
    (84 Hun, 201.)
    BUMP v. PRATT et al.
    (Supreme Court, General Term, Third Department.
    February 12, 1895.)
    1. Witness—Teaks actions with Decedent.
    In an action to recover bonds which defendant claimed were given to her by plaintiff’s intestate, defendant is not, by Code Civ. Proc. § 829, which provides that a party or person in interest shall not testify as to personal communications with a decedent as against the personal representative of decedent, forbidden to testify as to statements made by a third person, since deceased, that plaintiff’s intestate gave the bonds to her, to be by her delivered to defendant.
    2. Gifts Inter Vivos—Delivery to Third Person.
    A delivery to a third person for the donee is sufficient to support a gift
    Herrick, J., dissenting.
    
      Appeal from judgment on report of referee.
    Action by Orlo M. Bump, as administrator of Susan G. Warren, deceased, against Mary Pratt and another, to recover of defendant three debenture bonds issued by the Iowa Loan & Trust Company, which belonged to the intestate in her lifetime, and which defendant Mary Pratt alleges were given to her by decedent. .There was judgment in favor of defendants, and plaintiff appeals. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Calvin S. McChesney (Charles E. Patterson, of counsel), for appellant.
    Davenport & Hollister (N. Davenport, of counsel), for respondents.
   MAYHAM, P. J.

The reception of the evidence of Mary Pratt, one own behalf, the objections of the plaintiff, was not error. The declarations of Miss Cornell, testified to by the defendant, were not against the survivor of Miss Cornell in the sense in which such declarations are prohibited by section 829 of the Code of Civil Procedure, for the reason that the survivor acquired no interest under or through his deceased coadministrator. Nor does defendant derive her title' or interest to the property in controversy from Miss Cornell, to whose declarations she testified. As was said by the learned referee: “The deceased person referred to in section 829 is clearly one over whose property the controversy in issue is made.” The controversy is over the property of the plaintiff’s intestate, and not that of Millicent Cornell, whose declarations were sought to be proved. While the declarations of Miss Cornell, to which the defendant testified, were hearsay, it was not that kind of hearsay as is condemned by the rules of evidence, but comes within one of the well-established exceptions to the general rule which excludes hearsay evidence, and that exception to the general rule seems to have been the ground upon which the learned referee received the evidence. That exception allows proof of the declarations of deceased persons, whether verbal or written, to be received in evidence when the deceased had possession of competent knowledge, and the declarations are against the interest of the person making it.

Greenleaf, in his elementary treatise on Evidence, states the rule as follows:

“This class embraces not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared or at a subsequent day. But, to render them admissible, it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest. When these circumstances concur, the evidence is received, leaving its weight and value to be determined by other conditions.” 1 Greenl. Ev. § 147.

In support of this rule, the author cites numerous cases, English and American. It seems that the evidence offered and received was fortified by all the essential requirements to make it competent within this exception. She was an heir at law of the intestate, and

her declaration tended to diminish her share of her inheritance, and was against her interest. She was possessed of knowledge of all the facts, of the subject upon which she assumed to speak, and at the time her statement was offered in evidence she was deceased. The evidence being therefore competent, it was the duty of the referee to receive'it, and, with the other evidence in-the case, to give it such weight as it deserved.

This brings us to the consideration of the main question in this case,—whether the transaction as proved establishes a gift inter vivos of these bonds to the defendant Mrs. Pratt. The referee finds as facts that the intestate in her lifetime, “in pursuance of her previously declared intention to give property of about the value of these bonds to the defendant Mrs. Pratt, and as she subsequently stated that she had done, delivered the bonds to Miss Cornell, with the instructions to which Mrs. Pratt testified; and that she did it with intent to transfer the bonds to Mrs. Pratt.” These findings of fact seem to be supported by sufficient evidence. Do they establish a valid gift, so as to vest the title in the defendant Pratt? To constitute a valid gift either causa mortis or inter vivos, there must be such an actual or constructive delivery of the possession as to place the subject of the gift beyond the possession and control of the donor, and placed in, the actual possession of the. donee, or of some person for the donee. Assuming, as I think we must, that the referee’s findings of the question of fact upon this point are supported by the evidence, then there was a delivery of these bonds by the intestate in her lifetime to Miss Cornell for the defendant Pratt, with directions that they should at some time thereafter be delivered to the donee. That, we think, within the authorities,- was such a parting with the possession by the donor, and delivery to another for the donee, as to vest the title in the doñee. From that time the defendant had such a title and possession, through Cornell as her trustee or agent, as would have enabled her to maintain an action for their delivery to her in person, or against any other person for their conversion or destruction. The delivery of these bonds by the donor to Cornell, with directions to deliver them to the donee, created such a trust in Cornell as to vest both the title in the donee and the possession in the trustee for the use and benefit of the donee, and was such a parting with the possession and title of the donor by her as to work an absolute change of title, and prevent even the donor from reclaiming the possession without the consent of the cestui que trust or donee.

In Young v. Young, 80 N. Y. 430, the court, by Rapallo, J., in discussing the necessity of delivery to constitute a valid gift, uses this language:

“To establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and title of the donor, must be shown.”

In that case the bonds were not delivered by the donor to a third person for the donee, but were kept among the donor’s papers, in an envelope, indorsed with a statement that the interest was to belong to the donor during his life, and, at his death, they belonged absolutely to the donee; and the court held that there was not such a delivery as to constitute a gift. While the language above quoted from the opinion in Young v. Young, supra, was not perhaps necessary to the decision of that case, and as to that case was obiter, still it is doubtless a correct statement of the law in cases of gifts of personal property. In Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, it was held, to uphold a gift through a trust, there must be an explicit declaration of trust or circumstances which show beyond a reasonable doubt that a trust was intended to be created, and there must be on the part of the donor an intent to give, and a delivery in pursuance of such intent to or for the donor; and such delivery, whether actual or constructive, must be such as will operate to divest the donor of possession and of dominion over the subject of the gift. In such a case, acceptance may be implied when the gift, otherwise complete, is beneficial to the donor. Starting with the assumption of the facts as found, and applying them to the rules of law above adverted to, it would seem to follow that in the cáse at bar there was a valid gift inter vivos of these bonds to the defendant Mrs. Pratt. The intention to make this gift by the donor does not rest entirely in the declaration of the intestate to Miss Cornell, as disclosed by her statement to the defendant Pratt of. the delivery of the bonds to her. The intestate had on numerous occasions signified by her statement a purpose of making a gift to the defendant as a compensation for losses she had indirectly suffered by the failure of a relative to pay defendant’s mother a debt due her. That purpose, as it would seem from the evidence, she put into execution by giving these bonds to the defendant, and delivering them to Miss Cornell for her; and, while the hearsay proof by which this gift is established is not of the most satisfactory character, yet as it was, as we have seen, competent evidence, and was, with other facts before the referee, sufficient to convince him of the factum of the gift, and is in no way contradicted or assailed by counter proof, his determination of that question of fact should not be interfered with on this appeal.

It is urged by the learned counsel for the appellant that some suspicion attaches to the conduct of these defendants in not disclosing to the plaintiff the fact of the defendant’s claimed ownership of these bonds. But it is to be observed that Miss Cornell, the plaintiff’s coadministratrix, failed to claim these bonds for inventory, although it was her sworn duty to do so if the bonds belonged to the estate of the intestate; and as she knew of the existence of these bonds, and that they were in the possession of the defendant Pratt, the presumption that she knew and recognized the validity of the plaintiff’s title and possession would seem to be stronger than any presumption arising from the failure of the defendants to inform the plaintiff of the existence and whereabouts of these bonds. Indeed, if these facts have any significance, they tend to strengthen the theory that both Miss Cornell, the administratrix, and the defendants all knew that the bonds did not belong to the estate of plaintiff’s intestate.

On the whole case, we think the conclusion oí the referee was correct, and that the judgment upon his report should be affirmed. Judgment affirmed, with costs against the administrator as such.

PUTNAM, J., concurs. HERRICK, J., dissents.  