First Nat. Bank of Lockhaven v. Fitzpatrick (State Report Title: Matter of Kelsey)

• Decision Date: 04 April 1968
• Citation: 29 A.D.2d 450,289 N.Y.S.2d 314
• Parties: Application of the FIRST NATIONAL BANK OF LOCKHAVEN, Ancillary Administrator CTA of Clarence A. Kelsey, Deceased, Appellant, v. R. Jan FITZPATRICK, Barbara Fitzpatrick, R. Jan Fitzpatrick, Jr., and GuyFitzpatrick, Respondents. To discover certain property which is claimed to be withheld.
• Court: New York Supreme Court — Appellate Division

Page 314

289 N.Y.S.2d 314

29 A.D.2d 450

Application of the FIRST NATIONAL BANK OF LOCKHAVEN Ancillary Administrator CTA of Clarence A. Kelsey Deceased, Appellant, v. R. Jan FITZPATRICK, Barbara Fitzpatrick, R. Jan Fitzpatrick Jr., and GuyFitzpatrick, Respondents To discover certain property which is claimed to be withheld.

Supreme Court, Appellate Division, Fourth Department.

April 4, 1968.

Wightman & Hille, Bath, for appellant (Robert M. Wightman, Bath, of counsel).

Joseph J. Nasser, Corning, Special Guardian for infant respondents.

Before WILLIAMS, P.J., and BASTOW, MARSH, WITMER and HENRY, JJ.

WITMER, Justice.

This appeal accents the adage that 'hard cases make bad law'. The record in this case shows beyond doubt that the testator wished to make a gift to the infant respondents. The facts surrounding the pertinent events are undisputed; but the inferences of fact which may and must be drawn therefrom lead inexorably to the legal conclusion that no gift was made, and require reversal of the decree and judgment entered below.

This is an appeal by the ancillary administrator with the will annexed from the decree and judgment of the Surrogate entered upon the verdict of a jury in the trial of the issue of whether the testator had made a gift Inter vivos or Causa mortis to the infant respondents of $17,000 in cash and a promissory note upon which $5,000 remained unpaid. The jury upheld the alleged gift; and the decree and judgment from which petitioner appeals declare that the infant respondents are the owners of said property.

The testator, Clarence A. Kelsey, resided and died in Pennsylvania, and the property in question was in Pennsylvania at the time of the alleged gift and at the time of his death. On the evening following testator's funeral the property was turned over to the infant respondents by testator's nephew; and they and their parents removed it to a bank in Steuben County, State of New York. Petitioner then secured its appointment in this State for the purpose of instituting this discovery proceeding for the recovery of the property. Since the testator and the property were, prior to his death, at all times in Pennsylvania, Pennsylvania law governs the validity of the alleged gift. (Hutchison v. Ross, 262 N.Y. 381, 187 N.E. 65, 89 A.L.R. 1007; Matter of Bloch, 186 Misc. 705, 54 N.Y.S.2d 57.) Without objection the Surrogate took judicial notice that the law of Pennsylvania respecting gifts is the same as the law of New York. With respect to the facts in this case we find that to be substantially true, and we shall supplement the citations of Pennsylvania opinions with citations of New York cases.

Testator was unmarried, and for many years roomed and boarded with Mr. and Mrs. Ray Moore, the maternal grandparents of the infant respondents, in Flemington, Pa. In 1946 the Moores' daughter, Barbara, married R. Jan Fitzpatrick, and the young couple resided in an apartment in the Moore residence. Later the Moores moved away, but Jan and Barbara remained, and testator continued to live in the house and to board with them. The infant respondent Jan, Jr., was born there in 1947, and testator became very fond of him, and in the 1950's he and Jan, Jr., became great friends, and used to hunt and fish together. In 1953 the Fitzpatricks moved to Pultney, where the infant respondent Guy was born to them the same year. The testator continued to live in Flemington, but the Fitzpatricks visited him often, and he visited them and each Thanksgiving Day and Christmas Day he had dinner with them either at their home or at the home of the Moores.

On Thanksgiving Day in 1961 at the home of the Moores testator became ill. He was then 76 years old. He had a stomach operation on December 26th, when it was learned that he had cancer. He left the hospital on January 15, 1962 to live with his sister, Mrs. Cook, in Lockhaven, Pa. She prepared a makeshift bedroom for him in the dining room of her home. Her son, Bobbie B. Clark, lived nearby. Testator was very ill and weak; and Bobbie got a hospital bed and a wheelchair for his use on his arrival in Lockhaven; and on the first day Bobbie lifted him from the bed to the wheelchair and took him to the bathroom. On the next day Bobbie also got him out of bed, but it was such a strain on testator that the latter said that he would not try it again. He did not get out of the bed again until he was returned to the hospital, unconscious, where he died three days later on March 12, 1962.

On January 17, 1962 when testator's nephew, Bobbie, visited him, the testator asked him to go to his Flemington apartment and bring certain items which testator listed for him. Bobbie went at once with Mr. Moore, the grandfather of the infant-respondents who apparently still owned the premises, and brought the items which were in a metal box to the testator as requested. The testator unlocked the box and checked off the contents. He picked up two paper bags and said to Bobbie, 'If anything happens to me, these should go to the boys'. Bobbie says that he knew whom testator meant, because he had often spoken of them. The testator handed the box back to Bobbie and said, 'Where are we going to keep these?' Bobbie further testified,

'He locked the box again and I had to move his bed away to get to a bureau or buffet that had a drawer across the top and doors on either end and one door locked, and my mother had the key to that. We locked the box up in there and I moved the bed back. It was parallel to the buffet so that he could reach up to the top to get his cigarettes and medicine. There wasn't too much room between the bed and the buffet'.

When the testator locked the box he handed the key to Bobbie. In answer to the question, 'You of your own free will kept them in the china closet?' Bobbie answered, 'We talked it over and decided we would keep it in the china closet with the other keys'.

Bobbie's mother had the key to the locked door of the buffet where the box was placed. She kept that key in a china closet on the other side of the bedroom, three feet from testator's bed. When the buffet was locked and testator's bed was moved back against its doors, the key to it and the testator's keycase containing the key to the box were placed in the china closet. Bobbie's mother knew where the keys were. The buffet was at testator's right as he sat in the bed, and the china closet was to his left.

Bobbie never saw the testator open the buffet or metal box after that. The testator received visitors, including the Fitzpatricks on two or three occasions, but never mentioned the box or contents to Jan, nor to Bobbie.

After testator's death and in the presence of Bobbie's aunt and another uncle Bobbie opened the testator's metal box, and for the first time saw what was in the paper sacks. The box contained a ring, a watch, some government bonds, testator's will, and numerous personal effects, including a candy box containing Indian relics and coins, besides the discharge papers and the two paper bags. Later that day he brought together his mother, aunt and surviving uncle, and also Mr. and Mrs. Fitzpatrick and their two sons, respondents herein, and told them about testator's conversation with him, and he delivered the two paper sacks to the two boys. One bag had written on it 'R. Jan Fitzpatrick, the boy', and it contained $6,000 in cash and a promissory note, payable to the testator in the face amount of $5500 upon which $500 had been credited. The other bag had no writing on it. It contained $11,000 in cash in $1,000 wrappers. At this time the Fitzpatricks had moved to Bath, New York; and the cash and note were placed in a bank at nearby Hammondsport, New York.

Apparently testator never mentioned his proposed gift to anyone but his nephew.

At the close of the evidence upon the trial petitioner moved for a directed verdict; and the motion was denied.

The Court submitted to the jury the questions whether the testator had made a gift Inter vivos or Causa mortis to the infant respondents. He charged that in order for them to find that a gift had been made they must find that the testator Intended to give said property to respondents, that he Delivered it to them in fact or symbolically by delivering the key to a box to or for them intending thereby to give the contents of the box to them; and that the latter must have accepted the gift. He charged that 'only when the donor has lost or surrendered all control of the subject matter, is the delivery complete'. He added that a gift Causa mortis 'is a gift to take effect at the time of the giver's death', and that such a gift requires intent, delivery and acceptance just as in the case of a gift Inter vivos, 'and in addition the donor must have died from the existing ailment or peril without revocation of the gift'. He further charged that the respondents had the burden of proving the gift by a fair preponderance of the credible evidence. No exception was taken to the charge.

Petitioner's attorney requested the Court 'to charge the jury that if the jury finds that Clarence Kelsey delivered this property to Bobbie Cook as his agent to make delivery to these boys that the intended gift was revoked at the death of the donor.' Respondents' attorney replied, 'I have no objection. If they find he delivered it as an agent for the boys, there was a gift'; and the Court so charged.

The burden of proving that a gift was made is upon the one asserting it (Sivak Estate, 409 Pa. 261, 266, 185 A.2d 778; Matter of Kelly, 285 N.Y. 139, 150, 33 N.E.2d 62, 68; Matter of Housman, 224 N.Y. 525, 121 N.E. 357). That proof must be established by 'clear, convincing, and satisfactory' evidence (Rankin v. Kabian, 414 Pa. 554, 557, 201 A.2d 424; Sivak Estate, supra, 409 Pa. p. 265, 185 A.2d 778), but this does not mean that the donee must prove the gift by more than a fair preponderance of the evidence, but that his evidence will be more carefully and critically...