In re Steinmetz , 292 N.Y.S. 136 ( 1936 )

In a proceeding under the provisions of section 206-a of the Surrogate’s Court Act, petitioner alleged a claim to a bank book, now in the possession of the estate representative. Decree of the Surrogate’s Court of Queens county awarding possession of the bank book to petitioner, together with the moneys on deposit in the account it represents, reversed on the law and the facts, with costs to the appellant, payable out of the asset's of the estate, and petition dismissed, with costs. The petitioner alleged that the gift of the bank book was made by the decedent to her before the decedent came to live with her. The writing offered in evidence to sustain the gift shows that it was given as security. The decedent paid fifteen dollars a week to the petitioner for board. After the date of the alleged gift the decedent exercised control of the book by depositing funds in the account and making withdrawals. This was done by the execution of proper draft slips, similar to that used to evidence the alleged gift. Careful reading of the evidence shows that the petitioner failed to sustain the burden of proof necessary to establish the gift of the bank book, and the determination was contrary to the evidence. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.