We dissent from so much of the majority determination as reverses the disposition of the Surrogate in regard to the second alleged gift to the decedent’s daughter, Eleanor M. O’Keefe, in the sum of $6,925.
The proceeding involves three alleged gifts, claimed to have been made by the decedent prior to his death. As to one, for $1,000, made to decedent’s son-in-law, there is unanimous concurrence in this bench that the Surrogate’s determination in favor of the gift is supported by the evidence. The other two gifts, found by the Surrogate not to have been made, were to the deceased’s daughter. Both were represented by withdrawals from a savings account, one in the sum of $2,625 dated July 26, 1961, and one in the sum of $6,925 dated August 28, 1961. The account was a joint account with the daughter but concededly the funds were the decedent’s and he retained control of them up to his death. The evidence to support the gifts came from a Mrs. Lynch, a long-time friend of the family. She testified that on numerous occasions the decedent told her that his daughter was about to acquire a house, and that when she did he would supply the down payment and would go to live with her. She did acquire the house, the moneys were used for its purchase, and he did live with her in it, together with her family. Mrs. Lynch’s testimony was clear up to this point but less clear when pressed on the point as to whether decedent, in addition to stating what he intended to do as to giving his daughter the funds, actually had done so. The Surrogate found the testimony deficient in this respect, but as to the first check we agree with the majority’s holding that it suffices.
However, neither Mrs. Lynch nor anyone else testified as to any amounts that the decedent intended to give or did give his daughter. The testimony was always the “ down payment.” Concededly the first sum represented the initial payment made to the seller and the second, made approximately one month later, the balance above the mortgage. If by “ down payment ” the decedent meant the initial payment required on the contract there is no proof whatever that the second withdrawal represented a gift. It is of course difficult to determine what the decedent meant by the use of the term “ down payment ”, and recourse to definition in legal opinions would be of no assistance. His actions at the time, to our minds, are a significant guide. Besides his daughter, decedent had two sons. When he directed his daughter to make the first withdrawal he also directed that $2,000 be paid to each of his sons. This indicates to us that he was desirous of making roughly equivalent gifts to each of his three children. At the time of the second withdrawal, there was no gift to either of the sons. Nothing was proved as having occurred within the month interval between the withdrawals as effecting any estrangement from the sons. Either the decedent abandoned his plan for equal gifts (the natural disposition of a father) or he did not not intend the second withdrawal to be a gift. The latter interpretation of his actions accords exactly with a definition of what he termed the “ down payment ” to be and gives complete effect to Mrs. Lynch’s testimony. Furthermore, as to which of the disparate meanings the deceased intended, the burden of proof was on the person claiming the gift, and no proof whatever was offered on this point.
We therefore conclude that the Surrogate’s determination as to the second alleged gift was correct and would affirm so much of the decree as directs respondent Eleanor M. O’Keefe to turn over this sum to the petitioner.
*871Breitel, J. P., Eager and Staley, JJ., concur in Memorandum; Steuer, J., dissents in opinion, in which Valente, J., concurs.
Decree modified, etc.