Opinion
October 23, 1907.
Charles Adkins Baker [ Herman Aaron with him on the brief], for the appellant.
P.A. Hargous, for the respondent.
This is an accounting by an executor. The executor contends that the decree is wrong in that it charges him with moneys received upon the sale of an oyster lot, i.e., the franchise to plant and to cultivate oysters in a certain specified territory. He asserts that his testator during his lifetime gave this lot to him. The testator and this executor were father and son and had been for a time in partnership as oystermen, owning certain chattels and several oyster lots. The executor testifies that this lot was given to him by word of mouth, and that thereafter he planted it for one year. He is corroborated by his son alone, who was secretary to the grandfather, and who testifies that soon after the firm was dissolved the grandfather declared to him several times that he had made this gift. Although in the nature of things such testimony stands not directly contradicted, it appears that other transfers of similar property and of other property from father to son were by writings. No reason is suggested why such course was not followed in the instance of this lot. The transfer by the executor for which he is charged in this decree was by conveyance subscribed by him and by him with the addition "Ex." When a gift inter vivos is not asserted until after the death of the alleged donor, the evidence must be as cogent as in the case of a gift causa mortis ( Matter of Manhardt, 17 App. Div. 1), and so it must be clear, convincing, strong and satisfactory. ( Lewis v. Merritt, 113 N.Y. 386; Bray v. O'Rourke, 89 App. Div. 400.) I think that the evidence is not of this degree so as to warrant us in disturbing the finding of the learned surrogate to the contrary. The costs and allowances should be made to the parties and not to their attorneys or counsel. ( Matter of Welling, 51 App. Div. 357, and authorities cited.) I think that the costs and disbursements allowed to Peter C. Hargous in said decree should be reduced to $99.39 and be made payable to Charles H. Campbell, the respondent on this appeal, and the costs allowed to Mersereau and West End Coal Company should be reduced to $10 each, and as thus modified that the said decree be affirmed, without costs.
HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.
Decree of the Surrogate's Court of Richmond county modified in accordance with opinion of JENKS, J., and as modified affirmed, without costs.