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In the Matter of the Application of Israel Barasch, to Compel Delivery of Certain Personal Property by Wilhelmina Barasch, as Administratrix of the Estate of Morris Barasch, Joseph Hamerhan, as Special Guardian for Ralph Barasch, an Infant
Decree of the Surrogate’s Court, Queens County, adjudging the respondents to be the owners of and directing delivery to them of certain life insurance policies and savings bank books, reversed on the law and a new trial granted, with costs to abide the event. The witnesses Wilhelmina and Ralph Barasch were competent to testify as to conversations with the decedent relating to the insurance policies in which the petitioner Israel Barasch was designated as beneficiary. (Ward v. N. T. Life Ins.
Co., 225 N. Y. 314.) Since their testimony was competent against that petitioner, it should' not have been excluded, even though it was not competent against the other petitioners, the beneficiaries of the Totten trusts. (Jermyn v. Searing, 225 N. Y. 525, 542.) Moreover, the testimony of petitioners Karp and Schwartz failed to demonstrate that the decedent had made gifts inter vivos to them of the sums deposited by him in banks in his name as trustee for those petitioners.
The widow was, therefore, entitled to attack the transfers in trust as illusory. (Krause v. Krause, 285 N. Y. 27; Schnahenberg V. Schnahenberg, 262 App. Div. 234, 237.) Hagarty, Acting P. J., Carswell, Johnston, Adel and Lewis, JJ. [See post, p. 905.]