232 A.D. 45 | N.Y. App. Div. | 1931
On October 16, 1924, decedent Jane E. Suter changed a balance of $2,142.96 standing as a deposit in her name in the Security Trust Company of Rochester, N. Y., to a deposit in the names of herself and Jane E. Strail, the claimant, the words “either or the survivor may draw” being then stamped at the
Decedent as a joint tenant was seized per my et per tout of the fund after it stood in the names of decedent and claimant; that is, decedent would become the absolute owner of all moneys still on deposit in case she survived claimant, and during the lifetime of both decedent had the right to withdraw any part or the whole of a moiety and dispose of it as she saw fit. (Moskowitz v. Marrow, 251 N. Y. 380, 398; Matter of McKelway, 221 id. 15, 19.)
Two recent cases dealing with joint tenancies are Moskowitz v. Marrow (supra) and Marrow v. Moskowitz (255 N. Y. 219). The first of these cases bears but incidentally upon the case at bar. The opinion in the other case is to the effect that when a joint tenant, during the lifetime of the other tenant, withdraws the whole, or more than a moiety of a sum on joint deposit in a savings bank or trust company, under circumstances such as to create the inference that the withdrawing tenant proceeds under a claim that the original deposit was not one in joint tenancy, such withdrawal will not be effective to any extent against the surviving joint tenant, in a controversy between the surviving tenant and the representatives of the deceased tenant, in the absence of proof to sustain the claim of the withdrawing tenant as to the character of the original deposit. (Moskowitz v. Marrow, supra, 396, 397.) This is upon the theory that such a withdrawal, for such a reason, must fail in toto because it is made under an unsustained attack upon the character of the tenancy when instituted and does not rest upon a valid claim of right.
The decree appealed from should be affirmed, with costs against claimant.
All concur. Present ■— Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Decree affirmed, with costs against appellant.