Opinion
February 27, 1950.
Appeal from Surrogate's Court, Queens County.
Decree reversed on the law and the facts, with costs to appellant, and petition dismissed, with costs to appellant; all costs to be payable out of the estate. The finding of the Surrogate that there was no gift of the stock certificate is not sustained by competent evidence. In our opinion, the evidence required a finding that there was a valid gift inter vivos from decedent to appellant. Evidence of declarations of the donor made after the gift was improperly received and ineffective for the purpose of defeating the claim or title of the donee. ( Scheps v. Bowery Sav. Bank, 97 App. Div. 434, and cases therein cited.) Carswell, Acting P.J., Johnston and MacCrate, JJ., concur; Sneed and Wenzel, JJ., dissent and vote to affirm. [See post, p. 1082.]