In re Estate of Humphrey

Page, J.:

In so far as the decision of the court relates to the gift of the bonds, I concur in the opinion of Mr. Justice Smith. The allegations of the answer show a present voluntary gift of the bonds; that upon the respondent’s insistence the decedent agreed to receive the interest payable on the bonds from the date of delivery until her death and that the respondent thereafter detached all coupons from said bonds as the same latured from time to time until her death and either delivered he same to the decedent or cashed said coupons himself and aid the amount thereof to the decedent. There is no allegation that these bonds were to revert to the donor in case the respondent should predecease her, nor was there any limitation on his right to dispose of them. The donor parted with all right of dominion or control over the bonds. The agreement of the donee to pay the interest on the bonds to the donor during her lifetime would not invalidate the gift of the bonds under the authorities cited by Mr. Justice Smith.

In my opinion the allegation of the answer concerning the stock is not sufficient to show a valid gift inter vivos. The stock was alleged to have been delivered upon the agreement “ that all dividends thereafter payable on said stock during her life should be paid to her and that in the event that the respondent should predecease said decedent, the said stock should revert to her, and that for this purpose the certificate should not be presented for transfer into the name of respondent during the lifetime of decedent.” (Italics are mine.) Therefore, all that Walter A. Evans secured by the delivery of this stock was the possession thereof. The title still remained in Margaret P. Humphrey. This clearly appears from the fact that the^e was no agreement to retransfer or to bequeath it by will, but that the stock, in the event of Evans’ death before Mrs. Humphrey’s would revert to her. The certificate was to remain in her name, and it was a part of the agreement that all dividends on said stock during her life were to be paid to her. Therefore, Evans merely held the stock during her lifetime with the agreement that he could transfer it to himself after her death. There can be no doubt under these circumstances that Mrs. Humphrey could have at any time revoked the transaction. Until the donor has divested herself absolutely and irrevocably of the title, dominion and control of the subject of the gift she had power to revoke. (Curry v. Powers, 70 N. Y. 212; Lehr v. Jones, 74 App. Div. 54.)

In the present case Mrs. Humphrey reserved to herself title to the stock and the enjoyment of the income derived therefrom during her lifetime. It was only after death that the gift would become effective. This was insufficient to establish a gift. (Young v. Young, 80 N. Y. 422, 435.)

I, therefore, am of opinion that as to the stock the learned surrogate correctly held that the transaction was testamentary and void. As to the bonds, however, for the reasons stated in the opinion of Mr. Justice Smith, the transaction was a gift inter vivos and not testamentary. The decree of the surrogate must, therefore, be reversed and the matter remitted to the Surrogate’s Court, to proceed in accordance with the opinion of this court.

Laughlin and Merrell, JJ., concur.