
    
      In re Essex’s Estate. In re Crosby.
    
      (Surrogate's Court, Cattaraugus County.
    
    November 10, 1891.)
    1. Gift Causa Mortis—Delivery—Sufficiency.
    Where a donor during Ms last illness takes a security in his hands, and delivers it to his attendant with specific directions to retain it during his lifetime, it is a sufficient delivery to validate a gift causa mortis, when the intention to make the gift and have the security pass to the donee on his death is established by clear, unequivocal testimony.
    -3. Executor—Liability eor Interest. ■
    An executor is liable for interest on the funds of an estate in his hands when he mingles them with his own, and uses them for his own benefit.
    Proceeding for judicial settlement of the account of Christopher C. Crosby, executor of the will of Walter Essex, deceased.
    
      C. B. Van Aernam, for executor. N. M. Allen, for contestants.
   Spring, S.

The testator held a note of $1,000 against the executor which he liad owned since 1876. The executor claims this note as a gift from Mr. Essex, and asserts his title thereto in the inventory filed, and does not include it among the assets of decedent in his account rendered in this proceeding. Objections are presented to the account by the legatees for this omission, and the validity of the alleged gift is thus brought in controversy. The testator at the time of his death was well along in life, without wife or children, and an intimate friend of the executor,- his alleged donee. His niece, who was the only witness as to the alleged present, ,had been his housekeeper for several years, and evidently was trusted and appreciated by him, for he made her his beneficiary to the amount of $1,000. Mr. Essex was taken with hemorrhage of the lungs in the village of Eranklinville, .was removed to an hotel, and remained there continuously until his death, which occurred in about two months after the first attack. He realized from the first that his recovery was impossible. He-had a farm and three or four thousand dollars in securities. A day or two after his affliction he directed his niece to bring his papers from the farm, which she did, and kept them, including this note, in her possession until after his death. Early in his sickness he requested her to get this note against Crosby, and. when brought to him took it in his hands, and then handed it back to her, telling her he had given, this note to Christopher Crosby; that she was to remember this; that he did not wish his heirs or any one else to know of this gift; that Crosby knew about it, and that she was to take it and keep it, evidently meaning until his death. He reiterated to her a few days before his death the statement of this present, and again enjoined upon her to remember it and also to keep it secret. Two of the essentials necessary to a valid gift of this kind are unmistakably present: (1) That it was given in view of the donor’s death; and (2) that he died of the ailment with which he was afflicted at the time the present was made. Was there a sufficient delivery of the note? In case of gifts causa mortis physical possession- of the property is not necessarily parted with by the donor. The right of revocation inheres in the donor in case of recovery, and that is the characteristic distinguishing gifts of this kind from those inter vivas. Williams v. Guile, 117 N. Y. 343-348, 22 N. E. Rep. 1071. The note in controversy was especially designated by the donor. His intention to make the gift is established by clear, unequivocal testimony, and his direction to his attendant to retain the custody of the note during his lifetime, and his evident care that his executor, the donee, should be assured in its possession upon his death, are amply adequate to make a sufficient delivery, and constitute the custodian of the note his agent to render effectual the donation. Grymes v. Hone, 49 N. Y. 17; Williams v. Guile, 117 N. Y. 343, 22 N. E. Rep. 1071; Hathaway v. Payne, 34 N. Y. 92. . In the first case cited the donor made a written assignment of 20 shares of stock to a granddaughter, and gave the assignment to his wife to give to the donee upon his death. The court, in sustaining this as a valid gift causa mortis, held that the wife was the agent of the donor to effectuate the donation. Testator was desirous that the fact of this gift should not be divulged to his legatees. Evidently he thought to accomplish this by making his donee his executor. He told his housekeeper that Grosbv knew of this gift, and it is fairly inferential that the old gentleman expected in this way to work out the formal delivery of the note without any publicity; that when Crosby obtained the securities he would destroy this note. In no other way can we spell out his extreme caution, and his designation of Crosby as his executor adds significant force to this inference. Crosby, however, received this note subject to the collateral inheritance tax. Chapter 713, Laws 1887, § 1. The executor received the avails of the estate, and commingled them with his own funds, and used them for his personal benefit, and is therefore chargeable with interest, which I have adjusted in the statement of the account embodied in the findings herein.  