
    In the Matter of the Claim of Mary L. Van Slooten, App’lt, v. Charles H. Wheeler, Ex’r, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Gifts—Decedents’ estates.
    On reference of a claim for a diamond ring, alleged to have been given claimant by testator, the evidence tended to prove that claimant was wearing the ring before testator’s death; that testator declared to witnesses that he had given it to her; that after his death there was a dispute as to its ownership, and, upon demand, she gave it to the executor. Held, that the evidence clearly proved a gift, and the transaction with the executor had no relevancy on the question of title, as the only question was as to the title at the time of testator’s death.
    Appeal from judgment, entered upon order confirming report of referee dismissing plaintiff’s claim, and from order denying motion to set aside the referee’s report.
    Eeference of a disputed claim for a diamond ring. The facts appear fully in the opinion of the referee, as follows ;
    James McKeen, Eeferee.-—This is the second trial in a proceeding growing out of the rejection of a claim made for a ring alleged by the claimant to have been given to her by Harry R Dodge, prior to his death. The claim having been rejected was referred pursuant to the statute. Decision was made by the former referee against the claimant, which decision was reversed at the general term, and a new trial ordered. The present trial has proceeded pari passu with that of another controversy between the same parties. Previously, the cases appear to have been tried together. Here the records have been kept separate, though the witnesses have, many of them, testified in both cases. Some general views expressed by me, in an opinion in the other case, are applicable here, and need not be repeated. It appears that the decision at general term in this case, as in the other, was essentially upon the facts as they appeared in the record of that trial. It appears, also, that some witnesses, then examined, have not been produced before me.
    Mr. Dodge had made his home with the claimant several years prior to his death, which occurred at her house, 52 Sidney Place, Brooklyn, June 3, 1886. It appears, by the testimony of several witnesses, that Mr. Dodge declared he had given this ring to Mrs. Van Slooten, then Mrs. Miner. Sometimes, however, the ring was worn by her, and sometimes b}^ him. It appears that she had continuous possession of it for some weeks preceding Mr. Dodge’s death, during his illness. The fact of possession of the ring by claimant does not prove much, because of the alternate possession by Mr. Dodge and herself. It would also appear that, by reason of Mr. Dodge’s residing at her house, many other of his personal effects were, in a sense, in her possession at the time of his decease. There is no evidence of any specific delivery of the ring in consummation of the alleged gift. The declarations by Mr. Dodge, however, in connection with the claimant’s final possession, would go far to sustain a finding that the title had passed to claimant, and this appears to have been the opinion of the general term upon the record of the evidence carried up on the appeal.
    After, however, listening to the testimony before me, and rereading from the minutes that testimony, together with the documents submitted in evidence, I am persuaded that the ring was not the claimant’s property at the time of Mr. Dodge’s death; and I have no reason to doubt that this belief is a natural and rational result of the evidence. The conduct of the claimant shows that either she never accepted the ring as a gift, or that she had returned it, and that her possession at the time of Mr. Dodge’s death was not that of an owner. Her testimony as to the way in which Mr. Wheeler procured the ring from her is incredible. She attributes to him a course of conduct, deceitful and fraudulent, if not felonious. She says that he merely asked to look at the ring, and when she handed it to him, he went off with it, without a word of explanation. Such a proceeding on Mr. Wheeler’s part is utterly inconsistent with the friendly relations which certainly continued for many months afterwards. Nothing has been advanced, even by way of argument, explaining why Mr. Wheeler should capture the ring in such a manner, and charge himself with it as an item of assets, as an article for which he would be accountable as executor. His version of what occurred, on the other hand, is consistent with the claimant’s own conduct, and is inconsistent with the idea that the ring is her property. He says, in substance, that he told her some members of the family were incensed at her wearing of the ring; that it properly belonged to the estate, and should be given to him to be inventoried; that she, thereupon, took it off her finger and handed it to him.
    Mrs. Van Slooten testifies that afterwards, and on various occasions, she demanded the ring from Mr. Wheeler, and she specifies ás one of the occasions that of the meeting at Mr. Hubbard’s office in July, 1887, when the balance due her on her legacy was paid to her. Mr. Wheeler denies all these alleged demands, and I am persuaded by his testimony, and by that of Mr. Hubbard, and by the omission of Mr. Manning, who was present, to Say anything of it, that such a demand was not made by the claimant on that occasion. Some time after the legacy was paid Mr. Manning had an interview with Mr. Wheeler about the ring, at which Mr. Wheeler declined to give it up; and in September, 1887, Mr. Manning wrote Mr. Wheeler, by the claimant’s authority, asking “ for what amount he would allow her to have Mr. Dodge’s ring.” It was explained that it was thought wiser to attempt to buy the ring than to incur the cost of a litigation ; but I cannot think this course, even with the explanation, consistent with the claim by Mrs. Van Slooten that she was all the while the rightful owner. Mr. Wheeler declined to name a price, for reasons stated by him in a letter written in reply. Nothing more was done until nearly a year later, when Mr. Price, acting for Mr. Manning in the latter’s absence, wrote two letters, one in July and one in September, 1888, the latter being a formal demand for the ring. Between these dates Mr. Price had an interview with the executor, but no steps were taken to present or enforce the claim until after Mrs. Van Slooten had been served with a citation, in 1889, to attend at the judicial settlement of the executor’s account: In September, 1889, the claim was formally presented through her present attorney, which claim was rejected and became the basis of this proceeding. This course of conduct on the part of the claimant dispels the inferences which might have been drawn from the testimony as to Mr. Dodge’s declarations. In accordance with these views, I have ruled upon the requests of the parties, and have prepared a report in favor of the executor.
    
      Merritt M Haviland (M. J. Keogh, of counsel), for app’lt;
    
      Hubbard & Rushmore (Q-. Q. Reynolds, of counsel), for resp’t.
   Barnard, P. J.

There is no dispute as to the facts in this case. Harry E. Dodge, the testator, died on the 3rd of June, 1886. He had lived for some years with the claimant. About two months before his death the deceased had a diamond ring on his finger. This was admired by a lady, Mrs. Chertizza, whereupon he told her “ that is not mine, I have given it to May,” meaning the claimant. Before this occasion the claimant frequently had it on her hand, and for the last two weeks of testaror’s life she wore it steadily and had it in her possession when he uied. About two or three weeks before his death the testator told Miss Halstead he had given the ring to May; and the claimant, who was called May by the testator, had the ring on her hand. Just before testator’s death the claimant mentioned to a Mrs. Leavitt, in testator’s presence, what a nice present she had, putting out her hand and showing 'the ring. The testator assented by an expression of pleasure on his face. This evidence clearly proves a gift. There was proven a delivery of the ring given with an intent to transfer the title to the claimant. ' Once given, there is no pretension that it was given back by the claimant to the deceased in his lifetime, or to his executors acting for the estate since his decease. There was a dispute as to the ownership between the executors, and the claimant gave up the ring to the executor upon a claim made by him for it. Upon the question of title, the transaction between the executor and claimant after the testator’s death has no relevancy or importance. The only question is as to the title to the ring at the death of testator. If it had then belonged to plaintiff, the executor has, under the evidence, acquired no title since from the estate.

The judgment should be reversed and a new trial granted, costs to abide event

Dykman and Pratt, JJ., concur.  