132 Misc. 570 | N.Y. Sur. Ct. | 1928
This was a discovery proceeding in which no answer ■was interposed. The evidence discloses that the respondent received the sum of $120 on account of salary due to the decedent at the time of his death, but that all of this money was used up for necessary and legitimate expenses as to which no question appears to be made. She also had in her possession 100 shares of stock of a mining company which she is willing to turn over to the administrator, provided the latter files a bond in the sum of $500. This, I understand, is satisfactory to the petitioner and an order to that effect may be entered.
The real controversy is over a bank deposit aggregating $5,029.24 in a building loan and savings institution in the names of the decedent and the respondent, his sister, as follows: “Joseph T. Lee or Rose A. Lee.”
The contention by the respondent is that this was a joint account and that the moneys evidenced thereby upon the death of the decedent became her property. She has withdrawn the same and redeposited them in her own name. The statute upon the subject
At the time of the opening of the account the decedent and the respondent signed a statement as follows:
“ Joint Account — It is understood and agreed by the undersigned that the monies paid on this account and its increment are their joint property and may be withdrawn by the subscribers, or by either of them, or in case of death by the survivor,” which appeared on one side of a card and also the following recital upon the other side of such card: tc ,T 1ririo
,T 1ririo New York, 7 /9 1923
“ I hereby acknowledge receipt of a copy of the By-Laws and Rules of the Serial Building Loan and Savings Institution, and assent to same as they now exist and do consent and agree to abide by all amendments legally made thereto.”
The bank book contained the following: “Accounts may be opened in the name of two or more persons. The institution wfll be hable thereon, in the event of death, to the survivor only; while both are living, payment to either shall discharge its liability to both.”
The petitioner claims that testimony given by the respondent to the effect that the decedent told her that he was opening an account for her which she was to get at his death for her acts of kindness and goodness to him during many years, and other similar testimony, negatives the presumption that a joint account with the right of survivorship was intended to be created. I do not agree with that contention. The card signed by both parties distinctly states the contrary, and in my opinion is stronger evidence
The petitioner has failed to establish that the property is part of the decedent’s estate, and the proceeding is, therefore, dismissed in so far as such account is concerned.
Enter order accordingly.