In re the Estate of Brennan

New York Surrogate's Court

In re the Estate of Brennan

140 Misc. 469, 250 N.Y.S. 616, 1931 N.Y. Misc. LEXIS 1380

CourtNew York Surrogate's Court

DecidedApril 29, 1931

StatusPublished

Cited by1 cases

This text of 140 Misc. 469 (In re the Estate of Brennan) 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 Brennan, 140 Misc. 469, 250 N.Y.S. 616, 1931 N.Y. Misc. LEXIS 1380 (N.Y. Super. Ct. 1931).

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Opinion

O’Brien, S.

The only direct testimony upon the claimed gift causa mortis was that of the claimant’s son, an interested witness. He testified that the alleged gift was made about a half hour before the doctor came. The doctor arrived at seven a. m. He stayed about two minutes. As he was leaving he said she was a very sick woman, “ she is getting cold, that is a bad sign.” She died shortly after seven o’clock. She was about eighty years of age. The other witnesses called by the claimant were Rev. J. V. Hart, the Catholic clergyman who administered the last rites to decedent; Catherine Cosgrove, an old friend of decedent, and Mrs. Mary Scanlon, a friend of many years, both of whom testified concerning the friendship existing between decedent and claimant; Mary Spellane, a daughter of claimant, and Joseph G. Spellane, her husband, and Mary McGuire, the claimant, whose testimony was barred by objections raised under section 347 of the Civil Practice Act. The administratrix called Dr. Edward L. Barnett (referred to above), who had attended decedent in her last illness, and Frank E. Johnson, a representative of a savings bank. The proofs submitted by the claimant respondent, upon whom rested the burden of proof, are entirely insufficient to establish a gift causa mortis. They are not clear, convincing, strong and satisfactory. (Matter of Van Alstyne, 207 N. Y. 298; Matter of Wright, 121 App. Div. 581; Matter of O’Connell, 33 id. 483; Matter of Schroeder, 113 id. 204, 209; Matter of Cofer, 121 Misc. 292; Miller v. Silverman, 247 N. Y. 447; Beaver v. Beaver, 117 id. 421; Matter of Canfield, 176 App. Div. 554.) The gift has not been satisfactorily established, the claim is disallowed. Submit decree.

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O’Brien, S.

The only direct testimony upon the claimed gift causa mortis was that of the claimant’s son, an interested witness. He testified that the alleged gift was made about a half hour before the doctor came. The doctor arrived at seven a. m. He stayed about two minutes. As he was leaving he said she was a very sick woman, “ she is getting cold, that is a bad sign.” She died shortly after seven o’clock. She was about eighty years of age. The other witnesses called by the claimant were Rev. J. V. Hart, the Catholic clergyman who administered the last rites to decedent; Catherine Cosgrove, an old friend of decedent, and Mrs. Mary Scanlon, a friend of many years, both of whom testified concerning the friendship existing between decedent and claimant; Mary Spellane, a daughter of claimant, and Joseph G. Spellane, her husband, and Mary McGuire, the claimant, whose testimony was barred by objections raised under section 347 of the Civil Practice Act. The administratrix called Dr. Edward L. Barnett (referred to above), who had attended decedent in her last illness, and Frank E. Johnson, a representative of a savings bank. The proofs submitted by the claimant respondent, upon whom rested the burden of proof, are entirely insufficient to establish a gift causa mortis. They are not clear, convincing, strong and satisfactory. (Matter of Van Alstyne, 207 N. Y. 298; Matter of Wright, 121 App. Div. 581; Matter of O’Connell, 33 id. 483; Matter of Schroeder, 113 id. 204, 209; Matter of Cofer, 121 Misc. 292; Miller v. Silverman, 247 N. Y. 447; Beaver v. Beaver, 117 id. 421; Matter of Canfield, 176 App. Div. 554.) The gift has not been satisfactorily established, the claim is disallowed. Submit decree.

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140 Misc. 469, 250 N.Y.S. 616, 1931 N.Y. Misc. LEXIS 1380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-brennan-nysurct-1931.

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