In re the Estate of Alex

New York Surrogate's Court

In re the Estate of Alex

148 Misc. 317, 265 N.Y.S. 665, 1933 N.Y. Misc. LEXIS 1181

DecidedJune 19, 1933

StatusPublished

This text of 148 Misc. 317 (In re the Estate of Alex) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Alex, 148 Misc. 317, 265 N.Y.S. 665, 1933 N.Y. Misc. LEXIS 1181 (N.Y. Super. Ct. 1933).

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Opinion

Delehanty, S.

The proof presented was designed to establish a gift causa mortis by deceased to respondent on January 1, 1933, of certain specified stock certificates. Deceased entered a hospital about January 6,1933, and died therein on January 9,1933, following an operation. There is affirmative proof that deceased hoped and expected to recover from the operation concerning which she spoke to respondent. There is no proof of the ailment from which deceased suffered, nor is there any proof that the operation which actually was performed was the operation in apprehension of which deceased is said to have made a gift. While apprehension of the result of an operation is sufficient apprehension of death to support that element of a gift causa mortis (Ridden v. Thrall, 125 N. Y. 572), it does not always follow that death from an operation in itself suffices. (Butler [318]*318v. Sherwood, 114 Misc. 483, at p. 490; O’Connell v. Bank for Savings, 103 id. 96; compare also Bainbridge v. Hoes, 163 App. Div. 870.)

• Respondent’s proof is otherwise lacking in material essentials. There is no sufficient proof of identity of the property alleged to have been given to respondent. There is no proof of his acceptance thereof. For these reasons alone the claim of gift is held to be unsupported. The property is adjudged to be that of the estate.

Proceed accordingly.

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Delehanty, S.

The proof presented was designed to establish a gift causa mortis by deceased to respondent on January 1, 1933, of certain specified stock certificates. Deceased entered a hospital about January 6,1933, and died therein on January 9,1933, following an operation. There is affirmative proof that deceased hoped and expected to recover from the operation concerning which she spoke to respondent. There is no proof of the ailment from which deceased suffered, nor is there any proof that the operation which actually was performed was the operation in apprehension of which deceased is said to have made a gift. While apprehension of the result of an operation is sufficient apprehension of death to support that element of a gift causa mortis (Ridden v. Thrall, 125 N. Y. 572), it does not always follow that death from an operation in itself suffices. (Butler [318]*318v. Sherwood, 114 Misc. 483, at p. 490; O’Connell v. Bank for Savings, 103 id. 96; compare also Bainbridge v. Hoes, 163 App. Div. 870.)

• Respondent’s proof is otherwise lacking in material essentials. There is no sufficient proof of identity of the property alleged to have been given to respondent. There is no proof of his acceptance thereof. For these reasons alone the claim of gift is held to be unsupported. The property is adjudged to be that of the estate.

Proceed accordingly.

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148 Misc. 317, 265 N.Y.S. 665, 1933 N.Y. Misc. LEXIS 1181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-alex-nysurct-1933.

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