FOLLETT, J.
Charles Wiegel died intestate at the city of New York on Wednesday, March 11, 1891, and April 16, 1891, respondent, claiming to be a creditor, was appointed administrator of his estate by the surrogate’s court of the city and county of New York. This controversy arises over the title to $8,536.29, on deposit to the credit of the intestate at the date of his death in six savings banks. The respondent asserts that Wiegel gave him these moneys on Sunday, March 8, 1891, during his last sickness, and in apprehension of death, while the appellants, intestate’s next of kin, who are resident citizens of Germany, assert that these deposits were not given to the respondent, but that the title to them is in him as administrator, and not individually. The referee appointed to determine the rights of the parties reported in favor of the respondent, and his report was sustained by the surrogate’s court. The decision of this appeal depends upon whether, within legal rules, the testimony is sufficient to sustain the conclusion reached by the referee and the surrogate’s court. Before entering upon a discussion of this question, it will be well to state the rule of evidence declared by the courts to be applicable to such cases. In this state the rule is that, while there is no presumption of law or fact against a gift, there is no presumption of law or fact in favor of one; and he who claims title to property through a gift must establish it by evidence which is “clear and convincing, strong and satisfactory.” Devlin v. Bank, 125 N. Y. 756, 26 N. E. 744, reversing (Com. Pl. N. Y.) 9 N. Y. Supp. 530; Ridden v. Thrall, 125 N. Y. 572-576, 26 N. E. 627; Lewis v. Merritt, 113 N. Y. 386, 21 N. E. 141; Harris v. Clark, 3 N. Y. 93-121; Bedell v. Carll, 33 N. Y. 581, 585; Grymes v. Hone, 49 N. Y. 17-23; Scoville v. Post, [97] 3 Edw. Ch. 2033; Pom. Eq. Jur. § 1146. TMs rule should not be relaxed in a case where the donee claims the entire estate of the donor to the exclusion of his next of kin. The intestate was a German by birth, and a tailor by trade, and, after working for a few years in Paris, France, came, in 1870, to the city of New York, where he resided until he died. In 1871 he began working at his trade for the donee, a merchant tailor, and continued in his employ until his last sickness, in March, 1891. He was never married, and, so far as is known, had no relatives in America. In the early part of his service for the donee he roomed for several years in his house, and afterwards slept for some years in his shop; but in December, 1890, he took a room at No. 421 Sixth street, a house kept by Mrs. Fix, where he remained until Sunday, March 8, 1891, when he was removed to Mt. Sinai Hospital, where he died. The foregoing circumstances are established by undisputed testimony, and afford about all the Information given in respect to the decedent and his mode of life. The donee and his wife testified that on Thursday, March 5, 1891, the donor was taken ill, and, on the advice of the donee’s wife, left the shop, and went to his lodgings. On Friday and Saturday Mrs. Farian visited him at his lodgings, and on Saturday found him no better, and advised him to go to the Mt. Sinai Hospital, to which he had previously expressed a desire to be taken in case of sickness. Mrs. Farian testified that about 10 a. m. Sunday, March 8th, she and her husband drove to the donor’s lodgings for the purpose of tak-' ing him to the hospital. They found him in bed, and at first he seemed reluctant to go to the hospital, but soon consented, and she left the room while he dressed, with the aid of her husband. When the intestate was nearly dressed, her husband called her, and she re-entered the room just as the donor was putting on his coat, when, according to her testimony, the following occurred:
“Q. Then what happened, there? A. Then he says to my husband, ‘Mr. Farian, I think I am a very sick man.’ He said this in German. He put his hand in his pocket. Mr. Holls: Tell what he said in English, and give the words in German afterwards. A. ‘Mr. Farian, I am a very sick man, and you always have been very good to me.’ Putting his hand in his pocket, he handed my husband a package, and he said, ‘If I should die, all the money in bank belongs to you,’ and then we opened the door, and went down stairs to the carriage. Q. And your husband had these bank books? A. My husband took the package, and put it in his pocket. Q. How were these bank books wrapped? A. Wrapped up in a newspaper, with a piece of twine around it.”
Thereupon the donor and donee entered the carriage, and were driven to the hospital, at which, three days afterwards, the donor died. When Mr. Farian returned to his home, the package which the intestate had delivered to him was opened, and found to contain six savings bank books wherein the money in dispute was credited. The foregoing constitutes all of the evidence which tends to establish a gift of the deposits. On the 16th of March, 1891, Mrs. Farian made an affidavit, in which she stated—
“That she was present at 421 Sixth street, city of New York, on Sunday, March 8, 1891, when her husband and herself came to take said Wiegel to [98] the Mt. Sinai Hospital, and seen the said Charles Wiegel hand her husband ' six- sayings bank books, and heard said Wiegel tell her husband that he was a very sick man, and that i£ he should die all that was in the bank he would give to her husband, as he had no relatives living, as he knew; that deponent and her husband had taken care of him, and been good friends to him, and that he wanted him and his wife to have what little he had saved, if he should die.”
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FOLLETT, J.
Charles Wiegel died intestate at the city of New York on Wednesday, March 11, 1891, and April 16, 1891, respondent, claiming to be a creditor, was appointed administrator of his estate by the surrogate’s court of the city and county of New York. This controversy arises over the title to $8,536.29, on deposit to the credit of the intestate at the date of his death in six savings banks. The respondent asserts that Wiegel gave him these moneys on Sunday, March 8, 1891, during his last sickness, and in apprehension of death, while the appellants, intestate’s next of kin, who are resident citizens of Germany, assert that these deposits were not given to the respondent, but that the title to them is in him as administrator, and not individually. The referee appointed to determine the rights of the parties reported in favor of the respondent, and his report was sustained by the surrogate’s court. The decision of this appeal depends upon whether, within legal rules, the testimony is sufficient to sustain the conclusion reached by the referee and the surrogate’s court. Before entering upon a discussion of this question, it will be well to state the rule of evidence declared by the courts to be applicable to such cases. In this state the rule is that, while there is no presumption of law or fact against a gift, there is no presumption of law or fact in favor of one; and he who claims title to property through a gift must establish it by evidence which is “clear and convincing, strong and satisfactory.” Devlin v. Bank, 125 N. Y. 756, 26 N. E. 744, reversing (Com. Pl. N. Y.) 9 N. Y. Supp. 530; Ridden v. Thrall, 125 N. Y. 572-576, 26 N. E. 627; Lewis v. Merritt, 113 N. Y. 386, 21 N. E. 141; Harris v. Clark, 3 N. Y. 93-121; Bedell v. Carll, 33 N. Y. 581, 585; Grymes v. Hone, 49 N. Y. 17-23; Scoville v. Post, [97] 3 Edw. Ch. 2033; Pom. Eq. Jur. § 1146. TMs rule should not be relaxed in a case where the donee claims the entire estate of the donor to the exclusion of his next of kin. The intestate was a German by birth, and a tailor by trade, and, after working for a few years in Paris, France, came, in 1870, to the city of New York, where he resided until he died. In 1871 he began working at his trade for the donee, a merchant tailor, and continued in his employ until his last sickness, in March, 1891. He was never married, and, so far as is known, had no relatives in America. In the early part of his service for the donee he roomed for several years in his house, and afterwards slept for some years in his shop; but in December, 1890, he took a room at No. 421 Sixth street, a house kept by Mrs. Fix, where he remained until Sunday, March 8, 1891, when he was removed to Mt. Sinai Hospital, where he died. The foregoing circumstances are established by undisputed testimony, and afford about all the Information given in respect to the decedent and his mode of life. The donee and his wife testified that on Thursday, March 5, 1891, the donor was taken ill, and, on the advice of the donee’s wife, left the shop, and went to his lodgings. On Friday and Saturday Mrs. Farian visited him at his lodgings, and on Saturday found him no better, and advised him to go to the Mt. Sinai Hospital, to which he had previously expressed a desire to be taken in case of sickness. Mrs. Farian testified that about 10 a. m. Sunday, March 8th, she and her husband drove to the donor’s lodgings for the purpose of tak-' ing him to the hospital. They found him in bed, and at first he seemed reluctant to go to the hospital, but soon consented, and she left the room while he dressed, with the aid of her husband. When the intestate was nearly dressed, her husband called her, and she re-entered the room just as the donor was putting on his coat, when, according to her testimony, the following occurred:
“Q. Then what happened, there? A. Then he says to my husband, ‘Mr. Farian, I think I am a very sick man.’ He said this in German. He put his hand in his pocket. Mr. Holls: Tell what he said in English, and give the words in German afterwards. A. ‘Mr. Farian, I am a very sick man, and you always have been very good to me.’ Putting his hand in his pocket, he handed my husband a package, and he said, ‘If I should die, all the money in bank belongs to you,’ and then we opened the door, and went down stairs to the carriage. Q. And your husband had these bank books? A. My husband took the package, and put it in his pocket. Q. How were these bank books wrapped? A. Wrapped up in a newspaper, with a piece of twine around it.”
Thereupon the donor and donee entered the carriage, and were driven to the hospital, at which, three days afterwards, the donor died. When Mr. Farian returned to his home, the package which the intestate had delivered to him was opened, and found to contain six savings bank books wherein the money in dispute was credited. The foregoing constitutes all of the evidence which tends to establish a gift of the deposits. On the 16th of March, 1891, Mrs. Farian made an affidavit, in which she stated—
“That she was present at 421 Sixth street, city of New York, on Sunday, March 8, 1891, when her husband and herself came to take said Wiegel to [98] the Mt. Sinai Hospital, and seen the said Charles Wiegel hand her husband ' six- sayings bank books, and heard said Wiegel tell her husband that he was a very sick man, and that i£ he should die all that was in the bank he would give to her husband, as he had no relatives living, as he knew; that deponent and her husband had taken care of him, and been good friends to him, and that he wanted him and his wife to have what little he had saved, if he should die.”
On the 16th of April, 1891, the donee was appointed sole administrator of the intestate’s estate, and on September 23, 1891, he verified, and thereafter filed in the surrogate’s office, an inventory, in which he included the accounts in the six savings banks as belonging to the estate. Five of the banks paid their deposits to the administrator, and, under some arrangement, the amounts were deposited with the State Trust Company; but the German Savings Bank refused to pay the amount to the credit of the intestate, and April 30, 1891, Mr. Farian, as administrator of the estate of the intestate, brought an action against the bank in the supreme court to recover the amount to the credit of the decedent. It was alleged in the complaint, which was duly verified by Farian, that the money belonged to the estate of the intestate, and that he, as administrator, was entitled to recover it. We do not think the evidence by which the gift is sought to be established is “clear and convincing, strong and satisfactory.” All of the testimony tending to support the gift was given by the donee’s wife, and, while she had no present legal interest in establishing it, experience has shown that the interest of a loyal wife in the affairs of her husband is as intense as his own, and quite as likely to warp her judgment and accuracy when testifying in his behalf as is the legal interest of the husband to warp his judgment when testifying in his own interest. Besides the fact that the title by gift is supported only by a witness who has, in all senses except the legal one, a strong interest, there are circumstances of great probative force which render the testimony of the wife improbable, or, at least, far from satisfactory and convincing. The record shows that Farian gave an administrator’s bond in the penalty of $16,000, which, presumptively, is twice the value of the estate as stated by the petitioner in his application for letters. Code Giv. Proc. § 2664. In the “true and perfect inventory of all the goods, chattels, and credits of such * * * intestate,” made, verified, and filed by the administrator (Mr. Farian) pursuant to article 1, tit. 2, c. 6, pt. 2, of the Revised Statutes, (then in force,) it was stated that the sums to the credit of the intestate in the six savings banks belonged to his .estate, and in the action brought by Farian as administrator against the German Savings Bank, he swore in the verified complaint that the deposit belonged to the estate. These oaths were not the unadvised acts of a person unacquainted with his legal rights, for Farian testified that, as soon as he heard of the intestate’s death, and before he was buried, he consulted with Hones, an attorney and counselor of the courts of this state, who assisted in obtaining letters of administration, in making the inventory, and who began the action in the supreme court against the German Savings Bank. Aside from the deposits which are the subject of this controversy, [99] the estate of the intestate amounted to less than $75, and we do not think a stranger to the blood of the intestate should be allowed to succeed to the entire estate upon testimony of the character which was offered to sustain his claim. In Harris v. Clark, supra, it was said:
“Assuming, as we must in this case, that the draft is genuine, there is no doubt of the intention of Mr. Smith to give the money in question to his sister; and I come to a conclusion against her right with reluctance,—a reluctance qualified, however, by the belief that the clear policy of the law is against the encouragement of gifts of this nature. They are essentially testamentary. They are to take effect only in ease of the testator’s death, and they are revocable during his life. The same considerations of prudence and caution which induced the legislature to require wills of personal estate to be executed, published, and attested with great formality would seem to forbid these informal dispositions of property in expectation of death. The temptation to fraud and imposition in regard to these gifts is as powerful and as dangerous as in the case of wills, and yet has been left unchecked and unregulated by statute; and they ought not to be tolerated by the courts, unless they are attended by all the requisites which the common law prescribes to give them validity.”
This language is peculiarly applicable to this case. The intestate was not in extremis when it is asserted that he made the gift, but he had ample opportunity to express his intention by a will, executed in accordance with the laws of this state. We are of the opinion that the decree is not supported by the evidence, and that it should be reversed, and a new hearing had in the surrogate’s court, with costs to the appellants to abide the event.
O’BRIEN, J., concurs.