53 N.Y.S. 748 | N.Y. App. Div. | 1898
He who attempts to establish title to property through a gift inter vivos, as against the estate of a decedent, takes upon himself a heavy burden, which he must support by evidence of great probative force, which clearly establishes every element of a valid gift,—that the decedent intended to devest himself of the title in favor of the donee, .and accompanied his intent by a delivery of the subject-matter of the gift. It is conceded that in 1887 the decedent purchased a colt, then about six months old, of Rev. James J. O’Connell, which was subsequently known as “Ontario Chief.” The decedent, William J. Seymour, was a Catholic priest, residing for many years at Auburn, N. Y., who died March 5, 1895, at San Antonio, in the state of Texas. In December, 1894, the testator was seriously ill, and on the 6th of that month he executed his last will, and on the Sth left for Texas, where he died. His will was probated March 18, 1895, and letters testamentary issued thereon to Matthew Seymour, his brother, and Thomas J. O’Connell, a Catholic priest. Dennis Seymour, a brother of the testator, asserts that Ontario Chief was given by the testator to James Seymour, a son of Dennis, in 1888, who subsequently gave the horse to him. The only question involved in this appeal is whether the horse belongs to the testator’s estate or to Dennis Seymour. The evidence most clearly shows that until the testator left Auburn, in December, 1894, for Texas, he mainly had
It seems to me that the findings of the surrogate’s court are not sustained by the weight of evidence, and that its decree should be reversed, the findings of the referee affirmed, and the surrogate’s court directed to charge the account of the executors with this horse, and the appellant be awarded the costs of this appeal, and of the proceedings in the surrogate’s court, payable out of the estate. All concur, except HAKDIN, P. J., not voting.