214 A.D. 331 | N.Y. App. Div. | 1925
Emory S. Reynolds, the defendant’s testator, was a childless widower. For many years he had been an intimate friend of plaintiff. About March 1,1918, he waa seriously ill with pneumonia and expected to die. He seat for the plaintiff and gave him a diamond ring the title to which |§ the question to he determined
Viewed as a gift causa mortis the gift cannot be sustained because it is well established that the recovery to health of the donor works per se a revocation of the gift. (Curtiss v. Barrus, 38 Hun, 165; Grymes v. Hone, 49 N. Y. 17, 20; Williams v. Guile, 117 id. 343, 348; Basket v. Hassell, 107 U. S. 602; Ridden v. Thrall, 125 N. Y. 572, 579, 580.)
The trial court has found that there was a gift inter vivos. Such a gift may exist although at the time of making it the donor was under the apprehension of death. In 28 Corpus Juris (p. 622) the rule is stated as follows: “ The test whether the gift is one inter vivos or one causa mortis is not the mere fact that the donor is in extremis, and expects to die, and does die of that illness, but whether he intended the gift to take effect in prcesenti, irrevocably and unconditionally, whether he lives or dies.” In Hatcher v. Buford (60 Ark. 169; 27 L. R. A. 507) it is said: “ But it must not be forgotten that an absolute gift — one inter vivos — may be made by one upon his deathbed, and who is aware of the near approach of death from his then ailment. Thornton, Gifts & Advancements (§ 21, p. 24) and authoritiesJcited.” There can be no doubt that the ‘expectation of death is frequently the inducement for a gift inter vivos.
The question then is does the evidence sustain the finding that a gift inter vivos was intended. We approach that question with che rule in mind that the presumption is otherwise and that the burden is on the plaintiff to establish such a gift. We have already alluded to the testimony of the nurse. There is also some testimony given by her tending to show that the testator wanted the plaintiff to have the ring regardless of whether the testator lived or died. It clearly appears that after the restoration of the testator to health plaintiff did not want to wear the ring and was willing to return it to the testator for his use as long as he lived. He so expressed himself orally and by letter. The testator was equally insistent that plaintiff should retain the ring. Finally several months after he got well the testator summoned a witness to the office of plaintiff and speaking to this witness in the presence of the plaintiff said: " Frank [plaintiff] wants me to wear this ring, but I don’t think
The judgment should be affirmed, with costs.
Judgment, unanimously affirmed, with costs. The court disapproves the eighth and thirteenth findings contained in the defendant’s requests for findings.