Opinion
March 1, 1918.
George M. Pinney [ Parker Aaron and Windels Holtzoff with him on the brief], for the petitioner, Percival S. Jones, as executor.
Montague Lessler [ Appleton L. Clark with him on the brief], for the respondent Lulu Belle Housman.
The Court of Appeals has so often and vigorously stated the rule regarding the character and amount of evidence necessary to sustain gifts or other contracts whereby the estates of decedents are depleted, that it would seem unnecessary to repeat it. The contract, if not in writing, should be proved by disinterested witnesses, and the evidence must be definite, clear and convincing. ( Holt v. Tuite, 188 N.Y. 17; Ide v. Brown, 178 id. 26; Hamlin v. Stevens, 177 id. 39; Shakespeare v. Markham, 72 id. 400; Wallace v. Wallace, 158 App. Div. 273; affd., 216 N.Y. 28.) The rule should be more strictly applied if the gift is without either actual or symbolical delivery, and especially where it is alleged that the decedent stripped himself of all his property while still living. No general expression of intention, no vague and indefinite words, are sufficient. Tested by these rules, the evidence was insufficient to support the finding of the learned surrogate that the gift was made. The claim is that there was a gift without delivery, and that, by it, decedent transferred all his personal property, without identification or specification, to the claimant. It is sought to establish this gift by evidence of admissions and statements by the decedent to the effect that he gave everything to the claimant — "stocks and all." There is no evidence, except the testimony of the claimant, an incompetent witness, which fixes any definite time at which the gift was made. Even the testimony of the claimant that the gift was made on March 12, 1916, was her conclusion, based on these words, which she testified the decedent addressed to her: "Sis, I give you everything; everything is yours, dear." The learned surrogate found no definite time and place when and where the gift was made, but only that it was made at some time between the 18th of February, 1916, and the 21st of March, 1916. There is not a word of evidence in the case, from the mouth of a competent witness, of any fact of gift, except of one ring, nor was there delivery of any article except that ring. All the evidence of the claimant consists of vague, indefinite expressions of an intention to give, or an assertion of gift. There is no substantial difference between the character of the words used by the testator on the 19th of February, 1916, the day after his marriage, and on the 21st of March, 1916, the day of his death. According to the testimony of the claimant, he used those words every day from March twelfth to the day of his death, and other witnesses testified that he so spoke as early as February 19, 1916, and yet on the 17th of March, 1916, the claimant made affidavit that there had never been any talk between herself and husband of a financial provision for her.
We think this evidence insufficient to establish a gift.
JENKS, P.J., THOMAS, PUTNAM and KELLY, JJ., concurred.
That portion of the decree of the Surrogate's Court of Richmond county which adjudges that there was a gift of property to the claimant should be reversed, except as to one diamond solitaire ring of four carats; the decree is modified in accordance with opinion, and as modified affirmed, without costs. Order to be settled before Mr. Justice BLACKMAR.