Opinion
December 7, 1961
Appeal by the State from an order of the Surrogate's Court, Tompkins County, finding a valid gift causa mortis of a savings account and 102 series E United States Savings Bonds by Stanley Malysiak, deceased, to Frances P. and Walter Glen La Londe. In 1924 decedent began boarding at the Myers, New York home of Mrs. Saunders, the mother of claimant Frances La Londe. Six years later, the Saunders family moved to Sharon. On its return to Myers a year later, decedent again became a boarder. After the outbreak of the Second World War the family moved to Ithaca. Decedent visited the family frequently during this period. In 1946 decedent became a boarder in claimants' home in Ithaca. Two years later, the decedent bought a trailer which he parked rent-free on claimants' property. Decedent lived in this trailer until his death in 1958. Decedent was born in Poland, but in 1949, at the age of 57, he became a naturalized citizen of the United States. A search by the administrator of his estate produced no living relatives. On direct examination Mrs. Saunders testified that on several occasions the decedent had stated that he intended to make a will leaving everything to Frances La Londe and her children because he had no family. The record also indicates that the decedent established a savings bank account in his name in trust for Donald La Londe, one of the children of the claimants', and that he made Mrs. Saunders the beneficiary of a life insurance policy. With respect to the last illness of the decedent, Mrs. Saunders testified that she saw the decedent on Friday, April 11, 1958, that he was very ill, and that he said: "`I just don't feel good, I'm sick.'" On Saturday, April 12, 1958, Mrs. Saunders visited the decedent at the hospital to which he had been removed by ambulance. In response to her statement "Stanley you're going to be alright." [ sic], the decedent replied: "I hope so." The subject of the purported gift, the bankbook and series E bonds, were kept in a cigar box in a drawer in decedent's trailer. Mrs. Saunders testified that she saw the box in her daughter's home on April 12, 1958, the date decedent was taken to the hospital, but that she had not seen the decedent give the box containing the bankbook and bonds to either of the claimants. On redirect examination, in response to a question of claimants' attorney as to whether the decedent had said anything "about what he had done for Glen and Frances", Mrs. Saunders replied that he had said: "I'm giving key, Frances take key and everything." On recross, however, the witness admitted that decedent had stated that Frances La Londe was taking care of his property "until he came back." While much of what claimants' could possibly have testified was properly excluded in accordance with section 347 of the Civil Practice Act, Frances La Londe testified that decedent was hemorrhaging on the day that he went to the hospital, and that "There was blood all over his floor, and bed, and everything." She was also permitted to testify that she had the cigar box in her possession on Saturday, April 12, 1958. Walter La Londe testified that Frances had returned with the box on the preceding Friday evening. The law does not presume a gift ( Matter of Bolin, 136 N.Y. 177, 180). It is incumbent upon the donee to prove that the necessary requirements to establish a gift are met ( Matter of Hennessy, 253 App. Div. 6, motion for reargument denied 253 App. Div. 879, affd. 278 N.Y. 538; Matter of Freeman, 160 Misc. 133, 134). Such proof must be clear, convincing and satisfactory, death having sealed the lips of the deceased ( Matter of Van Alstyne, 207 N.Y. 298, 308). Claimants are not, however, required to prove the gift by more than a fair preponderance of the evidence ( Matter of Sherman, 227 N.Y. 350, 353; Ward v. New York Life Ins. Co., 225 N.Y. 314, 322). In addition to those elements required to substantiate any gift, it must be demonstrated to establish a gift causa mortis that the gift was made under the apprehension of impending death ( Ridden v. Thrall, 125 N.Y. 572, 579; Grymes v. Hone, 49 N.Y. 17, 20). The record before us does not contain satisfactory evidence to establish such apprehension. Mrs. Saunders' testimony as to her conversation with decedent at the hospital does not indicate the requisite apprehension of death on the part of decedent, but is equally suggestive that he expected to recover. Dr. Foerster who attended decedent was not called. No hospital record was introduced. The nature of the malady or cause of death do not appear. In addition the record does not clearly and unequivocally establish donative intent on the part of the decedent. Mrs. Saunders' testimony as to the making of the gift is not inconsistent with the creation of a bailment. Order reversed on the law and the facts and a new trial ordered, with costs to abide the event. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.