Dickinson v. Hoes

PRYOR, Referee.

Van Slooten v. Dodge, 145 N. Y. 327, 39 N. E. 950, not cited by counsel, occurs to the referee as possibly fatal to the validity of this proceeding. But in that case the gift was inter vivos, and, taking effect during the lifetime of the decedent, could not constitute a claim against him or his estate. But here is a gift mortis causa, which, not being effectual until the death of the donor, is an apparent asset in the hands of his administrator, and is so claimed by him. Williams v. Guile, 117 N. Y. 343, 348, 22 N. E. 1071, 6 L. R. A. 366; In re Crosby (Sur.) 20 N. Y. Supp. 62. I conclude that the order of reference is not a nullity, and that I may proceed to determine the matter in controversy. Code Civ. Proc. § 2718. John Kealey being sole distributee of his mother’s estate, and no debts existing against it, he had a right to appropriate it without administration. Blood v. Kane, 130 N. Y. 514, 29 N. E. 994, 15 L. R. A. 490; In re Mullon’s Estate, 145 N. Y. 104, 39 N. E. 821; Barlow v. Myers, 24 Hun, 286, 290; Blood v. Kane, 15 L. R. A. 493, note.

It appears by a preponderance of proof that John Kealey meant to make the gift; that he was capable of forming such intention; that he made the gift in apprehension of death; that he died of the malady with which he was then afflicted; that he perfected the gift by due delivery; and that the donee accepted the gift. That the gift was perfected by the delivery of the receipt and agreement is an adjudged proposition. Elam v. Keen, 4 Leigh, 333, 26 Am. Dec. 322. The efficacy of the gift is not impaired by the fact that it was only of the residue of the fund, after payment for the burials. Pod-more v. Savings Institution, 48 App. Div. 218, 62 N. Y. Supp. 961; Loucks v. Johnson, 70 Hun, 565, 24 N. Y. Supp. 267. Nor is the gift invalidated because the concurrence of the surety company was indispensable to the possession of the fund. Gilkinson v. Third Ave. R. R., 47 App. Div. 472, 63 N. Y. Supp. 792; Page v. Lewis, 15 S. E. 389, 18 L. R. A. 170, 180, 37 Am. St. Rep. 848.

The conclusion is that the judgment must be for the plaintiff.