
    In the Matter of the Estate of Lyon, Deceased.
    (Surrogate's Court—Westchester County,
    December, 1892.)
    The testatrix died in 1891, leaving a will by which she bequeathed a legacy of §300 to one B., with whom she had hoarded in her lifetime In 1887, B. made three promissory notes of different dates of §100 each, payable to the order of deceased, apparently for the purpose of procuring money upon them, and got deceased to indorse them. As they became due, deceased paid and took them up. Shortly before her death, she told a friend about her papers, and directed her to deliver the same after her death to the execution named in her will. This the friend did, and among those papers were found the notes in question. B. made application for an order directing the executor to pay her said legacy, alleging that the said notes had been given to her by deceased in her lifetime. On the hearing, brought informally before the surrogate, it appeared that deceased boarded with B. after she had paid and taken up the notes as indorsor, and had paid her hoard without any pretense or suggestion that B, was indebted to her; that the will in question was executed while deceased was so boarding, and that she then informed B. that she had canceled said notes, and that she owed her nothing; that deceased would not let B. witness the execution of her will, as she stated that she might by so doing lose her legacy, and she wanted her to have the whole of it, and again reiterated the payment of said notes. Held, that there never was an actual or constructive delivery of said notes ; that as B. did not state that she had ever paid the notes, and as it did not appear that they had ever been canceled, but on the contrary, by express direction of the deceased, had passed into the hands of the executor, they thereby became subsisting liabilities of B. to the deceased.
    
      
      Held, also, that applications of this kind can only be brought on before the surrogate by following the requirements of sections 2717 and 2718 of the Code of Civil Procedure.
    The deceased left a will in and by which, she bequeathed a legacy of $200 to Elizabeth Blakeman, with whom she boarded. She died in 1891. In 1887 Mrs. Blakeman made three promissory notes of different dates, of $100 each, payable to the order of testatrix, apparently for the purpose of procuring money upon them, and got Miss Lyon to indorse them. As they became due the testatrix paid and took them. Shortly before her death she told a Miss Bayles, a friend, about her papers, and directed her to deliver the same after her death to Theodore F. Bayles, her uncle, who was named in her will as an executor. This the friend did, and among those papers were found the three promissory notes. Mrs. Blakeman now makes application for an order directing the executor to pay her said legacy, alleging that said notes had been given to her by the deceased in her lifetime. This is disputed.
    
      L. T. Yale, for the motion.
    
      Wm. F. Purdy, for the executors.
   Coffin, S.

Gifts of chattels personal are the act of transferring the right and the possession of them, whereby one person renounces and another immediately acquires all title and interest therein. A true and proper gift is always accompanied by delivery of possession, and takes effect immediately. It may be regarded as axiomatic, that without delivery of the subject of it there is no gift. Where delivery accompanies the words of gift, the gift is perfect, and no question can arise in regard thereto, but there may be a constructive delivery, determinable by the facts established. Most of the controversies on the subject of gifts have arisen in regard to this last species of delivery, the. facts relating thereto being as various as the cases are in number; but in all of them the underlying question was : Had there been a delivery ? Of course, a so-called gift, without a delivery, actual or constructive, may he revoked. Row, hi this case, no actual delivery of the subject of the gift is pretended, and all, therefore, that remains is to determine whether the facts stated constitute a constructive delivery.

The facts relied upon by the petitioner are briefly these: That deceased boarded with the petitioner, after she had paid and taken up the notes as indorser, and paid her board without any pretense or suggestion that the petitioner was indebted to her ; that the testatrix, while so boarding, executed her will, in and by which she bequeathed to the petitioner the sum of $200 ; that the testatrix told petitioner that she had canceled said notes, and that she owed her nothing; that on the execution of the will it was suggested to the deceased that the petitioner should be one of the witnesses thereto, whereupon the deceased stated that the petitioner was a legatee therein to the extent of $200, and could not properly be a witness, as she might thus lose the legacy, and she wanted her to have the whole of it; that she declared said notes had been paid. And it is further shown that the testatrix, shortly before her death, informed a lady friend about her papers, and requested her, after her death, to deliver them to her uncle, Theodore F. Bayles, who is one of the executors of her will, which she did, and that on examining said papers the three notes were found among them.

On this state of facts, can we say there was a delivery of the notes, actual or constructive % Clearly not the former; and it seems to me equally clear, not the latter. The petitioner does not state that she had ever paid the notes, nor does it appear that they had ever been canceled; but by direction of the deceased they passed into the hands of the executor, and thus they became subsisting liabilities of the petitioner to the testatrix. If the latter really intended to give them, it was a simple matter to have delivered them to the former. If she had intended to cancel them, that was also a simple matter for her to have done. But she did neither, and left them as a part of the assets of her estate.

This matter has come before the court in an informal manner. No petition has been presented or citation issued as provided by sections 2717 and 2718 of the Code, nor answer filed under the provision of subdivision 1 of the latter section; nor has it been proved under subdivision 2 of the latter section, that there is sufficient personal property of the estate to pay said claim as therein provided. The parties simply appeared in court, and the affidavit of the legatee, with other affidavits annexed, were presented, and the executors objected orally that the facts alleged therein did not prove a gift of the notes. Under these circumstances, it is more than doubtful whether the court has obtained any jurisdiction in the premises, but out of deference to the learned counsel engaged, has proceeded to give some consideration to the merits of the ease. I think'the statute was intended to deprive the surrogate of jurisdiction over such a question in a proceeding of this character.

The application must be dismissed, but without prejudice to an action or accounting in behalf of the applicant.  