
    Julia McMahon, as Sole Executrix, etc., of Johanna Cronin, Deceased, Respondent, v. Patrick Cronin, Appellant.
    Third Department,
    March 8, 1911.
    Decedent’s estate — evidence — transactions with, decedent — gift to decedent — statements on making bank deposit— intention — witness.
    Where in an action by an executrix to recover money represented by a certificate of deposit issued to her testatrix, in which action the decedent’s husband, who made the original deposit and who claims the money, has been substituted as deiendant, the plaintiff on the trial testified on her own behalf to transactions between the deceased and the defendant, and the latter thereupon testified concerning the same transactions and told what took place between his wife and himself when the deposit was made, and it appears that the certificate of deposit was taken to the bank each year thereafter and a new one issued, it is error to exclude evidence of what the defendant told the cashier of the bank at the time he made the last deposit. It is also error to exclude the testimony of the defendant as to whether or not he intended to make a gift when he deposited the money in his wife’s name.
    As one of the questions submitted to the jury was whether there was a gift of the money by the defendant to the deceased, his testimony tending to show that while the form -of the deposit had that appearance he had, in fact, no intention of divesting himself of ownership is admissible.
    What defendant said when he made the last deposit as well as what he said when he made the first deposit is competent, for the purpose and intention attending the original transaction followed all subsequent deposits.
    His conversation with the cashier, if it bore on the character of the deposits, was one of the attending circumstances from which the jury could determine whether or not he intended to make a gift.
    -Smith, P. J., dissented, with opinion.
    Appeal "by the defendant, Patrick Cronin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 13th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought by the plaintiff as executrix of the will of Johanna Cronin, deceased, against Quincy W. Wellington and Benjamin W. Wellington, to recover the sum of $764.26, the money represented by a certificate of deposit, dated June 6, 1906, issued by Q.W. Wellington & Co.’s Bank, of Corning, 27. T. The defendant claiming the money, was substituted as defendant, and the money was brought into court.
    Johanna Cronin died September 12, 1906, leaving a will wherein she gave all of her personal property to the plaintiff, her sister, subject to the payment of the income to the defendant during life, and appointed her the executrix.
    It appeared upon the trial that on the 25th day of April, 1900, the defendant deposited $300 in the Q. W. Wellington & Co.’s Bank to the credit of Johanna Cronin, his wife, and received a certificate of deposit for that sum, which recited that Johanna Cronin had deposited $300, payable on return of the certificate properly indorsed; that each year thereafter down to the year 1906 the wife indorsed the certificate taken the year before, and the defendant surrendered it to the bank and took out a new certificate for the amount and the interest and other like deposits, to the credit of his wife, so that the certificate issued on the 6th day of June, 1906, was for the sum of $764.26.
    The defendant testified that each year he took the certificate home and put it in a drawer, of which he had a key, and where he kept all his other papers and accounts, and that it remained there until he took it back at the end of the year to exchange it for another; that when he put the certificate of June 6, 1906, in the drawer he put the key in his pocket, and did not take the certificate out of the drawer until after the death of his wife.
    It also appeared that the defendant had done considerable business at the bank; that he had made several other deposits, and the certificates of deposit had been issued to him in his own name.
    The plaintiff, the executrix and principal legatee, was called as a witness on the trial in her own behalf, and gave evidence concerning a transaction between the deceased and the defendant. The defendant gave evidence in his own behalf, under section 829 of the Code of Civil Procedure, concerning the same transaction testified to by the plaintiff. His narrative of the transaction is substantially that he told his wife that the note was due in Wellington’s bank and he wanted to get it renewed to keep it up to date, and that he did not find the key where lib kept it; that the deceased said: “ If you put it in my name, if you will I will give you the key and you can have that note if you will put it in my name, but I know, she says, the money is yours, she said, and your earnings.” He also testified that she said that she would feel more satisfied and better, and it would make her mind easy if he would put it in her name. “ But I know the money is yours; ” that he said that he knew she was sick, and “ I don’t want your mind to be uneasy, I said, but you know the money is mine; I will fix it that way to please you.” He said that he then went to the drawer and took out the certificate, asked the plaintiff to sign his wife’s name to it, and went up to the bank with it, and that before he surrendered it and received the certificate in question he had a conversation with Mr. Eaton, the cashier. The defendant was then asked, “ What was the conversation ? ” This was objected to by plaintiff’s counsel, excluded by the court, and the defendant excepted. The defendant was also asked, “ When you deposited this money in the bank in your wife’s name and took the certificate home and put it in your drawer where you kept your papers, did yon intend that as a gift to anybody?” This was objected to by the plaintiff and excluded by the court, and an exception ivas taken to the ruling. The court also refused to permit the defendant to testify to the talk had with the people at the bank in April, 1900, when he deposited the $300 to the credit of his wife and received the first certificate of deposit.
    
      Waldo W Willard, for the appellant.
    
      Alexander C. Eustace, for the respondent.
   Sewell, J.:

One of the questions tried and determined by the jury was whether a gift by the defendant to the deceased of the moneys deposited by him was established.

The testimony of the defendant tended to show that while the form of the deposit imputed such an intention, he had in fact no intention of divesting himself of ownership. This evidence was clearly competent upon the question whether the sum deposited became an accomplished gift. In considering this issue of fact, the jury also had the right to know what the defendant said at the time he made the last as well as the first deposit, for the purpose and intention attending the original transaction followed all the subsequent deposits. What the defendant said at the time of making the deposit, if it bore on the character of the deposit made, was one of the attending circumstances by which the jury could determine whether he intended at that time and by the act of deposit to give the money to her. In the case of Mabie v. Bailey (95 N. Y. 206) Judge Andrews, in discussing the question whether surrounding circumstances may not be shown to vary or explain the character of a deposit and the intent with which it was made, said : “ If it was now necessary to decide that point, I should incline to the opinion that the character of such a transaction, as creating a trust, is not conclusively established by the mere fact of the deposit, so as to preclude evidence of co n tern p or an eo u s facts and circumstances constituting res gestee, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership of the fund.”

In Cunningham v. Davenport (147 N. Y. 43) the scope of the decision was that evidence of contemporaneous facts and circumstances is admissible to explain the depositor’s intent, and I have found no decision in conflict with this conclusion.

We also think that the court erred in excluding the testimony of the defendant as to whether he intended to make a gift when he deposited the money in the bank in his wife’s name. We see no reason why he was precluded from testifying to that fact. It cannot be doubted that this testimony bears directly upon this issue in the case. It was an important if not the controlling factor in rebutting the presumption arising from the form of the deposit. If the defendant intended by the act of depositing the money to make a gift it then becomes complete. But if the deposit was to the credit of the wife for reasons connected with taxation, the rules of the bank limiting the amount which any one individual may keep on deposit, or a desire to conceal from others knowledge of his pecuniary condition, the gift was not an accomplished fact. (Beaver v. Beaver, 117 N. Y. 421.) Our conclusion, therefore, is that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., dissenting in memorandum.

Smith, P. J. (dissenting):

I agree if the gift be claimed from the simple fact of the form of the deposit that it would be competent to show what was said at the time that the deposit was made. Inasmuch, however, as the deposit was made in pursuance of an agreement theretofore made xvith his wife to put the certificate in her name, it does not seem to me right that this man after having made that agreement can alter its effect by any declarations made at the time that he made the deposit not in the presence of his wife. Suppose in pursuance of a contract between a man and his wife the man had deposited in her name in the bank $1,000, could he after her death claim that the $1,000 was his because when he deposited the moneys he had told the cashier that the moneys were put in his wife’s name to avoid taxation for instance, or for any other .specific purpose? It seems to me rank hearsay. For whatever purpose he made the agreement to take the certificate in her name he made it for the purpose of getting possession of another certificate which was already in her name, and she had the right to assume when the new certificate was brought back in her name that her title was not impaired by some declaration her husband might have made at the time he deposited the money and took out the certificate not in her presence. I, therefore, dissent.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  