In re Cattanach

In a discovery proceeding by the executor to recover certain bonds or their proceeds from decedent’s second wife (the respondent Lillian Cattanach), who claimed that the bonds were given to her by decedent as an inter vivos gift, decedent’s first wife and their daughter appeal from a decree of the Surrogate’s Court, Nassau County, entered January 22, 1964 after a nonjury trial upon the court’s decision and opinion, which adjudged that the said respondent Lillian Cattanach is the owner and entitled to the possession of the bonds, and which dismissed the petition. Decree affirmed, with costs to respondent Lillian Cattanach payable out of the estate. The record presents, primarily, a question of fact as to whether the claimed gift was made. In our opinion, the Surrogate’s determination, namely: that respondent Lillian Cattanach had sustained the burden of proving the essential elements of a gift inter vivos, is supported by adequate proof (cf. Matter of Presender, 285 App. Div. 109, 118). We aré also of the opinion that the examination of said respondent by appellants’ counsel with respect to the sale of some of the bonds by decedent subsequent to the alleged gift opened the door to respondent’s further testimony, on cross-examination by her attorney, that the sale had been made at her request (cf. Matter of Berardini, 238 App. Div. 433, 435, affd. 263 N. Y. 627). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.