
    J. Allen Andrews, as Executor, etc., of Joseph A. Andrews, Deceased, Appellant, v. Cornelius A. Nichols, Respondent.
    Fourth Department,
    December 28, 1906.
    Gift — evidence sufficient to establish gift by decedent—testimony of wife admissible to show gift to husband — testimony-of physician..
    While evidence of gifts inter vivas or cansa mortis sought to" be established after, the death of the donor is always closely scrutinized by the courts and clear and convincing proof required, yet gifts may be upheld upon the unsupported evidence of a wife, husband or other relative of the donee.
    The fact that the witness testifying to a gift by a decedent is the wife of the donee and may be said to be interested in the result does not render her testimony incompetent.
    So too the testimony of the decedent’s physician is admissible to show the gift. "
    When it appears that the donor was a warm friend of the donee and had often aided him financially and placed many matters of business in his hands and that the donee’s wife had rendered many services for the donor, and the wife testifies without contradiction that the donor made a gift of a certain bond and mortgage to her husband and delivered the same, and there is evidence by the donor’s physician showing that he acknowledged his obligations to the donee and said he would help him, the evidence is sufficient to establish the gift although no written assignment of the mortgage was made. •
    Appeal by the plaintiff, J. Allen. Andrews, as executor, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 12th day of May, 1906, upon the report of a referee.
    This action is brought by the plaintiff as executor of the will of Joseph A. Andrews, deceased, to recover the possession of. a bond and mortgage made and delivered by James Stowe to the plain tiff’s testator in . his lifetime, upon, which there remained unpaid $3,900, with interest thereon from June 1, 1905..
    The referee, as conclusions of law, found that at the time of the commencement of the action the defendant was the owner of the bond and mortgage and entitled to thé possession thereof, and directed judgment for the - defendant, dismissing the complaint, with costs. 1 "
    In support of his conclusions of law the referee, among other things* found the following facts:
    “ That for twenty years or. more preceding the death of the said Joseph A. Andrews, he and the defendant had lived just across -the road from each other ánd liad sustained very intimate-and friendly •feelings towards each other, both in their social and business matters. The decedent loaning money to the defendant, and trusting more.or less of his business to defendant, visiting, almost daily at his house* taking the defendant and his wife on various - excursion's, ■ paying the expenses thereof, and for a year or more just before his death -the decedent had taken his meals at the defendant’s home. That for several years prior to said decedent’s death defendant’s wife assisted the said Andrews in the care of his house and home, his clothes, his bed and bedding, in the same room where he kept his securities in the, drawer of a commode,, attending t.o his washing and helping him in many Ways ;- and that the defendant frequently made computations of payments upon securities held- by the- said Andrews. At the time of decedent’s death one; of his land contracts, known as the ESridge contract, was in defendant’s safé at his house, having been left with him for the purpose of making a computation of the amount due thereon.”
    “ That the proofs do not disclose any considerable indebtedness on the part of . Joseph A. Andrews to the defendant, they having made a settlement of various matters on December 4, 1904; but that no payment of money has been made to the defendant or his wife for the board of the said Joseph A, Andrews* or for the1 taking care of the said Andrews’ house, his washing, sewing and mending by the defendant’s wife.”
    
      “ That the defendant; in this action is a married man, and h^ lived all his life in the Town of'Chili, Monroe County, N. T., is a supervisor of said town, serving his third term, and postmaster since 1887, and carries on a general store at his place of residence in said town.”
    “ That sometime about the middle of October, 1905, the exact date not being proven, the said Joseph A. Andrews at his residencé in said town, gave and delivered the said Stowe bond and mortgage described in the complaint, in this action, to the defendant herein, with the intention on the part of said Joseph A. Andrews, of. transferring the title of said bond and mortgage to the said defendant, and that the said defendant then and there received and accepted the said bond and mortgage as a gift, and that thereby and thereupon the said bond and mortgage became the property of the said defendant, and has since that time been his property and in his possession ; and that at the time of the delivery of the said bond and mortgage to the defendant by the said Andrews, the said Andrews also delivered to the said defendant the search or abstract of title covering the premises described in said mortgage, and the policy of insurance upon the buildings upon the premises covered by said mortgage, and that said search and policy of insurance have since that time been in defendant’s possession.”
    “That at the time of the gift of the said bond and mortgage and the delivery thereof by the said Andrews as aforesaid, the said Joseph A. Andrews-was of sound mind and'memory, and competent in all respects to transact business, and was so competent to transact business up to the day of his death, and that said gift of the said bond and mortgage was made freely and voluntarily by the said Joseph A. Andrews.”
    
      John M. Davy, for the appellant.
    
      John Desmond and Sherman R. Robinson, for the respondent.
   Nash, J.:

The findings of fact and conclusions of law of the referee are challenged by the plaintiff upon the ground that the gift of the mortgage unaccompanied by á written transfer is sought to be established by the uncorroborated testimony of Mrs. Nichols, the wife of the donee, and that there is. absent from the case that clear, strong, satisfactory and convincing evidence which.the law requires to sustain a gift inter vivas.

Mrs. Nichols testified that at some time in the fall of 1905, prior to the, death of decedent, at ah occasion when she was at his home,.he spoke of the Stowe bond and-mortgage, said it was a good investment-and he had made up his mind lie'would give it to Mr. Nichols.

This bond and mortgage were given by Stowe to, the decedent about June 1, 1891. It appears by the testimony of Mr. S’towé that on the 10th of October, 1905, decedent called upon him for the abstract of title which Stowe had retained since giving the mortgage.. It was shortly- after this that Mrs. Nichols fixes the time, when her husband brought to their house the Stow'e bond and mortgage and laid them on the desk. She took the papers and looked them over; the bond, mortgage, insurance policy and abstract of title, anti her husband took them and put them in his safe. The next forenoon she went Over to decedent’s home arid had a talk with him on the subject of the Stowe bond and mortgage.; that is what she says she went over to his -house for. That decedent- said : “ ‘ I have made up my mind what I will do for Mr. Nichols — he has done more for me than any relative I ever had, and. I shall help him,’ and he says, ‘ I gave him the Stowe bond and mortgage; ’ he says, ‘ Did he tell you that I gave it to him?’ I said, ‘ Y.es, he did — Why did you do it ? ’ He says, ‘ Because I wanted him to have it.’ ” - " -

There is-some other evidence having' some bearing upon the question. Dr. -Gandy, decedent’s physician, testified that about a month • before Ms -death decedent was in his -office and, in talking about his property, said that If his relatives knew what he had done in a ’ y business way there Would be a great deal of surprise ,; * * * that his property was Ms own and he would do and should do just as he liked with it.” The decedent had made his will prior to that time; in which he devised his real estate of the value of $15,000 to the plaintiff, his nephew, and bequeathed his personal property, amounting to some $20,000, to plaintiffs sister. -To a neighbor, Mr. Patterson, shortly prior to his death, decedent said, speaking of defendant, “ I have helped Mr. Nichols, and done things for him,”' arid-, “ Mr. Nichols has done things for me and has accommodated me. in a great many Ways, and I shall help him again.”’ ' To another. neighbor, Mr. Miller, decedent said, in a conversation regarding Mr. Nichols’ candidacy for supervisor that year, “I want to see Corneil (Mr. Nichols) elected. * * * I don’t care what I have done for Corneil — he has been a better friend than my relations, * * * he has done more for me than my relations.”

The evidence upon which the referee based his findings of fact was undisputed.

While the evidence to establish contracts, gifts inter vivas or causa, mortis, sought to be enforced after death, is always closely scrutinized by the courts, and clear, convincing and satisfactory proof of the facts is required, gifts may be upheld upon, the unsupported evidence of a wife, husband or other relative of a party ; the fact that the witness by whom it is sought to establish the gift may be said to be interested in the result should not preclude a finding that the gift had been established by the testimony of such a witness. If the question as to the gift was being tried before a jury, the mere fact that the witness proving the gift was the wife of the donee would not permit the court to take the question from the jury; and if the jury under proper instructions believed the wife, and there was nothing which made it manifest that the story of the wife was incredible, the verdict could not be disturbed.” (Van Brunt, P. J., Farian v. Wiegel, 76 Hun, 467.) In Bouton v. Welch (170 N. Y. 554) the report of the referee established the gift of a mortgage to the wife upon the unsupported testimony of the husband to an oral agreement; having been affirmed, the Court of Appeals, in adjudging that the husband was a competent witness, held that the affirmance of the Appellate Division (59 App. Div. 288) was conclusive if no legal error was committed in the reception .or exclusion of evidence. In Westerlo v. De Witt (36 N. Y. 340) the delivery of a certificate of deposit, without indorsement, by a decedent in her last illness, accompanied by words evincing an intention to make a gift, was found by a referee to have been intended as a gift, upon the solitary testimony of the donee. herself (35 Barb. 215). The judgment entered upon the report of the referee having been reversed by the General Term, the Court of Appeals, in reversing the judgment of that court and affirming the decision of the referee, held'that choses in action, such as bonds and mortgages and'promissory notes not indorsed, may well be transferred by delivery only as a donatio causa mortis-. The court held that the question of reviewing the findings, of the referee was before the court in the same manner as an original question that it was before the General Term, and in answering the question stated by the court ' (per Hunt, J.), Are we so certain that the referee was in error upon the facts that we will assume to reverse his judgment,” reversed the judgment of the General Term and affirmed that of the referee.

In the cases to which we are referred, where the evidence has ' been held insufficient, to establish the alleged contract, or gift, upon the uncorroborated testimony of the wife, husband or relative, there-were circumstances of suspicion, or the character of the witness was such as to shake-the confidence of the court in passing upon the facts of the case. (Farian v. Wiegel, 76 Hun, 462 ; Matter of Manhardt, 17 App. Div. 1; Rosseau v. Rouss, 180 N. Y. 116.) In the-Farian case t.lie donee claimed the entire estate of the-donor to the exclusion of. his next of kin; all the testimony tending to support the gift was giv,en by the donee’s wife. . The entire estate consisted of money deposited in six savings .banks. There were,, as. stated in" the opinion, circumstances of great probative force, which .rendered the testimony of the wife improbable. In the Manhardt case the donee did not assert his claim until six; months after the death of the'donor, and after he had been required by the Surrogate’s Cotirt to surrender the securities claimed as a gift, and in the meantime had made admissions inconsistent with his claim, and had exhibited the bond and mortgage in question as a part of the donor’s estate. In the Rosseau case a promise of the ■ decedent to settle $100,000 upon his illegitimate child was supported only by "the . .testimony, of the mother,

We think that in this-case the findings of the referee "should not be- disturbed, and -we are" of the opinion that there was no error committed by the referee in receiving the testimony of Dr. Gandy, or of the" defendant, as a witness, in reply to the testimony of the plaintiff, given in his'own behalf.

The judgment should be affirmed.

All concurred.,

Judgment afiirmed? with costs,  