. This action was begun February 15,1894* to recover the value of seven promissory notes and of a roan cow, which the plaintiff alleged that she owned, and alleged that they were converted and taken from her possession by the defendant on the 13th day of February, 1893. The defendant, by his answer, denied that the plaintiff was the owner of the property and alleged title in himself as executor. *550The following is a description of the notes as described in the complaint and by the evidence :
Note No. 3 was payable to the order of Sylvester Bix, but whether the others were payable to order or bearer does not appear.
Sylvester Bix was a bachelor, owning and occupying a farm' of 160 acres in the town of Springwater, N. T. He owned no other realty. In April, 1890, he executed a deed of his farm to Maryette Bix and Clark Bix, who are brother and sister and children of Lewis Bix. This deed he retained in his possession until Saturday,,December 3, 1892, when he delivered it to the grantees therein named. December 4, 1892 (Sunday), he duly executed his last will, by which he bequeathed’ all his personalty to his brother, Lewis Bix, of the town of Canadice, and appointed Artemus L. Hunt his executor. On Tuesday, December 6, 1892, lie- died at the age of eighty-two years, leaving his said brother and William Barber, a son of a deceased sister, his only heirs and next of kin. February 6, 1892, the will was duly admitted to probate and letters testamentary issued thereon" to the- defendant in this action, and, on the 13th of February, 1893, the defendant, with the aid of the appraisers appointed by the Surrogate’s Court, appraised the personalty of the testator. The plaintiff at that time had in her possession the seven notes before described, claiming to own them, but, upon a peremptory demand; handed them to the defendant and they were inventoried, and subsequently the defendant, as executor, collected them in the. due course of administration.
The referee found' that notes Nos. 1, 8, 4 and 5 and the roan cow were given to the plaintiff by Sylvester Bix in May, 1891, and that in October, 1892, he gave her notes Nos. 2, 6 and 7, and that there were due on the notes the amounts alleged in the complaint, except that $30 had: been paid on No. 2 to Sylvester Bix in his lifetime, leaving its value at $87.94, and that the value of the roan cow was *551$30, and directed a judgment in favor of the plaintiff for the value of the notes and of the cow, with interest, amounting to $2,851.85, with costs.
The defendant served and filed exceptions to the report, and after entry of the judgment appealed therefrom, and made a ease which contains all the evidence given on the trial.
The sole question involved in this action is whether the plaintiff established by legal and sufficient evidence that her uncle, Sylvester Rix, gave to her the seven notes and the cow, the value of which this action is brought to recover. It has long been the rule in this State, so often declared that it has become elementary, that whoever claims title to property by gift must establish it by evidence that is clear, convincing, strong and satisfactory. In such cases the law “ does not so' much consider the bearing or hardship of its doctrine upon particular cases, as it does the importance of preventing a general public mischief which may be brought about by means, secret and inaccessible to judicial scrutiny, from the dangerous influences arising from the confidential relation of the parties.” (Story’s Eq. Juris. § 310; Case v. Case, 49 Hun, 83.) The rule in such cases is that the gift must be established by evidence possessing the highest degree of probative force. All the authorities agree in this, though the rule is expressed in various forms. (Scoville v. Post, 3 Edw. Ch. 203; Grey v. Grey, 47 N. Y. 552; Grymes v. Hone, 49 id. 17; Shakespeare v. Markham, 72 id. 400; Lewis v. Merritt, 113 id. 386 ; Ridden v. Thrall, 125 id. 572; Devlin v. Greenwich Savings Bank, Id. 756; fully reported, 35 N. Y. St. Repr. 922; Van Vleet v. McCarn, 18 id. 73; Gaylord v. Gaylord, 7 id. 703 ; Jennings v. Davis, 31 Conn. 138; Pom. Eq. Juris. § 1146.)
In Grymes v. Hone [supra) it was said: “ As there is great danger of fraud in this sort of gift courts cannot be too cautious in requiring clear proof of the transaction. ■ This has been the rule from the early days of the civil law (which required five witnesses to such a gift) down to the present time.”
In May, 1891, Sylvester Rix, the alleged donor, was very ill of pneumonia, at which time he was eighty-one years of age. This sickness was testified to by the plaintiff, by Clark Rix, her brother and principal witness, and by Grace Rix, a niece of the plaintiff, who was sworn in behalf of the plaintiff and testified: “ Am *552"daughter 'of Clark' Eix, and in May, 1891, lived with them (the. plaintiff and her father) at Uncle Sylvester’s when he had an attack of pneumonia. I remember father calling her (plaintiff) early one morning add she went down stairs. Uncle was very sick at that time, but recovered! and lived for more than a. year after .that, and was right around attending to his usual business.” ' .'
The only transaction between the alleged donor and the plaintiff in which anything )vas said or done about .giving her the property in suit occurred diuring this illness. At this alleged interview Sylvester Eix, the plaintiff, and Clark Eix were alone present, and the only evidence describing the transaction was given by Clark Eix, who testified: “ When he (Sylvester Eix) was sick in May he called me early one ¡morning and said, ‘ I want you to call Maryette.’ ■ I called her and We y^ent into his room. ■ He said, £ I want, to talk with you and Maryette with reference to-what I want to give Maryette and you.’ * . * * He said, £ 1 want her to have some notes.’ He said that the roan cow was hers, and that he wanted her to have the Leach note, the two Wetifiore notes and the Allen and Whitlock note. I said to him, £ Uncle, I do not think we can hold that property.’ He said, ‘Tou can because you will have possession of it. I-will ask Hunt when he ¿ornes up.’ Hunt came up that morning and lie and Uncle had a conversation there that morning *’ . * A
“ The conversation about the property that I lay claim to under gift took place at the same time as the conversation in which my sister claims that the notes were given to her. I went up stairs and brought her down ¡to hear that conversation about four or five o’clock in the morning. The- only persons Wdio heard this conversation were my sistefi Mr. Eix and myself. He said he wanted to give her some notes.! He named four different notes and he said also the roan cow. I dill not see the tin trunk that morning, and no notes were present. He didn't hand any: notes to her. He said he Was prostrated and.it might go hard with him. The only conversation 1 ever hecúrd with Mr. Rix about giving away these notes, was atjvoe o'clock m the morning when she was present, and after-wards when Hv/nt was present, and none ■ of the notes on either occasion were present or delivered to her. Uncle got a/round after that” . '! .
This is the only direct evidence given- in behalf of the plaintiff *553tending to show that Sylvester Eix gave the property to the plaintiff, and this evidence falls far short of establishing a gift. The cow was on the farm and remained there afterwards as before. The notes were not present and were not delivered to the plaintiff. Delivery of a subject of a gift is essential to constitute a legal gift. The alleged donor did not surrender possession of the notes or of any of the property, but retained all in his possession as before. It is conceded that thereafter and until his death Sylvester Eix received the intérest, on those notes as before. The plaintiff testified: “ I never claimed that I collected interest on those notes.” The only corroborative evidence tending to support a gift of these notes was given by the widow of Alfred Leach, who testified that in July, 1891, she called on Sylvester Eix to pay the interest on her husband’s note and that he then said that the note was the plaintiff’s; that afterwards Mr. Eix brought the note to her house and that she paid the interest to him, and that in July, 1892, she called to pay the interest then due and “Mr. Eix told Maryette to get the note. We were in the sitting room. Maryette went into the parlor and brought back the note with her. I counted out fifty dollars, handed it to Clark Eix and I asked him to indorse it on the note and he done so. Then I asked him for a receipt and he wrote the receipt, and Mr. (Sylvester) Eix signed it.” Clark Eix testified that Sylvester Eix signed the receipt.
Mr. Whitlock testified that the payments of the note of Allen & Whitlock for $450 made subsequently-to May, 1891, were made to Sylvester Eix, but there is no occasion for calling attention to the fact that after this alleged gift in May, 1891, the plaintiff had no control- over the notes, for she testified that she never claimed to have received anything on them.
Mark Eix, a brother of the-plaintiff, testified that shortly after the death of Sylvester Eix -he asked the plaintiff: “ Have you ever had them notes in your possession and. received interest on them as yours,” and she said she never had. This conversation was at plaintiff’s house the day before the will was proved.
Arnold Kirkendall testified that he was present-at this ■ conversation and that she said that she never had the notes in her possession and never received any interest on them. The same witness testi*554fied on another occasion that the plaintiff said that the notes had-never been “ delivered up. to her or given to her.”
Harriet Briggs, a ¡sister of the plaintiff, testified that she heard the plaintiff say that she'had never had the notes-in her possession or received the interest ¡on them previous to the death of Sylvester Rix.Dr. Hunt, the executor, testified that the plaintiff told him- that her uncle never' delivered the notes to her in his lifetime- and- that the reason- why she ¡did not • collect the interest on the notes was because she' had nothing to do with them except- that she knew where they were. ;■
A further statement' in the testimony is referred to as corroborating' Clark Rix. ' Hei' testified that James Robinson called at • the house about a week before the death of his uncle and asked -to seethe note of liis father,, that his uncle said: “What" notes I’ve got you’ll find ih that box.” The witness then got - out the-box and took the notes from! a yellow envelope, laid them on- the bed and picked out the Robinson note, and that none of the notes' claimed by the plaintiff were ¡among the notes in the envelope. Mr. James Robinson was not called and Clark Rix corroborates himself.
There is not one word of testimony tending to show any'transaction between ■ Sylvester Rix and the plaintiff in which- he- gave to her notes ¡Nos: 2, 6 and Y, ¡amounting to nearly $600. The- only evidence upon which it is pretended to found .a gift of these notes' is that of Clark Rix, who testified that, “In the fall of 1892, he said that he had given my sister some more of those notes. He said that she was ah old woman for one of her age, and she had no home unless he provided for her: There'was nobody to look after-her and he Would provide for her. He said there was no-one-to provide -for-her' and that she would have to be taken care of, for- she had no-home o-f her own. He spoke of this Marvin note; said that there was thirty dollars that Marvin had'paid him that' should be indorsed; that sister' had the note, and that the money had been used in fixing the house.” It is upon such slender evidence that this claim "is sought to be-supported, and by a -witness who characterizes his relation to the-action . and' his interest in the result as follows: “ I- have.a lawsuit pending with the executor of the Sylvester Rix'estate. I have made-a'claim to certain" personal property that was on the'premises at the time of his decease,; claiming that he had given'it to me. I have *555stated to Dr. Hunt that I had been advised by counsel that if Maryette won I could win.”
- After the death of Sylvester Bix these notes were in the possession of the plaintiff until the estate was inventoried, and that is urged as a circumstance tending to show a gift. The plaintiff had been a trusted domestic of her uncle for nine years. She knew where his notes were kept, and from time to time, when he had occasion to use them, he quite naturally sent her for them. He was old and feeble, and she was young and strong, and trusted by her uncle. After the death of the uncle this plaintiff and her brother were in charge of the household and the box where the notes were kept was not locked, and the fact that she had possession of these notes after his death has no probative force. (Conklin v. Conklin, 20 Hun, 278 ; Grey v. Grey, 47 N. Y. 552; Matter of Bolin, 136 id. 177; Kenney v. Public Administrator, 2 Bradf. 319; Brischler v. Van Den Henden, 17 J. & S. 508; Alsop v. Southhold Savings Bank, 50 N. Y. St. Repr. 672.)
It is urged that this plaintiff performed unusual services outside of ordinary household duties for her uncle. The evidence is to the contrary. It is true that she sometimes milked the cows, drove them to and from the pasture; but during the period when she was performing these services Clark Bix was running the farm on shares, and it was for him and not her uncle that these services were rendered. So far as it appears the duty of the plaintiff in the houses hold of her uncle was simply to care, for him and herself. Whether she was paid or not does not appear, but she, at least, was given one-half of his farm, the validity of. which conveyance is not questioned. If it be conceded that every word of the testimony offered in behalf of this plaintiff is true, it fails to establish a cause of action. It is as well settled as anything can he, that a gift made in' anticipation of death, is absolutely revoked by the recovery of the donor from the peril in the presence of which he made the gift. The fact that the gift claimed by the plaintiff was made in apprehension of death is clearly proved by the evidence given in her behalf, and it is also clearly proved by her witnesses that her uncle recovered from that sickness, lived more than a year, and took charge of his business as usual. This was a revocation of the gift. The fact that her uncle supposed that he had some personal property to dispose of, *556and that he made a will two days before his death, bequeathing all of his personalty to his only surviving brother, is some evidence that he believed that he had personalty to bequeath. On looking into the inventory we find that he held notes amounting to more than $3,500, -and Clark Rix testified on the trial that he and this plaintiff claimed all of them as gifts, except about $600, as the result of the transaction of1 May, 1891. ITis claim of course can be sup ported only by the evidence of his sister whose claim he supports m this action. This witness is not a disinterested one, but is as directly interested in the result as though he were testifying in his- own behalf.
• In Matter of Farian v. Wiegel (76 Hun, 462) and in Ridden v. Thrall (125 N. Y. 572, 576) it was held that a'gift, the validity of which depended upon the uncorroborated evidence of the wife of the donee, was not proved by. plain and satisfactory evidence. In the case at bar the gift is supported solely by the evidence of a person who testified that he was directly interested in the result because he-expects' to succeed in his action against the executor by nroving by the plaintiff in this action the transaction of May,, 1891. Many cases might be cited in respect to- the kind of evidence required to support a gift asserted for the first time after the death of the alleged donor, many of which are referred to in Matter of Mcmhardt (17 App. Div. 1), and others will be found in the treatise -upon gifts in the 2d-volume of the last edition of Professor Schouler’s Treatise on the Law of Personal Property,- whose discussion of this subject is the ablest and fullest which I have found.
The referee erred in denying the defendant’s" motion made at the close of the plaintiff’s case that the complaint be dismissed, and the-defendant’s "exceptions to the conclusions of law were well taken. There are exceptions to the admission of evidence given in behalf of the plaintiff which, I think, were well taken, but having reached the conclusion that the evidence fails to establish a cause of action it is unnecessary to consider them.
. The judgment should be reversed and a new trial granted, , with costs, to abide the §vent
Green, J., concurred.
Judgment affirmed, with costs.