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Marsha, however, asks us to believe that her gravely ill mother
chose personally to write numerous checks of modest amounts to
family members and routine checks to creditors, yet delegated to
Marsha the pleasure of writing checks of large amounts to family
members. In essence, Marsha's testimony did not have "that
reasonableness and probability, in view of all the circumstances,
as would naturally lead to the belief that a gift had been made
and intended." In re Sherman, 125 N.E. 546, 547 (1919); cf.
McKeon v. Van Slyck, 119 N.E. 851, 852 (1918); Glasberg v.
Krauss, 260 N.Y.S.2d 570 (A.D. 1 Dept. 1965); 62 NY Jur. 2d Gifts
sec. 5 (1987) (stating that "courts look with suspicion upon
gifts alleged to have been made by a donor who is dead, and
therefore unable to corroborate or deny the claim"). Therefore,
we conclude that petitioner has not met its burden of
establishing, by clear and convincing evidence, decedent's intent
to make gifts.
B. Marsha's Authority Pursuant to the Power of Attorney
We must next determine whether the power of attorney
authorized Marsha to execute gifts on behalf of decedent. We
turn to the law of New York to analyze the scope of the power of
attorney. Morgan v. Commissioner, 309 U.S. 78, 80 (1940); Estate
of Casey v. Commissioner, 948 F.2d 895 (4th Cir. 1991), revg.
T.C. Memo. 1989-511.
The New York Court of Appeals has not considered whether a
power of attorney may confer the authority to make gifts where
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