Gescheidt v. Drier — 47 N.Y. St. Rep. 410

Majority

p. 410

Albert F. Gescheidt, Ex’r, App’lt, v. John Drier and Frederika Drier, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Gift—Causa mobtis—Delivery must be shows.

Prior to her death testatrix had promised to give her niece her bank book “when she died.” On the day of her death the niece got the bank book from a wardrobe pointed out by testatrix, but put it back, locked the wardrobe, and placed the keys under testatrix’ pillow, where they remained until her death. Held, that thé proof did not show a delivery by deceased in her life-time with intent to transfer title, and that a gift was not made out. A delivery is equally essential in cases of gifts causamortis and inter vivas.

Appeal from judgment in favor of defendants entered upon verdict.

L. C. & W. P. Platt, for app’lt; Wilson Brown, Jr., for resp’ts.

—The plaintiff is the executor of Eva Schmidt. She died on the 4th of August, 1890, in Westchester county, and at her death there was a deposit in the East Chester Savings Bank of $1,145, with interest, standing in her name. The defendant, claims a title to the deposit by a gift of the bank book to her in the life-time of testatrix. The plaintiff produced evidence tending to show that the bank book was taken by defendant out^ of Mrs. Schmidt’s wardrobe after testatrix’ death. The testatrix died

p. 411

at the house of a Mrs. Miller, and defendant, who was a niece, nursed her during her last illness. The defendant gave evidence tending to show that the deceased promised to give the book to her “ when she died," and that she spoke of the money as belonging to defendant. The proof fails to show any completed gift before the day of testatrix’ death. On the morning of that day the defendant had “ this bank book; ” she got it from a place pointed out by testatrix, “ and I took it out and put it back in the wardrobe again." The defendant locked the wardrobe after she put it back and put the keys under Mrs. Schmidt’s pillow. The book remained in the wardrobe until after her death. The evidence wholly fails to make out a gift.

There was no proof of a delivery with intent to transfer the title made by the deceased in her life time. The possession of the book by defendant and its replacement in the wardrobe by her" and the return of the keys to the deceased, taken together, fail to show a delivery. The case is not like Bedell v. Carll, 33 N. Y., 581 , where a plaintiff who produced a promissory note endorsed by the payee, in the absence of explanatory evidence, was held entitled to judgment. A delivery is equally essential in cases of gifts causa mortis and inter vivas. Curry v. Powers, 70 N. Y., 212 .

“ To consummate a gift, whether inter vivas or causa mortis, the property must be actually delivered and the donor must surrender the possession and dominion thereof to the donee.” Ridden v. Thrall, 125 N. Y., 572 ; 35 St. Rep., 913 .

The evidence did not sustain the defense and the verdict of the j ury for defendant should be set aside and a new trial granted, costs to abide event.

Cullen, J., concurs; Dykman, J., not sitting.