
    In the Matter of the Judicial Settlement of the Accounts of Brewster J. Allison et al., Ex’rs of George S. Allison.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Gifts.
    During the last four years of his life testator gave to his son Brewster checks to a large amount, the stubs thereof stating that they were “to assist him” and “to help him.” They were given voluntarily and accompanied by a statement that he was welcome to them. Testator was a man of ninety, and could not remember payments, but was never irrational and was able to draw a complicated receipt and attend to business, and shortly before his death attended as a director of a bank. Held, that a ■finding that testator was sane and the checks gifts was correct.
    (Dykman, J., dissents.)
    Appeal from decree of surrogate settling the accounts of executors.
    
      Calvin Frost, for app’lts; Garrett Z. Snider, for B. J. Allison, ex’r, resp’t.
   Barnard, P. J.

George S. Allison died at a very advanced age in 1884, leaving a last will and testament. By this will a large amount of property is specifically disposed of, and there is no general residuary clause. The evidence shows that the deceased gave checks to his son Brewster J. Allison in his lifetime for amounts which aggregate $68,734.34. These checks begin with the date of April 2, 1880, and end June 5, 1884. The testator died in August, 1884. The question is whether the sums represented by these checks were gifts. The testator lived with his son, and at the commencement of the list of checks, etc., was. about ninety years of age. He did his own business until after the date of the last check. He had lived with this son over sixty years. The larger part of the stubs, which are all in testator’s handwriting, state that the checks were given to Brewster J. Allison “to assist him” and “to help him." One states that the check was given to “help him at a birth day party.” These checks, in all amounting to $550, between October, 1880, and April, 1881, are stated to be loans, and one in October, 1883, “ to-B. J. Allison, present, $400.” The principal issues before the surrogate was as to the capacity of the testator between 1880 and the time of his death. The proof failed to show incapacity. There was a loss of memory; he forgot payments. He was garrulous on his services as a soldier in the war of 1812, but in October, 1882, he could write a complicated receipt and on the same day enter the receipt of the money and check, stating-accurately the amount of money and the amount of the check, and whose check it was, on his cash book, all in his own handwriting. He never was irrational. The oral evidence of Brewster J. Allison’s wife supports the gifts. She witnessed the delivery of the checks on repeated occasions. They were voluntary and generally accompanied with a statement that his son was welcome to the checks, and that if he was not he would not have given them to him. That he gave the sums to help his son, and that he wanted him to have the money in his lifetime. He made gifts of checks to his grandson, George S. Allison, to help him build a house, between September, 1883, and April, 1884. In July, 1884, he attended as a director of the Haverstraw Bank, and got credit at the store of W. S. Lane & Co. during the summer of 1884, got the bills, and “ he wanted to look at one and pay it right there.”

The conclusion of the surrogate as to the sanity of testator and as to the gifts of the moneys is fully supported by the evidence, and the decree should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., dissents.  