Kennedy's Estate, In re

• Citation: 36 A.D.2d 549,318 N.Y.S.2d 759
• Parties: In the Matter of the ESTATE of Charles E. KENNEDY, Deceased. Edna M. HAYES, as Administratrix of Charles E. Kennedy, Deceased, Appellant, v. Dorothy MAY, Respondent.
• Decision Date: 14 January 1971
• Court: New York Supreme Court Appellate Division

Page 759

318 N.Y.S.2d 759

36 A.D.2d 549

In the Matter of the ESTATE of Charles E. KENNEDY, Deceased.

Edna M. HAYES, as Administratrix of Charles E. Kennedy, Deceased, Appellant, v. Dorothy MAY, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 14, 1971.

Francis J. Heneghan, New York City (John J. Duffy, New York City, of counsel) for appellant.

Miner & Miner, Hudson (Roger J. Miner, Hudson, of counsel) for respondent.

Before HERLIHY, P.J., and REYNOLDS, STALEY, COOKE and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Surrogate's Court of Columbia County, entered November 18, 1970, disapproving the final account of proceedings of the administratrix of the estate of Charles E. Kennedy, deceased, and sustaining objections numbers 1 and 2 to said accounts filed by Dorothy May, a person interested in said estate.

In sustaining the objections to the final account of proceedings filed by Edna M. Hayes, as administratrix of the estate of Charles E. Kennedy, deceased, the court held that certain real property which the administratrix claimed was given to her by decedent prior to his death should be included as an asset of the estate, and that a claim of $500 made by the administratrix against the estate for moneys loaned by her to decedent during his lifetime should be disallowed.

Decedent and Mrs. Hayes were brother and sister. Mrs. Hayes claims title to certain real property in the Town of Hillsdale, Columbia County, as a gift by virtue of a deed dated February 7, 1964, and acknowledged May 26, 1964 purporting to convey the real property by decedent, as grantor, to his sister, as grantee. The deed was shown to Mrs. Hayes on May 26, 1964, and was thereafter placed in a safe deposit box held by decedent and Mrs. Hayes, as joint tenants. The deed which was unrecorded remained in the safe deposit box until after decedent's death when it was removed by Mrs. Hayes, and has since been retained by her, but has never been recorded.

The basic issue is whether there was a sufficient delivery of the deed under the circumstances to constitute a completed gift of the ownership of the real property.

'He who attempts to establish title to property through a gift Inter vivos as against the estate of a decedent takes upon himself a heavy burden, which he must support by evidence of great probative force, which clearly establishes every element of a valid gift.' (Matter of Kaminsky, 17 A.D.2d 690, 691, 230 N.Y.S.2d 954, 956.)

One of the elements of a valid gift is delivery of the property to the donee with an intent of the donor to immediately divest himself of all title and right thereto. The donor must release all control over the property. (Matter of Greene's Estate, 247 App.Div. 540, 288 N.Y.S. 249). Here, decedent continued in possession of the property after placing the deed in the safe deposit box, and he continued to pay taxes, insurance, maintenance and improvements to the property. The continuous joint custody of the deed in the safe deposit box until decedent's death is inconsistent with the claim of a complete delivery, and joint possession in the donor and donee creates no gift. (Young v. Young, 80 N.Y. 422; Matter of Van Alstyne, 207 N.Y. 298, 100 N.E. 802; Matter of Kelsey, 29 A.D.2d 450, 289 N.Y.S.2d 314.)

The determination by the trial court that the real property be included as an asset of the Estate of Charles E. Kennedy, deceased, should be affirmed.

In reference to the claim against the estate for the amount of money borrowed by decedent from the administratrix, such claim must be proved and its validity established as any other claim. (SCPA § 1805.) Since it is claimed that the debt has not been paid, respondent has the burden of proof as to payment. Here, the note dated September 1, 1964 in the sum of $500 made by decedent to Mrs. Hayes, as payee, was received in evidence as well as her cancelled check dated the same date in the same amount payable to decedent. In addition, the cancelled check of decedent dated September 3, 1965 in the sum of $25 payable to Mrs. Hayes as a payment of interest on the note was received in evidence, which payment was noted by decedent on the back of the note. There was substantial documentary evidence of the existence of the loan, and the unpaid debt, and no evidence by respondent to the contrary. The personal claim of the administratrix for money loaned to decedent during his lifetime in the sum of $500 plus interest should be allowed.

Order modified, on the law and the facts, so as to provide for the allowance and inclusion in Schedule D-2 of the account of the personal claim of the administratrix, and, as so modified, affirmed, without costs.

REYNOLDS, STALEY, COOKE and SWEENEY, JJ., concur.

HERLIHY, P.J., concurs in part and dissents in part, in the following memorandum.

I concur in the determination by the majority that the personal claim by the Administratrix for money loaned to the decedent during his lifetime in the sum of $500 plus interest should be allowed.

I disagree with so much of the determination by the majority as affirms the determination of the Surrogate which held that there had been no delivery by the decedent of an otherwise duly executed deed which purports to convey real property from the decedent to the Administratrix,...