Alsop v. Southold Savings Bank — 50 N.Y. St. Rep. 672

Majority

p. 672

Elizabeth Alsop, Resp't, v. The Southold Savings Bank, Resp't., and Mary I. Parr, Adm'rx, App'lt.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

<Jn?v—Evidence insufficient to prove.

The aunt of plaintiff died at her house, leaving a mother, brothers and sisters. She had lived with plaintiff three years, but no intimacy or kind attentions were shown. Plaintiff claimed certain bank deposits by virtue

p. 673

of an alleged gift from her aunt, and testified that five days before her death the aunt gave her the bank books, but it was not shown that she said anything about her health at the time or that she was then deemed seriously sick. Plaintiff also testified that two days thereafter her aunt again gave the hooks to her in the presence of her husband and brother in law. These witnesses, however, contradict plaintiff’s testimony as to what was afterwards done with the books. Held, that the evidence was insufficient to establish a gift of the books.

Appeal from judgment in favor of plaintiff, sustaining the plaintiff's claim to a deposit in the defendant bank, by virtue of an alleged gift causa mortis from her aunt, Eliza Gray.

Roger M. Sherman, for app’lt;

Joseph F. Mosher and Albert A. Wray, for resp’t.

Eliza Grey died intestate in Queens county on the 22nd day of April, 1891. She left a mother and brothers and sisters. She was a woman of about sixty-five years of age. She was a healthy woman up to the week before her death. She had lived for three years and over with the plaintiff, who was a niece of the deceased. The estate of the deceased amounted to about <$8,000, almost entirely represented by savings bank books in three savings banks. This action is brought by the plaintiff to recover the amount on deposit in the Southold Savings Bank and is based upon a title alleged to have been obtained by gift from the deceased, on the Friday before her death. She died on the following Wednesday. The gift is claimed to have included the three books and the deposits shown upon them. The claim of title is supported by evidence of two separate transactions. One on Friday before her death, at which the plaintiff alone was present and the other on the following Monday night, at which the plaintiff and her husband and her husband’s brother were present This transaction purported to have been a repetition of the one of Friday preceding. The plaintiff testifies that the deceased went to bed on Friday ; about five o’clock in the afternoon, and just after she had taken to her bed, she took out of a pocket in her flannel petticoat the three books and gave them to her; that deceased was in the habit of wearing this flannel petticoat and kept the books there. The deceased said not a word about her health. She had said nothing about giving the books before this. The plaintiff subsequently stated that she knew nothing of the books before deceased produced them.

On the second occasion, the plaintiff says that deceased told her to get the books," which she did from her own room, and that deceased then said, calling upon plaintiff’s husband’s brother, “ I give these books to Lizzie in the presence of you. I want you to be a witness to it.” If the books were given' on Friday they were not the property of deceased on Monday. The plaintiff testifies that on the second occasion she put the books back where she got them from. She subsequently stated that she believed M. L. Alsop, her husband’s brother, took them down-stairs. He testithat he did not, but that plaintiff had them down stairs afterwards on the same evening, and he footed up the amounts. He also

p. 674

states the gift on Monday very differently ; he states that the deceased stated that she had given the books before but that she wanted him. “ to see me give them to her.” Both witnesses testify to a delivery of the books, but the plaintiff says that she, after she received them from deceased, gave them to her brother-in-law. He says he did not take them, and that his sister-in-law produced them down stairs in the evening, as has already been stated. The plaintiff never looked at the books or the amount due upon them between the first gift and the second. The plaintiff testified that the deceased whispered to her to bring the bank books on the Monday night. Her husband states that he heard the deceased say: “ Lizzie, I wish you would bring me the bank books.” He says that his wife carried the books away with her oht of the room and fetched them down stairs in the evening, where they were added up. Under this condition of the evidence the gifts ought not to be decreed sufficiently proven. No intimacy was shown between the parties, bic kind attentions are proven and to be considered. There was no mortal sickness apparent either on Friday or Monday. The deceased was a woman whose savings had been accumulating during a long, active life as a housekeeper, and she is not proven to have been, by herself or others, deemed seriously sick on Friday, and, if that gift fails, the other should also. The three witnesses so vary on vital points in respect to their credibility that it is unsafe to take this large amount from her estate upon their testimony, considering their relation to each other and to deceased. The deceased is entitled to a vigilant scrutiny of the evidence where she was in so unprotected a situation in respect to property which could be transferred by delivery. The property was in the plaintiff’s house, and after the death of deceased it would be in the possession of the plaintiff and her family.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.