97 N.Y.S. 688 | N.Y. App. Div. | 1906
During her last illness from a chronic disease, Sarah Baker exe. ctited, acknowledged and delivered this writing to the defendant:
Yonkers, M. Y., Féb. 8, 1904.
“ Yonkers Savings Bank,
“ Yonkers, N. Y.: .
“Gentlemen.— I am confined to my bed and too ill to come to the Bank. .In order that Mr. George G. Shrive may be able to use*453 and pay out the money I now have or may in the future have on deposit with you, I hereby request you to add his name to my book without any restrictions.
“Tours respectfully,
her
“ SARAH J. X BAKER.”1
mark
The attorney who took the acknowledgment showed her the bank book with this assignment written in it, and said, “ this 'transfers all. your money to Mr. George (the defendant’s first name), is that what yon wish to do ? ” and she answered “ yes.” A t that time she delivered the bank book to the defendant. Upon this evidence alone the effect of the transaction was at least to vest in i the defendant a joint ownership in the fund, who, .if the survivor, would be entitled to it all. (Farrelly v. Emigrant Industrial Savings Bank, 92 App. Div. 529, 531, and authorities cited.) But in Taylor v. Kelly (5 Hun, 115) it was held: “ To constitute a’ gift a manual delivery of the thing given is not necessary. A delivery to a third person as trustee ■ or bailee of the donee is sufficient to pass the title, and the donor may, by an apt declaration to that effect, convert himself into a trustee for the donee.” (See, too, Phipard v. Phipard, 55 Hun, 436; Holliday v. Lewis, 14 id. 480.) Therefore, a question is presented whether such delivery was to the defendant for his benefit, or as bailee or trustee for the infant plaintiffs. The Special Term has found that the defendant recéived and accepted the gift for their benefit, and although the point is made that proof which depends upon admissions is sharply scrutinized and that evidence to sustain such a finding must be clear and convincing, yet I think that we would not be warranted to disturb this finding upon the facts, within, the rule laid down in Lowery v. Erskine (113 N. Y. 52); Foster v. Bookwalter (152 id. 166); Parfitt v. Ferguson (3 App. Div. 176), and City of New York v. Herdje (68 id. 370). The testimony of Dr. Trotter, the physician of Sarah, is that several days before her death the defendant said to him that she had no relatives; if she died intestate her money would revert to the State; the Mann children would not get it, and her intention had been that they should receive it. A. day or two thereafter he told the
The judgment should be modified in accord with this opinion, and as modified affirmed, without costs.
.Hirsohberg, P. J., Woodward, Bioh and Miller, JJ., concurred.
Judgment modified in accordance with the opinion of Jenks, J., and as modified affirmed, without costs. Order to bé settled before Mr Justice Jenks.