In re Proceedings to Discover Alleged Property of Buoninfante

Slater, S.:

The claimant, a nephew of the decedent, asserts a gift "causa mortis of three certain bank books which represent deposits totaling $8,214.15. The decedent resided with the claimant for a period of about fifteen years. He was survived by brothers and the nephew claimant. The alleged gift is asserted to have been made the night before decedent died and only in the presence of the claimant and his wife. The wife testified to the acts constituting the gift. Gifts are not presumed. Possession of personal property as evidence of gift by a member of a family of decedent having access *908 to his papers proves nothing in derogation, of ownership by the decedent. The burden of proof is on the claimant. (Matter of Wendell, 121 Misc. 569 .) Although the proof must be clear and convincing, no greater proof is necessary than that which must be offered to prove any claim. (Ward v. New York Life Ins. Co., 225 N. Y. 314 ; Caldwell v. Lucas, 233 id. 248.) Requisite proof of actual delivery must be made with possession and dominion surrendered. (Ridden v. Thrall, 125 N. Y. 572 .) No case is found where gifts have been sustained where the husband is a claimant and the only proof of his claim is the testimony given by his own wife. The wife is a competent witness under section 347 of the Civil Practice Act. (Matter of Wood, 185 App. Div. 936 .) Nevertheless, she is an interested one. (Matter of Van Vranken, 120 Misc. 280 .) Cases such as this must be carefully scrutinized. The savings of a lifetime might easily be taken away from the next of kin by the testimony of a witness who speaks under the strongest bias and greatest temptation. The story is not improbable; it is not corroborated. It is against sound public policy to accept unsupported statements by an interested witness as true under the circumstances and with the results which will exist if this alleged gift is held good. (Killian v. Heinzerling, 47 Misc. 511 .) If people who are to be the recipients of gifts do not have corroborating witnesses present when the gift is made, they must suffer the consequences. The court will not assume the burden of depriving an estate of funds unless testimony is offered by another than the one so vitally interested in its result. The evidence offered does not come up to what this court considers to be necessary to constitute a fair preponderance of credible evidence against the estate of the decedent. The gift is not sustained and the bank books should be delivered to the administrator.