The decree of the surrogate must be modified/ The questions referred to above as having been overruled by him. The surrogate were competent, and should have been allowed by him. They did not call for any communication or transaction between the deceased and her husband. If there was any aspect of the ease in which the answer would be incompetent on that ground, it was the duty of appellant’s counsel to state it. The questions might be answered without calling out any incompetent evidence.
There was no gift of the larger note, causa mortis, as there was no delivery of the thing claimed to be given. At the time when the pretended gift was made, the note which was the subject of it was in the hands of Hamilton, who held it as the property of the wife, and it was not actually or constructively i% the possession of the appellant. If a gift of “money” would, under any circumstances, convey the note, still there should have been a delivery of something evidencing the gift in order to make it valid; or the appellant must have had the actual possession of the thing intended to be given. This he did not have.
The small note was in his possession; that is, it was in the bureau ir. his house, and presumptively accessible to him. I think he was entitled to the small note, or it's avails. Fulton v. Fulton, *8948 Barb. 581; Champney v. Blanchard, 39 N. Y. 111; Allen v. Cowan, 23 id. 502. The notes were not money, and if the language of the wife is to be strictly construed, the notes did not pass to the plaintiff. Regard must be had to the intention of the donor, rather than to the language in which the gift was made. It does not appear that she had money or property of any kind, except the notes and household furniture. She meant to give something to the plaintiff, and as there was nothing but the notes to give, we must hold that they were what she intended to give. They were but the evidences of a money indebtedness, out of which or by means of which money was to be realized. They were the representatives of money, and a gift of them was, in law, a gift of the money.
The decree must be modified so as to allow the appellant the $100 in addition to the amount awarded by the surrogate, and, as modified, it is affirmed without costs to either party.
Ordered accordingly.