| N.Y. App. Div. | Mar 8, 1911
Lead Opinion
One of the questions tried and determined by the jury was whether a gift by the defendant to the deceased of the moneys deposited by him was established.
The testimony of the defendant tended to show that while the form of the deposit imputed such an intention, he had in fact no intention of divesting himself of ownership. This evidence was clearly competent upon the question whether the sum deposited became an accomplished gift. In considering this issue of fact, the jury also had the right to know what the defendant said at the time he made the last as well as the first deposit, for the purpose and intention attending the original transaction followed all the subsequent deposits. What the defendant said at the time of making the deposit, if it bore on the character of the deposit made, was one of the attending circumstances by which the jury could determine whether he intended at that time and by the act of deposit to give the money to her. In the case of Mabie v. Bailey (95 N.Y. 206" court="NY" date_filed="1884-02-26" href="https://app.midpage.ai/document/mabie-v--bailey-3619802?utm_source=webapp" opinion_id="3619802">95 N. Y. 206) Judge Andrews, in discussing the question whether surrounding circumstances may not be shown to vary or explain the character of a deposit and the intent with which it was made, said : “ If it was now necessary to decide that point, I should incline to the opinion that the character of such a transaction, as creating a trust, is not
In Cunningham v. Davenport (147 N.Y. 43" court="NY" date_filed="1895-10-08" href="https://app.midpage.ai/document/cunningham-v--davenport-3633348?utm_source=webapp" opinion_id="3633348">147 N. Y. 43) the scope of the decision was that evidence of contemporaneous facts and circumstances is admissible to explain the depositor’s intent, and I have found no decision in conflict with this conclusion.
We also think that the court erred in excluding the testimony of the defendant as to whether he intended to make a gift when he deposited the money in the bank in his wife’s name. We see no reason why he was precluded from testifying to that fact. It cannot be doubted that this testimony bears directly upon this issue in the case. It was an important if not the controlling factor in rebutting the presumption arising from the form of the deposit. If the defendant intended by the act of depositing the money to make a gift it then becomes complete. But if the deposit was to the credit of the wife for reasons connected with taxation, the rules of the bank limiting the amount which any one individual may keep on deposit, or a desire to conceal from others knowledge of his pecuniary condition, the gift was not an accomplished fact. (Beaver v. Beaver, 117 N.Y. 421" court="NY" date_filed="1889-11-26" href="https://app.midpage.ai/document/beaver-v--beaver-3623493?utm_source=webapp" opinion_id="3623493">117 N. Y. 421.) Our conclusion, therefore, is that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Smith, P. J., dissenting in memorandum.
Dissenting Opinion
I agree if the gift be claimed from the simple fact of the form of the deposit that it would be competent to show what was said at the time that the deposit was made. Inasmuch, however, as the deposit was made in pursuance of an agreement theretofore made xvith his wife to put the certificate in her name, it does not seem to me right that this man after having made that agreement can alter its effect by any declarations made at the time that he made the deposit not in the presence of his wife. Suppose in pursuance of a contract between a man and his wife the man had deposited in her name in
Judgment and order reversed and new trial granted, with costs to appellant to abide event.