181 A.D. 286 | N.Y. App. Div. | 1917
The decree determined that $408, the amount to the credit of Martin Cummings in the Cohoes National Bank at the time of his death, belonged to his estate. The question presented is whether the deceased made a valid gift of this money prior to his death to Johannah Ryan, his daughter, by delivering two bank books, which evidenced the moneys so deposited, to Matthew McDermott for her. The surrogate found that there was not a valid gift inter vivos. No evidence
I think that the uncontradicted evidence is amply sufficient to sustain a finding that the deceased intended to part with his title to the money deposited; in other words, that the surrogate did not draw the correct legal conclusions from it.
The fact that he delivered the bank book, which was the best delivery of the funds deposited that could be made, unless the money itself had been withdrawn from the bank, and that he then said, “ I want Mrs. Ryan to have it,” shows that his intention was to make an absolute gift as it purported to be.
The fact that the donor might have delivered the books to Mrs. Ryan personally, in the presence of a witness, does not, to my mind, tend to impeach the transaction. Few things are done that could not have been done in another way, and it cannot be held that because a gift might have been made in a way other than as testified to, the testimony
All concurred, except Cochrane, J., dissenting on the opinion of the surrogate.
Decree reversed on the law and facts and proceeding remitted to the Surrogate’s Court, with costs to the appellant. The court disapproves of the finding of fact that $400 [408], the amount on deposit in the Cohoes National Bank, belonged to the estate of Martin Cummings at the time of his death, and finds that the deceased intended to part with his title to said money when he delivered the bank books to McDermott for Johannah Ryan.