160 N.Y.S. 1118 | N.Y. Sur. Ct. | 1916
The petitioner, one of the three administrators of the goods, chattels and crelits of the decedent, instituted this proceeding under sections 2675 and 2676 of the Code of Civil Procedure. He claims that the respondent, who is the widow of the decedent, had a bank-book evidencing deposits in a savings bank which belonged to the estate of the decedent, and which she declines and refuses to surrender to the administrators. The petitioner alleged -that his co-administrators were not inclined to proceed in the matter.
It appears that the account was in the name of the decedent “ in trust for wife- Anna,” the latter' being the respondent.
The petitioner claims that the account was opened in the form indicated at the suggestion of one of the officers of the savings bank upon an occasion when the decedent wished to deposit moneys in another account which he had with the same bank, but in which there had been deposited the full amount - accepted by the bank from one depositor. The officer of the bank was not called.
The petitioner himself to rebut the presumption above stated testified that the decedent, in his presence and in the presence of the respondent, made a statement that an official of the bank had made the suggestion above referred to; and that upon the same occasion the decedent made other declarations negativing the presumption that he intended to create a trust in favor of the wife.
This testimony was objected to by the respondent upon the ground that the witness was the attorney and the grandson of the decedent. The objection on those grounds was overruled and the evidence taken. The testimony was incompetent, however, under the authority of the case of Tierney v. Fitzpatrick (195 N. Y. 433) in which the court speaking of a similar declaration, said: “This declaration was not a statement made
Testimony was also offered to show that subsequently to the deposit moneys were withdrawn from the same and used by the decedent, but, assuming that such withdrawal was made and the moneys used by the decedent for his own purposes, these facts are not evidence that he did not intend to create a trust. (Mabie v. Bailey, 95 N. Y. 206.)
The respondents denied that the statements referred to above and alleged to have been made by the decedent were thus made, and was permitted to testify that a year before his death the decedent had presented her with the bank-book.
Shortly after the death of the decedent, all of the parties interested in fhis estate entered into an agreement, which is in evidence, by which they agreed to a distribution of his estate. The agreement recites that the parties are desirous of adjusting their rights and interests without litigation, controversy or difference of any sort, and no mention is made of the account in question; In the transfer tax proceeding, the petitioner in this matter was also the petitioner, and the respondent, who was produced as a witness in that proceeding, being examined by the petitioner, testified substantially as she did in this proceeding.
The burden of proving that the property in question belonged
Decreed accordingly.