(dissenting). I believe that the evidence is sufficient to sustain the finding of the Surrogate’s Court that deceased made a gift of the funds in the banks to respondent Lo Palo. (Matter of Cummings, 181 App. Div. 286; Ridden v. Thrall, 125 N. Y. 572; Matter of Barefield, 177 id. 387; Matter of Freeman, 160 Misc. 133; Matter of Connors, 246 App. Div. 144; affd., 271 N. Y. 560.)
Decree modified on the law and facts by surcharging the executor’s accounts with the amount of the proceeds of the decedent’s former deposits in Niagara County Savings Bank and in Banca Commerciale Italiana, with interest thereon as earned, and as so modified affirmed, with costs payable out of the estate.