
    Otto P. Lehr, as Administrator, etc., of Arthur Lehr, Deceased, Respondent, v. Ada A. Jones, Appellant.
    
      Proof to established a gift inter vivos—the burden of proving a gift causa mortis is upon the donee — competency of declarations of a decedent tending to show the probability of his making a gift.
    A gift ipter.yfvos. will. not .be. sustained vvitho.ut proof that the alleged .donor intended to part absolutely with the title to the subject of the alleged' gift.
    The Burden of proving ’a gift ecmsa ’ morti's is ' ever upon ‘the clkimant and.'iii ■ order fh'at he thould'^Succeed1,' the evidence must* be clear'aad'cottvincmg' ih 1 support of the gift. •..
    
      Semble, that in an action by an administratrix to reco ver certain, personal property which the defendant claimed had been given to her by the decedent; declarations of a hearsay nature made by the deceased in reference to his relations with his family, Tending’ to show fhe probability of his "making such "gifts to the defendaht, are incompetent.
    Appeal.by the defendant, Ada A. Jones, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of June, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term.
    
      John F. Carew, for the appellant.
    
      Russell & Herrold, for the respondent.
   Woodward, J.:

The plaintiff, as the administrator of the estate of Arthur Lehr, deceased, brought the above-entitled action to recover certain personal property formerly belonging to the deceased. There were originally two actions, but they have been consolidated, and only one of them is here considered. The learned court below, after having the witnesses in review and listening to the evidence offered, has reached the conclusion that there was no gift to the defendant Ada A. Jones of a certain policy of insurance for $1000. In this view we concurthe evidence does not disclose an intention on the part of the deceased to part absolutely with the title to the policy, and in the absence of such evidence the courts have repeatedly refused to recognize the validity of gifts inter vivas. (Curry v. Powers, 70 N. Y. 212, 217, and anthority there cited.)

The evidence in support of the alleged gifts causa mortis is not convincing, and the learned court having found in favor of the plaintiff, we are not disposed to interfere-with the judgment entered upon the decision. The burden of proving a gift causa mortis is ever upon the claimant, and the evidence should be clear and convincing in support of the gift. (Tilford v. Bank for Savings, 31 App. Div. 565, 566, and authorities there cited.)

We have examined the exceptions, but do not find reversible error. The defendant was given every reasonable opportunity to establish her right to the property in disputé, and declarations of the deceased in reference to his relations with his family, with a view to showing the probability of his making such gifts to the defendant are clearly of a hearsay nature. But were they competent, we are satisfied that on all of the facts and circumstances the result ought not to have been different if such testimony had been admitted, and it was all the appellant suggests it might have been. This is an equitable action and under the well-settled rule applicable to cases of this character a new trial should not be granted. (Wyse v. Wyse, 155 N. Y. 367, 372.)

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  