Rothschild to resign as executor will be granted upon the filing of a supplemental account to date.
Settle decree accordingly.