In re Ward, 2 Redf. 251

In re Ward

2 Redf. 251 | N.Y. Sur. Ct. | 1876

The Surrogate.

In respect to the furniture, the proof shows that the intestate gave to his wife the money with which to purchase the furniture in question, and there is no evidence tending to show a gift, either of the money, or furniture to her, as her separate property. It therefore remained the property of the intestate at the time of his decease, and the administratrix should account therefor.

It is claimed in behalf of the administratrix that the deposit of the money in the Excelsior Savings Bank in the name of Bichard or Kate Ward is evidence of a gift *253of the fund to Kate Ward; but it seems to me that the transaction lacks the essential features of a gift inter vivas, which are, expressions of an intention to make a gift, and an actual delivery of the subject thereof to the donee. (Bedell v. Oarll, 33 N. Y., 581; Shuttleworth v. Winter, 55 Id., 624; Irish v. Nutting, 47 Barb., 370.)

It seems to me quite clear that there was not such a parting with the possession, or title to the money so deposited, as to divest the intestate of all right to the money, which is absolutely essential to a gift inter vivas. Indeed the fact that it was deposited by the husband in his name, as well as that of his wife, was the highest evidence, that he did not intend to part with his control over it; and the most that it seems to me can be said in respect to the deposit being to the credit, or order of ins wife, also, was that it would enable her, under the rules of the bank, to draw the money in case he was unable to do so for any reason, and that in doing so, she would act as the agent of her husband in the premises.

In Irish v. Nutting (above cited,) it washekl that where the intestate gave several notes of a third party, to his wife, saying “ I give you these notes, and if I never return, they are yours,” this did not constitute a gift; and Mr. Justice Bacon (at page 383) says : “ it clearly cannot be sustained as a gift inter vivas for the obvious reason that it was coupled with a condition, upon the happening of which the owner was to receive possession. An absolute gift divests the donor’s title, and requires a renunciation oü his part and the acquisition on the part of the donee of all title to, and interest in, the subject of the gift. A valid gift however has no reference to the future, but is one which goes into immediate and absolute effect.”

Such I understand to be the true doctrine established by an unbroken line of authorities, unless it may be *254said to have been shaken by the case of Sanford v. Sanford, (45 N. Y., 723), where the language of Judge Peckham (at page 726) is as follows : “ taking this note in the name of himself and wife, shows that the husband intended to give it to her in case she survived him, and the delivery to her was necessary to perfect the gift,” which taken in its broadest signification seems to me to run directly counter to all settled notions of the law in respect to such gifts, and seems not to have been fortified by the learned Judge who delivered that opinion, by any authority.

It is with very great reluctance that I venture to question the force and effect of that decision, and yet considering that that case was the reversal of a judgment entered upon the report of a referee, in favor of the validity of a gift, upon exceptions to the rejection of testimony, and that it seems to run counter to the settled law upon the subject without a review of any of the former decisions, and as it differs somewhat widely in its facts from this case submitted for my determination, I think it my duty to hold according to the general line of authorities, that the deposit of the money in the Excelsior Savings Bank in the name of Bichard or Kate Ward was not intended as a gift to the wife; and in this conclusion I am fortified by the absence of proof that the bank book was ever out of the possession of the intestate, or in the possession of the administratrix, until after his decease.

Let a decree in conformity with this decision be entered.

Decree accordingly.