In re Rogers — 35 N.Y.S. 72

Majority

p. 72

In re ROGERS.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Payment—Evidence.

A husband, just before his death, gave to his wife, to whom he was indebted, a paper evidencing a debt to-him, and suggested that she use the proceeds to pay life insurance premiums. After giving it to her he spoke of it as hers. Held, that he did not retain title in himself, and merely directed her, as his agent, to pay the insurance, but that he gave it to her as her own, on account of his debt to her.

Appeal from surrogate’s court, Richmond county.

Judicial settlement of the accounts of Mary C. Rogers, formerly May R. Goss, as administratrix of Guy C. Goss, deceased. From a decree settling the accounts as filed, Benjamin Tuthill, a judgment creditor of said Guy G. Goss, deceased, appeals. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Thomas J. Ritch, for appellant.

Calvin D. Van Name, for respondent

The petitioner called as a witness Mary R. Goss, and her testimony established a transfer to her of the $500 claim by Guy

p. 73

0. Goss in Ms lifetime. The witness says: “I don’t remember his words. I supposed he gave me the $500. I had no doubt about it. He spoke of giving it to me. He spoke of having given it to me. He spoke of it as mine the last time he was downstairs.” It is not disputed that he gave the paper, which evidenced the debt, to his wife, nor that he was in her debt. The appellant relies upon the statement of May R. Goss, that her husband suggested that she use the proceeds of the claim to pay the premiums on life insurance policies, to show that he intended to retain the title to the claim in himself, and not to vest it in his wife. His intention obviously was that his wife should benefit by the $500. To retain the title in himself, and direct her, as his agent, to pay the insurance, would not carry out that intention, but would be liable to defeat it, as this proceeding shows. His suggestion as to the use was chiefly significant as showing his interest in the future of his family. He had a right to pay the $500 to his wife. He tried to do it. We think he succeeded.

The appellant argues that an error was made in admitting the testimony. As defendant’s contention is fully sustained by other witnesses, that question need not be considered.

Order appealed from affirmed, with costs. All concur.