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SURROGATE'S COURT OF NEW YORK, COLUMBIA COUNTY 1968.NY.42004 <>; 290 N.Y.S.2d 964; 56 Misc. 2d 1092 June 7, 1968 IN THE MATTER OF THE ESTATE OF CHARLES E. KENNEDY, DECEASED Miner & Miner (Roger Miner of counsel), for Dorothy May, objectant. Francis J. Heneghan for Edna M. Hayes, as administratrix. William F. Christiana, Acting Surrogate. Author: Christiana

William F. Christiana, Acting Surrogate.

Author: Christiana

 Objections to the final account of the administratrix in this proceeding have been filed by Dorothy May, a niece and a distributee of decedent. Decedent and the administratrix were brother and sister.

Objectant claims that a certain parcel of real property, consisting of two adjoining pieces of land located in the Town of Hillsdale, should have been included as an asset of decedent's estate. Situate on the realty is a year-around dwelling house. The administratrix claims title to the realty as a gift by virtue of a certain unrecorded deed dated February 7, 1964 and acknowledged May 26, 1964, made by the decedent in his lifetime as grantor to the administratrix as grantee. The deed was removed by Mrs. Hayes from a safe-deposit box registered in the joint names of the decedent and the administratrix in a Great Barrington, Massachusetts bank, following Mr. Kennedy's death.

Objectant also resists the allowance of a personal claim for moneys allegedly loaned by the administratrix to her brother in his lifetime in the sum of $500.

Finally, objectant claims that the fees of the attorney for the administratrix are excessive and unreasonable.

A hearing was held on the objections. The only witness called was the administratrix who was sworn by the attorney for the objectant.

We consider first whether there was a valid gift of the realty in dispute.

A threshold question arose on the hearing as to whether the administratrix was competent to testify as to conversations had with the deceased relating to the deed in question. (CPLR 4519, formerly Civ. Prac. Act, § 347.) The court ruled at the time that such testimony was admissible on the ground that the witness was not making a claim against the estate. Such ruling is hereby reversed and all testimony relating to such conversations had with the decedent must be stricken from the record and be given no consideration in determining the issues involved. The case falls squarely within the holding made by Surrogate Wingate in his decision in Matter of Van Valkenburgh (164 Misc. 295, 298): "In the assertion of a personal claim against the estate, the representative is acting in a dual capacity. On the one hand, he is seeking in his own person to secure a recovery from himself as the representative of the estate and to effect a depletion of the assets of the estate. On the other, he is endeavoring as the fiduciary of the assets of the deceased to conserve them for the natural or selected objects of the bounty of the decedent. He is, therefore, in a very real sense, in the former capacity, seeking a recovery against himself, as the executor or administrator * * * and his testimony in respect to personal transactions with the decedent thus comes within the express inhibition of section 347 of the Civil Practice Act." (See, also, Matter of Quant, 187 Misc. 142; Matter of Siegel, 44 Misc. 2d 668, 670.)

Disregarding the testimony of the administratrix as to personal transactions with the deceased, the question narrows then to whether an unrecorded deed, executed and acknowledged by decedent prior to his death, found in a safe-deposit box leased in his name and in the name of his grantee jointly, constitutes sufficient delivery to perfect a gift. If a gift is to be found, it must be a gift inter vivos. There can be no gift causa mortis of real property. (25 N. Y. Jur., Gifts, § 32, p. 175.)

As was reiterated in the Matter of Kaminsky (17 A.D.2d 690, 691): "'He who attempts to establish title to property through a gift inter vivos as against the estate of a decedent takes upon himself a heavy burden which he must support by evidence of great probative force, which clearly establishes every element of a valid gift'. (Matter of O'Connell, 33 App. Div. 483; Matter of Kimmey, 273 App. Div. 142; see, also, Rosseau v. Rouss, 180 N. Y. 116, 121.)"

The burden of proof is definitely on the person claiming as donee. (Matter of White, 148 Misc. 740; Matter of Malysiak, 15 A.D.2d 586 and cases cited therein; Matter of McCarthy, 164 Misc. 719, affd. 254 App. Div. 827.)

It has been said that where a gift is not asserted until after the death of the donor, it should be "supported by evidence of the highest probative force". (Matter of Seigler, 49 Misc. 189,191; De Puy v. Stevens, 37 App. Div. 289, 291.)

The entire gamut of the applicable law was succinctly stated in Matter of Green (247 App. Div. 540, 543-544):

"While the law recognizes the right of every man to dispose of his property, whether by donation or otherwise, as and when he desires, there are certain well-recognized elements to a valid gift inter vivos, without which such a gift cannot be established. These essentials are set forth in Matter of Van Alstyne (207 N. Y. 298, 306); Beaver v. ...

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