
    Margaret B. Coutant, Respondent, v. Jennie Coutant Mason, Appellant.
    First Department,
    February 6, 1914.
    Gift inter vivos — death of donor — evidence insufficent to establish gift to wife.
    Action by a widow to recover household effects alleged to have been given to her by her husband who subsequently died intestate. It appeared that before the husband’s death, when the wife left his home, he told her to take everything which belonged to her and she removed certain articles, making no claim to any other personal property. Evidence examined, and held, insufficient to establish a gift inter vivos.
    
    A gift inter vivos, sought to be established after the alleged donor is dead, must be proven by evidence of the highest probative force.
    Appeal by the defendant, Jennie Coutant Mason, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes, and also an appeal from said order as resettled by a second order entered in said clerk’s office on the 4th day of January, 1913, denying the defendant’s motion for a new trial.
    
      Charles E. Travis, for the appellant.
    
      Henry L. Scheuerman, for the respondent.
   Dowling, J.:

The plaintiff was married at Wilmington, Del., on April 20, 1909, to Charles A. Coutant, and some months after the marriage came to reside permanently with her husband at 728 St. Nicholas avenue in the city of New York, premises which he had occupied for some years with his former wife down to the time of her death, and thereafter with his daughter, the defendant, and her husband. Mr. Coutant also had a son, Charles A. Coutant, Jr., who resided elsewhere. Coutant died June 1, 1910, suddenly and without leaving a will. About July 28, 1910, the plaintiff removed from her late home and the defendant told her to take anything and everything with her that belonged to her. The plaintiff then picked out certain furniture and other objects, comprising some two van loads, and at that time made no claim to any other property in the house. Both plaintiff and defendant now claim the contents of the premises by reason of alleged gifts made to them respectively by the deceased.

A jury has by its verdict found that the plaintiff’s theory of a gift to her by her husband was sustained. This renders it unnecessary to say anything more regarding the defendánt’s contention that a gift had been made to her of the property in controversy other than that such contention is without foundation upon this record. While the plaintiff has produced witnesses who testified to declarations by the deceased that he had given to her all the contents of the house occupied by her and her husband) as well as by the defendant and heir husband, their testimony is not, in our opinion, of the character required to sustain á gift inter vivos. The quality of the testimony required to establish such a gift, and the necessity for the proof thereof being of a clear and conclusive character, have been repeatedly laid down, among other cases in Lucas v. Boss (110 App. Div. 220); Matter of Schroeder, No. 1 (113 id. 204), and Matter of Manhardt (17 id. 1). In this case testimony was given by witnesses most of whom were concededly friends of the plaintiff, and with whom she transacted business in her capacity as buyer for a department store, limited to general statements made by the deceased, varying from a statement that he had made a present of the belongings in that house to his wife, to another that he had given the furniture in the house to her as a wedding present. There was no attempt to specify what property he had actually given to the wife, nor does it appear that" at these conversations, at some of which she herself was present, she had ever said a word to indicate her belief in her ownership of the property. There is testimony that the house at the time of the decedent’s death was in practically the same condition as to furniture as it was at the- time of the death of his first wife, and it fairly appears that little, if any, furniture had been bought by him in anticipation of his second marriage or thereafter. Furthermore, there is not a single act of dominion over this property shown to have been exercised by the plaintiff. There was no change of possession nor does she seem to have done a single thing during her husband’s lifetime to indicate that she was, or believed herself to be, the owner of the personal property in his home. It does not appear that any property was bought in her name, or that any policy of fire insurance was procured, either by him or her, upon the property or any part thereof.

Having in view the rigid rules of proof applicable to cases of an alleged gift inter vivos where the death of the alleged donor makes successful opposition to a claim first asserted after his death very difficult for his heirs, the reason for the rule becomes apparent requiring the establishment of such gift by evidence possessing the highest probative force.

We find no such evidence in this case, and that, taken in conjunction with the absence of any proof of the exercise of dominion over the property by the plaintiff in the decedent’s lifetime, requires the reversal of this judgment.

The judgment and order appealed from will, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  