Naclerio v. Naclerio

Per Curiam. After trial before the court without a jury, plaintiff, as administratrix of her decedent husband’s estate, appeals from the judgment dismissing her complaint in which she sought to recover certain real property or the proceeds of its sale. Decedent, who had been married to plaintiff in 1923, but from whom he was separated for some years, had transferred the property by deed to his sister, defendant in this action. After transferring title to the property, decedent continued to reside in the premises, a two-family house, collected the rent from the other tenant, and participated to some extent in the maintenance of the building, the extent being the subject of conflicting testimony. The rent-paying tenant was a brother-in-law of decedent. Decedent never paid any rent to defendant. There was testimony that defendant paid decedent $1,500 for the deed; that the premises faced mortgage foreclosure at the time of the transfer; and that defendant, after taking title, arranged for refinancing the property. The issue was whether deceased effected a transfer of his real property to his sister or whether the claimed transfer was in fact illusory and no transfer at all. The only substantial claim of error is the exclusion of testimony concerning a conversation between decedent and a witness, plaintiff’s son-in-law. There is no disagreement that the testimony of the witness, George Russo, would have been admissible if a proper foundation had been laid to establish its relevancy. As probative of whether, in fact, a transfer was made, it might have been admissible; but as probative only of motive and intent in making the transfer it was inadmissible. This is so because if the deceased actually transferred the property his reason for doing so has no effect on the validity of the transfer. However, the proffer was insufficient: it was only vaguely suggested that the witness’ testimony would show an illusory transfer, without specifying what the witness would have in fact testified. This becomes important, because plaintiff was never clear as to precisely the nature of the invalidity attached [333] to the transfer. This is confirmed by plaintiff’s bill of particulars which stated that the transfer was “ without due and fair consideration ” and that the consideration was the sum of $1,000. Consequently, the proffered testimony would not and should not have changed the result. In the view of the case taken in the pleadings and bill of particulars, the transfer was valid regardless of the adequacy of consideration, or even if there had been no consideration at all (Krause v. Krause, 285 N. Y. 27, 31-32). The alternative view of an illusory transfer never took shape in the proof and, as seen, contradicts the bill of particulars. Moreover, such theory of illusory transfer is not consistent with the action having been brought by plaintiff as administratrix of the decedent’s estate. The first specification as to what the witness would have testified is found in the following statement made to the court, after objection to the receipt of testimony from the witness concerning conversations with decedent: “Mr. Rothman: It is not hearsay. It is a conversation between the man who deeded the property and the witness, and I assume it has something to do with whether it is a real transfer or an illusory transfer. ’ ’ (Emphasis supplied.) This offer merely states the purpose of the proffered testimony and not its content. Later, counsel elaborated that the testimony related to “an intent to transfer his property to others so that his wife and his estate could not have the benefit therefrom ”. Of course, such testimony would be insufficient. A man is free to dispose of his property, if in fact he disposes of it, even to deprive his wife and his estate of the expectancy (Newman v. Dore, 275 N. Y. 371, 379; Krause v. Krause, supra). It therefore appears that even under the offer of proof as particularized by counsel, the testimony would not have been pertinent. Accordingly, the judgment dismissing the complaint should be affirmed, with costs to defendant-respondent.