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In re Presender's Estate

Supreme Court of New York, Appellate Division

November 23, 1954

In re Presender's Estate

Page 110

APPEAL from a decree of the Surrogate's Court of New York County (COLLINS, S.), entered December 23, 1953, insofar as it adjudged that respondent is the sole owner of twenty-two United States Savings Bonds, registered in the name of decedent, by virtue of a gift causa mortis.

COUNSEL

A. Arthur Giden of counsel (Giden & Giden, attorneys), for appellant.

Beatrice R. Parvin for respondent.

Page 111

BREITEL, J.

The coadministrator, a surviving brother of the decedent, appeals from a decree in the Surrogate's Court, insofar as it determined that claimant, a surviving sister, was the owner, by virtue of a gift causa mortis, of certain United States Savings Bonds of the face value of $4,400.

The principal questions are whether the proof was sufficient to establish a gift causa mortis, and if so, whether United States Savings Bonds, Series E, payable to decedent, are transferable by gift causa mortis. An incidental question is whether the testimony of decedent's physician was properly received.

The decree of the Surrogate should be affirmed on the ground that there was sufficient proof to establish a gift causa mortis in favor of claimant and that United States Savings Bonds may be transferred by gift causa mortis, although such bonds are not otherwise voluntarily transferable inter vivos under the regulations of the Treasury Department. In so holding it is determined that the testimony of decedent's physician, given on behalf of claimant over the objection of the coadministrator, was improperly admitted in violation of the provisions of sections 352 and 354 of the Civil Practice Act, but that, nevertheless, there was sufficient remaining proof to establish the making of the gift causa mortis to a clear and convincing degree.

Decedent was a bachelor who was sixty-eight at the time of his death. He had been a salesman for an infant's wear firm. He had lived in a furnished room on the west side of Manhattan and, apart from his personal effects, had accumulated the Savings Bonds in question with an aggregate face value of $4,400, the sum of $7,630.76 in a savings account, and some cash that was found on his person when he fell dead in a department store. His closest kin were some six brothers and sisters of whom the appealing coadministrator is one and claimant is another. He left no will. After he died decedent's burial expenses were advanced by claimant and the collecting of his personal effects from his furnished room was also handled by her and her husband. It is not disputed that the relationship between decedent and his sister, the claimant in this case, was closer than any he had with his other sisters or brothers.

The events connected with decedent's last illness, the making of the alleged gift of the United States Savings Bonds to his sister and his ensuing death, occurred in rapid sequence. The dates are, therefore, of importance. On November 12, 1951, decedent consulted a physician and was hospitalized on that date until December 3d. He told his brother-in-law, the husband of claimant, that he had been to several doctors; that they had

Page 112

told him that he had a heart condition; and that he would have to take things easier After his discharge from the hospital on December 3d, he told his brother-in-law that he had been ordered to take a complete rest and that he had stayed home for two weeks. In the middle of December, 1951, he told his brother-in-law 'You know, Ted, I've got something on my mind that I want to talk to you about. I am a pretty sick chap and in order to make sure that things happen the way I want them to I would like to leave everything to Sadye'. He said that he wanted his sister, the claimant, to meet him at the bank the following day in order to convert his savings account into a joint account. Evidently, she did not meet him. The next week decedent again visited his brother-in-law, but this time he brought a signature card for claimant to sign to effect the change in the savings account and she signed it. On December 24th, the bank records show, the account was converted from an individual one into a joint survivor account in favor of claimant.[1] Towards the end of December decedent went to his employer and asked him for the United States Savings Bonds, payable to decedent, which he had left for safekeeping for a number of years in the employer's safe. His employer, without asking any questions, gave decedent his bonds. It was on about December 29th, roughly one week after the events with respect to the savings account, that decedent visited claimant and, according to her husband, handed her the bonds enclosed in an envelope, saying: 'Here, these are for you * * * I insist. I want you to have them in case anything happens to me.'

For some time after the occurrences last related decedent went about his business of selling infant's wear. On July 17, 1952, he fell dead, as noted earlier, in a department store in Manhattan.

It is now claimed that the proof was insufficient to establish a gift causa mortis of the United States Savings Bonds on the ground that there was no evidence that decedent was under apprehension of death and that, in any event, death resulted after so great an interval as to render the gift ineffective. Moreover, it is urged that the proof is insufficient to show that there was in fact a physical delivery of the bonds to claimant and that the testimony of her husband should not be accepted in the absence of corroboration. It is also urged that, as a matter of law, United States Savings Bonds, Series E, payable to

Page 113

the donor, may not, under the regulations of the Treasury Department, be transferred ...


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