Enders' Estate, In re

• Decision Date: 13 May 1963
• Citation: 240 N.Y.S.2d 388,39 Misc.2d 207
• Parties: In re ESTATE of Frederick ENDERS. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 388

240 N.Y.S.2d 388

39 Misc.2d 207

In re ESTATE of Frederick ENDERS.

Surrogate's Court, New York County.

May 13, 1963.

Tanzer, Mullaney, Mitherz & Pratt, New York City (Harold Mitherz, New York City, of counsel), for estate of Frederick Enders, deceased.

Forsythe, McGovern & Fetzer, New York City (Carl S. Forsythe and Charles P. Bovone, New York City, of counsel), for Blanche T. Enders, respondent.

Mervin Rosenman, New York City, for Stella Lewis, objectant (David Dretzin, New York City, of counsel).

Henry L. Connors, New York City, for the Committee of Lucy V. Enders.

Anthony J. Travia, New York City, Special Guardian of William E. Krapf, Nicholas H. Krapf, Nancy Krapf, and Gerard Heller (Michael Badamo, of counsel).

Wickes, Riddell, Bloomer, Jacobi & McGuire, New York City, for madeline krapf.

JOSEPH A. COX, Surrogate.

A claim is asserted upon a $25,000 check which the decedent made and delivered to the claimant. The evidence was that the decedent had made gifts to the claimant over a period of years and on each of two occasions, immediately prior to a contemplated journey of the decedent, he delivered a check to the claimant with instructions to cash it only in the event of his death en route. Each of these times the check was delivered back to the decedent upon his return to New York. It is clear that such transactions were in the nature of attempted testamentary dispositions. The check upon which the claim rests was delivered in March 1959 prior to the decedent's departure for Europe. The decedent became ill in Europe and returned to the United States for surgery and medical treatment. He died in January 1960. Thereafter the check was presented to the bank for payment but it was not honored.

The claim is not that the decedent made an effective gift and it is apparent that such a basis for a claim would not exist. (Matter of Goebel, 295 N.Y. 73, 65 N.E.2d 174, 174 A.L.R. 296; Matter of Mead, 90 Misc. 263, 154 N.Y.S. 667, affd. 173 App.Div. 982, 159 N.Y.S. 1128, affd. 221 N.Y. 645, 117 N.E. 1076; Matter of Gibbons' Estate, 234 App.Div. 153, 254 N.Y.S. 566; Matter of Uris' Estate, 188 Misc. 772, 71 N.Y.S.2d 620; Matter of Seyffert's Estate, 20 Misc.2d 799, 192 N.Y.S.2d 148). The claimant concedes that lack of consideration would constitute a defense to the claim but contends that there was consideration in the claimant's forbearance from presenting the check for payment in the decedent's lifetime in reliance upon his promise that the amount of the check would be paid after his death. The only merit to this argument is its ingeniousness. The significant fact is that there was not consideration for the delivery of the check. The decedent's intent was to make a gift, although the claim is not pressed on that theory, and whether or not the decedent's purpose was to make the gift effective only in the event of his death...