From Casetext: Smarter Legal Research

Matter of Swanson

Appellate Division of the Supreme Court of New York, Second Department
Mar 18, 1985
109 A.D.2d 844 (N.Y. App. Div. 1985)

Opinion

March 18, 1985

Appeal from the Surrogate's Court, Westchester County (Brewster, S.).


Decree reversed, on the law and the facts, with costs payable by respondent personally, petition reinstated, and matter remitted to the Surrogate's Court, Westchester County, for entry of a decree in accordance herewith.

The burden of proving a valid gift causa mortis as against an estate is upon the purported donee, who must establish all the elements of such gift by clear, convincing and satisfactory evidence ( Matter of Korman, 36 A.D.2d 709, affd 30 N.Y.2d 769; Matter of Hennessy, 253 App. Div. 6, affd 278 N.Y. 538).

In the case before us, there is no direct evidence that the decedent intended to give her wedding band and engagement ring to respondent if she did not recover from her last illness, a deficiency which was recognized by the Surrogate's Court in its memorandum decision. Such intent cannot be inferred from the attendant circumstances ( cf. Matter of Rinchiuso, 20 A.D.2d 254, affd 15 N.Y.2d 865). The evidence in the record is equally supportive of the view that the decedent merely wanted respondent to safeguard her valuable property throughout the duration of her hospital stay ( see, Matter of Bolin, 136 N.Y. 177; Matter of Malysiak, 15 A.D.2d 586).

Nor is the testimony of Gladys Crawford, the decedent's friend to whom she apparently made a gift causa mortis of the same rings while hospitalized in Florida during 1975, persuasive. Although the court properly exercised its discretion in admitting such evidence, as it bore upon the issue of donative intent ( see, Radosh v. Shipstad, 20 N.Y.2d 504, 508, reh denied 20 N.Y.2d 969), we do not find that it overcame the otherwise inadequate proof of a gift causa mortis.

Therefore, the petition should have been granted, and respondent directed to produce the property in question. We remit the matter to the Surrogate's Court for entry of a decree in accordance herewith. Mollen, P.J., Titone, Lazer and Rubin, JJ., concur.


Summaries of

Matter of Swanson

Appellate Division of the Supreme Court of New York, Second Department
Mar 18, 1985
109 A.D.2d 844 (N.Y. App. Div. 1985)
Case details for

Matter of Swanson

Case Details

Full title:In the Matter of the Estate of MILDRED W. SWANSON, Deceased. MIZELL…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 18, 1985

Citations

109 A.D.2d 844 (N.Y. App. Div. 1985)

Citing Cases

Scheckter v. Dickstein

Accordingly, there is no basis for reversal on the ground that the verdict was against the weight of the…

Matter of Kasten

Ordered that the respondents are awarded one bill of costs payable by the appellants personally. All of the…