Appellant, Adelaide Clement, has been hospitalized and continuously receiving Medicaid assistance since 1969. Her husband was also receiving Medicaid assistance until his death in July, 1971. At all times when receiving this assistance, they owned a farmhouse and 21 acres of land as tenants by the entirety.. The Monroe *67County Department of Social Services was aware of their ownership of this property when both appellant and her husband applied for and were deemed statutorily eligible for medical assistance. On September 29, 1971, two months after her husband’s death, appellant transferred said property to her son retaining "to herself the life use of the property”. The transfer was duly recorded in the Monroe County Clerk’s office. The county department first learned of the transfer in February, 1974 when appellant applied for recertification.
The sole question on this appeal is whether the county department properly determined that appellant was statutorily ineligible for medical assistance under section 366 of the Social Services Law. In our view the determination was erroneous for several reasons.
First, no evidence supports a finding that appellant has sufficient resources to meet the cost of required medical care. Appellant held only a life estate in the family farm and was otherwise penniless and bedridden at the time respondents denied her recertification application. Although the finding that the farm property no longer constituted an exempt homestead may have been correct (Social Services Law, § 366, subd 2, par [a]; 18 NYCRR 360.23 [b], 360.6 [b], [c]), the fact that appellant no longer owned that asset makes such a finding irrelevant to a determination of her financial need.
Second, the only remaining statutory basis for holding appellant ineligible for medical assistance is that she made a voluntary transfer of property (i.e., the family farm) "for the purpose of qualifying for such assistance” (Social Services Law, § 366, subd 1, par [e]). No evidence, however, supports a finding that appellant transferred the farm to her son for such an improper purpose. The only evidence of her intent introduced at the fair hearing was that she deeded the property to her son in September, 1971, two months after her husband’s death, out of love and affection for the son, who had been living on, and caring for, the property for several years during his parents’ illnesses. The son testified that his parents had orally promised to give the property to him 10 years earlier in exchange for the work which he had done and continued to do since early childhood; he also explained that he needed the property immediately after his father’s death to secure borrowed cash to pay funeral expenses. No evidence was produced showing that the appellant knew, or had been advised, of the eligibility requirements for Medicaid at the time of this *68transfer; the son stated quite plausibly that he knew nothing about the eligibility rules until he took the recertification application to his mother’s attorney two and one half years later. Even the respondents concede that no fraud was involved in the appellant’s actions. To equate this evidence of the appellant’s love for, and indebtedness to, her dutiful son with proof of a purpose to become eligible for Medicaid, as the majority does, ignores not only the established economic facts of the family situation revealed in the record, but also the tried and true impulses of the human heart. In short, the majority’s conclusion that appellant’s purpose was to qualify for Medicaid rests only on surmise but not on fact.
Had the respondents required annual recertification for medical assistance as mandated by the regulations, they would have had the benefit of a statutory presumption that a "transfer of property made within one year of the date of application shall be presumed to have been made for the purpose of qualifying for such assistance” (Social Services Law, § 366, subd 1, par [e]; 18 NYCRR 360.8).
Because the contested transfer here was made two and one half years prior to the recertification application, however, the statutory presumption is inapplicable. Nor does the appellant’s failure to disclose the transfer sooner provide legitimate grounds for denying her medical assistance (cf. Social Services Law, § 366-a, subd 5-a).
Finally, one might readily concur with the majority’s assertion that the public purse does not guarantee an inheritance to heirs of the chronically ill and aged. Indeed, the statute allows recovery of medical assistance from the estate of a decedent who received assistance after age 65 (Social Services Law, § 369, subd 1, par [b]). The government’s rights against the petitioner’s heirs are not involved in the present case, however. The sole issue here is whether the appellant is eligible for medical assistance while alive. In deciding that question the respondents must act in accordance with the Social Services Law and the evidence produced at the hearing. If an applicant satisfies the eligibility requirements, the county department has a statutory duty to furnish medical assistance (Social Services Law, § 365, subd 1; see, also, NY Const, art XVII, § 1; Social Services Law, § 131, subd 1). Thus the majority’s analogy to the Debtor and Creditor Law and transfers in fraud of creditors is wholly inapposite.
In view of appellant’s undisputed financial need, the respon*69dents’ concession that no fraud was involved, and the lack of proof that the property was transferred to the son for the purpose of qualifying for medical assistance, the respondents had no lawful basis for terminating appellant’s assistance.
Marsh, P. J., and Moule, J., concur with Simons, J.; Cardamone and Goldman, JJ., dissent and vote to reverse the judgment and grant the petition in opinion by Cardamone, J.
Judgment affirmed, without costs.