
    John Podmore, as Administrator, etc., of Annie Podmore, Deceased, Plaintiff, v. The Dime Savings Bank of Williamsburgh, Defendant.
    (Supreme Court, Kings Trial Term,
    November, 1899.)
    .Grift causa mortis — Failure to identify the thing given.
    The clear and convincing proof required to establish a gift causa mortis of a particular savings bank book is not afforded by the testimony of two witnesses, sworn upon the part of a donee who had access to the donor’s bank books, that the donor took an unknown number of such books (not identified by the witnesses), from a bag in the sick room and, handing them to the donee, said “ I am a sick woman and I- know I am going to die. You take these and bury me with this and what is left is yours ”; the rule applying that mere possession of the-chattels of a decedent is not evidence of a gift.
    Action to recover the amount of money had on deposit with the defendant by the decedent at her death. The defendant pleaded as a defense that the decedent made a gift causa mortis of the said deposit to Bridget Reilly and that the defendant paid the same to the said Bridget Reilly. At the close of the testimony both sides moved for a direction of a verdict which the court took under advisement.
    Edward Hymes for plaintiff.
    Alfred E. kludge for defendant.
   Gaynor, J.:

The defense of the gift causa mortis is not made out. The evidence is only this: The alleged donee produces the deposit book and testifies she had it in her possession before the decedent’s death. Another witness testifies that she saw the decedent in her last sickness take from a bag in the sickroom a number of bank books and hand them to the alleged donee, saying: 4‘I am a sick woman and I know I am going to die. You take these and bury me with this and what is left is yours.” The witness did not see the bank books sufficiently to identify them or know how many there were. Another witness corroborates this,. but saw even less of the bank books. She says there were 4‘ a number inside of an envelope and I believe two outside.” The fact that the donee, had possession of this particular bank book is no evidence of a gift; more especially as she and others had opportunity to take it both before and after /the decedent’s death. Possession of the chattels of a deceased person either before or after his death is no evidence of a gift. The law presumes nothing from it; and independent of it there must be that “ clear and convincing, strong and satisfactory ” proof which is required to make out a gift causa mortis, in order to prevent fraud and larceny (Devlin v. The Greenwich Savings Bank, 125 N. Y. 756). That is lacking here.

I direct a verdict for the plaintiff.

Verdict for plaintiff.  