Opinion
November 5, 1970
Appeal from an amended judgment of the Supreme Court, entered July 27, 1970 in Sullivan County, which modified a prior judgment entered April 24, 1970. Defendant was adjudged entitled to the proceeds of a life insurance policy and five bank accounts. Respondent and decedent maintained a close relationship from 1962 until his death in 1968, but never married. Decedent left four New York bank accounts and a California bank account in trust for respondent and named respondent beneficiary of a $10,000 life insurance policy, none of which was known by her prior to his death. Decedent's sister, administratrix of his estate, seeking the proceeds of the life insurance policy and the bank accounts, alleges in her complaint that these transactions were made in contemplation of marriage, based upon decedent's reliance upon alleged false promises by the respondent to marry him. She contends that respondent had no intention of marrying the decedent. The trial court granted respondent's motion to dismiss the first three causes of action, at the close of plaintiff's case, ruling that plaintiff had offered no evidence that the decedent was fraudulently induced by the respondent, in contemplation of marriage, to change the bank accounts held in trust for respondent, or to change the beneficiary of his life insurance policy. The judgment must be affirmed. Appellant failed to prove any fraudulent misrepresentations or promises of marriage by respondent, or the other elements of fraud. We also reject appellant's contentions that she is entitled to recover under section 80-b Civ. Rights of the Civil Rights Law. The evidence supports the conclusion that it was the respondent who urged marriage during the entire period of their relationship, but the decedent consistently refused to set the date. Since the decedent never disaffirmed the trusts which he created during his lifetime, these revocable trusts became absolute at his death. ( Matter of Totten, 179 N.Y. 112.) Judgment affirmed, with costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.