The decree of the surrogate must be modified. The questions referred to above as having been overruled by the surrogate, were competent, and should have been allowed by the surrogate. They did not call for any communication nor transaction between the deceased and her husband. If there was any aspect of the case, in which the answer would be incompetent on that ground, it was the duty of respondent’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 in 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 debt, 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 in his house, and presumptively accessible to him. I think he was entitled to the small note, or its avails. * 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.
*473She 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 representations 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.
Present — Mullet, P. J., Smith and Gilbert, JJ.
Ordered accordingly.
Fulton v. Fulton, 48 Barb., 581; Champney v. Blanchard, 39 N. Y., 111; Allen v. Cowan, 23 id., 502.