(concurring.) The judgment appealed from will have to be reversed for error in the admission of testimony of the defendant concerning a transaction with the plaintiffs’ intestate. The issue in the case was whether the deceased had personally delivered her bank books to the defendant, with the intention of making a gift to the latter of the money in the banks, and whether, thereafter, the donor had recovered possession of any of the books, and revoked the gift of the money, or any part of it. The defendant’s witness Peter Hughes had testified to a transaction of February 12, 1892, between the deceased (Miss Kirk) and the defendant, in which the bank books were given to the latter; but he also testified that one of the books was handed back to Miss Kirk by defendant, who subsequently, after the death of Miss Kirk, took the book from the rooms of deceased. The defendant was then sworn on her own behalf, and was asked how long the three bank books had been in her possession. This was objected to by plaintiffs as within the prohibition of section 829 of the Code, but the objection was overruled, and the plaintiffs excepted. The defendant then answered, “Since the evening of February 12th of this year.” A motion by plaintiffs to strike out the answer, as relating to a transection with a deceased person, was denied, and exception taken. The materiality of this testimony of the defendant was that the personal transaction and communication between deceased and herself, as testified to by Hughes, might be inferred from it; and she thus testified indirectly to both such transaction and communication. “The fact she spoke of was in no just sense independent of, and extrinsic to, the personal transaction and communication, but derived its chief significance from its dependence upon, and intrinsic connection with, both.” Yiall v. Leavens, 39 Hun, 291. The -case cited resembles the present closely, and is an authority di*784rectly in point; for there the witness testified to the possession of a deed, the delivery of which was in question. In Spicer v. Spicer, 54 N. Y. Super. Ct. Rep. 280, a defendant was asked how long a deed alleged to have been obtained from the deceased by fraud and undue influence had been in his possession. The evidence was admitted on the ground that “it may well have been that the deed was not delivered to the witness by the grantor personally.” In the present case the proof of such personal delivery is the basis of the witness’ claim to the possession of the books.
With respect to the merits of the case, it may be said that the decision of the trial judge might have been sustained is part, if not wholly, but for the error pointed out above. If the redelivery of the Bleecker Street Bank pass book could be construed as a rescission of the gift, and its retention by the donor as a revocation, then it should be deemed a rescission or revocation of the gift of the money deposited in that bank, and not of the moneys deposited in the other banks, the books of which were never delivered back to the deceased. But I do not think that the redelivery of the Bleecker Street Bank book affected the gift of the money in that bank, in any particular; for the deceased never drew any of the money, and the book was reluctantly received by her at the urgent solicitation of the donor, and as a provision for possible contingent needs only. Nothing in this transaction, indicates the slightest desire or intention on the part of the deceased to take back what had been so freely given. With respect to the subsequent withdrawal of money from the Emigrant Savings Bank, which Hughes says the defendant told him “she got Mag to draw to send to her sister in Ireland,” that money could only have been drawn on presentation of the book in defendant’s possession, and it was so drawn in defendant’s presence, both parties going to the bank together; and this withdrawal of the sum in question did not affect the ownership of the balance in the bank, the book being still retained by defendant. As to the original gift, all the constituents of the donatio causa mortis are found in the detailed transaction. The illness or ailment of the donor, from which she never recovered before her death, which took place within six weeks; the gift in praesenti of the bank books to the defendant, which is a delivery of the sums credited therein, (Ridden v. Thrall, 125 N. Y. 572, 26 N. E. Rep. 627; Walsh v. Bank, [Com. Pl. N. Y.] 7 N. Y. Supp. 669, and 8 N. Y. Supp. 344; Penfield v. Thayer, 2 E. D. Smith, 305;) the words which accompanied the gift, “There is your fortune for you,” together with the whole conversation,—make out a case beyond even a reasonable doubt. The written paper, which at the time of the gift the deceased caused to be drawn up, and which she signed, “I, Margaret Kirk, if anything happens, I leave all the money I have in the bank to Bridget McCusker,” confirms the gift. The contingency therein expressed referred to her death. She told them that the doctor told her that the sickness would take her off at any time. If she had apprehensions about her brother coming from Ireland, they must have related to his coming after her death, for his coming during her lifetime would not affect defendant’s prospects of getting “her *785share.” Nor does the contingency mentioned in the paper indicate that the gift was not to take effect immediately. The paper tersely expressed what the law7 implied in a gift causa mortis. “Such gifts are inchoate, and not perfected until the death of the donor.” Parker v. Marston, 27 Me. 196, 203. “Such a gift does not become perfect till the death of the donor.” Parish v. Stone, 14 Pick. 198, 203. “A donatio causa mortis does not pass a title immediately, but it is only to take effect on the death of the donor.” Grover v. Grover, 24 Pick. 261, 266. The very terms of the paper signed by the deceased are singularly like the declaration of the donor in Williams v. Guile, 117 N. Y. 343, 348, 22 N. E. Rep. 1071, “if anything happened to him, he should hand it [jthe policy and assignment] to Mrs. Guile,” and upon these words the gift causa mortis was upheld. What Mrs. Kirk understood by the paper is plain enough. The "witness Hughes said to her, “If you want to leave the money, why don’t you go down to the bank, and give it to Bridget,” and she said “that would do just as well,” referring to the paper. This expression, with the delivery of the bank books, indicated that the wdtness understood that the disposition she had made was equivalent to drawing the money out of the bank, and giving it to her niece. What room is there for doubt as to her intention? There was evidence that Mrs. Kirk was entirely solvent at the time of her gift, and retained sufficient property to pay her debts, and the gift cannot be attacked on the ground suggested by appellants, and claimed to be supported by Fox v. Moyer, 54 N. Y. 131. The judgment, however, must be reversed for error in the admission of the testimony of defendant, as above stated.
Judgment reversed, and new trial ordered; costs to abide event.