Ellsworth v. Fong

Decree, Surrogate’s Court, New York County (Renee Roth, S.), entered on or about November 3, 1994, which, after a nonjury trial, determined that the decedent had made a valid inter vivos gift of the subject ring to defendant, and that the bequest to plaintiff adeemed, unanimously affirmed, without costs.

We agree with the Surrogate that the record contains clear and convincing evidence that the decedent intended, by her signed and witnessed instrument, to legally memorialize a gift of the subject ring to defendant, her friend and primary beneficiary, and that there was delivery to and acceptance by him (see, Gruen v Gruen, 68 NY2d 48, 53). If there was a fiduciary relationship between the decedent and defendant, it was only marginally so, and, in any event, like the Surrogate, we find no evidence suggesting that the transaction was not understood by the donor, or that fraud, mistake or undue influence infected the transaction. Concur—Rosenberger, J. P., Asch, Nardelli and Mazzarelli, JJ.