122 Misc. 486 | N.Y. Sur. Ct. | 1924
In this contested accounting proceeding exceptions have been filed to the referee’s report in two respects only. (1) The first question involves the validity of the transfer of certain stock made by the decedent in 1915 to his wife and two daughters. The referee has found that the instruments evidencing these transfers were testamentary in character, that they were not executed in accordance with the formalities required of a will, and were, therefore, void. In my opinion, however, his conclusions are erroneous and the exceptions must be sustained.
Washington S. Valentine, on November 26, 1915 (five years before his death), executed and delivered to his wife, Bertha A. Valentine, an instrument in writing in the following form: “ In consideration of the sum of one dollar ($1.00) to me in hand paid, receipt of which is hereby acknowledged, and in consideration of the love and affection shown me by my wife, Bertha A. Valentine, I hereby sell, assign and transfer to my said wife, five thousand (5,000) shares of the common stock of the Sabana-Grande Honduras Mining Company and two thousand and five hundred (2,500) shares of the common stock of the New York & Honduras Rosario Mining Company. The delivery of the aforementioned stock shall not become effective or operative until at and from the time of my death. I have credited said five thousand (5,000) shares of the common stock of the Sabana-Grande Honduras Mining Company and the two thousand five hundred (2,500) shares of the common stock of the New York & Honduras Rosario Mining Com
On the same day he likewise executed and delivered similar assignments to his daughters, Juanita J. Valentine and Edna V. Custer. These papers were similar in form, although the stock conveyed to them consisted only of 5,000 shares of the first company named in the assignment to the wife. The stock certificates were never delivered to any of the transferees and certificates were never issued in their names. At the same time Mr. Valentine made an entry in his cash book crediting the respective number of shares to the donees. I am of the opinion the transaction constituted a valid conveyance of the stock. It will be noted that the intent of the donor was to make a present gift. In the very first clause he said: “ I hereby sell, assign and transfer ” the shares. He repeats this intention by stating, “ I have credited said stock in my private cash book,” and in the final sentence he declares, “ I am indebted to my wife for the said shares.” No clearer declaration of his purpose could have been made by him. It is contended, however, that this absolute conveyance was rendered nugatory by the following sentence: “ The delivery of the aforementioned stock shall not become effective or operative until at and from the time of my death.” It is not disputed that the instrument was drawn by a layman, and for that reason its terms should receive a liberal construction. It is a familiar rule of construction that an absolute gift in clear and decisive terms cannot be cut down by a subsequent provision inconsistent or repugnant with the prior words of gift in the will or instrument. Tillman v. Ogren, 227 N. Y. 495; Weber v. Kress, 198 App. Div. 687. The fair construction of these words when read with the rest of the instrument is that he intended a present conveyance of title, but postponed enjoyment until the event fixed by him.
To constitute a valid gift, there must be on the part of the donor first, an intent to give, and second, a delivery of the thing given. Matter of Van Alstyne, 207 N. Y. 298; Beaver v. Beaver, 117 id. 421. Delivery may be evidenced either by the actual transfer of the property or by a symbolic delivery. In Matter of Cohn, 187 App. Div. 392, the donor delivered to his wife shortly before his
The referee’s conclusions of law twelfth, thirteenth and fourteenth are erroneous and the exceptions to them sustained.
(2) The second question involves the claim of $11,650 based upon a loan made by the wife to the decedent. The evidence amply sustains the findings of fact and conclusions of law of the referee and I am of the opinion that this is a valid obligation against the estate. The exceptions to the report in this particular are overruled.
Submit decree confirming the report of the referee as modified herein.
Decreed accordingly.