In the Matter of the Estate of Matthew Cahill, Deceased. Eleanor M. O'Keefe et al., Appellants-Respondents; John A. Cahill, as Administrator of the Estate of Matthew Cahill, Deceased, Respondent-Appellant, 21 A.D.2d 869

Memorandum. Decree of Surrogate’s Court, County of Bronx, entered September 5, 1963, which directed respondents to pay over to petitioner the total sum of $9,550 as an asset of the estate of Matthew Cahill, deceased, and which further held that the sum of $1,000 was a valid gift to respondent Thomas G. O’Keefe, modified on the law and on the facts to the extent of decreeing that the total sum of $9,550 were valid gifts to respondents Eleanor M. O’Keefe and Thomas C. O’Keefe during the lifetime of Matthew Cahill, and as so modified is otherwise affirmed.

Matthew Cahill died intestate May 25, 1962, leaving one daughter, respondent Eleanor M. O’Keefe, and two sons. In 1956, decedent created a joint savings account with his daughter from his own funds. During 1961, the daughter and her husband purchased a home and part of the purchase price for the home was paid by two withdrawals from the joint bank account, one by a cheek in the sum of $2,625 withdrawn on July 26, 1961, and the other by check in the sum of $6,925 withdrawn on August 28, 1961.

About the time of the said withdrawals, an additional sum of $4,000 was withdrawn and given to the two sons of the decedent, or a sum of $2,000 each. Decedent moved into his daughter’s new home and lived with her until his death. After each withdrawal, the savings bank account book was returned to decedent and remained in his possession and under his control. A disinterested witness and lifelong friend of the decedent testified that the decedent told her that he gave his daughter the “ down payment for the house ” and that the house was “ well worth the money.” True, a strict legalistic

interpretation of the term “ down payment ” might limit the term to the sum paid on the execution of the contract of purchase and sale. However, when taken in the context of the witness’ testimony on the trial, the use of the term by the decedent would indicate that he referred to all cash payments made by his daughter and son-in-law in connection with the purchase of the home. When decedent died, the balance in the account was over $6,000, which has been retained by the daughter without protest.

Nor can we accept the view that the decedent, in making the first gifts to his daughter and sons, intended to make them roughly equal beneficiaries of his largesse. Such an intention is at least to some degree belied by his continuance of the bank account jointly with his daughter right up to the time of his death.

We, therefore, conclude that the finding of the Surrogate that respondents have failed to establish bona fide gifts in respect to the two withdrawals used as part of the purchase price of respondent’s home, is against the weight of the evidence and to that extent the decree should be modified (Matter of Jennings, 259 App. Div. 822, affd. 283 N. Y. 677), without costs.