In re the Accounting of Garden , 187 N.Y.S.2d 306 ( 1959 )

M. M. Frank and McNally, JJ.

(dissenting). We are constrained to dissent in part, and vote to affirm the decree, on the opinion of the learned Surrogate. In addition, we must reject the thesis that the possibility exists “ that the decedent may have given, abandoned or sold the ring * * # before her death.” The speculative suggestion finds no support in the record. Moreover, such an assumption would imply an imprudent and illogical course of conduct by the decedent, for it must necessarily include the premise that she would make an inter vivas gift of the ring after disposing of her jewelry by will, and that after giving, abandoning or selling a valuable ring, she would still continue to pay insurance premiums covering its loss or theft. While the record is devoid of proof as to the extent of the investigation made by the insurance company, it is at least a fair inference that the payment of the insurance claim was predicated upon loss or theft of the ring and precludes any other reason.

Breitel, J. P., Babin and Stevens, JJ., concur in Per Curiam opinion; M. M. Frank and McNally, JJ., dissent in part and vote to affirm in a memorandum.

Decree modified, on the law and on the facts, to hold that the legacy under paragraph Third of the will of a diamond ring has been adeemed, and otherwise affirmed in all respects, with costs to all parties filing briefs, payable out of the estate.

Settle order.