The essence of a gift, even though it be-in the form of a trust created by the donor, is delivery (Martin v. Funk, 75 N. Y. 134, 137; Brown v. Spohr, 180 id. 201, 209), and that was fulfilled in .-the present instance.
•Eagari, the testator, executed an assignment of the stock certificates in blank.. He attached to them a memorandum, signed and witnessed by him, denoting -the ownership of Mrs, King and his. trusteeship. He delivered the certificates and memorandum to Mrs. King, the donee. There was, therefore, an unqualified delivery to her. - - -
His retention - of the dividends gave him no right to recall the transfer. The transaction is no different than if he had executed and delivered a conveyance of real estate, retairiirig its ’use or income- during his life.. The title would have passed absolutely to the grantee or donee.
*755Mrs.. King handed the papers to her husband for safe-keeping, and he retained them until after the death of the donor and then returned them to his wife.
He is the sole acting executor, and on the judicial settlement the attempt was made to surcharge his account with the amount of this stock. If the stock had been in his possession as executor and he had transferred it to his wife he might have been disqualified from testifying to the transaction by section 829 of the Code, but he. never had possession of the stock as executor. His possession came from his wife and not the testator, and lie is competent to testify.
The criticisms made in the cases upon a' husband testifying to establish title in the wife do not apply here, for the papers themselves indicate Eagan’s intention.
Decree of Surrogate’s Court affirmed, with costs.