
    Matter of the Estate of Sophia Hall, Deceased.
    (Surrogate’s Court, Cattaraugus County,
    February, 1896.)
    1.. Executors and administrators — Liability for failure to recover
    assets.
    An executor or administrator is not liable, as for a devastavit, for failure to take legal steps' to recover assets claimed to belong to the ■estáte, where there are reasonable grounds for considering that such steps would have been entirely ineffectual, and that he acted in good faith.
    2.. Gifts causa mortis —• Mental capacity of donor.
    , A person who has testamentary capacity is competent to make a gift causa mortis.
    3. Same — Subjects of.
    A -certificate of deposit is a proper subject of a gift causa mortis.
    4. Same — Delivery.
    A delivery to a third party for the donee is sufficient, although the donor dies before the intermediary hands over the property to the donee.
    Proceedings on judicial settlement of accounts of administrator.
    W. E. Pinder, for administrator.
    Hudson Anslcy, for contestant..
   Davie, S.

Sophia Hall died intestate August 15, 1895, leaving her surviving her husband, but no other relatives or next of kin; the husband died intestate soon after, leaving him surviving one son, the administrator, and. two daughters, one of whom is the contestant.

Shortly prior to her death the decedent was the owner of certain funds on deposit in two banks, such deposits being evidenced by the usual certificates, and amounting, in ally to the sum of $1,350. The administrator does not charge himself with, nor account for, these certificates, and the objections filed relate solely to such omission.

It is claimed, on the part of the administrator, that the decedent gave these certificates away shortly prior to her death, while it is urged, on béhalf of the contestant, that at the time of the alleged gift the decedent did not possess the requisite mental capacity to make a gift; that the funds represented by such certificates belong .to the estate, and that it was the dirty of the administrator to resort to proper methods for recovering the. same, and having failed so to do, he is personally liable as fór a devastavit.

.. This being the nature of the controversy, it is entirely apparent at the outset that the. administrator cannot be charged personally-with these funds unless he has failed to exercise the diligence required by law of administrators in the management of estates, and that in consequence of such neglect the estate has sustained loss.

This leads to the' inquiry, first, as to the degree of care and diligence required of representatives in their efforts to collect demands due or to recover the possession of property belonging to the estate.

It has been asserted as a general proposition that in the management of the business of the estate executors and administrators are bound to act in good faith and to exercise such skill, prudence and diligence as men ordinarily bestow upon their own affairs of like nature. Am. & Eng. Ency., vol. 8, p. 347; McCabe v. Fowler et al., 84 N. Y. 314; King v. Talbot, 40 N. Y. 76.

They may be guilty off devastavit not only in consequence of direct acts of abuse or maladministration, but by culpable negligence in the management of their estates. Schultz v. Pulver, 11 Wend. 363; Harrington v. Keteltas, 92 N. Y. 40.

It is quite apparent that the funds in question could not have been recovered except by an action, but that fact itself does not relieve the administrator. If, however, an examination of all the 'facts discloses reasonable grounds for considering that such legal steps, would have been entirely ineffectual, then such failure on the part of the administrator, acting in good faith, does not render him liable. Clack v. Holland, 19 Beav. 262-71; O’Conner v. Gifford, 117 N. Y. 275.

H the decedent parted with the title to these funds at all it was by way of gift causa mortis, and it is claimed by the contestant that at the time of the transaction decedent had become so enfeebléd mentally in consequence of her physical infirmities as to be incapable of transacting business, and that the transaction itself lacked some of the essential features of a gift of that character.

In order to make a valid gift causa mortis, there must, of course, be a donor possessing requisite mental capacity, and in apprehension of impending dissolution; property, the title to which is susceptible of being transferred by gift;' the words of. gift indicating an intention to pass title, coupled with a delivery and an acceptance on the part of the donee.

The policy of the law does not favor gifts of this character (Am. & Eng. Ency., vol. 8, p. 1348n); such gifts are not favored by the courts and their range should not be extended (Bliss v. Fosdick, 86 Hun, 162); they are necessarily open to the objection, of uncertainty, ¿nd great strictness and clear proof are, therefore, necessary to establish them, and' they can -only be upheld where the intention of the donor is clear and definite and such intent is fully carried out by execution (Harris v. Clark, 3 N. Y. 93-121; Grey v. Grey, 47 id. 552; Grymes v. Hone, 49 id. 17), but the rule is not carried to the extent of holding that the presumption of law is against such gifts. Lewis v. Merritt, 113 N. Y. 39.

It will be well to have these general propositions in mind in examining the evidence in this case.

Did decedent possess the requisite mental capacity at the time of malting this gift?

It was conceded on the submission of this case- that if decedent possessed testamentary, capacity she was competent to make a gift causa mortis; 'the grade of mental ability required to make a testamentary disposition of property is quite clearly defined. One capable of comprehending the condition of his property and his relations to those who are the natural objects of his bounty and able to collect and retain in mind without prompting the elements of his business possesses testamentary capacity. Van Guysling. v. Van Kuren, 35 N. Y. 70.

Decedent was a woman of somewhat advanced age. During "the last six months of her life she was afflicted with cancer of the liver. The transaction in question occurred on Sunday afternoon' and on Monday .evening, and decedent, died the following Wednesday morning. Several witnesses, who were with her more or less during her last days, were examined quite fully as to her condition; these witnesses detail various conversations with her showing undoubted intelligence; on Sunday Mrs. Trippe, the wife, of decedent’s pastor, called to see her; decedent said she was-glad to see her and spoke of feeling better than she did the day. before-; she asked if Mrs. Trippe’s husband was at home and when he would be; she spoke of a box and.a letter she had received from, her stepdaughter and wished the box brought and the letter read ' to her; she examined the contents of the box and told Mrs. Trippe-of her desire to present, her with a resurrection plant; she talked of her stepdaughter, Mary- Gowlesy and. of her kindness to, decedent; she told Mrs. Trippe of a small gold piece that she,-desired1 to give to Mrs. Trippe’s child, and conversed on the subject of her property as more particularly hereafter referred to.

The witness Louisa Ainsworth watched with decedent on.Sunday night; she says she conversed-with her and that she asked" for what she wanted; she asked for a pocket, .handkerchief,- and1 on otie being brought: said, “Mo; not that one; a pink-bordered one.” As she was being moved in bed-near morning, her purse dropped down by the bed and she spoke., of 'it, and asked the-witness to pick it up and count the. money, and put the purse under her pillow; she inquired how much there .was, in the purse, and on being told $2.50, said that was right. ..

The witness Fannie Ainsworth was with the decedent during the period in question and-spoke of conversations, with her, all indicative , of reason and understanding. The attending physician visited her on the day before her. death and conversed with her, and he testified, “ She answered my questions, in a perfectly, sane manner, as a sane person would; I didn’t think she was other-than perfectly sane.”

I have referred to but-.a small portion of the .evidence bearing: upon this question, but a careful consideration of all the testimony irresistibly leads to the conclusion that the decedent at the. time in question possessed testamentary capacity.

It appears, inferentially, though quite satisfactorily, that decedent had for some time entertained the intention of making the disposition of the certificates which it is claimed she did make; ‘that such disposition was in accordance with a design long cherished by her; the witness Jennie Kelsey testified.that she was at the decedent’s residence about the 4th of August, 1895, just before she was confined to her bed, and that decedent, quoting from her testimony, “ had some papers to sort over and fix up; and so she took them and went to work; and I saw she was getting very tired, and I tried to persuade her to lie down awhile, and she said it was probably the last work she would have to do, and she went out to.dinner and came back and went to work and she arranged them and put them in a pan and told me to put them in. another room under the bureau.” . The witness- did so.

Fannie Ainsworth testified, that she was with decedent on Sun-' .day'before her death and that decedent told her of some papers that were in a pan under the bureau in her room. She said that she wanted to give them to Mrs. Trippe to take care of; she requested me to be there with Mrs. Trippe and see that she had them and took them away with her;, after Mrs. Trippe had gone, she asked me. if Mrs. Trippe took all the papers. I told her she did, all that were there. She told me to tell Mrs. Trippe to divide it equally between the Home Mission and the Foreign Mission and the' Bible Society. She said they were certificates — money that she and Mr. Cowles ” (her former husband) x< had saved for the missionaries.” This witness also testified that ■ •she gave the papers to'Mrs. Trippe in decedent’s. presence and ■ .at her bedside, and that decedent said they were for the mis- ' sionaries.

The witness Sarah Trippe testified that she visited decedent on . 'Sunday' and that she, decedent, asked Miss Ainsworth to bring •out the papers, which was done; and witness, at the request of ■decedent, figured them up, saying they amounted to $1,350, and decedent said that was right. Witness then asked if she wished her to take the papers with her and decedent said, “ Yes;” and quoting from her evidence, “ I asked her what proportion she-wished us to give to the societies; before this she remarked like this — during Mr." Cowles’ lifetime we arranged together' that eventually this money should go to the boards, and after Mr. Hall and I were married there was the same understanding between us, that the money should go to the boards; ’ I asked her what boards, and she said the Home Mission Board, the Foreign Mission Board and the Bible Society; I carried the papers away with me.”

The decedent was a Christian woman and a member of the Presbyterian church; her first husband was a minister of the same denomination; her last husband, Mr. Hall, was also a minister of the same denomination, and for many years engaged-in missionary work; so it is entirely obvious that the decedent’s associations and surroundings for many years had been of such a character as to originate testamentary intentions in harmony with the disposition claimed to have been made by her of her small estate.

These certificates were proper subjects of a gift causa mortis; under the law as it now stands all kinds of personal property, with very few exceptions, may be the subject of such a gift; whether the property be corporeal or incorporeal (Am. & Eng. Ency., vol. 8, p. 1342); bills, bonds and promissory notes and all other evidences of debt, although payable to order and not •indorsed, may be so given. Am. & Eng. Ency., vol. 8, p. 1343. In Walsh v. Sexton, 55 Barb, 251, it was held that a delivery of certificates of stock is good as a gift causa mortis without an assignment or without a completed transfer of the legal title. ■This authority was cited and applied in' Grymes v. Hone, supra.

This transaction having taken place in view of the decedent’s approaching dissolution, it is clear that all the essential conditions existed for making a valid gift causa mortis. This brings us to a consideration of the remaining question, as to whether or not decedent’s intentions were effectuated by such a delivery of the certificates as the law requires to complete a gift of this character.

The subject of a gift causa mortis must be delivered or the gift is not valid (Am. & Eng. Ency., vol. 8, p. 1347); there must be some act done to change the possession from the donor to the donee; the donee or some one for him must not only take, but must retain possession until the death of the donor; if it comes again into the possession of the donor the presumption is that the gift is revoked. Cutting v. Gilman, 41 N. H. 147; Craig v. Craig, 3 Barb. Ch. 76; Emery v. Clough, 63 N. H. 552.

These certificates were delivered by Mrs. Trippe to her husband, who went to decedent’s residence on Monday evening in company with his wife, where the certificates were indorsed by decedent, she mating her mark to her name written on the back of each, such mark being witnessed by Miss Ainsworth and by Mr. Hall, the administrator; at. no time did decedent have either of the certificates in her possession except for the purpose of indorsement after they were delivered to Mrs.. Trippe. Mr. Trippe took them away with him after such indorsement. But the money represented by them was not. drawn from the banks or paid over to the beneficiaries until after decedent’s death.

It has been distinctly held in many cases that the- delivery may be made a third- party for the donee, and that such- delivery will be sufficient although the donor dies before the ■ in-. termediary hands over the property. Drury v. Smith, 1 P. Wms. 404; Michener v. Dale, 23 Pa. St. 59; Dresser v. Dresser, 46 Mo. 422; Jones v. Deyer, 16 Ala. 221.

- In Grymes v. Hone, above cited, the defendant’s testator, being the owner of 120 shares of bank stock, included in one certificate, made an assignment of. twenty shares to the plaintiff; this he handed to his wife to be kept by her and delivered- to the. plaintiff- upon his- death; the court held that this constituted a valid gift causa mortis-; that the defendant, the wife, was the trustee for the plaintiff by operation of law.

In view of" all the facts disclosed by the evidence in- the light of. the various authorities cited, I am- impressed with' the belief that the administrator has furnished a complete and satisfactory answer to the objections, filed to his account; that an action-brought by him to recover-these funds would have been entirely ineffectual; that, he' has not only acted in good faith, but exercised good judgment-' in- not. involving the- estate in litigation.

■ A decree will be accordingly entered settling the accounts of the administrator as filed and dismissing.the objection to the;same.

Ordered accordingly.  