Opinion
July 7, 1955.
Appeal from Surrogate's Court of Saratoga County.
Petitioner, as administratrix of the goods, chattels and credits of William Kassebohm, deceased, seeks recovery of $8,000 alleged to have belonged to the decedent during his lifetime and withheld from his estate by the respondent Jennings. Respondent's defense is that said sum was a gift to him by decedent. On December 13, 1951, decedent, eighty years of age, planning to retire and spend his remaining years in Florida, sold his real property in Saratoga County for the sum of $8,500. Title was closed and the purchase money paid on that day by check and cash at a bank in the city of Mechanicville, Saratoga County. Respondent, a neighbor and friend in whom decedent seemingly had great confidence, was present on that occasion and, after the title closing, conferred at some length with decedent and the assistant bank cashier. Decedent then deposited $8,000 of the purchase price in that bank in the sole name of respondent, who retained possession of the bankbook. Decedent then obtained a cashier's check for $1,640 (which may or may not have included $500 in cash received as a part of the purchase price of his property) and left for Florida on the succeeding day. For aught that appears, decedent's resources were limited to the foregoing sums and, perhaps, a trailer in Florida, as is asserted by appellant. In our opinion the record fails to support the determination that decedent's act in causing the sum of money to be deposited in the name of respondent constituted a gift. Under all the circumstances, such a conclusion staggers credulity. It is improbable that a rational man (as decedent undoubtedly was), with total assets of approximately $10,000, with no business or other income, would out of hand give $8,000 to a man who, though a friend, was no object of his bounty, and depend upon the small balance to support him through his remaining years. One asserting a gift bears the burden of proving all the elements thereof and a gift is not to be presumed ( Nay v. Curley, 113 N.Y. 575, 578). Proof is lacking from which might be drawn any reasonable inference that decedent intended to make a gift of the money in question or to divest himself of its title. Though read in a light most favorable to the respondent, the testimony of the assistant bank cashier, accepted by the court below as establishing a gift, lacks certainty in that respect. Read as a whole, it carries the implication that decedent intended no more than to have the bulk of his assets on deposit for his own convenience in the name of a supposedly trusted friend, with whom he could communicate easily as he needed funds. No question of procedure has been raised and, on the argument of the appeal, it was agreed that a summary determination of the matter could be had. The order is reversed and a decree may be had directing that delivery of the sum of $8,000, with interest thereon from the date of decedent's death, be made to petitioner, as such administratrix, together with costs in the court below and $10 costs and disbursements on this appeal. Settle decree on notice. Foster, P.J., Coon, Halpern, Imrie and Zeller, JJ., concur.