Westerlo v. De Witt

35 Barb. 215, 1861 N.Y. App. Div. LEXIS 171

• Court: New York Supreme Court
• Decided: September 16, 1861
• Status: Published

Opinions

Clerke, P. J.

The law is wisely jealous of all dispositions of property made by persons in extreme illness, and particularly in the immediate prospect of death. Knowing their probable mental debility and susceptibility at this dread hour, it requires, as a general rule, that their property should be disposed of in writing according to certain forms and solemnities, and in the presence of at least two witnesses. When it recognizes any other disposition of it, it requires positive and unequivocal proof of the gift. The intention must be clear and undisputed. Any other rule would expose dying persons to imposition and importunities, and their estates to encroachments, which the common law, even more than the civil law, has always carefully endeavored to prevent.

The law, then, requiring this positive and unequivocal proof of the intention, has such proof been adduced in this case ? Taking all that Miss Westerlo has testified as true and uncontradicted, I cannot think it warranted the conclusion at which the referee has arrived. Where is the clear and unequivocal proof which the law requires, that Mrs. Clinton intended to make a donation to Miss Westerlo of the certificate? Miss Westerlo testifies that Mrs. Clinton told her to bring from the pocket of one of her dresses, in a closet, a roll of paper ; that she brought the parcel to her; that Mrs. Clinton opened the parcel, counted over the bills, opened the certificate and read it, then rolled them together in the same paper and pinned them together : she then called Miss Westerlo to her and handed the parcel to her, and said, “Nelly, I give this to you; this is for yourself; no one knows any thing about it, and I do not wish to tell of itshe then told her to put the parcel away where she had found it. There were about six hundred dollars in the roll of bank bills. She never said a word specifically of the certificate, but told Miss Westerlo, in the first instance, to bring her a roll of paper from the closet. Several items of indebtedness had accrued during her illness which she was anxious should be particularly attended to, and that Mrs. Jones, at whose house she was staying, should be at no expense for her. She first gave Miss Westerlo ten or twelve dollars out of a drawer, to pay for things as they were needed, but items to the amount of one hundred and twelve dollars had accrued, or were accruing, which Miss Westerlo afterwards paid out of the six hundred dollars. Now, I can very well conceive that this dying woman, anxious to avoid inconvenience and expense to her hostess, and desirous that the most trifling items incurred by her at this time should be promptly paid, without being compelled to wait until the executors could pay such claims in the due administration of the estate, intended to hand Miss Westerlo this roll of bills, and to allow her, in consideration of her attention and kindness, to keep the balance for her own use. But I cannot believe, if she intended to make a gift of the certificate, that she would not have specifically said so. Instead of this, as we have seen, she never said a word about it; she did not even use the word certificate, or make, any allusion whatever to her deposit in the New York Life Insuranee and Trust Company. Whatever may be the legal effect of handing to Miss Westerlo a certificate of deposit, if the intention was unequivocally manifested, without indorsement or assignment, Mrs. Clinton must have known, as a woman accustomed to affairs of this nature, that without such indorsement and assignment, it would have given her donee at least a great deal of trouble to realize it; and, to my mind, it is clear, if she intended to make a gift of the certificate, she would have done every thing necessary to make it undoubted and effectual, on the supposition that she retained her mental faculties. On the other hand, if her faculties were impaired, she was not in a proper condition to make such a gift, and if so, it ought not to be sustained. This, I think, is the safe conclusion to arrive at, even from the solitary testimony of Miss Westerlo herself. But when we consider that at this time Mrs. Clinton was laboring under an attack of paralysis, which always more or less impairs the mind; that it was with great difficulty she could articulate, being in the habit of calling things and persons by the wrong name; that she was, in short, extremely ill; and, according to the testimony of Mrs. Jones, De Witt Clinton Jones and Mr. De Witt, that Miss Westerlo herself doubted whether Mrs. Clinton intended to make a gift of the certificate, I have little hesitation in saying that the referee was not warranted in his conclusion, that Mrs. Clinton did intend to make a gift of it.

If this view of the case should prevail, it is unnecessary to consider the other questions presented to us.

The judgment should be reversed; a new trial ordered, costs to abide the event.